Keehn v Motor Accidents Insurance Board

[1992] TASSC 79

Serial No 27/1992
List “A”

CITATION:              Keehn v Motor Accidents Insurance Board [1992] TASSC 79; A27/1992

PARTIES:  KEEHN, ANDREW JOHN
  v
  MOTOR ACCIDENTS INSURANCE BOARD

TITLE OF COURT:  SUPREME COURT OF TASMANIA

FILE NO/S:  M 342/1991
HEARING DATE:  18 May 1992
JUDGMENT OF:  Cox J

Judgment Number:  A27/1992
Number of paragraphs:                  13

Serial No. 27/1992

List “A”

File No M 342/1991

ANDREW JOHN KEEHN v. MOTOR ACCIDENTS INSURANCE BOARD

REASONS FOR JUDGMENT  COX J.

18 May 1992

Practice – Extension of time – Successive applications – Whether court functus officio – Reasons for delay – Motor Accidents (Liabilities and Compensation) Act 1973, s.16(2).

1. This is an application for an order that the time limited by the Motor Accidents (Liabilities and Compensation) Act 1973, s.16(2) (“the Act”), for the giving by the applicant to the respondent of a notice of intention to make a claim pursuant to that section, be extended until such time as the court or a judge allows.

2. The litigation to date has had a chequered history. The applicant claims to have suffered injury in a motor vehicle accident on 25 February 1987 and is seeking to recover damages against the respondent under the Act, s.16(1). The relevant parts of s.16 are:

   “16–(1) Where it is alleged that some person has, as a person owning or using a motor vehicle, incurred a liability in respect of which he would be entitled to be indemnified by the Board under this Part but –

   (a)     the identity of the motor vehicle cannot be established; or

   (b)     that person has died or cannot, after reasonable inquiry and search, be found,

   the like proceedings may be taken against the Board in respect of that liability, and the like judgment obtained against the Board, as could have been taken or had against that person.

   (2) No action lies against the Board under this section unless notice of intention to make a claim, together with a short statement of the grounds thereof, is given to the Board within the period of 3 months following the occurrence of the accident as a consequence of which the liability in respect of which the action is brought is alleged to have arisen or within such further time as the court may, on application made not later than 9 months after the occurrence of the accident, allow.

   (2a) Notwithstanding subsection (2), an application referred to in that subsection may be made after the expiration of the period of 9 months referred to in that subsection if the court is satisfied that the granting of the application is just and reasonable in the circumstances.”

3. In an affidavit filed on behalf of the applicant it was deposed that the applicant gave to the respondent a notice dated 22 May 1987 of intention to make a claim against it pursuant to that section but that the notice was deficient “in that it recited the incurring of liability, but failed to include any grounds that is that either the identity of the driver of the vehicle or of the vehicle could not be ascertained.” Realising the deficiencies, the applicant applied to the court in October 1987 for an extension of time to issue and serve a notice of intention to make a claim upon the respondent pursuant to s.16. On or about 10 December 1987, the Master made an order extending the time by fourteen days therefrom.

4. On 16 December 1987, the applicant served a notice on the respondent. It was addressed to “The Nominal Defendant C– The Motor Accidents Insurance Board, P.O. Box 590, Launceston, 7250.” It was headed “Notice of Intention to Make a Claim Pursuant to Section 16(1) of the Motor Accidents (Liabilities and Compensation) Act 1973 as Amended” but gave notice of intention to make a claim against the “Nominal Defendant” pursuant to s.16, rather than against the respondent Board. In all other respects the notice, on the face of it, appears to be an appropriate one and to specify the necessary grounds. The Nominal Defendant had been the appropriate person to sue in these circumstances under previous legislation. Addressing the notice to the Nominal Defendant was an error on the part of the appellant‘s then solicitor. The respondent acknowledged in an affidavit of its solicitor, that “a notice purporting to be a notice pursuant to s.16 of (the Act) was forwarded to the Motor Accidents Insurance Board on 16 December 1987.” I find that the respondent received that notice within the time allowed by the Master.

5. Thereafter a writ was issued, statement of claim delivered and a defence served. That document dated 29 April 1988 pleaded in para.10:

   “Further, the defendant says that by virtue of the provisions of s.16 of the Motor Accidents (Liabilities and Compensation) Act 1973 the claim the plaintiff purports to make against the defendant is statute barred as a result of the plaintiff’s failure to provide the defendant with notice of intention to make a claim, together with a short statement of the grounds thereof, within three months following the occurrence of the accident alleged to have occurred.”

   The next step taken by the applicant‘s solicitor was to write to the respondent’s solicitor in March 1991 asking upon what basis that allegation had been made. The respondent‘s solicitor, by letter dated 8 April 1991, declined to elaborate. In August 1991, the applicant’s solicitor consulted counsel who advised that the notice of 16 December 1987 might not be sufficient and that the present application should be made. It had not earlier been made because the applicant‘s solicitor considered it as a sufficient notice. The application was filed in the court on 4 October 1991.

6. Counsel for the applicant argued that the application should be granted, notwithstanding that more than nine months had elapsed since the accident because in the circumstances it was just and reasonable to do so in order to correct what was no more than a technical deficiency. He submitted that there could be no prejudice to the respondent Board which had been alerted to the claim and aware of the contents of the notice since December 1987. Furthermore, he submitted that a satisfactory explanation for the delay in making the application had been given.

7. Counsel for the respondent submitted first that as the applicant had already had one extension of time, the issue had been determined and that it was not possible for the court to grant another such application. I do not think there is substance in this argument. Had the application of October 1987 been refused, then there would have been a strong case for saying that the issue of whether or not any extension of time at all should have been given would have been determined and could not be re–litigated. (Fish v. Anderson (1915) 19 C.L.R. 518 and Hall v. Nominal Defendant (1966) 117 C.L.R. 423, per Barwick C.J. at p.430, but see the view of Taylor J. at pp.440–441 with which Owen J. concurred (at p.447)). But in the event it was not refused and all that was decided was that it was just and reasonable that the applicant should then have an extension of fourteen days to give the notice. That is a different issue to what is now before the court. The applicant seeks additional time because of new circumstances. There is no prohibition in the section against successive applications and the court is empowered to extend the time in which to give the notice even when more than nine months have elapsed if it considers it just and reasonable in the circumstances to do so. The point was considered (in relation to the Traffic Act 1925, s.65A) by Burbury C.J. in Kranendonk v. The Nominal Defendant, unreported 451973. He ruled that the court was not functus officio and had power to entertain successive claims to extend time. He drew attention to the Acts Interpretation Act 1931, s.20, and found nothing in the statutory context of the Traffic Act, s.65A to exclude its application.

8. If the words of the statute, expressly or by implication, restricted recourse to the court to a single application, that would be a different matter (cf. L. v. L. [1961] 3 All E.R. 834, where in respect of a right to reply for permanent maintenance in divorce proceedings “on pronouncing the decree or at any time thereafter” it was held that in the whole statutory context and in the light of the legislative history of the provision, only one application was contemplated by the legislature). However, in my view, if, after the first application has been granted, circumstances arise which make it just and reasonable to allow further time to give the requisite notice, there is nothing in the statute which prevents a further application from being made and granted.

9. Counsel for the respondent acknowledged that there had been no specific prejudice to his client, but that it had pleaded the inadequacy of the notice as long ago as April 1988 and had thereafter relied upon it. It was therefore, in a general sense, prejudiced by the further delay. The respondent was fully apprised of the nature of the applicant’s claim and cannot have been under any illusion that he was not looking for damages from the respondent pursuant to the Act, s.16. If the notice is inadequate to found the action as contended in the defence, it can, I think, be fairly described as a technical error and it would be unjust and unreasonable to deny the applicant the remedy contemplated by s.16 for that reason alone.

10.  There has been considerable delay in the making of this application. The explanation offered for the delay between the delivery of the defence in April 1988 and the filing of it in October 1991, several weeks after the consultation with counsel in August 1991, was that the solicitor throughout that time having carriage of the matter was of the view that the notice was not defective. Certainly the point is arguable, although the applicant‘s advisers, out of caution, seek the present order to avoid the consequences should that view be held wrong. Again I think it can fairly be said that it would not be just and reasonable to deny the applicant the opportunity to put his house in order merely because his solicitor, for a lengthy period, may have thought the point unarguably correct. (I should not be taken as suggesting that obtaining the present extension and giving an appropriate notice will necessarily put the applicant’s house in order. It may be that fresh proceedings will have to be commenced and that an application under the Limitation Act 1974, may be required, but the questions, whether that is so, and whether if it is so that is a relevant factor for me to take into account, have not been argued. I draw the parties‘ attention to Vines v. Djordjevich (1955) 91 C.L.R. 512, Hall v. Nominal Defendant (supra) and Hall v. National and General Insurance Co. Ltd. [1967] V.R. 355).

11.  There is nothing to suggest that the applicant was personally to blame for the delay. If some criticism of his solicitor for taking and maintaining the view that was taken is warranted, the solicitor’s stance, as distinct from that of the client, is, as Wright J. said in Motor Accidents Insurance Board v. Lee, Unreported, No.671989, a significant factor. His Honour went on to say in that case:

“In all the circumstances I think that the respondent gave a satisfactory explanation for the delay in the present case by showing that in large measure it was attributable to the conduct of his legal advisers. A satisfactory explanation is not necessarily one which provides justification for the delay which happened.”

Neasey and Nettlefold JJ. concurred with the reasons advanced by Wright J. I think a similar comment is appropriate in the present case.

12.  The third basis for opposition to the application is that there is no evidence before me that the applicant has a prima facie case against the respondent. The affidavits did not address this aspect but in one affidavit filed on behalf of the applicant, the deponent said, “I refer to the application and orders in this court‘s file No.M44087.” This is a reference to the first application to the Master in respect of which it is reasonable to infer that he was satisfied that there was a prima facie case. The present application was apparently made on the assumption that this was not a live issue requiring proof before me and after counsel for the respondent raised the point, counsel for the applicant, in reply, foreshadowed an application to call such evidence if the material placed before the Master on the earlier application was not properly before me. Having heard the parties again I considered this was clearly a case where in all the circumstances I should give the applicant leave to re–open his case so as to formally place that material before me and a further affidavit filed to attend the first application was read without objection. Suffice it to say that it provided ample evidence of the existence, prima facie, of an arguable case that the other driver involved in the accident was negligent and that the respondent is obliged by the Act to indemnify him.

13.  Having regard to all the circumstances I am satisfied that it is just and reasonable to grant the application and I allow the applicant a further fourteen days to give notice of intention to make a claim, together with a short statement of the grounds thereof to the respondent Board.