Maxfield v Watkins

[1994] HCATrans 351

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•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No H4 of 1987

B e t w e e n -

WAYNE DOUGLAS MAXFIELD

Plaintiff

and

DAVID THOMAS FULLER WATKINS

Defendant

Application for Remitter

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 27 MAY 1994, AT 10.16 AM

Copyright in the High Court of Australia

Maxfield 1 27/5/94

MR D.R. CONTI: If Your Honour pleases, I appear for the

plaintiff. (instructed by Paul Maurice Robb)

MR C.R.R. HOEBEN:  May it please the Court, I appear for the

defendant.	(instructed by Murdock Clarke Cosgrove
& Drake)

HER HONOUR:	Yes, Mr Conti.
MR CONTI:	Your Honour, in this application the plaintiff

seeks three orders: first of all, leave to proceed

under Order 60 for the reason that it would appear

that there has been a lapse of six years on the

last step until the bringing this application

before the Court; secondly, it seeks leave for the

Court to substitute the Government Insurance Office

of New South Wales.

HER HONOUR:  Yes. Well now, what do I do about service on

that one?

MR CONTI :  I . am sorry?

HER HONOUR:  The GIO. Has it been served?

MR CONTI:  It has not been served although the

correspondence and everything indicates that right

from the beginning it was the Government Insurance

Office that - - -

HER HONOUR:  I do not know that I can make orders affecting

the GIO unless it has been served or it is actually

represented.	What is the position there,
Mr Hoeben?

MR HOEBEN:  Your Honour, my instructions come from a Sydney

firm of solicitors who have been retained by a

Tasmanian firm of solicitors.	I assume that the
Tasmanian solicitors are instructed by the GIO but
I am not sure.	I cannot think of anyone else who

would be instructing them.

HER HONOUR:  The papers would seem to indicate that but

unless you can actually announce an appearance for

the GIO - - -

MR HOEBEN:  Would Your Honour just excuse me? I do not want

the matter to go off on that point.	I am prepared
to announce my appearance for the GIO.

HER HONOUR:	Do you want to confirm that or - - -?
MR HOEBEN:	No, Your Honour, I have just been shown some

correspondence where the Tasmanian solicitors have

referred to receiving instructions from the GIO. I

Maxfield 2 27/5/94

am prepared to accept that by a rather diverse

means they have come to me.

HER HONOUR:  I am sure that is right but it does not seem to

me that the GIO's interest is necessarily the same

in this - - -

MR HOEBEN:	As Mr Watkins, yes, on one view of it.
HER HONOUR:	The same as Mr Watkins.
MR HOEBEN:	Yes, in fact, Your Honour is quite right because

on one particular set of orders the GIO would not

be involved, indeed, yes.

HER HONOUR:  They may, in practical terms, but I think that

you should check that.

MR HOEBEN:	We should have noticed it ourselves.
HER HONOUR:	Mr Conti, we can leave that issue until a

little later if you like.

MR CONTI:  Yes. The third issue is the plaintiff seeks an

order that the proceedings be remitted to the

Supreme Court of New South Wales.	They are the
three issues.

HER HONOUR:  Yes. Now, leaving the GIO aside, are they

opposed?

MR HOEBEN:	Yes, they are, Your Honour.
HER HONOUR:	Leave to proceed is opposed?
MR HOEBEN:	No, Your Honour, the leave to proceed is a

matter for the Court and if Your Honour is

satisfied on the material in the affidavit that

there has been no undue delay then we would neither

consent nor oppose.	It is a matter very much for
Your Honour, if Your Honour is satisfied on that.

HER HONOUR:  Thank you. Remitter, per se, is not opposed, I

take it?

MR HOEBEN:  No.

HER HONOUR: It is the venue that is - - -

MR HOEBEN:	Indeed.
HER HONOUR:	Very well, thank you.

MR HOEBEN: Perhaps, Your Honour, just so I can make the

position absolutely clear:  we say that it should

be remitted to the Supreme Court of the Northern

Territory and, if Your Honour was against us on

Maxfield 27/5/94

that, the Supreme Court of Tasmania and, on that

pecking order, we would say New South Wales is a

very bad third.

HER HONOUR:	Yes, I understand that.
MR CONTI:	Your Honour, in relation to leave to proceed, it

would seem - I take Your Honour has read the

affidavits of Mr Robb?

HER HONOUR:	Yes.
MR CONTI:	That there is, from the last step taken in these proceedings, being 16 October 1987 - the next step
appears to have been taken on 10 February 1994 when
notice was given to proceed with this application.
HER HONOUR:	What are the relevant principles in that

regard?

MR CONTI:  The relevant principles are referred to in a

decision of Australian Broadcasting Commission v

Industrial Court of South Australia. Basically,

Your Honour, it is a situation where we have to

establish some good reason for the Court granting

leave. However, in that decision Mr Justice Wilson
indicated that:

The question of whether good reason has been shown depends on all the circumstances of the case and even the fact of inexcusable delay may not preclude an applicant from showing

that there is a good reason for accepting the
particular proceedings from the general

prohibition which the rule imposes.

Now, that is reported in 159 CLR 536, and the

passage that I referred to is at page 541. That

was a decision where there was a period of about

10 years, I think, between steps.

Now, Your Honour, I am conscious of the fact

that on the affidavit evidence there appears to be

no explanation as to what has occurred between

about 1988 and 1992 when my instructing solicitor,

Mr Robb, took carriage of the matter. However, I

am instructed that it was a situation where,

basically, there was no steps taken at the time

because of the uncertainty of the law as it was

evolving when we had Breavington, Miller v McKain

and Stevens v Head.

HER HONOUR:  What, you thought, until recently, you had

nothing to gain by anything, is that right?

Maxfield 4 27/5/94

MR CONTI: That is what I am instructed, that the plaintiff

apparently was given that explanation by his

solicitors in Tasmania.

HER HONOUR:  Is all of this proceeding on the basis that

nothing is recoverable under the Northern Territory

law?

MR HOEBEN:  No, Your Honour, there are limited rights.

MR CONTI: There are limited rights; very limited rights.

This was a situation where the plaintiff at the

time had been resident in Tasmania and he was on a

long holiday around Australia and the accident

happened whilst he was in the Northern Territory.

He returned to Tasmania and then, I think, in about

June 1987 he moved permanently to New South Wales to the Albury region and he has remained in Albury

since that time. He has still, however, continued

to engage his Tasmanian solicitors up until the

time that Mr Robb took instructions in November

1992, and Mr Robb's affidavit deals with what has

occurred since that time.

Now, there has been some correspondence, since

Mr Robb, has taken place requesting the defendant

to consent to the transfer of the matter. Nothing

has been achieved through that correspondence and

this application, as I have indicated, was brought

early this year.

So, apart from what is stated in the

affidavit, there is nothing really I can further

say as to the first point.

HER HONOUR:  We should, perhaps, deal with that first,

should we not, because everything else is academic,

is it?

MR CONTI: Yes.

HER HONOUR: Mr Hoeben, we will deal with the first point

then.

MR HOEBEN:	Your Honour, as I indicated to Your Honour, we do not take a point on that. As my friend, I
think, has very fairly submitted, there were huge
gaps in the affidavit. It really is no appropriate
explanation even in accordance with the decision
that my friend referred the Court to but it is
really a matter for the Court.  It is not a matter
that we feel that we ought to be advocating. If
the Court is satisfied that an appropriate
explanation has been given, then we would proceed
to the next point. But that really is a matter for
Your Honour.
Maxfield	27/5/94

HER HONOUR:  Yes. In the circumstances, where the defendant

neither opposes nor consents and where there have
been steps between the parties, and there is no

suggestion of any prejudice to the defendant, I

will make an order granting leave to take a further

step in the action. That order will operate as of

now. I think that is suitable. We can go then to

the venue, as it were. I take it that the GIO's

involvement might be academic too, depending on

venue, is that right?

MR HOEBEN:  No, Your Honour. It would be a procedural

matter, as I understand it. If the matter were to

be remitted to New South Wales, it would be then

necessary for the GIO to be a party, given the law

at that time.

HER HONOUR: It would be necessary?

MR HOEBEN:  I believe so but perhaps I will hear more from

my friend. That is my understanding of how the

matter proceed, given the date of the accident.

If, however, Your Honour remitted it to the Supreme

Court of the Northern Territory or to the Supreme Court of Tasmania, as I understand their law, one

leaves the named tortfeasor on the record even

though there may be an insurer behind that person.

That is my understanding. So, the GIO only becomes

involved if the matter is remitted to New South

Wales, it would seem to us.

HER HONOUR: Is that your understanding, Mr Conti?

MR CONTI:  I must say that I only have reference to the

particular section in the Act involved, and I just

understood that the Government Insurance Office New South Wales was the appropriate defendant. That is

section 14 of the Motor Vehicle Third Party

Insurance.

HER HONOUR:  Is it a necessary defendant in New South Wales?

MR CONTI: In my reading it is, yes.

HER HONOUR:  What about elsewhere? Is it relevant in any

other jurisdiction?

MR CONTI:  On my reading of the Act, I think it is still a

necessary defendant. I stand to be corrected by my

friend if he can point to something that indicates

that it is the actual tortfeasor rather than the

insurer.

HER HONOUR:  That would depend whether it is procedural or substantive law.

Maxfield 6 27/5/94

MR CONTI: That is right, yes. Certainly the relevant

section of the Act specifies that it is the

insurance company and not the tortfeasor.

HER HONOUR: Again it depends whose law obtains.

MR CONTI:	Yes.
HER HONOUR:	Is there any point proceeding further before we

know the position with respect to the GIO? It

seems to me you have got this very considerable

difficulty. The GIO has never been made a party.

The action is more than six years old.

Theoretically any action against the GIO - not

theoretically, but prima facie, any action against

the GIO is already statute barred.

MR CONTI: Although I would be submitting, Your Honour, that

under the rules Your Honour has power to substitute

defendants.

HER HONOUR:  One may have, but as I understand it, by and

large powers are not exercised, even powers of

amendment are not exercised if the effect of the

amendment, for example, would be to frustrate a

period of limitation that the other party was

relying on.

MR HOEBEN:	I suspect that we will take any point available.
MR CONTI:	I can imagine.

HER HONOUR:  What do you think we should do? Is it likely

that one can get instructions on this?	Do you want
to serve or - - -

MR HOEBEN:  The difficulty - and since Your Honour raised it

at the beginning of the hearing I have been

following it through, I hope accurately -

Mr Watkins, my client, has been properly joined and

proceedings can be properly remitted against him.

Because of the statute in New South Wales, the GIO is a separate and discrete party and they have separate and discrete rights, so whatever happens

to Mr Watkins, it may well be that the GIO will

really need to take instructions and I would

suspect be separately represented for exactly the

reasons Your Honour outlined. There are defences

available to them which are not available to

Mr Watkins.

HER HONOUR:  And, of course, the GIO's attitude may well

determine to which jurisdiction the matter would

ultimately be remitted.

MR HOEBEN:  I wonder, Your Honour, if I could be allowed

just a few minutes with my friend, because this now

Maxfield 7 27/5/94

has raised quite a significant problem for him. We

might be able to do something by consent, we may

not, I do not know.	Would five minutes help,
Your Honour?

HER HONOUR:  Yes, I will adjourn and you let my associate

know when you are available. That would be

sufficient.

AT 10.32 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.50 AM:

MR CONTI:  Your Honour, thank you for that time. We have

had some discussions but I think the appropriate
course in the circumstances is that the matter will
have to stand over for us to join the Government

Insurance Office of New South Wales.

HER HONOUR: Yes.

MR CONTI: That would be my application, that the matter

stand over to a date which is convenient,

Your Honour.

HER HONOUR:  We should not let the grass grow any longer

under our feet in this matter. Is Monday a good

day?

MR CONTI:  Of next week?

HER HONOUR:  No, it would have to be a fortnight away. The

Court is in Canberra for a fortnight.

MR HOEBEN:  We will fit in with the Court.

HER HONOUR: It is a public holiday. If you do reach

agreement would you let the Registry know, of

course.

MR CONTI: Certainly, Your Honour.

HER HONOUR:  But otherwise I will list it at 10 o'clock on

the Tuesday, but if you have a more

convenient date during that week I can sit any day

that week but I need to know now.

MR CONTI:  I am starting a long case that day but I am being

led. Perhaps later that week if that was - - -

MR HOEBEN:	I will fit in with my friend.
Maxfield	27/5/94
HER HONOUR: I can do it on the Friday.
MR CONTI: Yes, that might be the best.

HER HONOUR: That should be the 17th. Very well, we will

list the matter for further hearing on

17 June. You will, of course, serve your

application.

MR CONTI: Yes.

HER HONOUR:  Yes, thank you. The Court will now adjourn.

AT 10.56 AM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 17 JUNE 1994

Maxfield 27/5/94