Monna Mirkazemi (by her Litigation Guardian Pedram Mirkazemi) v Manns; Mirkazemi v Manns
[2008] TASSC 63
•24 October 2008
[2008] TASSC 63
CITATION:Monna Mirkazemi (by her Litigation Guardian Pedram Mirkazemi) v Manns & Anor; Mirkazemi v Manns & Anor [2008] TASSC 63
PARTIES:MIRKAZEMI, Monna (by her Litigation
Guardian PEDRAM MIRKAZEMI)
v
MANNS, Stephen
McGRATH, Alby William Michael
MIRKAZEMI, Pedram
v
MANNS, Stephen
McGRATH, Alby William Michael
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 895/2001
156/2003
DELIVERED ON: 24 October 2008
DELIVERED AT: Launceston
HEARING DATE: 3, 4 July 2008
JUDGMENT OF: Tennent J
CATCHWORDS:
Torts – The law of torts generally – Joint and several tortfeasors - Contribution – Limitations as to time - Application to extend time to seek contribution from further parties – Threshold test to be met – Whether proposed further parties prejudiced in their defence.
Wrongs Act1954 (Tas), s3(5), (6).
Local Government Act1993 (Tas), s208.
Fuller v Medical Benefits Fund of Australia Ltd [1999]TASSC 82; Crockett v Roberts & Ors, Tasmanian unreported 29/1992; followed.
Jordan v All Tasmanian Air Conditioning Pty Ltd [2005] TASSC 69; How v Colonial Car Rental Pty Ltd trading as Thrifty Car Rental [2004] TASSC 25; referred to.
Aust Dig Torts [15]
REPRESENTATION:
Counsel:
Plaintiff: No appearance
Defendant: K E Read
Proposed Third Party: P Turner
Proposed Fourth Party: P Turner
Proposed Fifth Party: S B McElwaine
Solicitors:
Appellant:
Defendant: Hunt & Hunt
Proposed Third Party: Director of Public Prosecutions
Proposed Fourth Party: Director of Public Prosecutions
Proposed Fifth Party: Shaun McElwaine
Judgment Number: [2008] TASSC 63
Number of paragraphs: 63
Serial No 63/2008
File Nos 895/2001
156/2003
MONNA MIRKAZEMI (by her Litigation Guardian PEDRAM MIRKAZEMI)
v STEPHEN MANNS and ALBY WILLIAM MICHAEL McGRATH
PEDRAM MIRKAZEMI v STEPHEN MANNS and
ALBY WILLIAM MICHAEL McGRATH
REASONS FOR JUDGMENT TENNENT J
24 October 2008
On 14 December 2000, in Proctors Road, Dynnyrne, a collision occurred between a car driven by Mrs Soheila Mirkazemi and a truck driven by Mr Steven Manns ("Manns") ("the accident"). There were two passengers in the car, being Mrs Mirkazemi's children, Monna Mirkazemi and Naveed Mirkazemi. There was one passenger in the truck, a Mr Shane Round. The truck was owned by a Mr Alby McGrath ("McGrath"). As a result of the accident, Mrs Mirkazemi and her son died and Monna Mirkazemi was severely injured.
By a writ filed 9 August 2001, Monna Mirkazemi, by her litigation guardian Pedram Mirkazemi (her father), sought damages for personal injury from Manns ("the 2001 action"). Some months later, McGrath was joined as a defendant. On 2 April 2003, Pedram Mirkazemi filed a writ by which he also sought damages from Manns and McGrath arising out of the accident ("the 2003 action").
On 7 November 2007, by an interlocutory application, Manns and McGrath (hereinafter together referred to as "the defendants") sought the following orders in both actions:
"1 That pursuant to section 3(6) of the Wrongs Act1954, the time within which the first and second defendants, may commence proceedings for recovery of contribution against the following parties be extended:
(a) The State of Tasmania,
(b) Transport Commission; and
(c) Hobart City Council
2 That pursuant to Rule 202 of the Supreme Court Rules 2000 the first and second defendants, have leave to file and serve on each of the following parties,
(a) The State of Tasmania,
(b) Transport Commission; and
(c) Hobart City Council
within such time as the Court may allow, a third party notice in the form of the documents annexed hereto and marked 'A', 'B' and 'C' respectively."
The plaintiffs in both actions did not seek to be heard on the interlocutory applications and took no part in the hearing of them. The State of Tasmania ("the State") as the proposed third party, the Transport Commission ("the TC") as the proposed fourth party, and the Hobart City Council ("the HCC") as the proposed fifth party, all opposed the applications.
The Wrongs Act 1954 ("the Act"), s3(5), provides that proceedings for contribution may be commenced, subject to any order under s3(6), at any time within the period of 12 months after the writ in the original action was served on the person seeking to recover contribution. Section 3(6) then provides as follows:
"(6) A judge, magistrate or any other person constituting or presiding over a court of competent jurisdiction, on the application of a person seeking to recover contribution under this section, may, in his discretion and subject to such conditions (if any) as he may impose, extend the period within which proceedings for recovery of contribution shall be commenced, notwithstanding that the period prescribed in subsection (5) of this section may have expired, if he is satisfied that the person from whom contribution is sought to be recovered will not be prejudiced in his defence by reason of the extension."
The Supreme Court Rules 2000 ("the Rules"), r202, provides as follows:
"202 — Third party notice
(1) Subject to subrule (2), a defendant who claims as against any person not already a party to the action to be entitled to contribution or indemnity or any relief or remedy relating to, or connected with, the original subject matter of the action, may file and serve on that person a third party notice directed to that person.
(2) A defendant may file and serve a third party notice —
(a) without leave at any time before delivering the defence; and
(b) at any other time with the leave of the Court or a judge."
In the 2001 action, the writ was served on Manns on 17 November 2001. By virtue of s3(5), subject to any order pursuant to s3(6), proceedings for contribution needed to be commenced on or before 17 November 2002. Therefore, by the time the interlocutory application was filed, there had been a delay of almost five years. As to leave to file a third party notice, the defence in the same action was delivered on 6 June 2002. The issues in the 2003 action are identical, save that the time delay is shorter. No distinction has been drawn by counsel, for the purpose of the argument, between the two sets of proceedings. There is no dispute that a decision in relation to the first issue on each interlocutory application will govern the outcome of the second.
The defendants tendered and relied upon a number of affidavits. These were those of:
(a) Michael Francis Hickey sworn 15 November 2007 in action 895/2001;
(b) Barry Raymond McDonald sworn 1 November 2007 and 30 January 2008 in action 895/2001;
(c) Louise Mary Cooper sworn 24 June 2008 in action 895/2001;
(d) Terence Patrick McCarthy sworn 7 November 2007 in action 156/2003; and
(e) Noel Raymond Clark sworn 15 March 2001 for the purpose of a coronial investigation.
All of the deponents also gave oral evidence and were cross-examined.
Other exhibits tendered during the hearing were:
(a)copy report of Thomas Whayman & McCarthy, Investigators, dated 24 January 2001, tendered by the HCC;
(b)copy transcript of coronial proceedings on 23 and 25 November 2001, also tendered by the HCC;
(c)transcript of an interview conducted by then police officer Sergeant Barry McDonald with Manns on 15 December 2000, tendered by the State;
(d)various depictions of road signs and an overall map showing Proctors Road and related roads, all tendered by the State.
The Act, s3(6), provides for a test which is different from that which applies in the usual limitation period extension applications. There is a threshold test to be met before the issue of the exercise by the Court of any discretion arises. In Fuller v Medical Benefits Fund of Australia Ltd [1999] TASSC 82 at par6 Wright J said:
"In Crockett v Roberts & Ors, 29/1992, Cox J (as he then was) held that the question of prejudice mentioned in s3(6) creates a threshold test which any such applicant as the defendant in the present case must overcome before being in a position to ask the Court to exercise its discretion. Once the threshold problem has been overcome, the need to exercise the discretion remains and this must be exercised in light of other issues, such as delay, reasons for the delay and the existence or otherwise of a prima facie case."
The defendants submit that, notwithstanding what is conceded as "gross" delay in this matter, none of the proposed further parties would be prejudiced in their defence of the action by reason of the extension sought. They submit that they have therefore satisfied that threshold test and that the Court should exercise its discretion in their favour. They submit there is a reasonable explanation for the delay in seeking contribution and that a prima facie case on their behalf can be made out.
The accident occurred about 3pm on 14 December 2000. Mrs Mirkazemi was driving her car on Proctors Road, Dynnyrne and was about to round an almost 90º right hand bend at the bottom of the road prior to driving up it. Manns was driving his truck down Proctors Road. The two vehicles collided on the bend. The road is not overly wide and the truck had come down a steep winding descent leading to a much flatter, but winding, section of the road just before the bend referred to. On the day of the accident, both the scene of the accident and the truck driven by Manns, while it was still at the scene, were inspected by police accident investigators and transport investigators. The truck was also re-inspected in significantly more detail a few days later.
On 15 December 2000, Manns was interviewed by Sergeant Barry McDonald of Tasmania Police in relation to the accident. In substance, Manns told police his brakes had failed without warning, as he was about three quarters of the way down the steep descent. A coronial inquest was opened immediately following the accident.
Early in January 2001, the Motor Accidents Insurance Board ("MAIB") instructed Thomas Whayman & McCarthy to independently investigate the accident. That firm produced a report for the MAIB dated 24 January 2001. At 4, the author of the report, Terence McCarthy, said:
"Inquiries to date suggest the cause of the accident may have been brake failure on the part of Unit 2. Skid marks at the scene caused by Unit 2, do raise questions in respect of this stated cause. Verification, however, in this regard may be evident on receipt of the Transport Tasmania Inspection Report which is not expected to be finalised until late February 2001. (A copy of this report has been requested and will be forwarded on receipt.) There is no evidence to suggest contributory negligence on the part of Unit 1 is an issue."
Unit 1 was Mrs Mirkazemi's car and unit 2 was the truck.
The transport investigator, Mr Noel Clark, inspected the truck at the scene and then on 18 December 2000. He swore an affidavit on 15 March 2001 for the coroner. Whether he completed a separate report made available to Mr McCarthy is unclear. In his affidavit Mr Clark said:
"In my opinion this vehicle was not in a roadworthy condition prior to the accident.
The main area of concern being the braking system which from preliminary and subsequent checks was found to be excessively out of adjustment, resulting in poor service and park brake operation.
The front and rear service brakes would have had minimal efficiency due to the excessive travel of the brake booster pushrods.
The park brake on the rear axle was found to be operational on the right side only."
This evidence raised the proposition that the brakes on the truck were defective and that this may have been the cause of the accident. However, to an extent it was inconsistent with what Manns had said, which was that there was nothing wrong with the brakes prior to what appeared to be sudden failure part way down Proctors Road. Mr Clark's opinion and Manns' statement were both inconsistent with the proposition that the brakes were operational to such a degree that they locked up when applied, causing the truck to skid.
The insurer of the defendants was, at the time of the accident, FAI Insurance. That company later became Allianz Australia Insurance Limited ("Allianz"). Late in May 2001, the MAIB wrote to Allianz seeking reimbursement of expenses arising from the accident. Allianz, as a consequence, made a decision to subrogate the claim. By letter dated 21 May 2001, the solicitors for the MAIB wrote to Allianz advising that the MAIB had had the accident extensively investigated and offering to make available to Allianz all the material it had obtained as a consequence if Allianz paid 50 per cent of the cost. By a letter dated 25 August 2001, Allianz acknowledged that it had received the material forwarded to it from the MAIB. That included the report of Thomas Whayman & McCarthy written by Terence McCarthy dated 24 January 2001. The evidence did not make clear what other documents formed part of the MAIB material which came into the hands of Allianz some time between the end of May 2001 and 25 August 2001.
In the 2001 action, the original statement of claim was filed on 9 August 2001 and asserted a number of particulars of negligence in par7. The two which are relevant for the purpose of these proceedings are those which alleged Manns:
"(ii) Drove his Mistubishi FP418 truck at a speed which was excessive in the circumstances;
…
(iv) Failed to apply the brakes on his said Mitsubishi FP418 truck in time to avoid the said collision or at all."
It was clear from this pleading that the plaintiff's case was based on an allegation that the truck was being driven too fast and the brakes were operational.
In October 2001, Allianz instructed solicitors in Brisbane to act on its behalf. It received a copy of the statement of claim with the above particulars on about 21 November 2001. It then arranged for Tasmanian solicitors to be appointed as agents of its Brisbane solicitors and a defence was filed. Between 23 and 25 November 2001, proceedings were conducted before the coroner. In the course of those proceedings, numerous affidavits were tendered and evidence otherwise taken from a number of witnesses. Those witnesses included Mr Clark and Sergeant McDonald. Manns and McGrath were represented at that hearing. The coroner's findings were handed down in January 2002 and Mr Hickey, for Allianz, agreed Allianz had those shortly after they were published.
Mr Hickey also told the Court that in March 2002, the company's Brisbane solicitors advised it that:
"… any potential third party proceedings would have remote prospects of success based on the Coroner's findings with respect to the manner of the first defendant's driving at the time of the accident."
Mr Hickey went on to say about this
"Moray & Agnew advised that this issue ought not be investigated further until medical information had been received so as to be able to quantify the claim. This advice was accepted as Allianz did not want to incur unnecessary expense."
The coroner's findings were not before the Court. However, Mr Hickey agreed when questioned that in substance the coroner found that the truck's brakes were defective and Manns was driving too fast.
Mr Hickey was questioned about what was meant by the statement that Allianz did not want to incur unnecessary expense. He agreed the claim was in the millions of dollars and yet Allianz made a deliberate decision not to investigate the discrepancies in the views as to the cause of the accident and investigate the possibility of contribution from a third party. He eventually conceded under cross-examination that the cost of any such investigation was not an issue and that, in fact, the cost was a pittance in terms of the overall value of the claim.
In or around June 2002, Allianz's Tasmanian solicitors sought a copy of the transcript of the evidence put before the coroner. That transcript was received by Allianz in September 2002, but without any of the exhibits. It would appear from the evidence of Mr Hickey that neither Allianz nor its solicitors had ever sought to access any material prepared for the coroner prior to this time. Mr Hickey agreed, when questioned, that Allianz knew of the coronial investigation and the capacity to contact the coroner's office to obtain material. There can be no doubt that the defendants themselves would have had this material because both were represented at the coronial inquest.
As to the issue of knowledge of what was in the transcript of the coronial proceedings, Mr Hickey's evidence was less than impressive. He seemed to be unsure as to whether he had ever read it, and certainly had no idea what was in it. Had he or anyone else at Allianz studied it in any detail, it would have become plain that irrespective of any findings of the coroner, there were competing theories as to the cause of the accident. There was the proposition that the brakes of the truck had failed without warning, and that despite every effort he made, Manns could not slow or halt the truck. There was the proposition that Manns was driving at a speed excessive in the circumstances, that he may even have been coasting in neutral, and that when he applied his brakes, they locked up and the truck skidded. There was also the proposition that the brakes were defective in any event prior to the accident. Those competing propositions were obvious from the transcript of the oral evidence given before the coroner, even without access to the exhibits.
That knowledge was available to Allianz, if not before, certainly as at September 2002. The explanation provided by Mr Hickey as to why Allianz did nothing to investigate the possibility of contribution from a third party was threefold. Firstly, he said Allianz relied on the advice from its solicitors; secondly, it did not wish to incur unnecessary investigation costs; and thirdly, it was concentrating on establishing the medical condition of the plaintiffs.
Mr Hickey said that about January 2005, at his direction, Hunt & Hunt, solicitors in Hobart, took over as the principal solicitors in the proceedings for Allianz . Then in April 2005, he instructed them, on their advice, to seek counsel's opinion as to quantum and liability, including any possible recovery action. Advice was received from counsel in July 2005 dealing with the issue of just who might be responsible for the accident and recommending further inquiries as to liability. At about the same time, Allianz received from their former Queensland solicitors an engineering report prepared by a firm called Enkleman & Associates, dated 31 January 2001. The report was not put in evidence. It was a report apparently prepared for a property damage insurer. There was no explanation in any evidence as to how that report came to Allianz approximately 4½ years after it was prepared. According to Mr Hickey, the conclusion in that report was that the brakes of the truck were defective and that that fact could have been a cause of the accident. As at July 2005, that was not new information.
Both Mr Clark and the former police sergeant, Mr Barry McDonald, gave evidence in this Court. Both had given evidence at the inquest and the different opinions then expressed were repeated. Mr McDonald was of the view in 2001 at the inquest that Manns had applied his brakes and that they had locked up, causing the truck to skid some distance before hitting the Mirkazemi's car. At the inquest he calculated that the speed of the truck at impact was in excess of 53kmh.
At the time of the inquest hearing in November 2001, the truck was still in existence and under the control of the owner, McGrath. It was re-inspected during the course of that hearing. In this Court, there was no evidence at all as to whether the truck still existed, and, if it did, whether it was in a state where a meaningful examination by another expert could occur. Neither Manns nor McGrath gave evidence in this Court, although both gave evidence at the inquest.
Mr Hickey eventually conceded, as far as the claim was concerned, that the critical issue was whether the brakes on the truck were working at the time of the accident. If they were, then Allianz would want to pursue a claim for contribution against the proposed third parties. However, if the brakes were not working, then it is unlikely they would want to pursue that claim for contribution. He also conceded that Allianz took no steps, save for instructions late in 2006 to its solicitors, to obtain a report from Mr McDonald, ultimately requested in early 2007, to obtain an independent evaluation of whether the brakes on the truck were working or not.
Evidence was also led on the hearing of these applications from a Ms Louise Cooper, the legal practitioner from Hunt & Hunt with carriage of the proceedings on behalf of Allianz. She was cross-examined by counsel for each of the proposed further parties. She had stated in an affidavit which she had sworn that she had made a number of freedom of information requests commencing in May 2007. These requests appear to relate to establishing whether Proctors Road was a State or local highway and, consequently, what entity was legally responsible for signage on that road. Ms Cooper was questioned about whether she had, following the requests, established with any certainty who was responsible for the road. She told the Court that she did not have any knowledge with certainty as to whether Proctors Road was a State road or one for which an authority like the HCC was responsible. After further questioning, she was forced to concede that if Proctors Road were shown on a plan required to be kept by the HCC under the Local Government Highways Act 1982, then it would be a local highway and the State would have no jurisdiction over it. Ms Cooper also conceded that despite the freedom of information requests that she had made, she had not seen the plan kept by the HCC, nor made any attempt to actually visit the offices of that entity to inspect the plan.
The same issue was explored with Ms Cooper by counsel for the HCC. He asked Ms Cooper whether she was aware that the HCC was required to keep something he described as "the Municipal Map". It is apparent that what both counsel were referring to was in fact a map required to be maintained by the HCC pursuant to the Local Government Act 1993, s208, upon which local highways which were to be maintained by the HCC were required to be recorded. Again, Ms Cooper acknowledged that she knew of the existence of the map but that she still, as at the date of the hearing, had not inspected it.
There could be little doubt from Ms Cooper's evidence overall that as from the time at which her firm took carriage of this matter on behalf of Allianz in 2005, there was material on the file from which it was apparent that there were inconsistencies between the conclusions reached by the coroner, the Enkleman report, and Mr McDonald, as to the state of the truck's brakes and potentially the cause of the accident. It was also apparent from her evidence that certain investigative steps could have been taken very quickly from that point which were not taken either at all or in a timely fashion. Ms Cooper also told the Court, when pressed, that it was probable the truck no longer existed such that it would be available for further examination.
It is apparent from what has been put before the Court that the reason why the defendants now seek to join further parties to these proceedings is that they have recognised that the reason for the accident may be other than brake failure. If the brakes were operational and Manns was driving at an excessive speed for the road, the plaintiff's case could potentially be made out against a third party found responsible for the state of the road, for example on the basis of the absence or inadequacy of signs. If, on the other hand, the brakes on the truck were at all times defective and simply failed when an attempt was made to operate them, then the plaintiff's claim is only likely to succeed against the defendants.
Prejudice to the proposed third, fourth and fifth parties
In these proceedings, the onus falls on the defendants to satisfy the Court that the parties from whom contribution is now sought will not be prejudiced in their defence by reason of the extension. If they fail that threshold test, that is the end of the matter. With respect to the submissions made by counsel for the defendants, there was little emphasis on the fact that prejudice was a threshold issue and not simply one of the factors to be dealt with, along with those of delay and the question of whether or not an arguable case has been made out.
With respect to the issue of prejudice, counsel for the defendants referred to the case of Jordan v All Tasmanian Air Conditioning Pty Ltd [2005] TASSC 69 where the Master considered an application for an extension of time under the Limitation Act 1974 and canvassed the principles to be applied to such an application. His Honour said at par9:
"In Hill v Iluka Corporation Ltd & Anor [2002] TASSC 113, Underwood, Evans and Blow JJ said at par23, in connection with the discretion to extend time:
'In any event, it is clear that although the issue of whether the defendant will be able to get a fair trial is a significant, if not decisive, factor, it is certainly not the only relevant factor in the exercise of the discretion. The Limitation Act, s5(3), requires that consideration be given to all the circumstances of the case. In most cases this means that regard must be paid to whether there is an arguable case, the length of the delay, the explanation for it and the degree of prejudice the delay has caused and/or will cause the defendant. All of these matters require weighing to determine whether it is just in the circumstances of the case, to extend the time within which proceedings may be commenced'."
Counsel referred to par13 in the same case, where the learned Master said, as to the issue of what an applicant needed to prove for the purpose of an application for an extension:
"If this were the trial of the action the solicitor's evidence concerning liability may have had little weight attached to it. Further, the failure of the applicant to give evidence and submit to cross-examination affects weight (re O’Neil (1972) VR 327 and Shaw & Anor v Harris & Ors(No 2) (1993) Tas R 167), but this is not the trial of the action, it is an application for an extension of time so that a trial on the merits can ultimately take place. The evidence is there not to support an argument that the applicant will succeed at trial or to enable a classification to be made as to whether the case appears to be weak or strong. It is there solely for the purpose demonstrating that there is at least an argument. Although possibly in some circumstances on an application for an extension of time a judge may give consideration to whether a case is weak or strong, generally such an enquiry would not be embarked upon."
As to the issue of prejudice, the learned Master went on to say at par20:
"On the question of specific prejudice Toohey and Gummow JJ said in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547:
'There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. … Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission (Vict) in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd:
"It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice".'"
Counsel for the defendants seemed to elevate this proposition to one which required the proposed further parties to lead evidence to satisfy the Court of the existence of prejudice. The proposition appeared to be that, in the absence of such evidence being led, the defendants had established there was no prejudice. With respect, he has, in my view, elevated the test to a level not intended. If there is evidence before the Court from which the Court can be satisfied potential prejudice exists, it is for the applicants to establish that the facts do not amount to something which would prejudice the proposed further parties in their defence of the actions.
The state of the brakes of the truck as at the date of the accident is critical to any claim against the proposed further parties. Counsel for the HCC submitted that the proposed claim by the defendants against his client was based predominantly on assertions that the signage on and leading to Proctors Road was inadequate. He submitted that if that were the basis of the claim, it would have to fail if it were shown the truck's brakes were defective because no amount of signage would have in those circumstances prevented the accident. Therefore, it was essential that the HCC have the opportunity to independently assess the truck.
Ms Cooper, the defendant's solicitor, conceded it was unlikely the truck still existed. The truck did still exist as at November 2001 because Mr Clark, the transport inspector, examined it during the inquest hearing. It was then in the possession of McGrath, who had retained it for just this type of eventuality, namely that it may need to be re-examined. At the time of the coronial inquest, proceedings relating to the accident had been commenced. The defendants, and more particularly their solicitors, therefore had to be alert, particularly given the differing propositions as to the cause of the accident put before the coroner, to the need to perhaps retain the truck for further examination for the purpose of the civil proceedings. Against this background, the defendants presented no evidence to the Court as to the continued existence or otherwise of the truck.
Instead, what counsel for the defendants submitted is that there is nothing to indicate that the truck would have been available had there been timely joinder, the truck was adequately examined immediately following the accident, and the tests then conducted by Mr Clark were adequate. He also submitted that the circumstances of the accident were fully investigated by experts, the reports of those investigations are available, the circumstances of the accident were the subject of a full coronial investigation, the transcript of the evidence provided at the inquest is available, and it appears the whereabouts of the truck's passenger are known. As to the question of the adequacy of the examination of the truck and of the investigation of the accident scene, there are and it appears always have been, differing views from Mr Clark and Mr McDonald as to the cause of the accident. The examination and cross-examination of both of those witnesses sought clearly to call into question the accuracy of their respective views. In particular, the cross-examination of Mr Clark at the inquest suggested a lack of thoroughness in his examination as to critical matters, for example, whether the gears of the truck were engaged or not. There also appeared to be doubt as to what changes had been made to the truck by those who recovered the vehicle from the bank down which it had rolled, before Mr Clark had an opportunity to closely examine it.
These matters raise a question mark over the adequacy of the examination of the truck at and immediately following the accident. This is compounded by Mr Clark's own evidence to the effect that another expert might conduct different tests and produce different results. Mr Hickey gave evidence that in or about July 2005, Allianz received from its former solicitors in Brisbane an engineering report prepared by Enkleman & Associates dated 31 January 2001. He said the report dealt with the condition of the brakes of the truck. Approximately four months after receiving it, Allianz sought a further opinion from its legal counsel "in light of the Enkleman report".
Mr Hickey said at pars29 and 30 of his affidavit:
"29In or around January 2006 Hunt and Hunt provided Allianz with a copy of Mr Ken Read of Counsel's second opinion in this matter, together with advice that if the brakes of the truck being driven by the first defendant at the time of the accident were known by the first defendant to be inoperative then there would be little chance of success in any recovery proceedings.
30Following receipt of Counsel's second opinion, Hunt and Hunt recommended to Allianz that an additional report be sought from Enkleman & Associates, particularly in relation to the issue of whether photographs taken immediately after the accident showing apparent skid markings on Proctors Road would cause a change of opinion regarding brake failure of the truck involved in the accident."
A copy of the so-called Enkleman report from 2001 was not put in evidence, nor was there any explanation as to precisely what was in it. There was no reference in the transcript of the coronial proceedings to any evidence being given about the existence or content of the Enkleman report. The Court therefore has no idea what relevance the report may have to the resolution of the question, what did cause the accident?
The matters identified in the previous few paragraphs leave the Court unable to be satisfied that indeed the circumstances of the accident were fully investigated by experts such as to obviate any possible need for an examination of the truck by an independent expert on behalf of the HCC, the TC or the State.
Returning to the issue of the existence of the truck, there is simply no evidence as to its existence or otherwise or, if it no longer exists, when it ceased to exist. Counsel for the defendants' submission was that there was nothing to indicate the truck would have been available even had joinder been sought in a timely fashion. That may be so. However, with respect, the converse is also true. There is nothing to indicate it would not have been available, whereas now, there is a very strong inference, given nearly seven years have passed since the coronial hearing, that the truck, even if it still exists, is not in the same condition as it was immediately following the accident.
I am satisfied that the state of the brakes of the truck at the time of the accident is critical to the defence of these actions by the proposed further parties. I am also satisfied the truck is no longer available in the state it was in at the time of, or immediately following, the accident for the purpose of a further expert examination. I cannot be satisfied that the truck was adequately examined at the time of the accident, or that another expert might not produce a different view than that expressed by Mr Clark.
Given those findings, I am satisfied there would be prejudice to the proposed further parties arising from their inability to have the truck examined. I am also satisfied that the defendants have not discharged the onus upon them to satisfy the Court that, by reason of that prejudice, the proposed further parties would not be prejudiced in their defence of these actions. That should be the end of the matter. However, given the way this matter has been argued, I will, notwithstanding that finding, deal with the issues of delay and arguable case.
Delay – have the defendants sufficiently explained it
Counsel for the defendants conceded that the delay in seeking contribution from the proposed further parties was a "gross" delay. However, he sought to submit that for a number of reasons, there was a very reasonable explanation for that delay such that it should not mitigate against the exercise of the Court's discretion in favour of the defendants. He conceded that the delay was set against the background that Mr Hickey was, at all relevant times, a claims officer with extensive experience generally, but more specifically with large claims. He also accepted that the solicitor having carriage of the proceedings in Tasmania was an experienced personal injuries solicitor. What he did not formally concede, but which must be inferred from the evidence, is that the solicitors initially instructed by Allianz in Brisbane were also experienced personal injuries solicitors. It is inconceivable that a company the size of Allianz would have instructed solicitors who were not.
It was also conceded that the delay had to be set against the fact that the claim being dealt with by Allianz was one anticipated by them to be worth millions of dollars and that by comparison, the cost of further investigations of the cause of the accident at an early stage would have been minimal. Further, Allianz had available to it papers from the file of MAIB from a quite early date and, at least from a date in September 2002, a copy of the transcript of evidence in the coronial proceedings. This material would have clearly disclosed the competing opinions as to the cause of the accident. It was accepted that a prudent insurer should have investigated the circumstances earlier.
Balanced against the above matters, it was submitted that a decision as to whether to seek contribution was never an easy one. This was because there were inconsistencies between the account given by Manns of what occurred as he drove down Proctors Road and the evidence of Mr McDonald about the skid marks. Further, there was evidence from Ms Cooper, the solicitor with carriage of the proceedings on behalf of the defendants, that Mr McDonald's view as to the cause of the accident was clouded by the Enkleman report. Counsel said in his submissions that "if Enkleman is correct then there is no possibility of recovery from a road authority". It should be noted here again that this Court is unable to consider any comparison of views between the Enkleman report and the opinions expressed by other experts because the content of the report is not in evidence.
Counsel for the defendants also referred to the fact that Allianz had received advice from its solicitors in Brisbane to the effect that the joinder was unlikely to succeed. Another issue raised was, of course, the cost of considering the question of joinder. Counsel submitted that it was never simply a matter of a few hundred dollars for a further report from Mr McDonald. It was also the cost of an application such as the present, which, if successful, would result in a far more expensive trial because of the number of parties. What counsel, however, did not refer to as a counter to that was that Allianz stood to potentially gain significantly from a financial point of view by a successful joinder application and success in spreading the burden at trial.
Counsel for the defendants submitted that, in effect, every application for extension of time is underpinned by delay. Invariably, he said, any delay which has occurred may be seen with the benefit of hindsight to have been avoidable. He submitted that that was the case here. He also submitted, quite correctly, that the law is that delay is not inevitably fatal to an application such as the present.
With respect to this argument, however, there is delay and there is delay as it appears in the present case. The delay in this case is, it is conceded by counsel for the defendants, "gross". The submission from counsel for the defendants appears to be that provided an explanation as to delay is given to the Court, the quality of that explanation and the length of the delay become almost irrelevant. With respect, the quality of the explanation must be considered. A reasonable explanation in all the circumstances may very well excuse even "gross" delay. However, in my view an inadequate explanation will not. Leaving aside what may obviously appear worse with hindsight, the explanation here is wholly inadequate.
Allianz had the Thomas Whayman & McCarthy report in 2001. It had the plaintiff's claim in the 2001 action in that year. It was aware of the coronial proceedings. It had the coroner's decision early in 2002 and the transcript of proceedings later that year. If it did not know by then, it must have been aware from the evidence given at the inquest that there were competing hypotheses about the causes of the accident. One of those was excessive speed. If that were ultimately found to be the cause of the accident, the issue of signage and the possibility of the risk being spread amongst others was a very live issue. In the light of that knowledge, Allianz took five years to bring their application. It appears that at no stage prior to service of that application did they foreshadow with any proposed further party that they were seeking contribution. The reasons given for that delay were simply unacceptable.
Delay in an application such as the present, if indeed the matter gets that far, is not, as I have already said, necessarily fatal to it. If there is clearly an arguable case such that it would be unreasonable to prevent the defendants from pursuing it and the delay is reasonably explainable, then a court should not be quick to refuse to exercise its discretion in favour of an applicant on the basis of delay alone.
Merits of the defendant's case against proposed third parties
The case proposed against the further parties is in essence that the signage on Proctors Road was inadequate to warn the driver of the truck of the speed at which it was appropriate to travel down the incline of the road. Had adequate signage been present, it was submitted, it is likely that the driver of the truck would have been alerted to the danger of the steep descent and he would have proceeded at a speed at which his brakes would have adequately responded. This case may, however, be mounted only against one of the proposed further parties and not all. Interestingly, counsel for the defendants said in his written opening, "it is probable that this road is not a state highway within the meaning of the Local Government (Highways) Act 1982. However that issue cannot be determined on this application. If it is a state highway then the signage case is against the third party; if not, it is against the fifth party." The proposed fourth party, namely the TC, is not even mentioned.
The first issue which needs to be addressed is the extent to which the defendants must make out their case before it can be said they have established their case has sufficient merit to warrant the exercise of a discretion in their favour. The parties went to some considerable lengths in the course of their arguments to argue the merits of their respective cases. It was certainly suggested by counsel for the defendants that this Court was being invited to go too far down the merit path. With respect, I agree.
In Crockett's case (supra), Cox J (as he then was) said at 3 - 5:
"I move then to the second question I have posed. What strength must the applicant show his case has in order to procure the favourable exercise of the discretion? It is often compendiously said that the applicant should establish that he has a prima facie case, but this may be a misnomer when, in the nature of things, the applicant cannot be expected to present as complete a case on the hearing of the application as he would be expected to do on trial. Indeed, the difference between making out a prima facie case on trial and having the matter withdrawn from the jury's consideration may lie in the procuring of materials by way of the processes of discovery and interrogatories of which the applicant may not be able to avail himself until he is given leave to institute his proceedings.
In a case under the Workers Compensation legislation (Gerke v Comalco Aluminium (Bell Bay) Ltd Unreported No 108/1965) Gibson J said:
'If the applicant, not seeking to bring an action that is clearly frivolous, has a reasonable excuse for the delay and the delay is not unreasonably long, and if there is no particular prejudice to the respondent beyond what is involved in a mere lapse of time, it is just that I should grant the extension.'
In Marton v Concrete Industries (Tas) Pty Ltd Unreported No 3/1964, Neasey J said, at p8, after adverting to other considerations such as prejudice and ignorance of the law:
'A further question of importance is the extent to which the facts of the particular accident may be considered. In Re Wherrett, unreported, No 104/1963, Crisp J, when considering an application under the Testators' Family Maintenance Act to extend time to apply under that Act, said that to embark upon a detailed examination of the justice of the claim would be to anticipate the actual hearing of the claim when the court would almost certainly not be in possession of all the relevant material, but that on the other hand it would be difficult to exclude all consideration of the relative strength of the Applicants. Crawford J in Barry v Repco Bearing Company Pty Ltd, unreported, No 4/1963 apparently considered that the question whether the applicant had a prima facie case for damages might be considered, and in Klein v Domus Pty Ltd, (1963) 80 WN (NSW) 515 at p516. Herron J (as he then was) in his judgment in the Court in Banco said that in an appropriate case it was relevant to discuss the circumstances surrounding the alleged negligence and the causal connection between the alleged negligent act or omission and the damages said to flow therefrom; but that such applications should not be "the forum for a close and full–scale debate of the facts on which liability is alleged", and Maguire and Ferguson JJ concurred.
With respect I agree with what appears to be the tenor of all three judgments, namely that in an appropriate case it is relevant to consider the facts and circumstances of the act or event in question, but it is not ordinarily proper, in the words of Crisp J, 'to embark upon a detailed examination of the justice of the claim'. I think that it is of some importance to consider whether the Applicant can show prima facie an arguable case for damages, and for that purpose his affidavit should ordinarily contain sufficient material for this to be considered.'
In Mansell v Patons & Baldwins (Australia) Ltd Unreported No 82/1968 Chambers J set out the above passage from Marton to which he said he 'found it useful to refer'. He had a dearth of direct evidence as to the occurrence of an accident and the facts upon which a complaint of negligence by an employer in not providing a safe system of work had been made. The material before him in part consisted of the proposed pleadings and other materials from which he drew the inference that statements had been taken from the applicant and from other witnesses and that they were in a position to give evidence in support of the allegations contained in the draft statement of claim. Clearly, this material, if presented in this form on trial, could not be said to amount to a prima facie case of negligence by the employer. Chambers J concluded that 'the applicant can present, prima facie, an arguable case to a court of trial'. Crawford J in Wakelin v Comalco Aluminium (Bell Bay) Ltd Unreported No 69/1975 adopted the test of 'whether prima facie there was an arguable case to a court of trial'.
In Re Makowski Unreported No 99/1972, Burbury CJ said, at p6:
'As at present advised however I would not think that a prima facie case need necessarily be established as a condition of the exercise of the discretion. If the applicant can show that he has a case which there is a reasonable possibility of sustaining, I would have thought that if it is otherwise just as between the parties time should be extended, he should not be deprived of the opportunity of litigating his claim because it may not be possible to characterize it as highly as being a "prima facie case".'
Wright J in Lanham v Illingworth Unreported No 72/1986 found that the applicant passenger in a two car collision had demonstrated a case of sufficient strength to permit her to sue both drivers, even though the evidence on the application might not show a probability that she would succeed as against both proposed defendants and might succeed only against the first. He took into account the fact that the institution of proceedings could improve the quality of the evidence available to the applicant by enabling her to interrogate and to procure discovery and said that 'if a passenger is injured in such circumstances he or she usually succeeds against one or other or both drivers simply because after it has heard the whole case, a court can normally reach a conclusion as to negligence, even though the passenger and her advisers, having been unsure at the commencement of proceedings as to the ultimate findings that will be made, have wisely joined both drivers as defendants'. He also referred to the rule in Jones v Dunkel (1959) 101 CLR 298.
If the applicant cannot show on the materials taken at face value which he produces to the court that he has an arguable case, granting him an extension would clearly be an exercise in futility and this would be a sound reason why it could not be just to extend time. In my view, an applicant must show that he has a reasonably arguable case. He should not be denied the right to take proceedings, all other things making it just that he should have the extension, merely because on a close analysis of the material put forward on the application it could be said that a judge given the same material on trial and no more would uphold a submission of no case to answer."
Slicer J said in How v Colonial Car Rental Pty Ltd trading as Thrifty Car Rental [2004] TASSC 25 at par13 when dealing with an extension of time application under workers compensation legislation:
"Whether the applicant is able to establish to the requisite degree duty and its breach is not to be here determined. She has established an arguable case or at least the existence of facts which, if accepted, are capable of grounding an action."
In Jordan v All Tasmanian Air Conditioning Pty Ltd (supra), the learned Master said at par13:
"If this were the trial of the action the solicitor's evidence concerning liability may have had little weight attached to it. Further, the failure of the applicant to give evidence and submit to cross-examination affects weight (re O'Neil (1972) VR 327 and Shaw & Anor v Harris & Ors(No 2) (1993) Tas R 167), but this is not the trial of the action, it is an application for an extension of time so that a trial on the merits can ultimately take place. The evidence is there not to support an argument that the applicant will succeed at trial or to enable a classification to be made as to whether the case appears to be weak or strong. It is there solely for the purpose demonstrating that there is at least an argument. Although possibly in some circumstances on an application for an extension of time a judge may give consideration to whether a case is weak or strong, generally such an enquiry would not be embarked upon. As Cox J (as he then was) warned in Soul v Soul Tas U/R 23/1982 at p6 in relation to 'skeletal' evidence on an application of this kind: 'It may be that at a subsequent trial additional evidence might alter its complexion to such an extent that the conclusion no longer remains open.' In Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor (1994) 35 NSWLR 497, Kirby P said at 508: '… it is obviously unnecessary for a claimant to establish a case in the detail that would be required at trial …'."
In this case, counsel for the defendants submitted that this Court has before it the pleadings as between the existing parties and the proposed third, fourth and fifth party notices. The Court also has evidence that freedom of information requests have been made by the solicitors for the defendants and it is submitted that the proper inference to be drawn in those circumstances is that the allegations made in the proposed notices can be supported by evidence. In general terms, I do not disagree with this approach. However, it is perhaps necessary to look at the proposed notices and the bases upon which it is asserted the further parties are liable.
Dealing with that in respect of the State, consistent with the submission by counsel for the defendants, it may be inferred that some of the matters in par2 might be substantiated by facts acquired from freedom of information requests. However, even if they are, at no stage in the notice do the defendants assert the basis upon which they say the State is liable to do any of the things set out. It would seem from the evidence of Ms Cooper and counsel's submissions that such liability as may be claimed may arise if Proctors Road is a State highway. However from Ms Cooper's evidence, no reasonable step has been taken to check whether it is or is not. The issue is critical to whether the State may be found liable, and yet the solicitors have not taken steps, obviously within their capacity to take, to do so. This is not a delving, in a detailed sense, into the merits of the claim. It is a basic issue which underpins it and without proof of which any claim must fail.
The same comments apply to the notice in respect of the proposed fifth party.
The applications brought by the defendants have all the appearance of a casting of a net to try to catch as many extra parties as is conceivably possible, without a great deal of regard to whether such parties can realistically ever be found liable to make contribution. The Court would seem to be being asked to deal with this matter on the basis that the defendants might have a claim against one of the further parties, so just add them all in for good measure and it can be sorted out later.
This is not a case where a clearly arguable case has been made out against the proposed further parties. There may be a case, but the Court can make no determination as to its merits. The defendants have not, in my view, demonstrated that any case which might exist is sufficiently arguable that the inadequately explained excessive delay should be ignored and the Court's discretion enlivened in their favour.
Conclusion
In summary, in relation to the applications by the defendants in the 2001 and the 2003 actions for time to be extended pursuant to the Act, s3(6), such as to allow contribution to be sought from the State, the TC and the HCC, the defendants have not met the threshold test in relation to prejudice. Even had they done so, the delay in bringing the application is unexplained and excessive, and there is no basis upon which the Court's discretion should be exercised in their favour. Those applications will therefore fail.
It was conceded that the outcome of the applications pursuant to the Act would govern those pursuant to the Rules. In the circumstances, the applications filed by the defendants on 7 November 2007 are dismissed.
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