Kuc (Sutton) v Driver

[1991] TASSC 175

Serial No B61/1991
List “B”

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Kuc (Sutton) v Driver [1991] TASSC 175; B61/1991

PARTIES:  KUC (SUTTON)
  v
  DRIVER

FILE NO:  1206/1988
DELIVERED ON:  15 October 1991
JUDGMENT OF:  Wright J

Judgment Number:  B61/1991
Number of paragraphs:  5

Serial No B61/1991
File No 1206/1988

KUC (SUTTON) v DRIVER

REASONS FOR JUDGMENT  WRIGHT J

(Given Orally)  15 October 1991

1. I should commence by saying that whilst I have not been called upon to consider an extension of time under s5 of the Limitation Act 1974, and recognizing, as put to me by Mr Pickard, that upon such an application as that, the question of delay has a different focus from that required in the present case, it seems to me plain that if the present application were to be refused, Mrs Sutton would at least have reasonable prospects of success on a s5 application. I mention this because it seems to me that for this reason, this is a stronger case than was before the Court in Irving v Carbines [1982] VR 861 to which Mr Pickard referred. In that case a refusal to extend the time for making application to renew the writ or a refusal to renew the writ itself, would have provided the defendant with an unqualified right to successfully plead the Statute of Limitations and thus defeat the plaintiff's claim entirely if a fresh writ had been issued and served. In such circumstances as those the courts have always been loath to subvert a vested right of this kind by renewing the original writ. Nonetheless, although distinguishable in that way, Irving v Carbines (supra) is a useful authority with clear relevance to the issues which have been debated before me today. I should say at once that I prefer it to the English decisions referred to by Mr Pickard. That case, I think, serves to re–emphasise that which was so plainly emphasised by the House of Lords in Evans v Bartlam [1937] AC 473, namely that a court cannot be bound by a previous decision to exercise its discretion in a particular way, nor can it be fettered by judicially formulated rules which are not expressed in the relevant statute or rules of court which are being applied. It seems to me that as with most provisions which empower a court to extend the time limit for taking a particular course of action, O8, r1 of the Rules of Court envisages that the requirement to show reasonable efforts to serve the writ or "other good reason for the renewal sought" empowers and obliges the court to consider the justice and reasonableness of the proposed course as between the parties. This in turn, I would see, as not very different from the matters and issues which a court must consider in dealing with an application to extend time under the Limitation Act or s9 of the Workers Compensation Act 1927.

1. The applicant plaintiff clearly has a strong prima facie case of negligence against Mr Driver. She acted expeditiously to pursue her claim and was let down by the negligent performance of his duties of her solicitor. The MAIB was notified that Mrs Sutton claimed to have sustained a whiplash injury about three weeks after the accident. She notified them of the name and number of the investigating police officer, the name and address of Mr Driver as then known to her, and the fact that she held the opinion that he was wholly responsible for the accident. Bearing in mind the statutory role and function of the MAIB as compulsory third party insurers in respect of injuries sustained in motor vehicle accidents in this State, the Board was certainly provided with all relevant material to enable it to make expeditious and fruitful enquiries from that time onwards, if it saw fit. There is accordingly, little, if any, reason to suppose that the delay in issuing or effecting service of the writ has caused any specific or unidentifiable prejudice to the Board, over and above that which of necessity may attend protracted delay. The delay has of course been considerable, but in my opinion full responsibility for the delay must rest with Mr Theissen up until July of this year when Mrs Sutton consulted other solicitors. The delay since July has not been significant in my opinion, even though it has not really been explained by the applicant.

1. As I said in giving judgment with the concurrence of Nettlefold and Neasey JJ in MAIB v Duc Thang Lee 67/1989 at p3:

"In Sophron v The Nominal Defendant (1957) 96 CLR 469 at p474 and Hall v The Nominal Defendant (1966) 117 CLR 423 (per Barwick CJ), it has been made clear that delay resulting from negligent or inadequate legal advice, whilst not of itself entitling the applicant to relief, is a significant factor to be taken into account. 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."

1. Whether or not Mrs Sutton may have a claim in negligence against her solicitor, if relevant, is of little, if any, weight. For that proposition I refer to Soper v Matsukawa [1982] VR 948 (another case referred to by Mr Pickard) at p951, where the principle was discussed by Young CJ, and at p954 where Lush J had something to say about the matter.

1. I have not dealt seriatim with all of the matters raised by counsel, but having listened with particular care to those arguments so ably advanced by Mr Pickard this morning, I have nonetheless come to the firm conclusion that in the circumstances of this matter, justice does require that I grant the application, both to extend the time for applying to renew the writ and to renew the writ itself. Consequently I propose to make orders in accordance with pars1 and 2 of the application dated 1 October 1991. The writ of summons dated 21 October 1988 will be renewed for a period of six months as from today. It seems to me that unless there are submissions to the contrary, the applicant must pay the respondent's costs and there should be a certificate for counsel.