Lawlor v State of SA & Kitto No. Dccic-01-820

[2003] SADC 79

LAWLOR v STATE OF SOUTH AUSTRALIA
AND KITTO
[2003] SADC 79

Judge Bishop

Criminal Injuries

In this action, Frank Lawlor (“the plaintiff”) claims an award of compensation in the amount of $6,500 pursuant to the provisions of the Criminal Injuries Compensation Act, 1978 (“the Act”) in respect of an alleged incident which occurred on 4 January 1998 when he was assaulted by Fay Annette Kitto (“the second defendant”), suffered minor physical injuries, later became depressed and was referred for psychiatric treatment. The application for compensation was not made to the court until 13 November 2001, that is three years ten months and nine days after the alleged incident.

Section 7(1) of the Act provides that such an application may be made “within three years” of the day on which the offence was committed.  However, section 7(4)(a) provides that the court may, “for any reason it considers sufficient”, dispense with the requirement that an application be made within a period fixed by that section.  The plaintiff seeks dispensation from the statutory time requirements so as to permit him to pursue this action which was commenced ten months and ten days after the three year period fixed for making the application.  His application for extension of time is opposed by the second defendant, the State of South Australia (“the defendant”) not seeking to be heard on that issue.

From the submissions which were presented on 20 May 2003, upon that threshold issue, it emerged that, before the application was made on 13 November 2001, extensive negotiations had taken place between the plaintiff’s then solicitors and a solicitor for the defendant.  In consequence of those negotiations (during which there was a change of solicitors instructed for the plaintiff), an offer of the defendant in settlement of the claim was accepted by the plaintiff.  Unfortunately, when the application was made to the court the time limitation had long since expired.  For that delay, there was no suggestion that the plaintiff was personally responsible.  Responsibility for the delay, it would seem, reposed solely with his solicitors.

From the submissions presented, it also emerged that the second defendant was not served with the plaintiff’s summons and statement of claim herein until late December 2001 or early January 2002; and that she entered an appearance and filed a defence on 14 January 2002, in which defence the time limitation point was pleaded and also that the second defendant “has been prejudiced in her defence of the action due to the delay in the plaintiff commencing the proceedings”.

For the second defendant, Mr Mitchell correctly conceded that a delay attributable to an applicant’s solicitors (and not to the applicant personally) “should not usually operate against the applicant” (see Dolling v State of South Australia (1985) 123 LSJS 342; and cf. also Smith v State of South Australia (1988) 142 LSJS 44). As Bray CJ said for the Full Court in Ulowski v Miller [1968] SASR 277, at 282‑283,

“there may be a distinction between delay for which the plaintiff is personally responsible and delay for which his solicitors alone are responsible.  The former will operate more severely against him than the latter when the question of his hardship is being considered.  See Allen v. Sir Alfred McAlpine & Sons Ltd (1968) 1 ALL ER 543, per Diplock L.J., at pp 555-556; per Salmon L.J., at p. 561.”

However, as Mr Mitchell pointed out, the second defendant had never previously been informed of the claim or the negotiations which had taken place.  In his cogent submission:

“it is simply not possible to achieve a settlement without getting a court order, and one never knows what the second defendant is going to do.  The sooner the second defendant is served, the sooner you know whether they wish to participate in a matter or not.”

Mr Mitchell submitted that, because of the inordinate delay which occurred in this application being made, the second defendant has suffered, and will continue to suffer, considerable prejudice in her defence of the claim.  That prejudice, he contended, is two-fold:  first, in relation to the ability of witnesses now to remember and accurately recall details of an alleged event which took place about five and a half years ago; and, secondly, in relation to the second defendant’s ability now to obtain medical evidence in response to that indicated in the psychiatric report obtained for the plaintiff from Dr Marty Ewer on 11 January 2000, but not received by the second defendant’s solicitor until two years later on 21 January 2002.

In relation to the first contended matter of prejudice, Mr Mitchell indicated that there was an eye‑witness to the alleged event (other than the plaintiff and the second defendant) whom he will be calling, if necessary.  While I accept that the memory of witnesses is liable to fade with the years and that delay will affect the ability of witnesses accurately to recall events, such problems frequently occur and are not unusual.  The Act specifically provides that proceedings may be instituted within three years.  In relation to his second contention, Mr Mitchell submitted that there is no medical evidence subsequent to January 2000 to assist in determining whether the plaintiff’s mental health has improved.

On my enquiry of counsel, it emerged that, upon Mr Mitchell having raised the matter with the Crown during 2002, the Crown indicated that it was prepared to fund an independent psychiatric examination of the plaintiff (for which purpose an appointment was made with Dr Andris Kalnins for 16 October 2002) but that, by letter of 10 September 2002, the Crown withdrew that offer, the appointment was cancelled and the solicitors for both the plaintiff and the second defendant were accordingly advised.  Mr Mitchell informed me that a decision was then made not to pursue the matter because of funding “and also usefulness of such a report so late” (T25-26).  In my experience, “follow-up” psychiatric reports obtained close to the time of trial can be most helpful, particularly in relation to potential resolution of depression and other mental deficits.

Clearly there is a discretion in the court to dispense with the statutory time requirements.  That discretion, in my view, “ought not to be fettered by any absolute or inflexible rules”, adopting those words of Bray C.J. in Ulowski’s case (supra, at 280).  It is for the court to decide, in the exercise of its judicial discretion  in the best interest of justice, whether the order sought should be made, bearing in mind the “five paramount matters” which Bray C.J. there referred to, namely,

“the length of the delay, the explanation for the delay, the hardship to the plaintiff if the action is dismissed and the cause of action left statute-barred, the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay, and the conduct of the defendant in the litigation.”

In that consideration, both explanation for delay and possible prejudice to a fair trial are highly important, but neither is indispensable for the making of any particular order (see Bray C.J., supra, at 282).

In this case, the delay was inordinately long and, in my view, no reasonable excuse for it was shown.  There was nothing in the material before me to implicate the plaintiff personally in the blame for any of that delay.  If the application were not granted, the plaintiff will suffer the hardship of losing his cause of action, a hardship for which he would not in any way be personally to blame.  There was no positive evidence of any prejudice to the second defendant if the application were to be granted.  While there may be cases in which the recollection of witnesses concerning events which happened long ago would be adversely affected by a delay, as Bray C.J. observed in Ulowski’s case (supra, at 284), “unless one knows what witnesses are or were available and whether their forgetfulness or absence is likely to operate against the plaintiff or defendant, it is difficult to see how one can come to the conclusion of prejudice.”  Importantly, no one here pledged his or her oath even to the existence of any possible prejudice to the second defendant if the application were to be granted, let alone to its precise extent or nature (cf Bray C.J., supra, at 284).  In these circumstances, I am not persuaded that  the second defendant would in fact suffer any particular prejudice if the action were allowed to continue notwithstanding the delay.  Regarding the conduct of the second defendant, as previously remarked it would appear to have been a decision made on her behalf that the obtaining of a further psychiatric report was not pursued in 1992.

Taking into account all of the matters that were put to me by counsel in this matter, and balancing all of the relevant considerations, in the exercise of my judicial discretion I have decided that it is appropriate that the application for extension of time be granted, thereby enabling the claim to proceed.