MacDonald v Martin

[2002] NSWCA 178

CITATION:	MacDonald v Martin [2002] NSWCA 178
FILE NUMBER(S):	CA 40097/02
HEARING DATE(S):	13 June 2002
JUDGMENT DATE:	13 June 2002
PARTIES :	Ian Harley Donald MacDonald and Hugh Phillips (Claimants) Violet Helen Martin (as executrix of the Estate of the late Lawrence John Martin) and Patrick Paul King (Opponents)
JUDGMENT OF:	Heydon JA at 1; Hodgson JA at 40; Campbell J at 43

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 99/01
LOWER COURT JUDICIAL OFFICER :	English DCJ

COUNSEL:	Mr A M Colefax (Claimants) Mr K W Andrews (Opponents)
SOLICITORS:	Colin Biggers & Paisley (Claimants) Brazel Moore & Daly (Opponents)
CATCHWORDS:	Tort - negligence - Motor Accidents Act 1988 (NSW) - plaintiff deceased - action brought by estate - Procedure - limitation period - Motor Accidents Act 1988 (NSW) - survival or extinction of claim under Limitation Act 1969 (NSW) s 14(1)(a)-(b) - whether "loss of entitlement to claim" - sufficiency of evidence to determine question - factual characterisation - Practice - Supreme Court Rules Part 51 r 4B(1)(g) - concurrent hearing of application for leave to appeal and appeal - preparation of White Book - requirement that White - ND
LEGISLATION CITED:	Limitation Act 1969 Motor Accidents Act 1988 Trade Practices Act 1974
CASES CITED:	Scarcella v Lettice (2000) 51 NSWLR 302 State of Western Australia v Bond Corporation Holdings Ltd (191) 28 FCR 68 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
DECISION:	The Summons is dismissed; the claimants are to pay the opponents' costs

CA 40097/02
DC 99/01

HEYDON JA
HODGSON JA
CAMPBELL AJA

13 June 2002

MacDONALD v MARTIN

Judgment

1 HEYDON JA: The first two defendants below have filed a Summons seeking leave to appeal against an order of English DCJ made on 30 January 2002 dismissing a Notice of Motion filed by them on 29 June 2001. Judgment was delivered orally, but had been reserved after a hearing on 28 August 2001.

2 On 29 April 2002 Handley JA refused a stay, but he ordered that the application for leave and the appeal be heard concurrently. Accordingly this Court was prepared today to hear full argument, to the intent that if leave were granted the appeal could be disposed of.

3 The plaintiff below is the executrix of the will of Laurence John Martin, who died in 1999. The first and second defendants are solicitors who were allegedly engaged by Mr Martin to commence proceedings on his behalf to recover damages for injuries allegedly sustained by him in an accident on or about 10 October 1998. The third defendant is another solicitor allegedly engaged for that purpose during 1997, but he sought no relief in the Notice of Motion and the outcome of this application for leave does not affect him.

4 The history is as follows.

5 On or about 10 October 1988 Mr Martin allegedly crossed a street in Manly and was struck by a motor vehicle. He allegedly suffered various injuries including a fractured hip.

6 According to a portion of page 5 of the Statement of Claim, which wrongly appears under the heading “Particulars of Economic Loss”, but was doubtless, like all the other paragraphs on page 5 except the first two, intended to have been, and should have been, pleaded as a separate allegation of material fact, on 9 November 1988 Mr Martin retained the first two defendants to commence proceedings on his behalf to recover damages to compensate him for the injuries he suffered in the accident. The first and second defendants have denied this in their Defence, but a Chronology which they used below and have supplied to this Court stated that the “plaintiff” (scilicet Mr Martin) retained them “re motor vehicle accident”.

7 On 28 June 1990 the first and second defendants filed a Statement of Claim on Mr Martin’s behalf in the District Court. The proceedings bore the number 9605 of 1990. The Statement of Claim named the Nominal Defendant as the defendant. In various respects the plaintiff in these proceedings contends that the first and second defendants were negligent as to the conduct of those proceedings; in particular it is alleged that those proceedings were commenced against the wrong defendant.

8 On 1 July 1992, the plaintiff contends, and the primary judge said, that the limitation period in relation to the plaintiff’s accident expired. The first and second defendants say it may well have expired earlier, but it is not necessary to explore what the true position is.

9 On 24 April 1995 proceedings came before the District Court. Why they did, and why they were stood over for one month, is unclear.

10 On 25 May 1995, according to paragraph 8 of the Statement of Claim in these proceedings, proceedings number 9605 of 1990 were “struck out and/or dismissed for want of prosecution”. The first and second defendants in their Defence did not admit this. However, they now contend that this happened on 24 May 1995. The trial judge said that it happened on 24 May 1995. The plaintiff now says in written submissions to this Court that it is agreed that the relevant event happened on 24 May 1995. Handley JA on 29 April 2002 was told that the judge was Garling DCJ and that is confirmed by material handed to the Court this morning. There is no copy or evidence before this Court of any reasons he delivered, nor of the precise order he made.

11 According to the first and second defendants’ Chronology, in late 1996 they ceased to act for the plaintiff; the third defendant was instructed by Mr Martin to act in January 1997; the third defendant ceased to act for Mr Martin in September 1997; and in September 1997 the solicitors presently acting for the plaintiff began to act for Mr Martin. The primary judge made statements to this general effect which were less precise as to time.

12 On 19 May 1998 Mr Martin’s new solicitors filed a Notice of Motion dated 18 May 1998 seeking an order for the dismissal of the Statement of Claim which Garling DCJ had already dealt with, and for leave to file a fresh Statement of Claim against a person named as the driver of the motor vehicle which injured the plaintiff and a person alleged to be the owner of that motor vehicle.

13 On 1 July 1998, according to the first and second defendants, but not the plaintiff, the limitation period relating to any cause of action which Mr Martin had against the first and second defendants expired, if it had not expired earlier.

14 On 3 July 1998 the Notice of Motion filed on 19 May 1998 was dismissed. The primary judge said this happened on 18 May 1998, which must be a slip since it was not filed until the next day. The judge who dismissed it was Dodd DCJ. Counsel for the first and second defendants informed Handley JA on 29 April 2002 that a copy of his judgment was supplied to English DCJ and had not been seen since, and that the tape of what was said on 3 July 1998 has been destroyed. However, counsel for the first two defendants was able to hand to the Court this morning a recently located copy of the judgment.

15 On 26 April 1999, according to the primary judge, Mr Martin died.

16 On 24 May 2001 the plaintiff filed a Statement of Claim in relation to Mr Martin’s complaints against the defendants. The proceedings were numbered 99 of 2001. The Statement of Claim named as the driver of the motor vehicle which injured Mr Martin “Sonasi Taungahava”.

17 By a Defence dated 27 June 2001, the first and second defendants alleged that the plaintiff’s claim “is barred and not maintainable pursuant to s 14 of the Limitation Act … .”

18 The primary judge described the contentions of the plaintiff and the first two defendants, and her decision about them, as follows:

“The executrix alleges that due to the negligent manner in which the defendants brought the proceedings by incorrectly naming the defendant as the nominal defendant and by failing to comply with the orders of the Court the deceased’s claim was dismissed. Critical to this application is when the limitation period began to run. The first and second defendants assert that the limitation period commenced to run on 1 July 1992 when the limitation period expired under the Motor Accidents Act. However, the executrix asserts that the limitation period against the first and second defendants does not expire until six years after the allegations of negligence alleged against them. The Statement of Claim was not struck out until 24 May 1995. The allegations of negligence alleged as against the first and second defendant did not solidify until the Statement of Claim was struck out on that day, they being failure to properly prosecute the proceedings, failure to comply with court directions in relation to the proceedings and failure to amend the name of the defendant.
The current Statement of Claim was filed on [24] May 2001 and the plaintiff argues the proceedings are therefore not statute barred. The general rule as to the statute barring of actions for professional negligence are well settled. A cause of action accrues from when it is complete and the plaintiff has suffered measurable damage in professional negligence cases. This generally occurs when the original action becomes statute barred. The exception to the general rule operates when the very act of negligence that inflicts the injury also has the effect of precluding the commencement of an action.
In the [present] case the executrix asserts that the first and second defendants did commence proceedings within the limitation period, however their conduct and management of those proceedings were negligent and that negligence continued in the conduct and the management of the proceedings up unto and including 24 May 1995 when the proceedings were struck out. It has been submitted on behalf of the executrix that the decisions relied upon by the applicants to the Motion, decisions of the Supreme Court and Court of Appeal have dealt only with the situations where solicitors failed to commence proceedings within the relevant limitation period and this matter can therefore be distinguished.
There is much merit to that submission. The Statement of Claim was filed within time. However, due to the negligence of solicitors the incorrect defendant was named. When the matter came before the District Court on 24 April 1995 there was an appearance on behalf of the deceased Mr Martin. The notation on the Court file records ‘Note: NOM DEF SUED BUT DEF DRIVER HAS BEEN IDENTIFIED’. It is not clear why the matter was then stood over for one month. Presumably, however, it was to allow an application to be made to name the correct defendants, who of course were known, as Sonasi Taungakava [sic] and Sita Fua, however nothing was done. The solicitors could have applied to the Court under Part 17 Rule 3 to amend the Statement of Claim. Clearly they failed to do so and as a result the claim was struck out pursuant to Part 6 Rule 5(b). This of course is not a scenario as envisaged by Sperling J in [Wilson v Rigg [2000] NSWSC 16], a case relied upon by the defendants.
The act of negligence by the solicitors brought about the striking out of the Statement of Claim and these acts of negligence manifested themselves on 24 May 1995. The act of negligence was not failing to file the Statement of Claim within time, but rather nominating an incorrect defendant and then not correcting that error when on notice to do so. This is not the unreasonable result as envisaged by Sperling J or an unintended result of the legislation. It is in my view clearly a case of negligence on the part of the first and second defendant, as a consequence of which the executrix of the estate of the late Laurence Martin has suffered damage as a result of the breaches by the solicitors.
The limitation period against the first and second defendants is six years in accordance with the provisions of Section 14(1) of the Limitations Act. The Statement of Claim in these proceedings was filed on [24] May 2001 and the proceedings are therefore not statute barred.”

19 In that passage several apparent errors have been corrected.

20 The reference to the plaintiff coming on notice of the error about naming an incorrect defendant appears to be a reference to the fact that the solicitors for Mr Martin received a letter of 9 April 1998 from the solicitor for the Nominal Defendant. Under cover of that letter was supplied a Police Traffic Collision Report (“the P4”) naming as the driver the person now named in the Statement of Claim in these proceedings. That letter is referred to in, and the Report is annexed to, an affidavit of the plaintiff’s solicitor dated 18 May 1998 used in support of the Notice of Motion dated 18 May 1998 and filed on 19 May 1998.

21 Section 14(1)(a) and (b) of the Limitation Act 1969 (NSW) provides:

“An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims -
(a) a cause of action founded on contract (including quasi contract) not being a cause of action founded on a deed;
(b) a cause of action founded on tort, including a cause of action for damages for breach of statutory duty… .”

22 The primary judge said, speaking of the period 24 April-24 May 1995, that the first and second defendants could have applied to the court under Part 17 rule 3 to amend the Statement of Claim. Part 17 rule 3 of the District Court Rules in the form they took throughout the period 28 June 1990 (when the Statement of Claim was filed in the first proceeding) to 24 May 1995 (when Garling DCJ made an order about it) does not appear centrally relevant. However, Part 17 rules 1-4 provided:

“1. (1) The Court may, at any stage of any proceedings, on the application of any party or without any such application, order, on terms, that any document in the proceedings be amended, or that any party have leave to amend any document filed by him in the proceedings, in either case in such manner as the Court thinks fit.
(2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings.
(3) Where there has been a mistake in the name of a party, subrule (1) applies to the person intended to be made a party as if he were a party.
(4) This rule does not apply to the amendment of a judgment order or certificate.
2. (1) A party may, without leave, amend any pleading of his once at any time before a praecipe for trial is filed in the proceedings.
(1A) A party pleading may, subject to subrule (1B), by consent of the parties amend the pleading at any stage of the proceedings.
(1B) Subrule (1A) does not apply to an amendment which would have the effect that a person is added as, is substituted for, or ceases to be, a party.
(2) Where a plaintiff amends his statement of claim -
(a) if the defendant has served notice of his grounds of defence, he may amend the notice; and
(b) the plaintiff shall not be entitled to have default judgment entered up, or an order for judgment made, in the action before the expiry of 28 days after service on the defendant of the statement of claim or 14 days after service on the defendant under rule 9, whichever expires later.
(3) The rights to amend subrules (1A) and (2) are in addition to the right to amend under subrule (1).
(4) Where the following is the order of events -
(a) a party (in this subrule called the first party) files a pleading (in this subrule called the first pleading);
(b) an opposite party files a pleading (in this subrule called the second pleading) in answer to the first pleading;
(c) the first party amends the first pleading;
(d) the opposite party does not amend the second pleading within the time allowed by this rule,
then -
(e) the second pleading shall have effect as a pleading in answer to the amended first pleading; and
(f) Part 9 rule 15 (2) shall not apply, but, if no further pleading between those parties is filed, there shall be, at the expiration of the time mentioned in paragraph (d), an implied joinder of issue on the second pleading.
3. (1) Where a party amends his pleading under rule 2(1), the Court, on application by an opposite party, may, on terms, but subject to subrule (2), by order disallow the amendment.
(2) Notice of a motion under subrule (1) shall be filed and served within fourteen days after the date of service on the applicant under rule 9.
(3) Where, on the hearing of an application under subrule (1), the Court is satisfied that, if an application for leave to make the amendment had been made under rule 1(1) on the date on which the amendment was made under rule 2(1) the Court would not have given leave to make the whole or some part of the amendment, the Court shall disallow the amendment or that part, as the case may be.
4. (1) Where any relevant period of limitation expires after the date of filing of a statement of claim and after that expiry an application is made under rule 1 for leave to amend the statement of claim by making the amendment mentioned in any of subrules (2), (3), (4) and (5), the Court may in the circumstances mentioned in that subrule make an order giving leave accordingly, notwithstanding that that period has expired.
(2) Where notice of a motion for leave to make an amendment is filed within fourteen days after the date of filing the statement of claim, the Court may give leave to make the amendment, whatever the nature of the amendment may be.
(3) Where there has been a mistake in the name of a party and the Court is satisfied that the mistake was not misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, the Court may make an order for leave to make an amendment to correct the mistake, whether or not the effect of the amendment is to substitute a new party.
(4) Where, on or after the date of filing a statement of claim, the plaintiff is or becomes entitled to sue in any capacity, the Court may order that the plaintiff have leave to make an amendment having the effect that he sues in that capacity.
(5) Where a plaintiff, in his statement of claim, makes a claim on a cause of action arising out of any facts, the Court may order that he have leave to make an amendment having the effect of adding or substituting a new cause of action arising out of the same or substantially the same facts and a claim on that new cause of action.
(6) This rule does not limit the powers of the Court under rule 1.”

23 Part 6 rule 5(b) appears never to have existed, and it seems that nothing in Part 6 has anything to do with the case. It may be that when the primary judge mentioned Part 6 rule 5(b), she meant Part 18 rule 3. Between 28 June 1990 and 17 February 1995 it provided:

“(1) Where a plaintiff does not within a reasonable time take any step necessary to bring any proceedings to trial, or unreasonably takes any step to avoid the proceedings being brought to trial, the Court may, on the application of the defendant, order on terms that the proceedings be dismissed or make such other order as the Court thinks fit.
(2) Where proceedings are dismissed under subrule (1), rules 6, 7 and 8 apply as though the dismissal were a discontinuance.”

24 After 17 February 1995 and beyond 25 May 1995 it provided:

“(1) Where a plaintiff does not within a reasonable time take any step necessary to bring any proceedings to trial, or unreasonably takes any step to avoid the proceedings being brought to trial, the Court may, on the application of the defendant or of its own motion, order on terms that the proceedings be dismissed or make such other order as the Court thinks fit.

(2) Where proceedings are dismissed under subrule (1), rules 6, 7 and 8 apply as though the dismissal were a discontinuance.
(3) The Court may not make an order under subrule (1) without giving the plaintiff a reasonable opportunity to be heard.
(4) The Court may, on application by any party, set aside an order that is made on the Court’s own motion under subrule (1).”

25 The rule relied on in the Notice of Motion which the primary judge dismissed was Part 11A rule 3. It provided:

“(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings -
(a) no reasonable cause of action is disclosed;
(b) the proceedings are frivolous or vexatious; or

(c) the proceedings are an abuse of the process of the Court,

the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.”

26 The Statement of Claim alleges that the first defendant and the second defendant were negligent. A cause of action in negligence is not complete until the victim has suffered actual damage, as distinct from damage which is only negligible, non-measurable, prospective or contingent: Scarcella v Lettice (2000) 51 NSWLR 302 at [13]-[14]. The particularised damage, as set out in paragraph 13 of the Statement of Claim, is:

“The loss of entitlement to claim non economic loss, economic loss, out of pocket expenses, future out of pocket expenses and domestic assistance for the injuries and disabilities suffered as a result of the said motor vehicle collision which occurred on the 10th October 1998 … .”

27 A “loss of entitlement to claim” may not be complete until all prospects of making that claim are irretrievably destroyed. In assessing whether any negligence by the first and second defendant had caused Mr Martin actual damage before 24 May 1995, it would be useful to know:

(a) Whether, for the purposes of Part 17 rule 2(1), a praecipe for trial had been filed: if it had not, Mr Martin had an untrammelled right to amend to join the correct defendant right up to 24 May 1995, subject to Part 17 rule 3.

(b) Whether the court acted on its own motion on 24 May 1995: for if it did, Mr Martin could have moved later to set aside the order made that day.

(c) What grounds, if any, were advanced by the Nominal Defendant for the order made on 24 May 1995, what notice had been given of those grounds to Mr Martin, what delay in relation to any particular step necessary to bring the proceedings to trial Mr Martin by himself or by the first and second defendants had been responsible for, what complaints the Nominal Defendant had made about delays, and what reasoning Garling DCJ used to arrive at the conclusion that the order of 24 May 1995 should be made: all these matters were relevant to whether just before that order was made, Mr Martin’s interests in making a claim had been irretrievably affected.

28 This Court has before it no evidence, and no material from the District Court file, which would enable any of these factual questions to be answered.

29 In Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 the High Court dealt with the operation of s 82(2) of the Trade Practices Act 1974 (Cth) which at that time created a three year limitation period for damages actions under that Act. French J had struck out the Statement of Claim as statute-barred; the Full Federal Court allowed an appeal; and the High Court dismissed an appeal. At 533 Mason CJ, Deane, Gaudron and McHugh JJ used the following language, which, though uttered in a s 82(2) case, is of general application, and has been much applied since:

“We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question.”

30 At first instance in that case, French J described the applications before him as follows (State of Western Australia v Bond Corporation Holdings Ltd (1991) 28 FCR 68 at 71):

“The amended statement of claim was filed on 14 January. On 21 January, BCH filed a motion to strike it out in its entirety as disclosing no reasonable cause of action and alternatively for orders that pars 12(a)(i), 29(a) and (c), 33(b)(i) and 49 be struck out as disclosing no reasonable cause of action or for their tendency to cause prejudice, embarrassment or delay in the proceedings.
On 23 January, Connell filed a further motion seeking a dismissal of the application generally, alternatively as against himself, and alternatively the striking out of the amended statement of claim as against himself.”

He, and the High Court, were thus considering the application of provisions in the Federal Court Rules corresponding to some degree with Part 11A rule 3.

31 To use the words of the majority in the High Court, this is not the clearest of cases, and insufficient is known of the damage which Mr Martin allegedly sustained at the hands of the first and second defendants and the circumstances in which it was sustained to justify a confident answer to the question whether the proceedings were statute-barred. The condition of ignorance in which this Court has been left does not appear to be significantly different from the condition of ignorance in which the first and second defendants left the primary judge. Her reasons for judgment do not suggest that she had anything casting useful light on the course of events up to 24 May 1995. She had the Chronology (Exhibit B). She also had Exhibit A – the Notice of Motion filed on 19 May 1998 with an affidavit in support, together with the recently located copy of Dodd DCJ’s reasons for judgment. The only pre 24 May 1995 matters which the affidavit deals with are a letter dated 21 February 1991 from the Motor Accidents Authority indicating that GIO Australia Ltd would deal with Mr Martin’s claim, a letter from GIO Australia Ltd dated 21 March 1991 requesting particulars of loss, and a reply from the first and second defendants dated 10 May 1991. Apart from the material mentioned by her in the passage quoted above in relation to the notation on the District Court file made on 24 April 1995, the primary judge refers to nothing from the file.

32 Dodd DCJ’s recently located judgment of 3 July 1998 shows only that Mr Martin claimed to have attempted to contact his solicitors occasionally in 1990 and 1991 but found it difficult, that he did not contact his solicitors after 1991 and that on 28 June 1991 the first and second defendants provided to the GIO a copy of a Medicare printout, giving the names of the large number of doctors consulted by him apparently in relation to the injuries arising from the accident. Even with this supplementation the materials do not make it possible to assess confidently whether the proceedings were statute barred.

33 In oral argument before this Court, Mr Colefax, who appeared for the first and second defendants, contended that from the very outset when the wrong defendant was named in the Statement of Claim filed in 1990, Mr Martin was never going to be able to succeed against that defendant. Everything that has happened thereafter consisted simply of a series of events happening along a continuum. A significant amount of damage was sustained when the wrong defendant was joined and the limitation period began to run from that date in 1990.

34 In the course of debate with the Bench, Mr Colefax submitted that it was negligent of his clients not to have obtained the P4 from the police and there was evidence before the primary judge that the police had compiled a P4 on the very day of the accident. It was pointed out that there was no evidence to suggest that the first and second defendants had not tried to obtain the P4 and Mr Colefax accepted that was so.

35 Even assuming in favour of Mr Colefax’s submissions that there was negligence in 1990 on the part of the first and second defendants, there is the possibility that there was an available chance in periods from late May 1995 onwards of remedying the defect occasioned by the postulated negligence of the first and second defendants in 1990. The Statement of Claim is drafted in language wide enough to cover an allegation that there was in that latter period negligence in not exploiting that chance. In that event, the cause of action for that act of negligence is not barred. Neither below nor here have the first or second defendants been able to exclude that possibility.

36 The submissions made orally to the Court this morning raise factual questions. It is essentially a factual question whether one characterises events after 1990 as being part of a continuum of linked acts flowing from the original negligence, or whether one characterises them as divisible. Those factual questions cannot be answered on the state of the materials before this Court and the primary judge.

37 In short, the primary judge arrived at the correct order, though for reasons different from those she gave. It is not necessary to examine the arguments of the parties as to the correctness of her reasons. Since the order she made is correct, leave should not be granted to appeal against it.

38 This application raises one point of practice. The Claimants’ Summary of Argument asked for an order that the leave application be heard concurrently with the appeal. It was filed after Handley JA had made an order on 29 April 2002 to that effect, but subject to the views of the members of the court conducting the hearing. It is incumbent on a claimant who seeks an order of that kind to prepare a White Book which is suitable for use on the appeal, and written submissions corresponding in quality to those which are expected of an appellant. It would be unusual for an order for a concurrent hearing to be made where the materials to be examined were bulky: concurrent hearings are appropriate where the hearing of the appeal will not consume much more time than the hearing of the leave application. In the ordinary case, after an order for a concurrent hearing is made, the White Book and the submissions in it should be reviewed so that if necessary they can be supplemented in a manner and by a time which is not prejudicial to the opponent. The first and second defendants, when they came before Handley JA on 29 April 2002, had not filed a White Book, because at that stage they only filed a Holding Summons: what they sought was a stay. Handley JA refused a stay, granted expedition, and made directions. One of the directions was that the White Book be filed by 10 May 2002 “complete”. Part 51 rule 4B(1)(g) of the Supreme Court Rules requires the White Book, in cases where the claimant wants a concurrent hearing, to contain “the necessary documents for the appeal”. A letter from the Registrar to the claimants dated 20 May 2002 reminded them of that rule, and said that any necessary documents should be filed and served by 3 June. In fact the White Book is in a sense not “complete”. There is also a sense in which it does not contain all the “necessary” documents. It contains very little useful evidence, and very little useful material from the District Court file – though perhaps that was excusable, since nothing more was before the primary judge. The written submissions, to the extent that they are intelligible, do no more than indicate the ultimate conclusions which the claimants wish the Court to reach, but do not indicate why it should. The White Book also lacks something which, if it had contained it, would have saved the court a great deal of time, namely, copies of the material District Court Rules in the form they stood at the relevant time. The statutory provisions affecting the whole field of personal injuries law, and the procedural rules of the District Court which govern litigation relating to personal injuries, are so frequently amended that it is often difficult to be sure which are relevant. Whether or not material of that character strictly falls within the language of Part 51 rule 4B(1)(d), (g) or (h), it is desirable for parties to appeals to be aware before the hearing of what each contends are the appropriate enactments to be considered. It is also very valuable for this Court, which can only avoid unnecessary delay if it has prior notice of what the precise structure created by the relevant enactments is said by the parties to be.

39 The following orders are proposed.

1. The Summons is dismissed.

2. The claimants are to pay the opponent’s costs.

40 HODGSON JA: I agree. It appears quite probable that the only claim which the first opponent may have against the claimants is a claim for the loss of whatever chance the late Mr Martin may have had as at late May 1995 and thereafter to obtain such amendment and/or extension of time under the Motor Accidents Act as necessary to enable him to proceed against the correct defendant.

41 Should this chance ultimately be assessed as a small one, the first opponent would recover at most an appropriately small proportion of the value of Mr Martin’s cause of action.

42 However, in circumstances where this claim, albeit it possibly a small one, is not excluded, it is not shown that the primary judge was incorrect to dismiss the claimant’s application to dismiss the proceedings.

43 CAMPBELL AJA: I agree with the orders proposed and with the judgments of Heydon JA and Hodgson JA.

44 HEYDON JA: Accordingly, the orders are that the summons is dismissed and the claimants are to pay the opponent’s costs.

45 COLEFAX: Before your Honours adjourn, could I just have an indulgence?

46 HEYDON JA: Certainly.

47 COLEFAX: Your Honour Heydon JA made some criticisms of the White Book. That criticism should be not directed at my instructing solicitors. For the record, I take responsibility for it.

48 HEYDON JA: They weren’t absolute criticisms, because it’s not entirely clear that they were outside the rules or even Handley JA’s order but what you’ve said--

49 COLEFAX: Whether it be criticism or not your Honour, I accept responsibility for it, not my solicitors.

50 HEYDON JA: What you’ve said is noted.

**********