Lorenzo and Sons Pty Ltd v Campbell
[1999] FCA 701
•28 MAY 1999
FEDERAL COURT OF AUSTRALIA
Lorenzo & Sons Pty Ltd v Campbell [1999] FCA 701
PROCEDURE – application for extension of time – application for leave to appeal – whether order extending time attended with sufficient doubt – whether issues of prejudice –whether errors of principle in relation to prejudice and delay.
Limitation Act 1985 (ACT), s 36
Motor Traffic Act 1936 (ACT) s 66
Federal Court of Australia Act 1976 (Cth), s 24(1)(A)Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, cited
S & B Pty Ltd v Podobnik (1994) 53 FCR 380, consideredLORENZO & SONS PTY LTD V HELEN PATRICIA CAMPBELL
AG 92 OF 1998GALLOP, HEEREY & R D NICHOLSON JJ
28 MAY 1999
CANBERRA
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
AG 92 of 1998
BETWEEN:
LORENZO & SONS PTY LTD
ApplicantAND:
HELEN PATRICIA CAMPBELL
RespondentJUDGE:
GALLOP, HEEREY & R D NICHOLSON JJ
DATE OF ORDER:
28 MAY 1999
WHERE MADE:
CANBERRA
THE COURT ORDERS THAT:
1.The application for leave to appeal be allowed and leave be granted.
2.The appeal be allowed.
3.The order of Higgins J made on 4 September 1998 be set aside and in lieu thereof the following order be substituted:
The respondent’s application for extension of time within which to bring proceedings against the applicant be dismissed.
4.The respondent pay the applicant’s costs of this application for leave to appeal and the costs of the application at first instance.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
AG 92 of 1998
BETWEEN:
LORENZO & SONS PTY LTD
ApplicantAND:
HELEN PATRICIA CAMPBELL
Respondent
JUDGE:
GALLOP, HEEREY & R D NICHOLSON JJ
DATE:
28 MAY 1999
PLACE:
CANBERRA
REASONS FOR JUDGMENT
THE COURT: This is an application for leave to appeal from an order of a Judge of the Supreme Court of the Australian Capital Territory made on 4 September 1998 giving leave to the respondent to proceed pursuant to s 36 of the Limitation Act 1985 (ACT) (“the Act”).
The reasons of the Judge were given ex tempore on the date on which the order was made. He commenced those reasons by stating, incontestably, that the respondent bore the onus of satisfying the Court that it was “just and reasonable” to extend the time in question. That was a reference to the requirements of subs 36(2) of the Act. Subsection 36(3) required the Court also to “have regard to all the circumstances of the case” including certain enumerated matters namely, (a) the length of and reasons for the delay; (b) the extent to which, having regard to delay, there is or is likely to be prejudice to the applicant (c) the conduct of the applicant after the cause of action accrued to the respondent; (d) the duration of any disability of the respondent arising on or after the date of the accrual of the cause of action; (e) the extent to which the respondent acted promptly and reasonably once she knew that the act or omission of the applicant might be capable of giving rise to an action for damages; and (f) the steps (if any taken) by the respondent to obtain medical, legal or other expert advice and the nature of such advice.
It is helpful to refer to the chronology of events before turning to the content of the reasons. The respondent was born on 4 May 1964. On 14 January 1988 she suffered an alleged accident while at work in her employment as a Parking Inspector Acting Supervisor CA 5 by the then Department of Territories Parking Management and Control. She was team leader CA 4. In the course of her duties she was supervising a mobile patrol consisting of herself and Ms Julie Gibson. While Ms Gibson was booking the driver of a BMW motor vehicle registration number YGM 507 parked in Woolley Street, Dickson owned by the applicant, the respondent stood behind the vehicle. The driver of the vehicle allegedly reversed it, colliding with the respondent and causing her to fall to her hands and knees. Ms Gibson and the respondent continued their duties for a short time and then returned to base and reported the accident. On the following day the respondent made a claim to Comcare in respect of injuries suffered in the accident.
In May 1988 the respondent returned to normal duties but in July 1988 she resigned allegedly because of the injuries which she had suffered as a result of the accident.
In late November 1989 the respondent consulted a solicitor and received legal advice.
On 15 January 1994 the six year limitation period expired.
In December 1997 the respondent obtained access to her Comcare file and as a consequence received a letter dated 17 February 1994 from her solicitors, addressed to her c/- Comcare and advising her of the possibility that she may bring an action. On 16 December 1997 she again consulted her solicitors. On 2 April 1998 the respondent’s originating application was filed. On 26 June 1998 the respondent filed a motion to extend time resulting in the order of the Judge in relation to which the application for leave to appeal is now brought.
Judge’s reasons
The Judge commenced his reasons with reference to the requirements of subs 36(3)(a) pointing out that there were two periods of delay which were relevant. The first was the delay since the accident itself, which was a period of ten years three months. The second was the delay since the limitation period expired, which was a period of four years three months. The latter was said by the Judge to have the character of “providing a period of time during which the defendant was entitled to assume that no action would be brought”: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
Turning to the reasons for the delay, the Judge concluded that the delay was explained. He said that “she gives reasons for not having [acted] and I must say, for my part, I find them understandable”. He expanded on this by stating that:
“I note, in any event, that, at the same time, the applicant was required to deal with Comcare in order to progress her continuing claim for compensation, and it may have provided some distraction, as well as the personal circumstances. It is not a case where the delay is explained on the basis that the application simply had no thought or had no desire to commence, or had abandoned any desire to commence, common law proceedings. It rather seems to have been pushed to the background for the reasons which are explained in the applicant’s affidavit. That does not, of course, mean that there must be a grant of the application. It is simply another fact to be put in the balance.”
Turning to the requirements of subs 36(3)(b) the Judge said that the periods of delay were both likely to be “productive of some prejudice to the respondent”.
He next considered the circumstances of the accident finding that it was not a complicated matter but rather was “a very simple matter”.
He then had regard to the respondent’s medical condition, the consequences of which he concluded appeared to be fairly serious. He regarded this as confirmed by the acceptance of such by Comcare and the payment of over $200,000 to the respondent over the last ten years. With reference to subs 36(3)(d) he found the severity of the ongoing disabilities was quite relevant to the exercise of his discretion as well as to the degree of real likelihood that there would be any issue as to liability.
The Judge then said he was concerned about the identification of the vehicle, there being no parking infringement notice produced. However, he considered that prima facie the documents before the Court would seem to explain “that part of it” and provide a reasonable basis for the identification in question particularly when it was noted that a vehicle search had revealed a vehicle such as was described in the affidavits. He nevertheless accepted that the question of prejudice by this issue was not to be overlooked.
It had been the respondent’s understanding that the accident had been reported by her employer to the police. There was evidence before the Court to show that the police had no record of the accident. His Honour said this was not necessarily prejudicial because it was open to the applicant as a corporation owning the vehicle to make inquiry as to who the driver was or would have been, because the vehicle had been in constant ownership since the time of the alleged infringement. He considered there would be a limited range of people who would be able to be so identified although he accepted they may or may not have a recollection now of what took place. He continued:
“…on the face of it, it does not seem that the respondent [the present applicant] has undertaken the evidentiary burden, if actual prejudice is to be relied upon, of demonstrating that – the fact that the owner of the vehicle is a corporation – the fact that it was not pursued at the time leads to any actual prejudice, although one must bear in mind there is presumptive prejudice of course, by the very fact of the ten years, nine months delay.”
His Honour concluded by recognising that he was required to exercise a discretion. He said:
“The factor that causes me to think on balance the application should be granted is that, balancing against the matters of prejudice which Mr Stretton has raised and of course properly so, is the severity of the consequences which the plaintiff has suffered and the simplicity of the accident itself together with the monitoring that has taken place of her medical condition pretty well constantly since that time. So it seems to me that those factors tend to reduce prejudice which might otherwise be assumed. …”
There are six grounds in support of the application for leave. It is appropriate that some of them be grouped.
Grounds relating to actual prejudice
Grounds 1 and 2 address the manner in which his Honour dealt with the issue of prejudice. Firstly it is contended that his Honour was in error in concluding the applicant had not undertaken the evidentiary burden of establishing actual prejudice. It is submitted that the unavailability of either a police report or a parking infringement notice should have been seen by the Judge as resulting in actual prejudice. In Taylor’s case at 555 McHugh J contrasted “presumptive prejudice” with “actual prejudice” stating that “when actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period”
The circumstances of the accident were before the court in the affidavit of the respondent and the further affidavit of Ms Gibson. To these were annexed the statements which they had made at the time. The applicant elected not to cross-examine on the affidavits.
There were four features of the evidence relevant to these grounds.
The first is the absence of a police record. In her statement on the date of the accident the respondent said that she and Ms Gibson had returned to base and reported the incident to the officer in charge. In her affidavit the respondent said they went back to base and reported the accident to the police and provided statements to them. She also said her supervisor gave the police a report. In evidence was a copy of a letter from the Australian Federal Police Accident Records to the insurer advising that the files contained no record of motor vehicle accidents involving the respondent and a driver of vehicle YGM 507 at Woolley Street, Dickson. There was therefore no additional evidentiary burden cast on the applicant by the evidence raised in the respondent’s case in this respect.
The second evidentiary feature was the absence of evidence of an infringement notice. There was evidence before the Court that the Australian Capital Territory Government did not retain parking infringement records beyond seven years so that no parking infringement notice with respect to the vehicle on 14 January 1998 was available. No additional evidentiary burden was therefore cast on the applicant by the respondent’s case in this respect.
The third feature was that the driver of the vehicle was unidentified. It was not in dispute that the vehicle in question was owned by the applicant at the relevant date and had continued to be so owned. The case for the respondent did not raise any evidence as to the identity of the driver. No additional evidential burden was cast on the applicant by this aspect of the respondent’s case.
The fourth feature was the loss of opportunity to identify witnesses. The role of witnesses appeared from the respondent’s statement made on the day in the following passage:
“The next thing I knew the vehicle had reversed and hit me in my back.
I told the driver to move back to where she was parked in a loud voice. The female driver stated that she did ‘not see me’.
At that stage there seemed to be approx. 5 or 6 people in the area. One elderly male person, standing on the foot path, was most upset about the female receiving a parking ticket. He stated that he was loosing (sic ) revenue because we were patrolling in that area from time to time and that we (the Parking Inspectors) shouldn’t be there. He further stated to the female driver that he was a witness and that I deliberately stood behind the vehicle.
At this time, the female driver had started crying. Another member of the public asked for my number and reassured the female driver that it was my fault, and he would report me.”
In her statement Ms Gibson said:
“Then there were several people all standing around yelling at Mrs. CAMPBELL and accusing her of standing behind the vehicle on purpose. The female driver started crying at this stage and everyone reassured her that it was Mrs. CAMPBELL’s fault and that they all witnessed it. One man took Mrs. CAMPBELL’s number and said that he was going to report her.”
For the respondent it is contended that even if a police investigation had occurred it would have been most unlikely to have identified any of the bystander witnesses. Furthermore it is said for the respondent to be speculation that the police would necessarily have investigated any report of an accident which they might have received.
Whatever a police investigation may or may not have yielded in relation to witnesses it is apparent that the greater the period of time between the cause of action allegedly accruing and the date on which the action was sought to be pursued, the greater the prejudice which the applicant would suffer as a consequence of being unable to investigate, whether by newspaper advertisement or otherwise, the evidence of bystander witnesses as to the liability or contributory liability of the respondent. This was a relevant matter which his Honour did not take into account.
Furthermore, there was actual prejudice and not only presumptive prejudice in relation to the three other evidentiary features referred to above so that his Honour proceeded on a wrong principle in relation to those matters.
It follows that his Honour failed to take into account the relevant circumstance of actual prejudice.
Grounds relating to simplicity of accident
Grounds 3 and 4 address the consideration given by his Honour to the simplicity of the accident. We do not see error in this regard. The alleged accident was indeed simple in that it involved one motor vehicle reversing and striking one pedestrian. It does not necessarily mean of course that issues of negligence or contributory negligence would be simple or easy to resolve. But his Honour’s observation as to simplicity of the accident was no more than a factual comment and does not demonstrate error.
Ground relating to respondent’s medical condition
Ground 5 contends in effect that too much weight was put in the balancing of the discretion on the factor that monitoring had taken place of the respondent’s medical condition since the accident.
It was submitted for the applicant while there was ample medical evidence before the Court it did not all support the respondent. In particular, evidence of Dr Marsden and Dr Robinson supported the view that any injury sustained by the respondent was confined in its consequences. It is said that his Honour failed to have regard to all the medical evidence and therefore failed to take into account a relevant matter. Additionally, it was argued there was the inability to have the respondent medically examined by doctors of the applicant’s choosing until after ten years after the alleged injury so that that relevant prejudice had not been taken into account.
We do not consider that the failure of his Honour to refer in his ex tempore reasons to these matters necessarily shows that he proceeded on a wrong principle. He was not required to refer to each piece of evidence before him. It was clearly appropriate for him to take into account as one of the relevant circumstances the continuity of medical records. We do not consider that this ground for leave is made out.
Ground relating to reasons for delay
The final ground is that his Honour erred when considering delay in finding “understandable” the respondent’s explanation for delay rather than giving proper weight to the circumstance that the respondent had obtained legal advice concerning the accident in 1989 and had failed to act on that advice.
To understand the circumstances in which this ground arises it is necessary to return to the affidavit of the respondent in which her explanation for delay appears in the following terms:
“I first consulted a solicitor, Mr David Hyndes of Higgins Solicitors in about late November 1989 after being pressed by my father to get some legal advice. Mr Hyndes informed me that I may be able to bring a claim in damages against the driver of the vehicle, and he would make some inquiries on my behalf. Up to that time I did not realise that I had a possible Common Law Claim in addition to my Comcare entitlements. Annexed hereto and marked with the letter “Y” is a copy of the Registrar of Motor Vehicles search dated 11 December 1989. I remember having discussions with David to the effect that he could not identify the driver of the vehicle and this caused problems in pursuing the claim. I also made some informal enquiries of the Australian Federal Police and was also unable to locate a report. In the circumstances set out in paragraph 9, I moved away from Canberra but did not inform Mr Hyndes of my whereabouts. Comcare was paying weekly compensation and medical bills and subsequently paid lump sums for permanent impairment to my back. My life was in emotional turmoil and I felt completely overwhelmed by my personal situation. I found it too difficult to cope with my personal situation involving my pain and depression, the complete breakdown of my marriage and major disruption to my relationships with my children to give any further consideration to any possible Common Law Claims. In error, I believed that I may have a claim but there were problems in bringing it and that those problems may be insurmountable.”
In the event it became critical that the respondent did not inform her solicitor of her whereabouts. It was this which resulted in him on behalf of his firm writing to the respondent c/- Comcare on 17 February 1994. In that letter he referred to letters of 19 October 1992 and a subsequent letter of 5 October 1993 and noted that he had not heard from her in the meantime. He said that he regretted she had not instructed the firm further as it was considered “the action for negligence could well have proceeded to a satisfactory conclusion”. The letter also advised her of the necessity to now bring an application for extension of time.
This letter raises the prima facie position that the respondent was mistaken in her understanding of the nature of advice given to her by her solicitor as she has described it in par 12 of the affidavit set out above. There it is stated she considered that she had been advised that she would bring a claim in damages “against the driver of the vehicle” and that the inability to identify the driver would cause problems in pursuing the claim. That is inconsistent with the letter from the solicitors asserting that she had a cause of action likely to proceed to a satisfactory conclusion. The effect of the Motor Traffic Act 1936 (ACT) s 66 is that the registered owner of a motor vehicle is vicariously liable for any negligence of the driver. It is thus not fatal to an action for negligence if the driver cannot be identified.
Other paragraphs in the respondent’s affidavit set out in some detail her personal situation which resulted in her emotional turmoil, depression and difficulty in coping with life. Reading par 12 and having regard to those circumstances and her failure to inform her solicitor of her whereabouts, the inference is that the respondent elected to put the possibility of any claim out of her mind and to rely upon the benefits which she had secured from Comcare.
This is consistent with her further evidence in par 13 that the reason she requested her file from Comcare in 1997 was that she was concerned Comcare was considering an alteration to her benefit. It was only then that she received the correspondence from her solicitors alerting her to the possibility of a cause of action.
It is apparent from this evidence that the central reason why the respondent did not earlier seek to pursue that cause of action was that she had given up the pursuit of the matter and cut off contact to her from her solicitor. It was her actions which brought about the position in which she found herself.
His Honour was required by subs 36(3)(e) to consider the extent to which the respondent acted promptly and reasonably once she knew that the act or omission of the appellant might be capable of giving rise to an action for damages. Even if she was correct in her memory of the advice which she had received from her solicitor, it is apparent that the respondent knew that there may be an action for damages although there was a problem facing its pursuit. In any event his Honour was required to have regard to all the circumstances of the case and an important circumstance was that the respondent had cut herself off from communications by her solicitor so that she had failed to received advice as to her rights which would have enabled her to pursue them within the time normally allowed.
In failing to consider this matter his Honour erred in failing to take into account a relevant matter and consequently erred in principle in the exercise of his discretion.
Conclusion
For leave to be granted pursuant to s 24(1)(A) of the Federal Court of Australia Act 1976 (Cth) the order of his Honour must be seen clearly to be attended with sufficient doubt and, if wrong, to work substantial injustice: S & B Pty Ltd v Podobnik (1994) 53 FCR 380 at 382. In our opinion the errors of principle made by his Honour in relation to issues of prejudice and delay result in his order being attended with sufficient doubt and working substantial injustice in relation to the applicant. Accordingly, we consider that leave to appeal should be granted; the appeal should be allowed; and an order substituted that the respondent’s application for an extension of time within which to bring proceedings against the appellant be dismissed. The respondent should pay the applicant’s costs of the application for leave and the costs of the application at first instance. We make orders accordingly.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Dated: 28 May 1999
Counsel for the Applicant: Mr G Stretton
Solicitor for the Applicant: Deacons Graham & James
Counsel for the Respondent: Mr G Lunney
Solicitor for the Respondent: Higgins Solicitors
Date of Hearing: 14 May 1999
Date of Judgment: 28 May 1999
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