NELSON (an infant by her next friend Suzette Edgar) v Drage - [2009] WADC 29

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: NELSON (an infant by her next friend SUZETTE EDGAR) & ORS -v- DRAGE & ANOR [2009] WADC 29

CORAM: DAVIS DCJ

HEARD: 27 FEBRUARY 2009

DELIVERED : Delivered Extemporaneously on 27 FEBRUARY 2009 typed from tape and edited by Trial Judge

FILE NO/S: CIVO 19 of 2009

BETWEEN: SEWANNA NELSON (an infant by her next friend SUZETTE EDGAR)
First Plaintiff
JEMACIA NELSON (an infant by her next friend SUZETTE EDGAR)
Second Plaintiff
KAMAHL NELSON (an infant by his next friend SUZETTE EDGAR)
Third Plaintiff
AND
JARROD DRAGE
First Defendant
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Second Defendant

Catchwords:

Limitation of actions - Application for leave to bring action - Section 7(c) Fatal Accidents Act 1959 - Section 47A(3) Limitation Act 1935 - Whether delay occasioned by reasonable cause - Whether material prejudice - Exercise of discretion - Grant of leave to commence action

Legislation:

Fatal Accidents Act 1959
Limitation Act 1935
Limitation Act 2005
Limitation Legislation Amendment and Repeal Act 2005
Motor Vehicle (Third Party Insurance) Act 1943

Result:

Application allowed
Leave granted to bring action

Representation:

Counsel:

First Plaintiff                  :     Ms E C Hensler
Second Plaintiff             :     Ms E C Hensler
Third Plaintiff                :     Ms E C Hensler
First Defendant              :     No appearance
Second Defendant         :     No appearance

Solicitors:

First Plaintiff                  :     O'Connor Lawyers
Second Plaintiff             :     O'Connor Lawyers
Third Plaintiff                :     O'Connor Lawyers
First Defendant              :     Not applicable
Second Defendant         :     Not applicable

Case(s) referred to in judgment(s):

Baker v Shire of Albany (1994) 14 WAR 46
Black v City of South Melbourne [1963] VR 34
Hughes v Minister for Health [1999] WASCA 131
Quinlivan v Portland Harbour Trust [1963] VR 25
The Minister for Community Welfare v Bennett, unreported; FCt SCt of WA; Library No 5060; 2 September 1983
Tucker v Hamdorf & Anor (2006) 47 SR (WA) 217
Victorian Railways Commissioners v Casaccio [1961] VR 157

DAVIS DCJ: This is an application by originating summons dated 20 February 2009 for leave to bring a claim under the Fatal Accidents Act 1959 on behalf of three infant plaintiffs following the death of their mother in a motor vehicle accident on 13 March 2003. The application has been brought on an urgent basis because the six year limitation period is about to expire.
The proposed defendant, Jarrod Drage, was the driver of the motor vehicle in which the deceased was a rear seat passenger. Mr Drage was driving in a southerly direction along Great Northern Highway, south of Broome, when the vehicle swerved into gravel on the side of the road and he lost control. The vehicle veered to the opposite side of the road and then rolled. The deceased was thrown from the vehicle.
The plaintiffs' solicitors have not been able to locate Mr Drage, despite a number of inquiries and attempts. In these circumstances the plaintiffs have sought leave to bring an action against the insurers of the motor vehicle, the Insurance Commission of Western Australia, ("the Commission"), and a chamber summons was brought to join the Commission as a second defendant, pursuant to s 7(2) of the Motor Vehicle (Third Party Insurance) Act 1943.
Leave of the Court is required to commence proceedings against both Mr Drage and the Commission. In relation to the proposed action against Mr Drage, leave is required pursuant to s 7(2)(a) of the Fatal Accidents Act 1959 as it stood before its amendment by the Limitation Legislation Amendment and Repeal Act 2005. That amendment legislation provided by s 13(2) that the Fatal Accidents Act 1959 s 7, as it was immediately before commencement day, continues to apply to causes of action that accrued before commencement day.
The cause of action under the Fatal Accidents Act 1959 accrued on the date of the death of the plaintiffs' mother, on 13 March 2003.
As against the Commission, as the Commission is a statutory body and by reason of s 7(2)(a) of the Fatal Accidents Act 1959, the application for leave against the Commission falls to be determined under s 47A of the Limitation Act 1935.
The Limitation Act 1935 was repealed and replaced by the Limitation Act 2005 which came into operation on 15 November 2005. However, the Limitation Legislation Amendment and Repeal Act 2005, s 4(2) provides:
"The Limitation Act 1935 continues to apply, despite its repeal and the enactment of the Limitation Act 2005, to causes of action that accrued before commencement day."
Section 4(2) of the Limitation Act 2005 also provides that the limitation periods provided for under that Act apply only to causes of action which accrued on or after the commencement day of that Act, which was 15 November 2005.
By s 7(1) of the Fatal Accidents Act 1959 an action must be commenced within 12 months after the death of the person in respect of whose death the cause of action arose.
By s 47A(1)(a) and (b) of the Limitation Act 1935 the plaintiffs may not bring an action against the Commission unless they have given to the Commission, as soon as practicable after the cause of action accrued, notice in writing giving reasonable information of the circumstances upon which the proposed action will be based and the action is commenced before the expiration of one year from the date on which the causes of action accrued.
In this case the one year period expired on 13 March 2004.
Both s 7(2)(c) of the Fatal Accidents Act 1959 and s 47A(3) of the Limitation Act 1935 permit an application to be made to the court after the expiration of that one year period, for leave to bring an action at any time before the expiration of 6 years from the date of death or accrual of the cause of action.
Pursuant to s 7(2)(d) of the Fatal Accidents Act 1959 when the court considers that the delay in bringing the action was occasioned by mistake or by any other reasonable cause or that the prospective defendant is not materially prejudiced in his defence or otherwise by the delay, the court may, if it thinks it is just to do so, grant leave to bring the action subject to conditions as it thinks it is just to impose.
Pursuant to s 47A(3)(b) of the Limitation Act 1935 where the court considers that the failure to give the required notice or the delay in bringing the action (as the case may be) was occasioned by mistake; or any other reasonable cause; or that the prospective defendant is not materially prejudiced in its defence or otherwise by the failure or the delay the court may if it thinks it is just to do so, grant leave to bring the action.
For the plaintiffs to succeed in obtaining leave to commence proceedings pursuant to either the Fatal Accidents Act 1959 or the Limitation Act 1935, therefore, there are three criteria to be addressed:
1.Was the delay in bringing the application occasioned by mistake or by any other reasonable cause?
2.Alternatively, have the defendants been materially prejudiced in their defence or otherwise by the delay?
3.As a matter of discretion, is it just for the court to grant leave to bring the action?

Mistake or any other reasonable cause

Dealing first with mistake or any other reasonable cause, there is no suggestion in the papers filed with this application, and counsel for the plaintiffs has not suggested, that there was any mistake, but there is raised whether there was reasonable cause for the delay.
The term "reasonable cause" was explained by Sholl J in Quinlivan v Portland Harbour Trust [1963] VR 25 at 28 in the following manner:
"… a cause which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man."
As appears from the affidavit in support of the application by Mr Thomas James Patrick Cannon from the firm of solicitors acting for the plaintiffs, sworn 19 February 2009 ("the affidavit"), the plaintiffs' solicitors are in Victoria and were first instructed by the plaintiffs' grandmother in March 2003. The plaintiffs reside in Broome. Mr Cannon met with the family in Broome on several occasions to obtain instructions from them.
Notice of the plaintiffs' claim was given to the Commission by letter dated 24 July 2003. Between then and September 2005 there was correspondence between the plaintiffs' solicitors and the Commission concerning the plaintiffs' claim, with submissions being provided by the plaintiffs' solicitors to the Commission in July 2004 and follow up correspondence sent in December 2004. The Commission wrote in response by letter dated 20 December 2004 advising that they were still awaiting the coroner's report which the Commission required to determine if any reduction of the claim was appropriate. In that letter the Commission queried whether a writ had been filed and brought the one year time limit under the Fatal Accidents Act 1959 to the attention of the plaintiffs' solicitors.
The plaintiffs' solicitors did not respond to the Commission until a letter dated 14 July 2005. The plaintiffs' solicitors referred to the fact that the prosecution of this matter (which I understand to be the prosecution of Mr Drage as driver of the vehicle) was now finalised and that they were going to seek the "crash records" information before seeking leave to file a writ. They explained that the reason they had not filed a writ was that they were awaiting the prosecution of the police matter to be finalised. They asked for the Commission's consent to the issue of the writ. In the alternative the plaintiffs' solicitors invited the Commission to hold an informal conference. The letter finished by advising that in the alternative "we will proceed to seek leave of the court and commence proceedings".
By letter dated 18 July 2005 the Commission advised the plaintiffs' solicitors that if they had not issued a writ within the one year time frame they would have to seek leave of the court to issuing it out of time.
No proceedings by the plaintiffs' solicitors were commenced, however, and there is no explanation in the affidavit as to why this was not done.
The next matter deposed to in the affidavit is that the plaintiffs' solicitors received a copy of the coroner's findings on 27 September 2005. On 25 October 2005 the Commission wrote to the plaintiffs' solicitors making an offer to settle the issue of liability. The next step taken by the plaintiffs' solicitors was to request counsel to review the coronial file at the Coroner's Office in Perth. This was not done until 2 February 2006. The affidavit is silent as to when counsel was actually requested to undertake that review of the coronial file.
The next step take by the plaintiffs' solicitors, according to the affidavit, was when Mr Cannon reviewed the coronial file when he was in Perth on 7 September 2006. There is no explanation as to what, if anything, occurred in the 7 month period between the two reviews of that file.
The affidavit goes on to state that the solicitors lost touch with the family in late 2006 and the family had moved address without notifying the office and they had very little contact since.
There is mention of a letter of 1 June 2007 to Lavan Legal, who I understand to be the solicitors representing the Commission, with a quote of an excerpt from that letter which refers to the social upheaval in the family since the death of the deceased and that it has been quite difficult in respect to getting instructions as the family was dealing with a range of issues. There are no particulars provided of what attempts to obtain instructions were actually made by the plaintiffs' solicitors.
The affidavit gives no details as to what occurred after then until 21 January 2008 when the plaintiffs' solicitors spoke with the next friend for the infant plaintiffs, Suzette Edgar, who is also the plaintiffs' aunt. After that date, despite what has been described as "numerous letters and telephone calls" the plaintiffs' solicitors had no further contact with her until 18 August 2008 when she advised that her postal address had changed.
The affidavit does go on to explain that it has been difficult to deal with Ms Edgar due to the sensitivities surrounding the death of her sister, with a reluctance by Ms Edgar to deal with this matter. In addition Ms Edgar has a heavy burden dealing with the three children of the deceased as well as her own large family. Although the affidavit is a little unclear it appears that Ms Edgar's reluctance to deal with the matter led to a further period where the plaintiffs' solicitors were unable to locate her and eventually only re‑established contact with her in December 2008.
I find this stated reluctance difficult to reconcile with what is otherwise set out in the affidavit which indicates that at earlier stages there was no apparent difficulty in obtaining instructions. Having regard to what is set out in the plaintiffs' solicitor's letter to the Commission dated 15 July 2005, they presumably had instructions to proceed to seek leave of the court and commence proceedings if the Commission would not consent to the issue of the writ or hold an informal settlement conference.
There is a lack of evidence as to the reasons for the delay, particularly as to:
1.why no application for leave to commence proceedings was brought back in July 2005, when the plaintiffs' solicitors advised in correspondence with the Commission that this would be done, and the Commission immediately responded advising them to bring the application;
2.what occurred in the period between 10 October 2005 after the Commission offered to settle the issue of liability and February 2006 when counsel for the plaintiffs inspected the coronial file;
3.what occurred in the period between that inspection by the plaintiffs' counsel in February 2006 and the subsequent inspection of the coronial file in September 2006;
4.what occurred between the plaintiffs' solicitor's letter of 1 June 2007 and 21 January 2008 when the plaintiffs' solicitors spoke with the plaintiff's next friend; and
5.why, having re‑established contact with the plaintiffs' next friend in January 2008, instructions could not be obtained from her then in relation to the bringing of an application for leave to commence proceedings.
In my view, there has been a substantial delay and the plaintiffs' solicitors have not adequately explained the whole of the delay, particularly as to what occurred in the relevant periods I have identified.
I am conscious that a failure by a plaintiff's solicitor to give notice or commence legal proceedings may not, in appropriate circumstances, be visited upon the plaintiff: Tucker v Hamdorf & Anor (2006) 47 SR (WA) 217 at [44]; Black v City of South Melbourne [1963] VR 34.
However, in the circumstances which I have outlined above I have no basis for concluding that the failure to bring the action or earlier application for leave was occasioned by any "reasonable cause".

Material prejudice

I now turn to the issue of material prejudice. The plaintiffs bear the ultimate burden to establish the absence of material prejudice. There is, however, an evidentiary burden on the defendant to show prejudice: Baker v Shire of Albany (1994) 14 WAR 46 and Stevens v MVIT [1978] WAR 232.
In this case no issue of prejudice has been raised by the Commission. Even though no evidence of material prejudice has been raised, the plaintiffs still bear the legal onus of showing that the justice of the case requires a discretion to be exercised favourably, and to do so must prove that an extension beyond the one year period within which they ought to have commenced proceedings would not result in significant prejudice to the prospective defendants: Hughes v Minister for Health[1999] WASCA 131 at [47] and [48].
In the supplementary affidavit of Mr Cannon sworn 26 February 2009 he has deposed to the discussions and correspondence he has had with the Commission regarding his attempts and inability to contact Mr Drage and the notice that he has given to the Commission. He also deposes to the fact that on 25 February 2009 he spoke to a solicitor representing the Commission and was advised that the Commission neither consents to nor opposes the orders sought by the plaintiffs.
In this case I consider that there would be no material prejudice to the prospective defendants, since reasonably early notice of the claim was given to the Commission in July 2003. Given the exchange of correspondence between the plaintiffs' solicitors and the Commission, it is apparent that the Commission has investigated the accident and should have in its possession relevant records pertaining to the circumstances of the accident. Further, a coronial inquiry has occurred, Mr Drage has been prosecuted, and both the Coroner's file and the prosecution file should be available to all parties.

Discretion

Notwithstanding that I consider that one of the pre‑requisites for granting leave has been satisfied, in that neither defendant will be materially prejudiced if leave is given to commence the action before the expiration of six years from 13 March 2003, I must still consider whether the justice of the case requires leave to be granted to the plaintiffs to commence the action. To do that I must consider the merits of the plaintiffs' case.
It is not necessary for the plaintiffs to establish a prima facie case of liability and it is enough if it appears that the plaintiffs' claim is not mala fide, speculative or absurd: The Minister for Community Welfare v Bennett, unreported; FCt SCt of WA; Library No 5060; 2 September 1983 per Burt CJ; Victorian Railways Commissioners v Casaccio[1961] VR 157.
On the information before me it cannot be said that the plaintiffs' prospective claim is speculative or has little or no prospect of success.
Furthermore, it is a relevant factor that the Commission does not oppose the application.
I consider that the interests of justice require that the plaintiffs have leave to bring and litigate their proposed action against the two proposed defendants.
As a consequence the plaintiffs' application for leave to institute proceedings is granted.