Nowlan v Marson Transport Pty Ltd - [2001] NSWCA 346

NEW SOUTH WALES COURT OF APPEAL

CITATION: Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346

FILE NUMBER(S):
40961/99

HEARING DATE(S): 12 September 2001

JUDGMENT DATE: 28/09/2001

PARTIES:
Justin James Nowlan (Appellant)
Marson Transport Pty Ltd (Respondent)

JUDGMENT OF: Mason P Heydon JA Young CJ in Eq

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 175/99

LOWER COURT JUDICIAL OFFICER: Delaney DCJ

COUNSEL:
Mr P R Hennessy SC (Appellant)
Mr P G Maiden (Respondent)

SOLICITORS:
Farrell Lusher (Appellant)
William K Chambers (Respondent)

CATCHWORDS:
Civil Practice and Procedure - Limitation period - Judicial discretion to allow claim out of time - Prejudice to defendant - Claim out of time under Motor Accidents Act - Appeal against decision denying leave to commence proceedings out of time - Whether defendant would suffer prejudice - Discussion and commentary on modern role for ambush and adversarial tactics in civil proceedings - Motor Accidents Act 1988 (NSW), s 52(4).
Civil Practice and Procedure - Discretion of Court of Appeal to admit new evidence - Appeal against decision denying leave to commence proceedings out of time - Evidence relating to causation of personal injury - Supreme Court Act 1970 (NSW), s 75A(7)-(9).
- D

LEGISLATION CITED:
Family Law Act 1995 (Cth)
Motor Accidents Act 1988 (NSW)
Supreme Court Act 1970 (NSW)

DECISION:
See para 38

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40961/99
  DC 175/99
MASON P
  HEYDON JA
  YOUNG CJ in Eq

Friday, 28 September 2001
NOWLAN v MARSON TRANSPORT PTY LTD

Civil Practice and Procedure – Limitation period – Judicial discretion to allow claim out of time – Prejudice to defendant – Claim out of time under Motor Accidents Act – Appeal against decision denying leave to commence proceedings out of time – Whether defendant would suffer prejudice – Discussion and commentary on modern role for ambush and adversarial tactics in civil proceedings – Motor Accidents Act 1988 (NSW), s 52(4).

Civil Practice and Procedure – Discretion of Court of Appeal to admit new evidence – Appeal against decision denying leave to commence proceedings out of time – Evidence relating to causation of personal injury – Supreme Court Act 1970 (NSW), s 75A(7)-(9).

The appellant (the applicant at first instance) was involved in a motor accident on 5 July 1995. On 29 July 1999 he applied for leave to commence proceedings out of time pursuant to s 52(4) of the Motor Accidents Act 1988 (NSW). Section 52(4) established a limitation period of three years from the date of the motor accident.

The application was dismissed. The primary judge held that the respondent would be prejudiced in not being able to conduct medical examinations in circumstances where there could be difficulty in the respondent to being able to separate the various medical issues in relation to causation.

Held by Heydon JA (Mason P and Young CJ in Eq concurring), allowing the appeal and granting an extension of time:

The appellant’s further evidence (a medical report going to whether an opinion could be expressed on the causal relationship between the appellant’s injuries and the accident), should be admitted in the interests of justice.

The further evidence reveals error in the primary judge’s view that the respondent would be prejudiced.

It is desirable for the exercise of discretion to be considered by this Court, and for it to be exercised in the appellant’s favour. The appellant’s lack of forensic diligence is relevant, but more important is that the respondent is not at risk of prejudice.

O R D E R S
1. The appeal is allowed.
2.The orders of Delaney DCJ made on 17 November 1999 are set aside.

3.The appellant’s application for an extension of time pursuant to s 52(4) of the Motor Accidents Act 1988 is granted.

4. The respondent is to pay the appellant’s costs of the appeal.
5.The costs of the application before Delaney DCJ are to be the appellant’s costs in the District Court proceedings.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40961/99
DC 175/99

MASON P
HEYDON JA
YOUNG CJ In Eq

Friday, 28 September 2001
NOWLAN v MARSON TRANSPORT PTY LTD
Judgment

MASON P: I agree with Heydon JA.
HEYDON JA:
Background
This is an appeal, by leave, against orders of Delaney DCJ made on 17 November 1999 dismissing an application of the appellant for leave to commence proceedings out of time pursuant to s 52(4) of the Motor Accidents Act 1988 (NSW) with costs. The motor accident in question took place on 5 July 1995. The application was filed on 29 July 1999.
Section 52(4) provided at the material time:
“(4) A claimant is not entitled to commence proceedings in respect of a claim more than three years after:
(a)the date of the motor accident to which the claim relates, or
(b)if the claim is made in respect of the death of a person, the date of death,
except with the leave of the Court in which the proceedings are to be taken.”
Thus the need for leave arose from the failure to commence proceedings before 5 July 1998.
The primary judge’s reasoning
The relevant parts of the primary judge’s reasons for judgment are as follows:
“The plaintiff was travelling from Bimbi to Sydney on the Hume Highway when his car ran out of petrol. He slept for the night in his car and then he went to get petrol and on returning to his car with the petrol, was able to restart the car. He then commenced to go onto the highway. He said (affidavit 22 July 1999) that he was then struck from behind when travelling in the number one lane at 75 kilometres per hour. He said he felt pain in his back.
The evidence (in summary) of the applicant (which I accept) was that he felt back pain after the accident. The plaintiff was seen by Dr Ross on 6 July 1995. After examinations and tests he said, and I accept, that he attended physiotherapy for his neck and back at North Shore Physiotherapy. This was the physiotherapist who had also assisted the plaintiff in the role he took as a representative rugby union player. He said that he has continued to play rugby union as a representative second row forward up to the present time, but still experiences back pain which he relates and says he always has related to the accident. An x-ray of his back was undertaken on 16 July 1998. This revealed that at the body of L1 there was anterior wedging. It was suggested that this could be congenital but probably was post traumatic in nature. The clinical history given was:
‘Football injury and motor vehicle accident in the past.’
The applicant in his affidavit of 22 July 1999 at paragraph 25 and following, set out why proceedings were not commenced within the three year and six month period. That is by the commencement of 1999. He said that although he had, during the period during which the limitation act had not expired, connection with legal representatives, particularly in relation to his father’s affairs, he had not told the solicitor about his accident. He said the reason for this was that he had been told by Dr Ross something which led him to the view that he was ‘looking forward to recovery’, even though in fact he was not so recovering.
It was only when he was sued by the other driver for property damage in respect of the accident, alleging that it was his negligent driving, that he was, he said, told by his accountant to see a solicitor, although he had been doing so for other family business. In June of 1997 he saw Mr Peter Smith of Farrell Lusher (a different Wagga Wagga firm that had been initially engaged by his family), but also a person whom his father had subsequently seen. It was in June of that year, and only after an inquiry specifically made by Mr Smith, a very experienced Wagga solicitor, that the plaintiff told the solicitor that he had been injured in the accident. Even then, the applicant did not tell the solicitor about his back injury.
Despite having back pain, knowing that it allegedly arose from the accident, and having sought legal advice, he did nothing. He went to Ireland to play rugby union with a club in Dublin where he remained until May 1998. It was not until 5 May 1998 that he told Mr Smith about the back problems and the right hip problems. Things went from bad to worse. A claim form was completed in June 1998, but it turns out it was the wrong claim form. He did not get a certificate from Dr Ross until August 1998. Eventually the claim was executed on 13 May 1999. Six months have now expired since that occurred. To say that in the terms of the views expressed by Gleeson CJ in [Salido] v The Nominal Defendant [(1993) 32 NSWLR 524] that there was a lack of forensic diligence, is the understatement of this sittings.
The plaintiff had been sued for property damage from the same accident. He had paid a traffic infringement notice for negligent driving, although he did not think that he should do so and that it was not his fault. The claim for property damage went to arbitration on 12 February 1999. Mr Smith was involved in these proceedings.
In the affidavit of 2 November 1999 the applicant set out the details of the availability of medical evidence (particularly paragraph 4). However, this evidence only served to point out the problem which the respondent argued was the one reason why the application must fail. The delay which made it impossible in real terms for any respondent to separate the facts and circumstances of the applicant’s life, taking into account his particular lifestyle, from the alleged effects of the accident with insufficient available evidence to do so. Mr Roberts said that this was the very type of prejudice which was referred to in the well known passage from Brisbane South Regional Health Authority v Taylor [(1996) 186 CLR 541 at 551-2 per] McHugh J. He said that not only was this a case in which there was presumptive prejudice, but there was evidence in the plaintiff’s own case of actual prejudice to the respondent. It is true that the test in relation to an entitlement, and extension of time under s 52(4) of the Motor Accidents Act is that which was originally set out by the Court of Appeal in Salido v The Nominal Defendant [(1993) 32 NSWLR 524 at 541] wherein [in] a succinct statement of the requirement Powell JA said:
‘It seems to me that in an application for an extension of time pursuant to s 52(4) of the Motor Accidents Act 1988, the questions for determination by the Court are in substance but two. They being, one, whether a sufficient explanation has been given for the failure to commence proceedings in time; and two, if so, whether having regard to all the circumstances of the case it is fair and just to grant or to refuse the application.’
In Hendricks v Agnew [(1997) 26 MVR 277] the Court referred to the fact that the ultimate test is whether leave to proceed beyond time should be granted, in that it is fair and just to do so as was indicated by Powell JA. The onus of proof remains on the applicant. It is necessary that the applicant demonstrate that the justice of the case requires extension. Toohey and Gummow JJ in Brisbane South Regional Health Authority v Taylor said that a material consideration, and some times the most important consideration is whether by reason of the time that has elapsed, a fair trial is possible. Gleeson CJ in Salido said that a material factor would be the extent of the relevant delay and the reason for it. In Astill v Newman, Court of Appeal 4 March 1999, in considering the principles to be applied, in relation to an application of this type, the Court of Appeal Fitzgerald JA, said:
‘This Court has accepted in cases such as South Sydney Council v Zegerack and Kinnas v Petricca that the principles established by the majority of the High Court in Brisbane South Regional Health Authority v Taylor are applicable to s 52(4) of the Motor Accidents Act. Consistently, with the later decision, a balancing exercise of the respective prejudices to one party or the other, depending on whether leave is granted or refused, was described in City of Sydney v Zegerack is unhelpful and misleading. The Court has made similar comments in Kinnas v Petricca, unreported Court of Appeal 1 December 1998, where the views of the Court of Appeal in Brisbane South Regional Health Authority v Taylor 186 CLR were applied.’
In this case the applicant chose to do nothing. I am satisfied the applicant had the knowledge and the understanding of various matters to enable him to take the steps that were required in time, had he done so, in all the circumstances it would have allowed proper consideration by a respondent of the medical issues. It would have allowed medical examinations in circumstances where there could be a chance (notwithstanding the applicant’s evidence that he had never injured his back at football, and I take that answer for what it is worth in all of the circumstances, the fact that he is a second row forward, and has been throughout the term of his football life) for the respondent to be able to separate the various medical issues. I am not satisfied that in the circumstances a respondent could have a fair trial of the proceedings, notwithstanding what appears in the affidavit of Justin James Nowlan of 22 November 1999, in which he annexes a medical certificate from Dr Ross dated 5 August 1998. One only has to look at that certificate in paragraph 4 to see the obvious varying views that Dr Ross must have had when he was completing that certificate as to the low back issue.
In all the circumstances I am not satisfied that the application is made out and it is dismissed.”
The appellant’s arguments to this Court: onus of proof of prejudice
The appellant advanced the following background matters.
“Significantly, there was no evidence before the Court that the Appellant had sustained any injury to his back which had resulted in the injuries and disabilities other than the motor vehicle accident and, rather, the medical evidence before the Court expressed the opinion that the Appellant’s injuries and disabilities were related to the motor vehicle accident.
On 16 July 1998 the Appellant had an x-ray of his lower back performed at Young District Hospital. The Radiologist reported (WB61):
‘The body of L1 shows anterior wedging and whilst this could be congenital, probably is post traumatic in nature. The other vertebra is not significantly compressed. The disc spaces are not narrowed. There is no scoliosis. There is no evidence of spondylolisthesis. Some tiny osteophytes indicate some minimal spondylosis.’
The report of Dr Patrick dated 1 November 1999 states (WB76):
‘He presents as being quite genuine, and I believe his ongoing back symptoms are significantly causally related to the motor accident of 5 July 1995’.
The respondent conceded at hearing that there was no forensic prejudice in relation to the actual circumstances of the accident, that accident having been the subject of contested property damage proceedings. The Respondent conceded at hearing that the contemporaneous records of the Appellant’s rugby union Physiotherapist were available for the relevant period. Indeed, the Appellant had been cross-examined on that material.
Whilst the Appellant had initially discussed the accident and whether he had sustained injuries with his Solicitor in June 1997 at that time the Appellant was receiving medical advice, care and treatment from his General Practitioner, Dr Ross, and the Appellant believed based on that advice that his condition was not serious and that he would recover. Further, the Appellant’s father was involved in litigation concerning the Appellant’s father’s farming enterprise and the Appellant assisted his father in that litigation. The Appellant travelled to Ireland in October 1997 to play rugby union with the Old Wesley Rugby Club in Dublin. It was at that stage that the Appellant began to realise the severity of his back injury and its impact on his rugby union playing ability. The Appellant returned from Ireland in May 1998 and assisted his father with the Appellant’s father’s farming enterprise. That included a period of managing the farming enterprise after the Appellant’s father had taken ill and was admitted for medical treatment in Sydney. It was not until about mid June 1998 that the Appellant consulted his Solicitor and gave instructions to file an appropriate claim form. Thereafter, it became apparent that the incorrect claim form had been lodged, the accident involving a Victorian insured vehicle and therefore requiring a Victorian claim form. The related property damage proceedings were resolved in early 1999 and at that stage the Appellant first appreciated that the personal injury and the property damage claims were different. The Appellant did not complete a New South Wales claim form until about May 1999, the April 1999 cropping season being busy and requiring the attention of the Appellant.
Evidence in relation to ‘medical issues’ before the Trial Judge comprised the medical certificate forming part of the Motor Accidents Act 1988 (NSW) claim form (WB59 and 60), the x-ray report of 16 July 1998 (WB61) and the medical report of Dr Patrick dated 1 November 1999 (WB72-76), relying, in part upon both the report in relation to the x-ray of 16 July 1998 and the actual x-ray films then taken (WB75). There were, in addition, Physiotherapist treating and similar clinical notes produced by the Physiotherapist associated with the rugby union team for which the Appellant played, their availability being conceded by the Respondent, and there was the evidence of the Applicant orally and in Affidavit as to his symptoms. There was no medical evidence tendered by the Respondent, the Respondent’s evidence in relation to those issues being merely that as at 19 August 1999 the solicitor acting on behalf of the Respondent deposed that ‘I have not had the opportunity to arrange for the Applicant to be medically examined’ (WB81). Significantly, the Respondent motor vehicle insurer had been placed on notice of the Appellant’s claim as early as May 1998 when the Appellant’s solicitor wrote to that insurer stating ‘Just yesterday, 5 May 1998, Mr Nowlan called indicating increasing problems with his back and we are simply writing to you advising you of what might be a late claim’ (WB82) there was no attempt or request by the Respondent any time during these proceedings to have the Appellant medically examined by a specialist of their choice.”
The appellant then argued that at the hearing the respondent bore a “legal onus of proof … to place before the court evidence making out” prejudice in relation to medical matters. The appellant argued that at the hearing he bore an “evidential onus of proof to establish that the prejudice raised by the [respondent] is not significant prejudice such as to mandate the refusal of the application for an extension of time”.
The appellant then submitted that the capacity of medical experts to analyse the relationship between his medical condition and the accident in the light of other possible causes of that condition could not be dealt with by way of judicial notice but only by expert evidence.
The appellant submitted:
“the medical evidence was significant and substantially important in that it contained an investigation made in July 1998 which revealed a traumatic injury and it contained an opinion of a specialist in relation to a November 1999 consultation which attributed the Appellant’s ongoing symptoms to the motor vehicle accident. There was nothing, significantly, which contradicted that medical opinion and that sequence or version of events. The Respondent’s contention, at its highest, was that because an early medical examination was not undertaken on their behalf the fact that the Appellant played rugby of itself denied the ability to investigate the relationship of the Appellant’s complaints and the motor vehicle accident. That was to speculate in an area which ought have been the subject of medical evidence in the manner suggested above and it was speculation which was contrary to the evidence of the Appellant and, by inference, contrary to the material revealed in the treating notes arising from the rugby union Physiotherapist which the Respondent had available to it and which had been relied upon by the Respondent’s Counsel cross-examining the Appellant. The Respondent’s evidence in relation to the ‘medical issues’ did not go beyond an assertion that the medical examination had not been undertaken of the Appellant in a context where such an examination was not sought. His Honour, it appears, saw this as the significant issue in relation to whether the Appellant ought be granted leave to commence proceedings and his Honour determined that medical issue in a manner which was, on the one view, contrary to the only qualified view before his Honour (Dr Patrick), on an alternative view, without any useful assistance from relevant medical opinion in circumstances where the opinion of Dr Patrick had not been traversed and, again alternatively, in circumstances which constituted an improper exercise of judicial notice of matters of an expert nature. Significantly, the actual x-ray film remained available and in the absence of medical opinion of the nature suggested by the cases above the availability of the actual x-ray itself, the contemporaneous reporting of the x-ray, the Appellant’s evidence as to his symptoms and their development over time and the availability of contemporaneous physiotherapy documents in relation to his rugby union, his Honour ought have determined that there was no medical prejudice issue which meant that a fair trial could not be had, as those concepts are understood and discussed in Holt v Wynter [(2000) 49 NSWLR 128].
The respondent’s arguments to this Court on the onus of proof of prejudice

The respondent submitted:
“While a prospective defendant might have an evidentiary onus to raise any considerations telling against the grant of leave, the applicant bears the onus of showing that justice requires the grant of leave, and must at least show that the prima facie prejudice to a prospective defendant, or any specific prejudice demonstrated, are not so significant that a fair trial is unlikely. Unless an applicant demonstrates that, despite the delay and other circumstances of prejudice to the defendant, the defendant will have a fair trial, leave should be refused: Astill v Newman (1999) 28 MVR 561 at 563 per Fitzgerald JA.”
The respondent also submitted that the appellant had given inconsistent accounts of his medical history.
“It is submitted that these inconsistencies are of a type which establish actual prejudice in circumstances where the credibility and reliability of the appellant may well be in issue at a trial and where the long delay will have seriously prejudiced the respondent’s ability to contest important questions of history concerning the accuracy of the injuries alleged to have been caused by the motor vehicle accident.”
Further evidence
The appellant applied to tender further evidence on this appeal. The evidence was a report of Dr Patrick dated 2 January 2001 stating that while there were difficulties in providing an opinion as to the relationship between the applicant’s present condition and the accident, he believed “on balance of probability, it is possible to express such an opinion”. Dr Patrick had examined the applicant on 20 October 1999 just before the hearing conducted by the primary judge took place, and his report of 1 November 1999 was before the primary judge.
The respondent opposed the application on the ground that: “The appellant has not demonstrated that, with reasonable diligence, such evidence could not have been adduced before his Honour.”
The Supreme Court Act 1970 (NSW) s 75A(7)-(9) provides:
“(7) The Court may receive further evidence.
(8) Notwithstanding subsection (7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds.
(9) Subsection (8) does not apply to evidence concerning matters occurring after the trial or hearing.”
The further evidence here does not relate to a matter occurring after the hearing. The interlocutory order against which this appeal is brought was not made after a trial. The authorities differ on whether the hearing was a hearing on the merits. The view that it was is supported by Martin v Abbot Australasia Pty Ltd [1981] 2 NSWLR 430 at 435-6 and Langdale v Danby [1982] 1 WLR 1123. The view that it was not is supported by Wickstead v Browne (1992) 30 NSWLR 1 and Hartigan v International Society for Krishna Consciousness Inc [1999] NSWSC 139. If the hearing was a hearing on the merits, the usual tests for receiving the evidence are those stated in Akins v National Australia Bank (1994) 34 NSWLR 155 at 160. Clarke JA (Sheller JA and Powell JA concurring) said:
“Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible.”
It is significant that the only element of those three tests which the respondent contends not to be satisfied is the first.
Those tests stem from High Court cases such as McCann v Parsons (1954) 93 CLR 418 and Wollongong Corporation v Cowan (1955) 93 CLR 435. Those High Court cases enunciate the powers of court at common law to grant a new trial. They make it plain, as did Clarke JA, that the three criteria commonly relied upon are not exhaustive. Thus in McCann v Parsons (1954) 93 CLR 418 at 430-1 Dixon CJ, Fullagar, Kitto and Taylor JJ said:
“The grounds upon which the court proceeds in granting the remedy have been settled by practice but they have never become completely stereotyped; they have always possessed some flexibility and have been governed by the overriding purpose of reconciling the demands of justice with the policy in the public interest of bringing suits to a final end.”
The High Court in CDJ v VAJ (1998) 197 CLR 172 at 200 noted that passage. In that case the majority (McHugh, Gummow and Callinan JJ) held that the common law tests were not appropriately to be applied to the power to receive further evidence conferred on the Family Court by s 93A(2) of the Family Law Act 1995 (Cth). It is possible that that may in the future invite reconsideration of the application of the Akins tests to s 75A(8), though, as the majority noted at 201, the language of s93A(2) is different from that of s 75A(8). But until such cases as the Akins case are overruled, they continue to bind this Court.
Even if the appellant’s submissions in relation to the burden of proof are sound (which they almost certainly are not), even if the hearing before the primary judge was a hearing on the merits, and even if the three tests stated in the Akins case are applicable and are not satisfied, a question remains: is it just to admit the further evidence in this case?
The application to tender the further evidence was supported by two affidavits of the appellant’s solicitor. The first said:
“Prior to the matter coming on for hearing before Delaney DCJ the Defendant had not tendered any medical evidence which suggested that the relationship between the Plaintiff’s current medical condition and the various incidents, including the accident of 5 July 1995, could not, on the balance of probabilities be determined. Accordingly, I did not appreciate that that was to be an issue and I did not seek medical opinion in relation to that issue. In that respect, when preparing the Plaintiff’s case for hearing, the only medical evidence which was going to be before the Court was the medical evidence which was going to be tendered by the Plaintiff and that included contemporaneous investigations in the nature of x-rays and contemporaneous medical records.”
It is to be inferred that the appellant had no notice, until the respondent addressed, of the point which the primary judge accepted as a principal reason for refusing the application. The second affidavit also supported that inference. It is common ground that that inference is correct. The respondent conceded that there was no cross-examination of the appellant on this question, and also that there was no cross-examination at all of Dr Patrick, whose report of 1 November 1999 before the primary judge implicitly supported the proposition that it was possible to arrive at opinions about the causation of the plaintiff’s condition. Had the appellant had prior notice, he could have called before the primary judge the evidence now tendered as further evidence to this Court. That evidence came from Dr Patrick, and, as has been said, Dr Patrick examined the appellant just before the hearing conducted by the primary judge took place. The material part of the further evidence is:
“I note that an issue has apparently arisen relating to the ability or otherwise for medical experts to express a meaningful opinion as to the relationship between Mr Justin Nowlan’s continuing symptoms and disabilities at the present time and his serious motor vehicle accident on 5 July 1995 (some four years and nearly four months prior to my assessment of Mr Nowlan on 20 October 1999).
I agree there are some difficulties with providing such meaningful opinion because of a number of factors including the fact that the accident has occurred more than four years prior to the assessment; the fact that he has returned to vigorous sporting activity playing rugby union at a fairly high level, and playing in the forwards, such activity in itself having at least the potential to aggravate any back problems; and also the fact that there has been some subsequent injury, albeit largely to his neck, in a football tackle in about 1996; and also the probability of some pre-existing developmental spinal osteochondrosis.
Nevertheless, I believe that on balance of probability, it is possible to express such an opinion (regarding relationship between accident of July 1995 and present symptoms) on the grounds that the nature of mechanism of injury at the time of the accident in July 1995 (definitely in the more severe category or rear end collision); and the fact that despite improvement of some symptoms following the motor vehicle accident there was persisting right sided mid lumbar back pain; and also the fact that he had physical therapy (chiropractic treatment) at the time, but with continuing back pain persisting at a troublesome level.
Consideration of this question does not cause me to significantly alter the opinion as expressed on the final two pages of my report to you of 1 November 1999. If further clarification is required, please contact me.”
The conclusion of the 1 November 1999 report, which was before the primary judge, was that the applicant’s back symptoms were causally related to the accident, and that he has “ongoing significant partial work incapacity”. That report did not reveal any suggestion by Dr Patrick that in the course of his examination of the applicant on 20 October 1999 he had had undue difficulty in separating the effects of the appellant’s lifestyle from the effects of the accident.
The respondent contended before this Court that the further evidence should not be received because the appellant ought to have been aware that an issue would arise in relation to the capacity of doctors to diagnose the nature of the plaintiff’s injuries and to offer a view as to whether the injuries were attributable to the car accident, or to playing rugby, or to farm work.
However, the issue was not so obvious that it went without saying that the respondent would rely on it. The fact that Dr Patrick had offered an opinion in his 1 November 1999 report was some evidence negating the suggestion that diagnosis was impossible or very difficult. Some respondents might have chosen not to take the point that diagnosis was impossible or very difficult.
Where the respondent to an application fails to signal a prima facie case of prejudice, either by evidence to be tendered by the respondent, or by an indication that some part of the applicant’s evidence will be relied on to raise a prima facie case of prejudice, it will not be possible for the applicant to deal with the point satisfactorily. Here the respondent was able to point to material in the applicant’s evidence raising the possibility of prejudice, namely a difficulty of assessing whether the injury was effected only by the accident or also by the applicant’s conduct in playing rugby union at a high level and in carrying out farming work after the accident. But that possibility was capable of being rebutted by evidence. The fact that that possibility was not availed of by the applicant in view of the respondent’s failure to give prior notice of the point successfully taken creates an injustice justifying reception of the evidence in this Court. That is sufficient to dispose of the respondent’s objection to the tender of further evidence. But the importance of the underlying issues perhaps justifies a little more being said.
Applications to extend limitation periods or otherwise seek the leave of the court to commence legal proceedings after some delay are common in modern personal injury litigation. That is because the legislation which regulates wide areas of that type of litigation generally requires procedural steps to be taken within periods which, compared with earlier times, are relatively short. The two commonest types of personal injury litigation are litigation arising out of injuries at places of employment and litigation arising out of the use of motor vehicles. The injuries in respect of which intending plaintiffs responsible for some form of disabling delay seek to sue are often extremely serious. Applications seeking the court’s sanction to overcome the delay are thus extremely important, for if they fail, the financial position of applicants and their dependent families can be ravaged. Those applications take up a large amount of the District Court’s time, and a significant amount of this Court’s time.
The conduct of the application from which this appeal is brought and the conduct of the application from which the appeal heard at the same time, Malone v NSW National Parks & Wildlife Service, together with the conduct of the two appeals themselves, suggest that a particular attitude to this kind of litigation prevails, even in the 21st century, among the profession and perhaps the bench. The attitude in question reflects the forensic system of an earlier age. It was described in Donaldson v Harris (1973) 4 SASR 299 at 302 by Wells J thus:
“… the old common law … was based, with rigorous logic, upon the system of litigation by antagonists. By virtue of the underlying principles of that system, it was the treasured right of each litigant to store up, in secret, as many unpleasant surprises for his opponent as he could muster, and only reveal them at the last minute at the trial (or contest) in the presence of the judicial umpire: nemo tenetur armare adversarium suum contra se (1628) Co. Litt. 36a. As Wigmore has put it (Evidence, 3rd ed. (1940), vol. VI, page 376) the common law regarded ‘the concealment of one’s evidential resources and the preservation of the opponent’s defenceless ignorance as a fair and irreproachable accompaniment of the game of litigation’.”
There are several reasons why that approach to the conduct of applications to extend time or to be excused for delay must cease.
First, that approach to litigation was common in, and may have been thought by contemporaries to be appropriate to, ages when human relations were different from what they are expected to be now. Modern employers are expected to treat their employees differently from the way in which some hard-faced and grasping cotton miller or iron maker in the time of Richard Cobden might have behaved. The workplace is supposed to be reasonably safe, and it is expected that those with bona fide claims to have been injured will be compensated, if the law permits this, without undue obstructiveness. Similarly, it is expected that the claims for compensation arising from the collisions of motor vehicles which are almost inevitable in modern traffic conditions will be processed cooperatively, without constant hindrances and difficulties being raised.
Secondly, the modern expectations just referred to arise partly because even in an age of trade unions closely linked to solicitors who are specialists in personal injury work, there is an imbalance between the power of injured persons and their employers. There is a similar imbalance between injured motorists and those whom they wish to sue. Personal injury plaintiffs as a class lack the liquid resources needed to fund long-drawn out forensic struggles.
Thirdly, modern personal injury litigation is generally brought against insured defendants, that is, in substance it is not brought against the defendants themselves but against the insurance companies behind those defendants. Speaking generally, the State has given the relevant insurance companies various advantages at the price of a substantial degree of regulation. Modern litigation depends on an assumption of the probity and solvency – admittedly an assumption which is at present being falsified almost daily – of insurance companies. The sort of desperate and adamantine resistance which might be understandable if engaged in by an uninsured householder who will be ruined by a successful claim is wholly inappropriate if engaged in by an insurance company which is the beneficiary, for example, of a stream of premium income flowing to a small class of companies of which it is a member in consequence of a compulsion on citizens to pay those premiums each time a motor vehicle is registered.
Fourthly, the conduct of litigation as if it were a card game in which opponents never see some of each other’s cards until the last moment is out of line with modern trends. Those trends were developed because the expense of courts to the public is so great that their use must be made as efficient as is compatible with just conclusions. Civil litigation is too important an activity to be left solely in the hands of those who conduct it.
To begin with, if practitioners in personal injury work are accustomed to maintain poker faces, to keep their guards up at all times, and to let opponents who are proceeding in ignorance continue in that course, they should perhaps, as Sir George Jessel used to say, move over to “what is known as the other side of Westminster Hall” to observe what procedures prevail there.
Allsop J has valuably expounded the appropriate approach to commercial litigation in the Federal Court in White v Overland [2001] FCA 1333 at [4]:
“However, by way of general principle I would simply like to make perfectly plain my view that in the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that in the propounding of issues for trial the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. Any practice of quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue should be discouraged firmly. Even if something has been said, where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, as a general rule, efficiency, common sense and an appreciation of the costs and resources (both public and private) likely to be wasted by confusion in litigation will mandate that a party through his or her representative ensure that the other is not proceeding on a misconception or that the other does appreciate something that has been said. Litigation is not a game. It is a costly and stressful, though necessary, evil. To paraphrase Roscoe Pound from ‘The Causes of Popular Dissatisfaction with the Administration of Justice’ (1906) 29 ABA Rep 395, 404-406, the ‘sporting theory of justice’ and any behavioural manifestation of it should be seen as a survival, or better, a relic, of the days when a lawsuit was a fight between two clans: cf Jackamara v Krakouer (1998) 195 CLR 516 at 526-527 per Gummow and Hayne JJ. Representatives do not owe duties to the other side’s client. They owe duties to their own client. But no one’s interests are advanced by litigation proceeding on assumptions which are seen or suspected to be false. This is very much the case when an issue, if it is to be propounded, might endanger the instructions of those acting for the other side. In saying this I need make no reference to the well-known responsibility of the Crown and emanations of the Crown to act at all times as model litigants beyond referring to what was said by the Full Court of this Court in Scott v Handley [1999] FCA 404 at [43] ff. I would expect no less than that which I have indicated of bitterly competitive commercial parties in the hardest fought of cases. In the long run, the only consequence of keeping issues hidden or not clearly identifying them is to disrupt the business of the court leading to the waste of valuable public resources and to lead to the incurring of unnecessary costs by the parties, costs which ultimately have to be borne by someone.”

The same approach operates in commercial and equity litigation in this Court. In that activity it is common for counsel to volunteer to each other what points will be argued and what authorities will be relied on. If one counsel requests that type of information from another, it is usually given. If it is not given, a speedy approach to the court is usually possible in which the difficulty will speedily be remedied. Even as long ago as the time when Mr H H Glass QC and Mr J W Smythe QC had their celebrated conversation about exchanging notes for argument in the course of a murder trial, Mr Smythe may have been right about criminal trials, but Mr Glass was right about equity suits.
Indeed, even in personal injury litigation the ambush theory of life has been abandoned in District Court trials as much as in Supreme Court trials. Matters are readied for reasonably expeditious hearing by a series of interlocutory appearances. Detailed particulars must be supplied under, for example, Pt 9 of the District Court Rules. Pleadings are expected to be clear and to be adhered to. Expert reports cannot be relied on unless served well in advance.
If the ambush theory of litigation is permitted to survive in the specific area of time-extension proceedings, it will do no party any good, least of all the potential defendants. In the first place, it will have the effect of imposing on all applicants in this type of litigation a duty to file evidence which is adequate to deal with every conceivable point which might be taken against them. This would generate undue expense, would tend to consume court time unnecessarily, and would produce the undesirable result that applications to extend time would become mini-trials of the contemplated action. Even if the first application failed because the applicant had been surprised, it would be possible for a second application to be made: Nominal Defendant v Manning (2000) 50 NSWLR 139. That is an undesirable waste of scarce and valuable judicial time in the District Court, but the court might well hold that the second application is not an abuse of process and should proceed if it was necessitated by the fact that the applicant was ambushed in the course of the first application. Alternatively, an ambushed applicant might decide to do what the present appellant did, and apply to this Court seeking leave to appear and tendering further evidence. Fascinating though the Court finds this type of work, that too is undesirable, since the time of three judges is consumed and not just one, but it may be necessary if justice is to be done to an applicant. It is simpler, cheaper, more efficient and fairer for resort to these manoeuvres to be avoided and for appropriate notice to be given by respondents to applicants before the application to extend time is first heard.
If respondents to this kind of proceeding cannot behave in the manner just indicated as desirable, it may be necessary for the relevant authorities, if they think fit, to amend the rules of court or issue some practice direction in a way which will cause this type of controversy to be resolved without undue expense.
Effect of the further evidence
The respondent did not seek to cross-examine Dr Patrick on the further evidence, and did not tender any evidence on its own behalf in contradiction of it. In those circumstances the further evidence reveals error in the primary judge’s view that the respondent was prejudiced in not being able to conduct medical examinations “in circumstances where there could be a chance … for the respondent to be able to separate the various medical issues”. Dr Patrick thought there was much more than a chance. (The responsibility for that error on the part of the primary judge does not, of course, in the light of the conduct of the parties before him, rest with him.)
Re-exercise of discretion?
The question then arises whether the matter should be remitted to the District Court so that a further application can be heard there, or whether this Court should exercise afresh the discretion which, after being exercised against the appellant, generated this appeal. The respondent favoured the former course, while the appellant favoured the latter course. Though the primary judge was critical of the appellant’s lack of forensic diligence, he made no credit findings adverse to the appellant, and no issue of credibility appears to arise. Though the respondent has lost any change of cross-examining Dr Patrick on the prejudice question, that is the consequence of its own tactical approach. Dr Patrick’s evidence before the primary judge conveyed implicitly the proposition on prejudice which his further evidence has now made explicit, and the respondent did not seek to deal with it before the primary judge. Accordingly it seems both possible and, in the interests of avoiding further delay, desirable for this Court to consider the discretion for itself.
The two issues which arise in this case are the appellant’s explanation for his delay and the existence of prejudice. The applicant had opportunities to seek legal advice, and there was in a sense a lack of diligence. The delay was explained to an extent. The appellant initially thought his condition would improve. There was also evidence, though the appellant did not himself highlight it, that later he had reasons for suppressing knowledge of the accident: he wanted to reduce the chance that the high ambitions he once held for success in rugby union would become incapable of realisation. The more widely the accident was known, the less the chance that the applicant would realise those ambitions. That attitude is entirely human. So far as the appellant has not satisfactorily explained delay, his default does not tell decisively against the application. Forensic diligence is a relevant factor, but not an end in itself or a necessary precondition for success. The more important question is whether the respondent is at risk of prejudice.
The only head of prejudice relied on by the respondent before the primary judge, and the only head of prejudice accepted by the primary judge, has been negated by the further evidence. In this Court the respondent also contended that inconsistencies in histories which the appellant had given established actual prejudice. The respondent did not, however, demonstrate that the delay meant that those circumstances caused it prejudice. Accordingly the application should be granted.
Orders
In view of the fact that this appeal has been occasioned largely by the respondent’s tactical approach to the conduct of proceedings before the District Court, the respondent should pay the appellant’s costs of the appeal, and should not receive a certificate under the Suitors Fund Act. Since the respondent’s opposition to the application before the primary judge rested on one primary point on which it has failed, the costs of the hearing before the primary judge should be the appellant’s costs in the proceedings. That is, if the appellant wins the trial, he will have his costs of the s 52(4) application; if not, there will be no order as to costs. It may be that that type of order is not typical of those made in relation to s 52(4) applications which succeed. In argument before this Court expressions were used to the effect that the appellant had been seeking an “indulgence”. In a limited sense that is true. There are some types of opposition which ought not to result in adverse costs orders even if the opposition fails. In other cases it can be seen, if opposition fails, that there ought not to have been opposition, and different types of costs orders may be appropriate. The failure of the respondent here is in the latter category.

The following orders are proposed:
1.            The appeal is allowed.
2.            The orders of Delaney DCJ made on 17 November 1999 are set aside.
3.The appellant’s application for an extension of time pursuant to s 52(4) of the Motor Accidents Act 1988 is granted.
4.            The respondent is to pay the appellant’s costs of the appeal.
5.The costs of the application before Delaney DCJ are to be the appellant’s costs in the District Court proceedings.
YOUNG CJ in Eq: I have read in draft the reasons of Heydon JA with which I agree.
I would just add this for myself that I am distressed to see that if the current case is typical of what is occurring in the District Court, that there is still so much trial by ambush practised.
It would seem that part of the culture that governed disposal of the motion in the instant case was that it was the appropriate way for the defendant to play the game that was evidently being played before the District Court Judge by taking any forensic advantage for itself that it considered to be legitimate.
The days of that sort of game have long since passed in the Supreme Court. In the District Court, which is supposed to provide justice in smaller cases with less technicality, there is little room for people gaining for themselves forensic advantages. Indeed, when a defendant is administering what is more or less a statutory scheme for the compensation of motor accident victims there is even less room for forensic tactics.
I should not be taken as criticising the defendant alone, but rather both parties and the culture.
In a culture where the plaintiff may be ambushed, it is incumbent on the plaintiff’s solicitors to minimise that possibility by seeking to confine the defendant by forcing the defendant to state what his or her grounds of opposition to the plaintiff’s motion are. Ordinarily, if this is not clear on the material filed, a letter should be written to the defendant’s solicitors in good time before the motion is heard and complaints made to the Judge if no reasonable response is received.
Judges should do their best to see that there is as little ambush as possible, and that people are up-front with what the real point is that the Judge needs to decide. If need be the Judge should actually ask the defendant at the commencement of the proceedings what are his or her defences, and if the plaintiff bona fide says that he or she is surprised, it may be preferable to adjourn the matter at that stage.
The culture has changed in the Supreme Court. The culture has changed in England, and it would seem, from judgments such as Boyes v Colins (2000) 23 WAR 123 and White v Overland [2001] FCA 1333 in other places in Australia. It should also change in the District Court.
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LAST UPDATED: 28/09/2001