Motor Accidents Insurance Board v Duc Thang Lee

[1989] TASSC 67

Serial No 67/1989
List "A"

CITATION:            Motor Accidents Insurance Board v Duc Thang Lee [1989] TASSC 67; A67/1989

PARTIES:  MOTOR ACCIDENTS INSURANCE BOARD
  v
  DUC THANG LEE

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 87/1989
DELIVERED ON:  23 November 1989
DELIVERED AT:  Hobart
JUDGMENT OF:  Neasey, Nettlefold and Wright JJ

Judgment Number:  A67/1989
Number of paragraphs:  10

Serial No 67/1989
List "A"
File No FCA 87/1989

MOTOR ACCIDENTS INSURANCE BOARD v DUC THANG LEE

REASONS FOR JUDGMENT  FULL COURT

NEASEY J
NETTLEFOLD J
WRIGHT J
23 November 1989

Order of the Court

Appeal dismissed.

Serial No 67/1989
List "A"
File No FCA 87/1989

MOTOR ACCIDENTS INSURANCE BOARD v DUC THANG LEE

REASONS FOR JUDGMENT  FULL COURT

NEASEY J
23 November 1989

1. I agree with the reasons for judgment to be given by Wright J, and with his conclusion.

   List "A"
   File No FCA 87/1989

MOTOR ACCIDENTS INSURANCE BOARD v DUC THANG LEE

REASONS FOR JUDGMENT  FULL COURT

NETTLEFODL J
23 November 1989

1. I have read the reasons for judgment prepared by Wright J I agree with them and with the order which he proposes.

   List "A"
   File No FCA 87/1989

MOTOR ACCIDENTS INSURANCE BOARD v DUC THANG LEE

REASONS FOR JUDGMENT  FULL COURT

WRIGHT J
23 November 1989

1. This is an appeal from an order made by Crawford J on 24 August 1989 granting leave to the respondent to bring an action for damages for personal injuries arising out of an accident which occurred on 26 October 1981, and extending the time within which the respondent may give notice under s16(2) of the Motor Accidents (Liabilities and Compensation) Act 1973 of an intention to make a claim for such damages. That orders of this kind are made in the exercise of a discretion is not open to dispute, but before an applicant for an extension of time can secure an order in his favour, he must be able to demonstrate that it is just and reasonable in all the circumstances to extend the time limit. An appellant against such an order can only be successful upon one of the grounds set forth in s45 of the Supreme Court Civil Procedure Act as follows:

"45–(1)    A Full Court, on the hearing of any appeal from any judgment, order, or other determination (whether final or otherwise) of a judge, shall not reverse or vary any adjudication of the judge which is, or purports to be, only the exercise of a discretion

which the judge was entitled by law to exercise, unless it appears to the Full Court that–

(a)    the judge has, in fact, declined or failed to exercise the discretion;

(b)    the judge has proceeded on a wrong principle or otherwise contrary to law, or on irrelevant or insufficient materials, or has misapprehended the facts or has failed to consider any material fact;

(c)    the adjudication is founded wholly or in part on an erroneous finding of fact or an erroneous determination in point of law; or

(d)    by reason of further evidence received by the Full Court in exercise of the powers conferred by section 48, or some special circumstance, the adjudication should be reversed or varied."

1. The appellant Board now complains that his Honour acted upon insufficient material in making the finding that he did, that there was only a "possibility of prejudice" to the appellant. It is contended that it should have been found that there was a probability of prejudice in several respects. It is not claimed that his Honour misapprehended the facts or made any identifiable error of law. However it was argued that, having regard to the material before him it was manifest that he had erred in some undisclosed and unascertainable manner.

1. His Honour's reasons for judgment set out in a chronological form, the salient aspects of the history giving rise to this application. There is no reason to reproduce or comment upon those facts, save to say that it is clear that the respondent was badly served by the legal advice that he received over a number of years. He is a comparatively young man of Vietnamese origin who has a poor command of English and it may readily be seen from the evidence given that he did not attempt to control the course of his claim but rather acquiesced in the advice which he was given. Plainly it may be said that he was not as diligent as he could have been in pursuing his claim, but at the same time it is equally clear that he relied, and was entitled to rely, on the legal advice which he was receiving. It is also clear that such advice was the principal cause of the delay of which the appellant Board complains.

1. In Sophron v The Nominal Defendant (1957) 96 CLR 469 at p474 and Hall v The Nominal Defendant (1966) 117 CLR 423 (per Barwick CJ), it has been made clear that delay resulting from negligent or inadequate legal advice, whilst not of itself entitling the applicant to relief, is a significant factor to be taken into account. In all the circumstances I think that the respondent gave a satisfactory explanation for the delay in the present case by showing that in large measure it was attributable to the conduct of his legal advisers. A satisfactory explanation is not necessarily one which provides justification for the delay which happened.

1. As well as the question of delay, his Honour was obliged to examine the question of possible prejudice to the appellant. He did this, and in my opinion, reached the correct conclusion that prejudice had not been clearly demonstrated, although as he said there was a possibility of some prejudice to the Board. Prejudice per se is not a basis for dismissing an application to extend time, although it is a factor which must be given substantial weight. On the other hand, there can be no doubt that the respondent has a prima facie entitlement to a significant measure of damages against the Board, irrespective of the success or otherwise of any claim which he may make in respect of his allegedly injured back. He sustained a major injury to his jaw in the accident. This is not in dispute and the Board has made it quite plain that liability has never been in issue. Obviously this is a factor which must also be weighed in the balance.

1. The Board claims however that an alleged back and neck injury which the respondent attributes to trauma sustained in the accident is open to serious question and it is claimed that the delay of several years since the accident occurred has prejudiced its position. It was submitted on behalf of the Board that there was clear prejudice to the Board because it has been deprived of an opportunity which it would otherwise have had to test the credit of the applicant. I cannot agree with this. In making his application the respondent has disclosed a great deal of privileged information consisting of his instructions to his solicitors and the results of their inquiries, both favourable and unfavourable to him. He has thus exposed both the strengths and weaknesses of his case to a much greater extent than he would be obliged to had he instituted his action within time. The appellant placed no material before Crawford J to suggest that witnesses, documents or other material relevant to any aspect of the respondent’s claim have disappeared or become unavailable in consequence of the effluxion of time, and consequently there is no basis for concluding that the mere passage of time will adversely impinge upon the appellant's capacity to test the respondent’s credit at the trial.

1. An appeal against the exercise of a discretion will not succeed just because an error may be shown on the part of the learned judge before whom the application originally came. The onus is on an appellant to persuade this Court that the exercise of the discretion has miscarried. This Court "may not substitute its own discretion merely because it would have exercised the discretion in a different way. It must be able to come to a 'clear conclusion’ that there has been a 'wrongful exercise of discretion’ on one or more of" the grounds set out in s45(1) of the Supreme Court Civil Procedure Act. See Neasey J, Tasmanian Pulp and Forest Holdings Ltd v Woodhall Ltd [1971] Tas SR 330 at p350.

1. In granting either or both of these applications the test for Crawford J was whether it was "just and reasonable in the circumstances" to grant the indulgence sought. In the circumstances of this case I think it likely that I would have reached the same conclusion as Crawford J had I been dealing with the matter at first instance, but in any event, I am far from persuaded that he made an error in consequence of which his discretion miscarried. In my opinion, the appeal should be dismissed.