Russo & Anor v Aiello
[2002] HCATrans 517
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S292 of 2002
B e t w e e n -
LIDO RUSSO and ZUCCHINI PTY LTD
Appellants
and
JOHN DOMINIC AIELLO
Respondent
GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 12 DECEMBER 2002, AT 10.23 AM
Copyright in the High Court of Australia
MR G.B. HALL, QC: May it please the Court, I with my learned friend, MR A.R. LAKEMAN, appear for the appellant. (instructed by Turner Whelan)
MR D.J. RUSSELL, SC: May it please the Court, I appear with my learned friend, MR G.F. BUTLER, for the respondent. (instructed by Mr Bhim Ramrakha)
GLEESON CJ: Yes, Mr Hall.
MR HALL: Your Honours, this is an appeal from the Supreme Court of New South Wales Court of Appeal. It relates to section 43A(2) of the Motor Accidents Act. I take it the Court has our written submissions.
GLEESON CJ: Is Reprint No 7 of the Motor Accidents Act the one for us to be looking at?
MR HALL: On my instructions, yes, your Honour. Your Honours, I have taken the liberty of obtaining the second reading speech in relation to the legislation that brought that amendment into force. Could I hand up copies of the second reading speech. I wish to take you to one passage which I have marked with a sticker.
GLEESON CJ: Thank you.
MR HALL: If your Honours go to page 4 of the second reading speech ‑ I have to say at the outset, your Honours, that it lacks, as so many second reading speeches do, any real grappling with the issues with which we are to be concerned. If your Honours go to the second paragraph on page 4, your Honours will see towards the middle of it, it says:
At present, section 43A of the Act provides that a claim may be made later than six months after the accident so long as a full and satisfactory explanation is provided. The section does not differentiate between a slightly late claim and one that is very late, yet the extent of lateness can be critical in terms of the rehabilitation of the claimant and investigation of the claim. Further, the section does not specify the consequences of failure to provide a full and satisfactory explanation.
It is proposed to provide that the consequences of failure to make a claim within time will be as follows: claims made more than six months after but within 12 months of the accident will be accepted if accompanied by a full and satisfactory explanation . . . of the reasons for the delay; and the total damages claimed are likely to equal or exceed 10 per cent of the maximum amount prescribed under clause 79A –
which your Honours might recall relates to the amount of non‑economic loss ‑
A court will be obliged to dismiss proceedings if not satisfied that a requirement has been met.
Your Honour, we have agitated in our submissions the question of whether the Court should consider prejudice and one submission I would make in relation to the first paragraph I read, the lateness is said to be critical in terms of rehabilitation of the claimant, which seems to suggest that there should be a focus on whether the delay in bringing the proceedings has affected the ability of the claimant to rehabilitate himself and get back to work and, on the other hand, the reference to investigation of the claim, we would say, must envisage an intention that what would be investigated would be any prejudice to the insurer.
KIRBY J: Well, you have to ask yourself, “Why does Parliament have statutes of limitations? Why does it have requirements to give notice of claim?” The first explanation that springs to mind is, so that those against whom claims are made can make prompt investigation before the scent gets cold.
MR HALL: Yes.
KIRBY J: You remember all those cases in the Nominal Defendant list and that seems a pretty self-evident reason for requiring prompt notification.
GLEESON CJ: Well, it is not only self-evident; it is the actual reason given in section 43(1). Section 43A, with which we are concerned, is a relaxation of the provisions of section 43, is it not, in particular section 43(2)? And the object of section 43 is explained in section 43(1).
MR HALL: That is so.
GLEESON CJ: And what we are here concerned with is a provision which relaxes the prima facie strictness of the provisions of section 43(2).
MR HALL: Yes, but we would say, as your Honour is aware, the prejudice was always a relevant consideration in relation to the Nominal Defendant cases, if I can go back to the matter raised by Justice Kirby and if I can turn to Salido, which is a case which your Honour the Chief Justice gave a leading judgment in, prejudice was put forward there as a very central consideration.
GLEESON CJ: But if you look at the concept of prejudice, what do you make of section 43(1)(c), which is part of the object of the provisions? That is not a form of prejudice that has previously, I think, had much prominence in these limitation periods, but one of the objects of this scheme relates to preparation by insurance companies of their accounts.
MR HALL: Well, yes, but we would say in relation to the Motor Accidents Act, which follows, as your Honours are well aware, earlier legislation, it is a self‑funding scheme. It may be that the insurers have to provide accounts to the relevant authority, but the scheme is actually self‑funding. It is not a scheme which involves a personal loss to an insurer, as might occur in the wider world if an insurer does not make adequate provision for claims. The motor accidents scheme runs along funding itself, in point of fact.
GUMMOW J: There is a definition of “insurer” in section 40(1), which bears upon section 43.
MR HALL: That is so, your Honour, but the scheme envisages that there will be nominated insurers. They have to disclose what their premiums are to the central authority, and the scheme is designed to proceed on the basis that insurers will make a profit from handling of the claims.
GLEESON CJ: But politicians go to elections nowadays making promises about the cost of green slips.
MR HALL: Well, that highlights, if I may say so, one problem of the scheme. That is to say, the politicians are appealing to particular cross‑sections of the community for very narrow reasons, and it is not the function of the court. The court has a slightly different function; the court has to consider the justice of the individual case. I would submit as a general matter that there is a trend at the moment. The Executive has captured Parliament and it is trying to inhibit the judicial function in a lot of ways. It is, for example, trying to impose mandatory sentences or compulsory sentences. If one turns to immigration law, it is trying to control discretions, and what it is doing is encroaching on the role of the judiciary.
KIRBY J: Yes, but so long as that is valid and within power, the courts must give effect to it. I mean, we are not here dealing with a challenge to the validity of this legislation; we are dealing with its meaning.
MR HALL: Its interpretation, that is right. Yes, I concede that, your Honour.
KIRBY J: And there was a very big delay between the time your client first knew that he had something wrong with him and the first time that the insurer got any whiff of it. This is the big problem you have, and part of it is unexplained.
MR HALL: Well, your Honour ‑ ‑ ‑
KIRBY J: Anyway, I think it is better that you develop your argument in the way you want to, but ultimately we are not going to get too far away from the facts.
MR HALL: Yes.
KIRBY J: The facts show really a big delay on the part of the initial solicitors and delays on the part of those who later had the management of the matter, and this Act does seem to be saying, “Parliament commands you’ll give notice of claim quickly.” You did not do that.
MR HALL: Well, your Honour, it touches upon one problem though. We would say the legislation is not designed to impose upon a party who comes forward late with an explanation and whose supporting evidence shows that he was involved in a motor vehicle accident in which negligence is clear and he received injuries, which are otherwise compensable, should be penalised for the inactivity of his solicitors. In wider terms, it seems there is no utility in this statutory scheme in merely transferring liability for error from one insurer to another.
GLEESON CJ: But the solicitors did not do anything wrong here, did they?
MR HALL: Well, your Honour’s brother suggested that there was a long delay by the plaintiff’s first ‑ ‑ ‑
GLEESON CJ: Yes, but the solicitors that he first consulted told him about the time limit. They did not give him much encouragement about the prospects of success, but ‑ ‑ ‑
KIRBY J: He was not very impressed with that, that solicitor, and did not do anything.
MR HALL: I concede that but, your Honour, when it comes to the material that was before the trial judge in this case, as in the majority of these cases that come before the Court, the applicant is at the mercy of his lawyers who draw the application. There is no suggestion this applicant was sophisticated enough to know precisely what the law required. That is a matter that is handled by his solicitors. Commonly, where there are alleged to be defects in the evidentiary material, it is not the direct fault of the claimant; it is the fault of the legal advisers.
KIRBY J: Well, you say that, but your client was notified that there was a six month time limit by the first solicitor. However impertinent those solicitors may have been in pursuing the matter or advising him what to do, they did tell him that there was a six month time limit. He then went overseas. There was then a very long delay between seeing the present solicitors and giving the notice. I just think back on what I would have done. If I had been a solicitor seeing your client, knowing the time was up, I would have told him he has to get off his claim straight away, no delay, no fussing about. After all, it is only a claim.
MR HALL: I understand that, but with the utmost respect ‑ ‑ ‑
KIRBY J: That is what you would have done too, I suspect, Mr Hall.
MR HALL: Your Honour, I do not know about me, but it would be very unfair to impose on the average solicitor the standard that might have been exhibited by a High Court Judge when he was a solicitor.
KIRBY J: No, I was just a young solicitor, and in my days, and in yours, if you got out of time that was fatal, but things have loosened up a bit. You gave notices as quickly as the client walked in the door. This is what this Act seeks to restore.
GUMMOW J: Now, is there any question of construction that arises in this case? If so, what is it?
MR HALL: Yes, there is in the sense that we favour the construction of the section propounded by Mr Justice Hodgson, so that it is not a question of ‑ ‑ ‑
GUMMOW J: Well, you had better take me to the provision because I do not deal with this every day of the week, thank God.
MR HALL: All right. Well, we go to section 43A, your Honour. May I, your Honour, before I come up to 43 go back to the objects of the section in section 2 of the Act. The objects section, 2A, your Honour, was inserted by the same Bill that inserted section 43A.
GUMMOW J: Is this after the decision in Salido?
MR HALL: Yes, your Honour. If your Honour looks at subsection (2)(c), you will see that the situation in relation to insurers is dealt with and there are provisions about premiums. If you go up to the top of the page, subsection (1)(c)(v) introduces a concept of “rehabilitation” and (vi) envisages “speedy”. In other words, the aim of the Act was to, in part, speed up dealing with claims and early investigation of claims – and I should perhaps draw the attention of the Court to ‑ ‑ ‑
GLEESON CJ: Mr Hall, in the judgments in Salido there was some criticism of the then legislation for its failure to make clear what the consequences of delay were and what the considerations were that a court should take into account. Is it fair to regard this legislation as, at least, in part, a response to that criticism?
MR HALL: I would have said not, certainly in relation to section 43A, because the second reading speech does not refer to Salido in that respect at all. Unfortunately, the second reading speech, as they so often do these days, does not really attempt to grapple with and define the state of the law, isolate the problem and propound a solution. It just proceeds in part, in a very abbreviated and truncated form. But what we would deduce from the second reading speech is that there was no intention to penalise, we would say, people who have, when one looks at it in isolation, a just claim and there was no intention, we would say, to dispense with the entitlement of the court to consider prejudice.
Prejudice has been a central consideration in relation to these extension of time cases, going all the way back to Yeomans. Your Honour will remember in Salido you went back and looked at some of the earlier ‑ the decision of the trial judge in Yeomans, and worked forward from that. Consistently in the legislation there has been a consideration of whether there is prejudice to the insurer and what role that should play. We would say that there is no intention in this statute, even as amended, to displace that.
GUMMOW J: Well, that has to come out of the construction. We have to construe some words. We will not construe them by generalities, as far as I am concerned, Mr Hall.
MR HALL: Yes, but, your Honour, my submission is that none of the sections which governed the extension of time in earlier legislation dealt specifically with prejudice to the insurer. It is a requirement that the court, in effect, took into account in its consideration of the section and we would say the same principle applies here.
GUMMOW J: There are no principles. There is just a statute.
MR HALL: Well, all right.
GUMMOW J: We have to construe the statute.
KIRBY J: You are softening us up to the construction point on which the Court of Appeal differed by pointing to what you say are the inferences from the provisions of the statute, its objects and design, before you come to the construction point.
MR HALL: Yes. Can I take your Honours next to section 40(2), where there is a definition of what will comprise:
a full and satisfactory explanation by a ‑ ‑ ‑
GUMMOW J: Is that not what this appeal is all about?
MR HALL: Yes.
KIRBY J: Yes, going back to 40(1) the words “claim means a claim for damages”. Do you have to lodge a payment when you make a claim? Do you have to register it in some court or do you just write a letter to the insurer saying you make a claim?
MR HALL: There is a form, your Honour, a prescribed form of ‑ ‑ ‑
KIRBY J: What was the big deal of making a claim? Why would the first solicitor not have made a claim protecting his client? It may never be pursued, may never be sued on, but at least that is out of the way.
MR HALL: Well, your Honour, as an act of prudence that would have been a very wise step to follow. It was not in this case. The claim ‑ ‑ ‑
KIRBY J: Similarly for the second solicitors. There is no down side to it and it is a protective measure but, anyway, it did not happen.
MR HALL: I concede that, your Honour, but that highlights the central problem in this, and your Honour would remember when we argued the application for special leave, there are thousands of these cases.
KIRBY J: That is the more appalling fact.
MR HALL: Well, your Honour, the omission, if I may put it, is primarily not of the lay client but of the lawyer he consulted, and ‑ ‑ ‑
GLEESON CJ: We do not even know, do we, on the facts of this case, whether he instructed the lawyer not to lodge a claim? All we know from what appears in his statutory declaration and his affidavit is that his lawyer told him about the need to make a claim within six months and he decided, because he did not think his injuries were serious, not to make a claim. It is consistent with the evidence, is it not, that he said to his lawyer, “Don’t make a claim”?
MR HALL: Well, there is no material that enables you to draw that inference, with respect.
GLEESON CJ: We just do not know one way or the other. We have no grounds for criticising the solicitor, do we?
MR HALL: Well, we are not here making a claim against the solicitor in negligence, but what I am pointing out is there is an undesirable aspect to what your Honour is saying, in this sense, that it is a very technical approach to the section which we say tends to defeat the purpose.
GLEESON CJ: No, I was only responding to your observation that the purpose of this Act is not to penalise lay clients for the omissions of their solicitors ‑ ‑ ‑
MR HALL: Yes.
GLEESON CJ: At the moment I cannot see any evidence that this solicitor omitted to do anything that he should have done, because it appears to me to be consistent with the evidence that the solicitor was instructed not to make a claim.
MR HALL: Your Honour, that inference cannot be drawn. The most that one can infer is that he was not instructed to lodge a claim and what his Honour raised when he brought this matter up is that a prudent solicitor would have made a claim and focusing on that ‑ ‑ ‑
GLEESON CJ: If that was consistent with his instructions.
GUMMOW J: Exactly.
MR HALL: Well, there is no evidence that the solicitor told him that he should lodge it.
GLEESON CJ: I mean, somebody was going to have to pay the solicitor to fill in the claim form.
MR HALL: I suppose he has already paid the solicitor when he consulted him, one assumes, if one thinks about what might have happened.
KIRBY J: Anyway, this is a bit of a side issue. At least I have established for my own purpose that the claim does not mean any filing fee or public court or other document. It is simply a notice to the insurer.
MR HALL: Yes, in a prescribed form. The form is prescribed, the form has to be filled in and sent and the forms are covered by, I assume, regulations, your Honour. They would give an insurer sufficient information to investigate the accident and I think there is a diagram of the accident, the names of the parties, details of the registration of the car, details of the injuries so that ‑ ‑ ‑
KIRBY J: Where is that prescription provided for, because it is not in the definition in section 41?
MR HALL: No, but it is in the Act, I think.
KIRBY J: Perhaps you could give it in due course at some time.
MR HALL: In section 44 of the Act, your Honour – does your Honour go ‑ ‑ ‑
KIRBY J: Yes, I see, thank you.
MR HALL: And while we are looking at 44, if you go over to 44B(3):
A court may not dismiss proceedings if the relevant non‑compliance is technical and of no significance.
That is a subsection again, we would say, which requires a court to consider whether there is significance to the non‑compliance and it invokes a concept or it would entitle and should entitle a court to consider whether there is a prejudice or hardship involved to the parties, and does. The difficulty with the very strict approach, if I may put it to your Honour the Chief Justice, is it is turning back to a very technical application of the letter of the law when the whole thrust of this legislation is to try and get greater co‑operation between the parties.
KIRBY J: Anyway, you have softened us up now.
MR HALL: All right, okay.
GUMMOW J: Can we get to some construction point, Mr Hall? I have been sitting here for half an hour and I have got nowhere.
MR HALL: Well, I am sorry I have not ‑ ‑ ‑
GUMMOW J: This should be quite a short appeal, really.
MR HALL: I do not dispute that, your Honour, but I have to take your Honours to the sections. Your Honour, can I come to section 43A and one goes first of all to subsection (2) which provides that a claimant must provide:
a full and satisfactory explanation for the delay –
and then if one comes across to (6) ‑ ‑ ‑
GLEESON CJ: Now, just a moment. I would have thought that you would be placing a lot of weight on subsection (3).
MR HALL: Yes, and we do.
GLEESON CJ: Because that is what I understand – and I am not suggesting this is conclusive of the outcome of the appeal, but I understand the substance of the explanation for the delay to be delay in the “onset of symptoms”.
MR HALL: Yes.
GLEESON CJ: The explanation, as I understand it from reading the material, is that having been told by the solicitor that he did not have the world’s greatest case and thinking that he did not suffer too much harm as a result of this accident, he did not instruct the solicitor to make a claim within six months and he endeavoured to rehabilitate himself.
MR HALL: Yes.
GLEESON CJ: And it was the failure of his self‑help towards rehabilitation that ultimately led him to go and consult another solicitor.
MR HALL: Yes.
GLEESON CJ: Whether it is full or not full, satisfactory or unsatisfactory, that is the essence of the explanation, is it not?
MR HALL: Yes. Your Honour, this is a very common explanation found in many many cases.
GLEESON CJ: Yes, but it is found in the language of the statute. It is based on the provisions of subsection (3).
MR HALL: Yes. We would say, as Mr Justice Hodgson ultimately found, when he looked at the whole of the material before the trial judge, there was an adequate explanation, or certainly evidence that he did have if he was pressed to provide it.
GLEESON CJ: Whether or not you are entitled to succeed in the appeal, I would have thought that section 43A(3) is the statutory basis of your argument.
MR HALL: Yes.
KIRBY J: Was there not another statutory question, the distinction between having a full and satisfactory reason and ‑ ‑ ‑
MR HALL: Yes, that was the centrepiece of the dispute in the court below ‑ ‑ ‑
KIRBY J: Where is the statutory basis of that controversy? The wording in subsection (2) to which you took us is “provides a full and satisfactory explanation”.
MR HALL: Well, one goes to subsection (7), which is the provision governing the application before the Court. You see, section 43A provides a scheme. If you go back to subsection (6), the insurer has two months to reject the claim and then if they do not under (b), if they do not reject the claim, they lose the right to challenge, and then under subsection (6)(c) the applicant can commence proceedings and then the insurer within two months can move to dismiss the claim. Then one goes to subsection (7) which says:
A court must dismiss proceedings . . . if the court is satisfied that the claimant does not have –
and we would submit that that is focused on the time of the hearing before the court.
KIRBY J: That was Justice Hodgson’s view and I see that Justice Santow has since preferred that to the view of the majority, is that correct?
MR HALL: Yes, that is so, your Honour.
KIRBY J: Do we have Justice Santow’s reasons?
MR HALL: Yes, your Honour, they are contained – well, your Honour, he does not develop them in any great length, but in a case called Manderson v Ellis which is an unreported decision, a copy of which has been provided to your Honours, given in the Court of Appeal on 8 August 2002, and if your Honours go to paragraphs 18 and 19 of that decision, and particularly paragraph 19 – and perhaps before I take your Honours to that I should go back to the actual decision of Mr Justice Hodgson. Your Honours, his reasons begin at page 134 of the appeal book. If I can take you to paragraph 21 of his reasons on page 144:
The appellants produced extensive material in explanation of the whole of the delay in question. The material relevant to the particular delay ultimately relied on by the respondent, namely that between 6th December 1997 and 6th October 1998, showed plainly that the appellants could, if required, have provided more material in relation to that period. Notwithstanding that the onus was squarely on the respondent to prove the absence of an explanation, the respondent chose not to specify any respect in which the explanation was said to be deficient, and chose not to cross‑examine the first appellant on his affidavit. Whether or not the material actually provided to the Court does itself amount to a full and satisfactory explanation, in my opinion it would be quite wrong to draw the inference against the appellants in those circumstances that they do not have a full and satisfactory explanation.
GLEESON CJ: Does that mean that you can satisfy the requirements of the statute by keeping secret an explanation that you have, or that the onus is on the insurer to demonstrate that you are not keeping such a secret?
KIRBY J: The onus was only on the insurer in this case because the insurer had actually moved to strike out your statement, is that right?
MR HALL: Yes. There is really a double onus. The first is that there is an onus on the late applicant to provide a full explanation but in the proceedings before the trial judge, which the trial judge did not appreciate, the onus of proving on that application lay on the insurer because the insurer had brought the application. Mr Justice Hodgson found, and we would support his finding, that the way the proceedings were conducted was procedurally unfair.
GLEESON CJ: But leaving that to one side, does this theory of construction of the statute raise the possibility of an undisclosed explanation?
MR HALL: Well, in the sense that it could well be the case that it is not until the insurer ‑ let us assume we have a deficient explanation, the insurer rejects it, the claimant commences proceedings, the insurer moves to dismiss them, the matter comes before the court and then subsection (7) applies. If at that time in the material before the trial judge the claimant offers a full and satisfactory explanation, then the application by the insurer, we would say, would be dismissed.
HAYNE J: For my part, Mr Hall ‑ and I come to this section free from a deal of baggage ‑ it would seem to me that the choice of words in (7) is to be attributed to the fact that under (2) material must be given to the insurer. That material may or may not satisfy the insurer.
MR HALL: Yes.
HAYNE J: When it comes to court under (7) the court is to judge it according to what material is before the court.
MR HALL: At that time.
HAYNE J: The claimant is not to be confined to whatever material the claimant put to the insurer. The claimant gets another go. And that is the significance of “does not have” that is inviting attention to what is before the court but it does not, I think, on its face contemplate the position that the court is invited to speculate about whether, unbeknown to it, the claimant may yet, buried in his breast, have some full and satisfactory explanation not revealed. The question is simply a bare question for the court. Is the court satisfied on the material before it that there is satisfaction of section 40(2)?
MR HALL: Yes. I concede that, your Honour. But of course in this particular case there was a subsidiary question of whether they were procedurally unfair the way the case was conducted.
HAYNE J: That was a point that seems to have emerged in one judgment in the Court of Appeal and I thought was explicitly disavowed in argument before that court, was it?
MR HALL: That concession was made, that is true, your Honour, yes.
HAYNE J: Well, can we strip that element of it aside, at least for this aspect of the argument. Is not the question whether, on the material that was tendered to the primary judge, section 40(2) was shown to have been satisfied?
MR HALL: At the time that it was considered by the trial judge?
HAYNE J: Yes.
MR HALL: Well, we would accept that, but we would say on the whole of the material before the trial judge ‑ ‑ ‑
GUMMOW J: Wait a minute. The first question is, did the trial judge approach the matter on that footing? That is what the task was.
MR HALL: Well, he did not. He did not. He was plainly in error on that because he looked back at the statutory declaration that had been provided to the insurer – the first statutory declaration – and, as Mr Justice Hodgson pointed out, by the time he considered, he had the pleadings that had been lodged in the District Court of the action, which amplified it to some extent, he had additional affidavits by a solicitor and by the applicant and he had medical reports. So that what was explained, for example, was what had happened to the applicant for the whole of the period, and, if I may ‑ ‑ ‑
GUMMOW J: If you are right about all of that, Mr Hall, why did you not win in the Court of Appeal?
MR HALL: Because we would say that the majority disagreed with Justice Hodgson on whether he had, as distinct from whether he provided, an explanation, and in that they were plainly in error. The view to be preferred is that of Justice Hodgson, and so their finding on that issue should be set aside.
GLEESON CJ: All the members of the Court of Appeal thought the trial judge was in error in the way he approached the case.
MR HALL: They did, your Honour.
GLEESON CJ: They thought that he reversed the onus and confined his attention to the statutory declaration. Then the majority said on page 153, paragraph 53:
Although there may be errors of process, ultimately I can see no error in his Honour’s conclusion. The conclusion he reached was one which he was entitled to reach on the material before him.
. . . I would still reach the conclusion that there was not a full and satisfactory reason given for the delay in this case.
MR HALL: Yes, that was their approach but, with respect, they were still not applying the correct test. Justice Meagher really just concurred with Mr Justice Young, so they were really balancing. In a sense, your Honour, it comes to arguing about the principle. We are only balancing two arguments ‑ ‑ ‑
GUMMOW J: What is the reason for the Chief Judge in Equity’s conclusion at paragraph 53?
MR HALL: Well, he does not set it out, your Honour. He just says, “I would still reach the conclusion”.
KIRBY J: Presumably, this is on the basis that the Court of Appeal having found error in the exercise of the discretion of the primary judge, the Court of Appeal then had to either send it back, or ‑ ‑ ‑
GUMMOW J: They had found error.
MR HALL: They had.
KIRBY J: Yes, that is what I am saying. They found error, and they then had to either send it back to be re‑exercised or exercise it for themselves. Justice Young was saying, “Having found error, I’m going to deal with it myself to save time. Looking at it, I reach, by the right procedure, the decision the same as the primary judge did”.
MR HALL: Well, with respect, your Honour, that is not what he did. What he said was there are errors in process, but:
The conclusion he reached was one which he was entitled to reach –
so that there is no appealable error. Well, that was plainly wrong, with respect.
KIRBY J: Well, that might be a slip of language.
MR HALL: I beg your pardon?
KIRBY J: That might be a slip of language. What he ought to have said is, “There an error in the primary judge. I now exercise the discretion. I believe that the full and satisfactory explanation was not given.”
MR HALL: Your Honour, if I may say so, with respect, however, paragraph 53 is a kind of throwaway line. Technically what he said was there was “no appealable error” and when he used those words he was technically incorrect.
GLEESON CJ: But then he went on to say that, “Even if I had been of the contrary view, exercising my own discretion”:
I would still reach the conclusion that there was not a fully and satisfactory reason –
and if you look back earlier in his judgment, the problem that he thought stood in the way of your client, as I understand it, was this time gap.
GUMMOW J: Yes, and where does this notion of discretion come from, by the way? It does not come out of subsection (7). That imposes a duty, not a discretion, and a condition precedent to the exercise of the duty was the satisfaction.
HAYNE J: Being in the nature of a finding of fact, I would have thought.
MR HALL: It is a finding of fact that has to be made by the trial judge on the basis of the whole of the material before him, which the trial judge did not do, nor is it, I might point out, evident that the Court of Appeal did that and it is certainly evident, because of their different approaches, that the majority were directing their mind to the issue of whether, at the time that the case was decided before the trial judge, the applicant had shown that he had, at that time, a full and satisfactory explanation.
GLEESON CJ: Mr Hall, I am not sure that you have correctly stated the process of reasoning of the trial judge. If you look at paragraph 39 on page 150 in which Justice Young is quoting the trial judge, the trial judge says:
“The next question then to be addressed is whether . . . That must be assessed on the information now before the Court.
Do you see that?
MR HALL: Yes, I do, your Honour.
GLEESON CJ: So the trial judge was not saying that must be assessed on the basis of the information in the statutory declaration provided to the insurer, was he?
MR HALL: If one goes back to the judgment, back to page 120, your Honour, what he picks up is paragraphs 9 to 13 of the statutory declaration and that statutory declaration is back at 56 in the appeal book, 55 running on to 56 and those paragraphs, 9 to 13 ‑ ‑ ‑
GLEESON CJ: But then he goes on, on line 50 on the same page, to say:
there is no further information given in relation to the plaintiff’s work activities –
apart from certain things.
MR HALL: Well, that was incorrect factually. There was evidence from a medical report which showed he was not able to ‑ ‑ ‑
GLEESON CJ: But what Justice Young describes in paragraph 40 is the key passage in the trial judge’s reasoning is the passage that says:
“There is no attempt to identify when it was that the plaintiff realised that his disabilities had not improved, thus leading to the decision to seek further legal advice, and there is no attempt to identify when that decision was made.
Now, that may be fair or unfair, right or wrong, but it is clear enough what Justice Young thought was the key deficiency in the material that was being advanced on your client’s side.
MR HALL: But if the evidence establishes that between point A and point B a decision is made to bring a claim, why does it have to be, if one looks at the general purposes of section 43(7), that he nominates a particular day or ‑ ‑ ‑
GLEESON CJ: Because point A is 10 months away from point B and you are dealing with a statutory time limit of six months.
HAYNE J: And 40(2) identifies what a full account is. Now, how that is engaged has to be grappled with. Perhaps it is engaged in a way that is not adverse to your case – I do not know – but you have to grapple with it, Mr Hall.
MR HALL: Well, all that has to be shown, if I may say so, in terms of 40(2) is that:
a reasonable person in the position of the claimant would have failed to have complied with the duty ‑ ‑ ‑
HAYNE J: No, it seems to me, that what has to be given includes also:
a full account of the conduct, including the actions –
amongst other things –
knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation.
Now, it is not evident to me why those words are not in engaged or why they are not engaged in a way that presents difficulty to your case. If that is so, tell me how.
MR HALL: Well, if the period during which he comes to the view he should sue is isolated to a period of 10 months, that does not mean it is still not a full explanation. Why does he have to nominate, you know, “On 3 June it suddenly occurred to me”? In the average case, that would not be the situation. The injured person comes to a realisation he is not getting better or that his conditions are more serious and, ultimately, he goes to another solicitor. Now, why is it essential that he nominate the day? If you want to say, for example, “Well, it is important that we know whether it was in February or in November”, why was it important in February? Then one has to say, “Well, what was the prejudice that flowed from that?”, and one is back to considering prejudice and, in this case, there was no evidence of any prejudice and if there is no evidence of any prejudice, then the fact that it is a period of nine or 10 months does not matter because it is not shown to be adversely affecting anyone.
KIRBY J: That does not seem to be the scheme of the Act though. The scheme of the Act does seem to put a premium on promptness and fullness and satisfactoriness of the explanation, because its justification is not, as such, prejudice but the reasons for the objects of the part, which are set out in the Act itself.
MR HALL: But, your Honour, in the administration of the Act where we know from statistics that a vast number of applications are being made under these provisions, one should be asking oneself why the date matters, and it would only matter if it can be shown that at point A there was no significant prejudice and by point B there is prejudice. If there is no evidence of that, then it does not matter.
KIRBY J: But the prejudice is that which is the non‑fulfilment of the statutory objects, the inability of the respondent to conduct an investigation, make an early assessment, identify the nature and severity of injuries, have your client medically examined, predict claims, enable victims to receive prompt treatment and rehabilitation.
MR HALL: All of that, with respect, requires evidence and there was none in this case.
HAYNE J: Does the date of realisation of severity of injury affect what a reasonable person would do?
MR HALL: Only in the sense that – depending on the evidence in the particular case – one might come to the view that a reasonable person would not have delayed longer than some particular event that is shown in the evidence before the Court. This case, if one looks at the evidence – the claimant eventually decides that he is not getting better, his conditions are worse, he should bring a claim, he goes to a lawyer, the lawyer prepares the claim, prepares the affidavit and, in effect, sets out a history of what has happened. It is the lawyer who drew the history, the lawyer who set out what has happened to him and that is placed before the Court.
Now, it should not be the case that an insurer is allowed to lie by and at the eleventh hour, as happened in this case, in closing address, after the other side had finished, finally identify some area of alleged deficiency. The point picked up by Justice Hodgson is the inference to be drawn from the process that was lodged in this case is that the applicant is endeavouring to comply with the Act. There is nowhere it says you have to say the precise day. It is not spelled out in detail in the statute. There is nothing to show that, for example, there was any motive for him not to say, any intention not to say, it is just not dealt with at all, and encouraging that attitude amongst insurers is only going to spark litigation and lead, we would say, to a maladministration of the Act.
May I come back to my written submissions. May I take the Court to paragraph 5.4 on page 7. We pick up and we do adopt in this Court, your Honour, the aspect of procedural unfairness in the way this particular case ‑ ‑ ‑
GUMMOW J: Wait a minute. Did you get a grant of leave on this?
MR HALL: We got a grant of leave on the grounds of appeal, your Honour, which ‑ ‑ ‑
GUMMOW J: Including the point that had been abandoned in the Court of Appeal?
MR HALL: Well, your Honour, it was not abandoned. One of the judges found for us on the point.
GUMMOW J: I thought you said there had been a concession.
MR HALL: A concession was made, I agree with that, I concede that.
GLEESON CJ: Which is the ground of appeal that was ‑ ‑ ‑
MR HALL: Your Honour, I am ‑ ‑ ‑
GLEESON CJ: We are looking at pages 157 and 158?
MR HALL: Yes. I concede it is not there.
KIRBY J: I sat in the special leave and I do not remember that you got special leave on the procedural unfairness point and it would be unusual that you did, given that it was conceded away. My recollection was that you got the special leave on the point of construction of the statute on which Justice Hodgson differed from the others because you said, “Well, there are thousands of these cases and it’s important to sort this out”.
MR HALL: Yes, that is true. Then can I come to paragraph 7.2.2, your Honours. I rely on the matter set out in paragraph 7.2.3.
HAYNE J: It seems to be a quick way of introducing procedural fairness, Mr Hall.
GUMMOW J: We are not in a bazaar, you know.
HAYNE J: I wonder how his Honour is spelling that in today’s context.
GLEESON CJ: One of the reasons, as I recollect it, that you were not given special leave in relation to procedural fairness is that your opponent was claiming that he was denied procedural fairness by Justice Hodgson in relying on procedural fairness. I think it is a fair statement that if you look at the whole of Justice Hodgson’s judgment, he did not found his decision on procedural fairness. He just mentioned it and then used the same considerations to deal with a question of inferences to be drawn.
MR HALL: Yes.
GUMMOW J: What is this point about onus of proof?
MR HALL: The trial judge found that the onus ‑ ‑ ‑
GUMMOW J: What was the nature of the process before the trial judge?
MR HALL: It was an application by the insurer to strike the proceedings out, to dismiss the claim. And so, as the insurer had brought it, the ultimate onus on the application lay on the insurer.
GLEESON CJ: Yes.
MR HALL: But the trial judge decided the case purely on the basis of whether the plaintiff had given a full and satisfactory explanation, as distinct from considering the onus on the application before him.
GLEESON CJ: It is a little difficult to see how questions of onus would be decisive in these matters where by hypothesis what you are talking about is something that is peculiarly within the knowledge of the applicant. I can think of cases, of course, of disabled people and questions of what their solicitors or agents or other people were doing that they might or might not have known about, but in a case like this, where the explanation, be it satisfactory or unsatisfactory, was peculiarly within the knowledge of the plaintiff, it is a little difficult to see how questions of onus would become decisive.
MR HALL: Well, section 43(7) though, we would say, if the party who brings the notice of motion before the court is moving on the basis we have not provided – do not then have a “full and satisfactory explanation”, the onus technically must lie on the applicant.
McHUGH J: But the difficulty of the case seems to lie in the fact that whoever drafted the section does not seem to have worked out how it would apply in a curial setting. If you go to 43A and you start with subsection (2), it – and this is against the background of section 40(2) and 43, which, in effect, take away your rights unless you make a claim within six months, and then 40(2) says a claim may be made more than six months if the claimant provides “a full and satisfactory explanation”. Now, at that stage you would think that was a condition precedent that the plaintiff had to prove “a full and satisfactory explanation” and if it was not, there could be a plea in bar. Subsection (3) has an explanation of that, to some extent, and (4) and then subsection (6) says:
This subsection applies if the late claim is made against the Nominal Defendant or a . . . insurer –
and it provides for the insurer in certain circumstances:
to lose the right to challenge the claim on the ground of delay.
Then you have (6)(c):
If court proceedings are commenced in respect of a late claim, an insurer . . . may apply to have the proceedings dismissed –
and then, as you point out, the language of (7) seems to indicate that, if you apply to have the proceedings dismissed, the onus is on the insurer. But what happens if, for instance, perhaps because of a dispute about the quantum of disability, it was merely pleaded in bar to your claim that you had not provided “a full and satisfactory explanation”, the case went to trial; where would the onus be then?
MR HALL: This is if the case goes to trial?
McHUGH J: I am assuming that the insurer has not lost its right to challenge on the ground of delay, but goes to trial on a plea of not guilty and a special plea denying the condition precedent. That is, they have not brought a special application to dismiss the claim.
MR HALL: Yes, the matter goes to trial, cannot plead the general issue any more, but assuming the damages are put in issue, then the onus of proving damage at trial, of course, would lie on the plaintiff.
McHUGH J: Yes, but what I am suggesting to you, Mr Hall, is that subsection (2) seems predicated on the view that it is a condition precedent to the bringing of this type of action, that is a late claim, that you must provide a full and satisfactory explanation. What if at the trial that is put in issue? Where does the onus lie?
HAYNE J: Is that open in the face of (6)(b)? Does (6)(b) engage in a way that precludes the insurer from complaining of delay if they have not ‑ ‑ ‑
MR HALL: And (6)(c), too. If they do not move ‑ ‑ ‑
HAYNE J: If they fail to move. I do not know.
MR HALL: If proceedings are commenced the onus is thrown on the insurer to move to strike the claim out.
McHUGH J: Why do you say that? All (6)(b) says is:
If, within 2 months . . . the insurer does not reject the explanation, the insurer . . . lose the right to challenge the claim on the ground of delay.
The same with (a), but supposing that they have rejected a claim.
MR HALL: Well, the intent of the statute, we would say, is that unless the objection is made, unless the insurer moves to dismiss the proceedings, the claim may be maintained.
GLEESON CJ: Mr Hall, the problem of onus is complicated even further, is it not, by the words of the concluding sentence of section 43A(2). It says:
The explanation is to be provided in the first instance ‑ ‑ ‑
McHUGH J: Yes.
MR HALL: Yes, so the section obviously envisages that – that looks forward, one assumes, to subsection (7).
GLEESON CJ: But where, as here and as in the ordinary case, the explanation, if it exists, is known to the plaintiff and unknown to the insurer, why is a question of onus likely to be decisive? By hypothesis you are going to be dealing with a matter that is peculiarly within the knowledge of the plaintiff in the ordinary case.
MR HALL: Well, from the point of view of court proceedings, there is always an onus lying on one party or the other. That is the way court proceedings lie, so that there is going to be an evidentiary onus. In this case it has to be satisfied by the party who has brought the application.
GLEESON CJ: But it is an onus about something which is an explanation of the plaintiff’s conduct. That is what it is all about. What is the explanation of what the plaintiff did or failed to do? Well, you can say that technically the insurer carries the onus on that but as a practical matter, save in exceptional circumstances of people under disability, for example, it is going to be the plaintiff and usually only the plaintiff who knows what the explanation is.
MR HALL: Knowledge of the explanation is the applicant’s knowledge, or the claimant’s knowledge, to use a neutral term, and in an application brought by the insurer, the respondent’s knowledge. That brings us to another question that has been agitated, whether it is a subjective or an objective test. To what extent does one attach weight to the acts and omissions of his legal advisers as distinct from looking at the conduct of the claimant?
GLEESON CJ: Right. I see that that can be an awkward problem but it is not a problem in this case, is it?
MR HALL: It is a problem impacting unfairly against us in the sense that we would argue that the real omission here is how the evidence was gathered rather than a failure by the plaintiff personally, and this is an area – I mean, I sense the unwillingness of the Court to embrace this, but in a practical sense if a decision is made against this appellant, it is the lay claimants that are going to bear the brunt of it, and there are a lot of them.
KIRBY J: Yes, but we were told at the special leave hearing that the statistics had shown that the message had gone out about this Act and that there had been a significant falloff in the number of claimants who were out of time.
MR HALL: Yes, but still a very significant number of them, your Honour.
KIRBY J: It was from 20 per cent to something like 8 per cent, if I remember it rightly.
MR HALL: But that is still a very significant percentage.
KIRBY J: That is out of time and then you have those who move with due dispatch and get themselves within the Act. The problem in your case was that, first of all, he was told at the outset, and then secondly, when he came back from Italy, there were still very long delays.
MR HALL: Your Honour, I would not concede, with all due respect, that eight months is all that long to ‑ ‑ ‑
KIRBY J: To send in a claim form? Really.
MR HALL: I have to live in the real world here ‑ ‑ ‑
McHUGH J: That may be, but you also have to live with the Act, draconian as some may think it is, and I know the discussion has been on the basis so far, that you can supplement your case on the hearing, but I am not convinced myself at the moment that that is so. If you look at subsection (2), you have an obligation to provide:
a full and satisfactory explanation . . . in the first instance to the third-party insurer -
Now, by definition, “a full and satisfactory explanation” is defined in subsection (2) to mean:
a full account of the conduct, including the actions, knowledge and belief . . . from the date of the accident until the date of providing the explanation.
So you have a duty at that stage, that is, the subsection (2) stage, to provide that full explanation to the third‑party insurer. The third‑party insurer, under subsection (6), if you get no explanation for the delay, he can ask you for a full and satisfactory explanation, but:
If, within 2 months after receiving . . . explanation –
and that must be either an explanation given under subsection (2) or (6)(a), if he does not challenge it, then he loses the ground of delay. But against that background, why should not you read (6)(c) and (7) as really concerned with this full and satisfactory explanation in respect of which you have a duty to provide in the first instance?
MR HALL: Subsection (2) merely envisages that another application will be made. In other words, the explanation is offered in the first instance. In the second instance, under section (7) it is offered to the court, and there is nothing to suggest in subsection (7) that – (7) is inaptly worded, if the intent of the legislature was to confine, as you have suggested, and going back to the speech to Parliament when they made the amendment, there is no reason to so confine it. Why would one ‑ ‑ ‑
GUMMOW J: You say subsection (7) says “does not have”. It does not say “did not give”.
MR HALL: Yes.
McHUGH J: And once you take that view, that “does not have” means “has not given”, then there does seem to be a very great difficulty from the insurer’s point of view because there is an onus then on the insurer to satisfy as at the date that you do not have a full and satisfactory explanation, even though it is a matter that, if you can disregard all that has gone before, is within your client’s knowledge.
KIRBY J: How did Justice Hodgson explain his view on that point and how did Justice Santow explain his support of that view?
MR HALL: Well, if I can deal with the last point first. Justice Santow merely said, “I would adopt the particular observation” made by Mr Justice Hodgson at paragraph 22 of his judgment, and he goes on to quote him. Mr Justice Hodgson went on to say, “the legislature could have made” ‑ and I am dealing with ‑ and if your Honours would look at paragraph 22 of the judgment of Justice Hodgson which is on page 145 of the appeal book. What he was saying ‑ I am looking at paragraphs 18 and 19 of the judgment in Manderson v Ellis.
KIRBY J: I may be not understanding something fully, Mr Hall, but there seem to be a number of reasons why Justice Hodgson’s view is not the preferable view. First, we are dealing with a decision of a court. A court normally acts on material provided to it. It does not invent things or go out and get them itself and, therefore, it depends on the parties. Secondly, this is the kind of information which is really within the knowledge of your client. That is just the nature of the information of why he did not move with speed. Thirdly, at least in respect of seeking the benefit of an exemption from the prima facie rule of the Act, your client has some form of evidentiary onus to get himself within the exemption.
McHUGH J: Can I just add to that. If your argument is right, this must be the result, must it not, that you could make a late claim and offer no explanation. The insurer could write to you and ask you for your explanation and you could refuse to give one or give a very brusque or peremptory one. The insurer challenges you, then goes to the court and asks for it to be dismissed on the ground you have not given a satisfactory delay and then on your hypothesis you could then come and produce if you wanted to all your material. Now, that does not seem to be the way this section was intended to work.
MR HALL: Well, your Honour, it is ‑ ‑ ‑
McHUGH J: That must be the case, must it not?
MR HALL: Yes.
McHUGH J: That you could get to the court stage where you have not given any explanation whatever and then you answer the insurer’s claim by then providing a full and satisfactory explanation.
MR HALL: Well, your Honour, in the practical working out of the application, I am not frightened of that. I am prepared to grapple, because if you take the ‑ ‑ ‑
KIRBY J: It takes a lot to make you frightened, Mr Hall.
McHUGH J: You never step back, Mr Hall.
MR HALL: It is nice of you to say that, your Honour. But look, in the practical application of this Act, it must, one would suspect, quite commonly occur that a person is late. He goes and sees his solicitor, the solicitor dashes off a document, the insurer rejects it, the claimant consults counsel, proceedings are drafted and commenced, the insurer moves to strike out the claim, counsel now draft a second affidavit and the matter is properly prepared and comes before the court. Now, the unfairness that you have referred to the insurer is – and one can say that. The first explanation was wrong. We have to assume, for the purposes of this argument, it clearly had a big gap. The gap is now cured. The court has to consider it at that time.
Now, in relation to Mr Justice Hodgson, at paragraph 22 on page 145, what he was dealing with is dealing with it in the context of the onus lying on the applicant insurer, and what he found at line 10 is that the insurer had not discharged the onus.
McHUGH J: I understand that.
MR HALL: That is all consistent ‑ ‑ ‑
McHUGH J: I understand that and that seems to follow logically from the construction that you urge and which his Honour adopted.
MR HALL: Yes. Your Honours, in the context of an Act which starts off envisaging there is going to be a greater measure of co‑operation between the parties, leading to earlier resolution of claims – that is what the Act says in part – and the avoidance of litigation, what is wrong with an approach that requires the insurer to identify what it says is wrong with the explanation? Now, the insurer did nothing in this case. It just lay by. Why should the legislation not be construed so that there is an onus on the insurer when it brings that application, and it has to be discharged by identifying upfront what it says is wrong with the explanation?
KIRBY J: Is what happened in this case what normally happens, namely, that you just file a statement of claim and wait to see if the insurer takes the point or ‑ ‑ ‑
MR HALL: Yes.
KIRBY J: You do not have a capacity to go and get the exculpation before you start your proceedings.
MR HALL: Your Honour, of course, one could and if your Honour was the solicitor involved, or one of your Honours was the solicitor involved, you would have seen the gap and you would have, no doubt, sent letters off to the insurer. But, obviously, the person who started the proceedings – the lawyer who started the proceedings – felt there had been an adequate explanation, and the insurer felt there had not. But, you see, what is happening here is that it has become a mechanism for avoiding claims, rather than a mechanism for getting to the real issues between the parties. The legislation is designed to really get the parties to the real issue and get the proceedings resolved. What is happening is insurers are lying by, then turning up at the application and arguing it on some perceived gap that they can find in the affidavits, so that it has become a question of pleading, rather than a question of focusing on the real problem of the delay.
Now, your Honours, if I can press on before Justice Gummow expires ‑ ‑ ‑
GUMMOW J: Do not underestimate me.
MR HALL: Your Honours, may I just have a quick glance? Your Honours, I believe I have put my case as well as I can.
GLEESON CJ: Thank you, Mr Hall.
MR HALL: Can I just pound the table one more time and I will sit down.
GLEESON CJ: Yes, Mr Russell.
MR RUSSELL: Your Honours, what I wanted to say in response to Mr Hall’s written submissions is contained in my written submissions and there is nothing I wish to add. Can I structure my oral submissions in this fashion. Can I point out firstly that this was a decision both at trial and in the Court of Appeal on the facts. This case does not throw up consideration of the nice point about the second part of the definition in 40(2) which is concerned with satisfactory:
reasonable person in the position of the claimant ‑ ‑ ‑
McHUGH J: If the onus is on you, you have to negative all that, it seems to me.
MR RUSSELL: Well, questions of onus, as the Chief Justice has indicated, will not really play a large part in applications of this nature and can I say why. In the first instance there is a statutory obligation upon a person who makes a late claim to give something to the insurer to show that he has a full and satisfactory explanation. It is not compliance with 43A(2) to say, “I have an explanation”. That is a mere assertion that you have an explanation, but under 43A(2) the:
claim may be made . . . if the claimant provides –
gives to the insurer –
a full and satisfactory explanation –
Now, what then happens is that the insurer, on receiving it, may say, “Fine, I accept that”. If the insurer wants to challenge it, the insurer must then comply with the time limits in 43A(6) and reject the explanation. That does not put an end to the claimant’s rights. Clearly when you read 43A(6)(c) he can still commence court proceedings and the insurer then has an obligation, if it wants to maintain its right to make some challenge to the late claim, to move to dismiss the proceedings within two months of filing.
GLEESON CJ: These time limits on the insurer were actually the subject of some dispute in the present case. That was resolved in your favour and not pursued.
MR RUSSELL: Not the time limits so much, with respect, your Honour, but whether we had rejected the claim.
GLEESON CJ: Yes, that is what I meant.
MR RUSSELL: Our letter did not use the word “reject”, but, yes, they were resolved in our favour and there is no issue before this Court about whether we have complied with the time limits. But when you get to 43A(7) the Court is looking at the explanation and is considering whether the claimant has a full and satisfactory explanation for the delay. Now, true it is we bear the onus because we are the moving party, that is the insurer, and we have to show, or the Court has to be satisfied, the claimant does not have such an explanation.
Now, this really leads to the notion advanced by Mr Hall that there is somehow a difference on the Court of Appeal in how to approach this because Justice Young used words to indicate that the claimant had not given a full and satisfactory explanation. Justice Hodgson said that is not the question. The question is, does the claimant have a full and satisfactory explanation?
GUMMOW J: Yes, but the judge then did not really develop what he took by the word “have”, in the sense of have, disclose ‑ ‑ ‑
MR RUSSELL: Yes, the point I want to make is this ‑ ‑ ‑
GUMMOW J: ‑ ‑ ‑ still have available, as it were, but not revealed.
MR RUSSELL: The distinction between using the word “have” and using the word “given” is more apparent than real, when you look at the scheme of 43A(7), because 43A(2) requires the claimant to provide, to give to the insurer the explanation. Now, once you get to the court under 43A(7), the court looks at the material before it, that includes, if you like, any explanation given on a prior occasion under 43A(2), but it looks at all the material and there is no real distinction between saying, “I am satisfied the claimant does not have a full and satisfactory explanation” and saying, “I am satisfied the claimant has not given a full and satisfactory explanation”.
GLEESON CJ: I am not suggesting for a moment that it is this case, or that this case raises this kind of problem, but how does the legislation deal with what I imagine is a not altogether unusual case of reasonable behaviour on the part of an injured person in consulting a solicitor, and unreasonable behaviour on the part of the solicitor in moving thereafter?
MR RUSSELL: And that is the subject of dispute within the Court of Appeal at the moment and the authorities to which Mr Hall has referred, two of them throw up that problem. In Diaz v Truong, what happened was that an infant who was brain damaged naturally could not be guilty of any delay, but her family put her in the hands of solicitors who did little or nothing to advance her cause. They did not file, in that case, proceedings within time, so it was under 52(4), which is commenced within a certain time limit, “3 years”, but the “full and satisfactory explanation” aspect is the same because the definition applies under 43A(7) and 52(4).
There is debate in the Court of Appeal, which is not relevant to this case, as to whether it is satisfactory when your lawyer who has caused your problem stands by and says nothing; does not take the blame, does not explain the delay. In that case the majority decision was, this claimant has pointed towards putting herself in the hands of lawyers. They have not bothered to explain their own default, but the claimant has “a full and satisfactory explanation”. It is satisfactory in the sense that a person in her position would have suffered this delay. I really, with respect, do not want to embark upon that problem, because it may come here on another case. I will not be agitating it.
GLEESON CJ: No, I was not trying to draw you into that. I just wondered whether there was anything in the legislation itself that covers that, apart from the provision ‑ ‑ ‑
MR RUSSELL: No, there is not, and because of the curious mixture of subjective and objective in the second part of the definition in 40(2), that is still an open question, but it does not arise in this case. May I then come back to the submission I commenced, which is, this is a decision on the facts.
GUMMOW J: Well, you say that, but paragraph 21 of Justice Hodgson’s decision does give content, I think, to what he means by “have” in subsection (7), does it not?
MR RUSSELL: Is your Honour referring to the sentence ‑ ‑ ‑
GUMMOW J: Paragraph 21 of his judgment.
MR RUSSELL: Yes, where he says:
The material ‑ ‑ ‑
GUMMOW J: Yes:
showed plainly that the appellants could, if required -
MR RUSSELL:
could, if required, have provided more material ‑ ‑ ‑
GUMMOW J: Yes, and then it gets enmeshed in the questions of onus.
MR RUSSELL: Well, I do not accept that his Honour was correct in coming to that view and the two other judges of the Court of Appeal did not express that view.
GUMMOW J: But that is the basis on which he decided he allowed the appeal, is it not?
MR RUSSELL: Well, no, not just that. His Honour said that there was other information or material before the court, not just the plaintiff’s explanation given by statutory declaration and affidavit to explain the gap of 10 months which was the subject of the attack before the trial judge. His Honour referred to the fact that there were particulars, and I take your Honours to paragraph 11 on page 138. The particulars are then set out on 139. Justice Hodgson said that that was additional factual material that showed that there was an explanation for the delay. Justice Hodgson then went to some medical material on 140, 141 and the first half of 142, took it into account, and he said, “Well, when I look at all that, this claimant has a full and satisfactory explanation.”
Now, the two other judges of the Court of Appeal presumably had that argument advanced to them, had it before them and said, “Well, look, on all the information we have, there isn’t a full explanation”, and that is why I make the submission that it was a decision on the facts.
HAYNE J: Understanding that submission, can I nonetheless take you back to paragraph 21 of Justice Hodgson in the last sentence, where his Honour seems to contrast, on the one hand, material before the court and, on the other hand, drawing an:
inference against the appellants . . . that they do not have –
That seems to suggest that there can be out there in the mind of the appellants, unrevealed directly in the material before the court, what would for the purposes of the Act constitute “a full and satisfactory explanation”, or do I misread his Honour?
MR RUSSELL: I think the way that has been approached in other cases, particularly Diaz v Truong is – and I am referring there to the case where the infant brain‑damaged claimant put herself in the hands of lawyers - those lawyers did not explain their delay but itemised it. The majority in that decision said, “Well, look, these lawyers have chosen not to put on this material, but this claimant in her circumstances has reasonably incurred the delay.”
Now, all that I think Justice Hodgson is referring to there is that he discerns that there may be other facts that assist the claimant, whereas the two other judges did not discern that there may be those other facts. You see, at the end of the day, this decision turned upon Justice Hodgson thinking that there was sufficient material to make a finding that the claimant had provided a full explanation and thus the explanation was satisfactory, and the two other judges of the Court of Appeal in the majority saying, “Well, look, all he did was to advance a fairly lightweight explanation to the insurer in the first place to verify it, in effect, by an affidavit, to put nothing additional before the court that is of any relevance to us, and he hasn’t explained the delay.”
GLEESON CJ: I am not sure that you are doing full justice to Justice Hodgson. If you look at that last sentence that Justice Hayne spoke of, it is introduced by the words:
Whether or not the material actually provided to the Court does itself amount to a full and satisfactory explanation, in my opinion –
et cetera.
MR RUSSELL: Of course, this is in a paragraph which concerns two matters. One is: is the explanation full? When you look at line 36 on this page, his Honour there refers to the conduct of the motion, and the fact that the insurer did not:
specify any respect in which the explanation was said to be deficient ‑ ‑ ‑
GLEESON CJ: But if that sentence is the critical part of his Honour’s reasoning – and the first sentence of the next paragraph seems to suggest it might have been – then his decision does appear to have turned upon the distinction that he regarded as critical in a case like this between providing an explanation and having an explanation. And that distinction can only amount to a distinction between things that the plaintiff is telling the court and things that the plaintiff knows but is not telling the court.
MR RUSSELL: But that, in turn, goes to the question of the second limb of the definition in 40(2), as to whether this claimant in his circumstances is behaving reasonably in experiencing the delay.
GLEESON CJ: But, by hypothesis, the subject matter of this inquiry is the explanation of the plaintiff’s behaviour.
MR RUSSELL: Yes, which is the material before the court, which includes the explanation given to the insurer. Now, one wonders how a court can come to a view by guessing, drawing inferences, or accepting someone’s assertion they have an explanation. The best the court can do is look at all the material put before it, which includes the explanation given by the claimant, and come to a decision on the facts as to whether it is full.
GLEESON CJ: But there are two stages in the decision‑making process, are there not? The first is to find out what is the explanation and the second is to apply to that the objective test of reasonableness. You do not find yourself in a position to undertake the second task until you believe you have a full explanation, whatever it may be, whether it is good or bad.
MR RUSSELL: Can I respond to your Honour’s proposition by saying, with respect, I think there are three stages. The first is find out what the explanation is, then you have two stages mandated by the definition in 40(2). The first is that the explanation must be:
a reference to a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation.
So that is the second stage. Pausing there, this claimant did not satisfy that because he did not do anything to explain the 10 month gap and, in particular, to say when it was in that 10 months that it had become apparent to him that his symptoms were not going to improve and that he needed to do something.
GUMMOW J: Yes. Now, none of this further material that Justice Hodgson referred to went to this gap, did it?
MR RUSSELL: No, it did not. His Honour took it into account and thought that it provided – I am sorry. Justice Hodgson thought that the trial judge was wrong just to say, “Well, look, all I have is the plaintiff’s bare explanation”. Justice Hodgson thought that there should have been taken into account that additional material – the particulars in the medical evidence. If your Honour wishes, I can take you through that because ‑ ‑ ‑
GUMMOW J: No, but all I have been trying to say is, even if that was done, there would still be this gap, which, to the other members of the court, was of great importance.
MR RUSSELL: That is what I was going to offer to do. When you read the particulars and read the medical material, it does not advance one iota the notion of the answer to the inquiry, does this plaintiff have an explanation for the 10 month gap? The particulars just say, “Well, from time to time, I was off work”. Interestingly, the particulars do not make an assertion that in the 10 month gap he was off work. This man stopped work and claimed economic loss from a date after he saw his second and current solicitors – in other words, after the 10 month gap. So he did not point to any evidence to say, “Well, look, in the 10 months, I can show you a date when I had to stop work”.
The medical material was very vague and merely said, “Well, this man has been consulting me from time to time”. The specialist evidence came only after he saw his second and current solicitors, well after the gap. He was seeing a GP during the gap, but the GP merely says, “This man has been seeing me”. The GP does not identify, as a matter of fact, when it was that this man got worse, or came to the realisation, or was advised medically that his condition was not going to improve. So the short answer to your Honour’s proposition is, I agree, with respect. The additional material relied upon by Justice Hodgson did not fill in the gap and, without articulating it, that is in effect what Justices Young and Meagher said.
Now, I trust that covers the initial matter I wanted to raise about this being a decision on the facts. This case does not throw up the conundrum caused when you have material there such as the potential explanation of a negligent solicitor, or perhaps negligent parents who do not pursue a child’s rights. That is, as I say, a matter of some disagreement in the New South Wales Court of Appeal, but it is not this case.
Now, can I just go to one other crucial matter? Mr Hall commenced his submissions by pointing to the scheme of the Act and indicating that one of the aims of the Act was that injured people could make claims on insurers and have their claims processed promptly and without recourse to litigation. I accept that that is so. The Court has already been taken to the object clause of section 43 which is one indication that the Act requires insurers to get notice of these claims and to do something, but more importantly perhaps, can I take the Court to section 45(1) which imposes a:
duty on an insurer to endeavour to resolve a claim, by settlement or otherwise, as expeditiously as possible.
GUMMOW J: This is a duty of imperfect obligation, is it, in 45(1)? It is an exhortation, is it?
MR RUSSELL: It is not imperfect from an insurer’s point of view because over my page, 45(3):
It is a condition of a third‑party insurer’s licence that the insurer must comply with this section.
So there is a sword there which can be used to strike the insurer, and may I say that under 45(2) and (2A), once an insurer admits liability it must start making “reasonable and necessary”:
hospital, medical . . .
(b) rehabilitation . . .
(c) respite care –
payments. So that is another indication of what Mr Hall is putting forward that this Act has, if you like, two schemes for resolving claims. One is you put your claim in as quickly as you can and certainly within six months. The insurer then has a statutory obligation and a condition of its licence to deal with you and if you cannot resolve it that way, then you proceed into litigation.
GLEESON CJ: Part of this legislative scheme, I presume, is to dock the tail of long‑tail insurance.
MR RUSSELL: And in turn this scheme has been docked by the Motor Accidents Compensation Act some three years ago because this scheme, it is said, proved too expensive.
KIRBY J: I did not hear those last words.
MR RUSSELL: Because it is said that this scheme, the Motor Accidents Act, also proved too expensive. Three years ago Parliament repealed this Act for any accident after, I think, 4 October 1999. The Motor Accidents Compensation Act, a new Act, applies and it has even more restrictive damages than this Act.
KIRBY J: The same procedural requirements of notice.
MR RUSSELL: A very similar one, yes. Now, your Honour Justice Kirby raised with Mr Hall what is so hard about filing a claim. The answer is nothing. Mr Hall drew attention to section 44 which says that the form of notice of claim can be prescribed. The notice of claim in this case is in the appeal book.
KIRBY J: Yes, I saw it.
MR RUSSELL: And while it is a long form, it is an admirable attempt to design a form that is in plain English and that people can fill in the boxes. It starts on page 44 of the appeal book. I must say one usually sees solicitors helping claimants to fill in the form.
KIRBY J: Yes, but your theory of the operation of the Act is the one I was putting to Mr Hall, and that is you injure your little finger and you have to rush off and put in a claim whereas some people, at least in a sensible society, will wait and see whether or not anything comes of it or if they are feeling all right. One gets a bit of an impression that that is what Mr Russo did. He did not want to rush in and make an unnecessary claim, and later when he found after going to Italy that it was more serious than he thought he, just a little slowly, pursued the matter with other solicitors. Your theory is, “You’ve just got to get in there and make your claim at once.” That is not the way the world operates.
MR RUSSELL: But that is why section 43A is in the Act, to allow people who have a late claim to firstly lodge it ‑ there is no prohibition on lodging it with the insurer ‑ and to allow the claim to be made late if you provide a full and satisfactory explanation. Now, in the example offered by your Honour, 43A(3) has some bearing because it specifically mandates that evidence as to any delay in the onset of symptoms may be given in any such explanation.
Now, I accept that it would be an adequate explanation if someone came along and said, “Look, my back was sore” ‑ I am taking another case of course ‑ “my back was sore. I thought it might get better. Two years after the event when it didn’t I went to a specialist surgeon. He took a CT scan and I had a disc prolapse. I never knew it.” Mr Russo does not say that. Mr Russo simply says, “Look, I had these problems. They were so severe I took six months off and went to Italy. When I came back I was slightly improved, but not greatly improved. My problems never went away”, but he does not say, “I went to a doctor who finally told me my problems” ‑ I am sorry I withdraw that.
He does say that, but that was after the 10 month gap, after he had been to his second solicitors. He does not say, “There was a certain event where I realised things were getting bad.” For all we know he might have realised on day one of the 10 month period that he was not going to get better, but then sat on his hands and did nothing. Equally, for all we know it may have been on the last day of the 10 month period, the day before he went to his lawyers that he went to his solicitors. But the problem is that no court can find ‑ I am sorry, I withdraw that. The court must find in this case that he does not have a full and satisfactory explanation when there is no explanation of that type advanced.
In answer to a matter your Honour the Chief Justice raised with Mr Hall, one cannot keep secret an explanation. One cannot say, “Look, I have an explanation, you better believe me” because 43A(2) requires you to provide the explanation, not the assertion that you have an explanation.
GUMMOW J: Now, what is the force of these notes, which are quite detailed? Does the New South Wales Acts Interpretation Act say something about the effect we can give to them?
MR RUSSELL: I cannot give your Honour a definite answer to that. My recollection is that they are there for guidance only and cannot be taken into account.
GUMMOW J: Yes.
MR RUSSELL: But I really do not know the answer to that, your Honour, I apologise. I cannot, myself, see any help in any of those notes in working out the current problem. Now, they are the two primary points I wanted to make. Firstly, that this was a decision on the facts. There was not a full explanation, and thus it was not satisfactory and secondly, that the scheme of the Act is such that it is quite an important matter to put in a notice of claim, but not fatal.
Can I briefly respond to some of the matters raised by Mr Hall and raised by your Honours when Mr Hall was addressing. Mr Hall I thought twice made the suggestion that somehow Mr Russo was the victim of his first solicitor’s tardiness. Now, may I say straight away that was not advanced to the trial judge nor the Court of Appeal and thus you will not find a word about it in either of those judgments.
KIRBY J: But is it not inherent in what you have just said about the fact that putting in the claim does no one any harm? It is filling in a form.
MR RUSSELL: Yes, and the first solicitor advised Mr Russo of his time limit and gave him a claim form. Solicitors who practise in this area, I presume, have stocks of these things, but Mr Russo said that he was given a claim form when he first saw that solicitor - appeal book 112, paragraph 8 of his affidavit. Remember that the accident is on 11 January 1997. Ten days later his father takes him to the solicitor:
when I was given a Personal Injury Claim Form to complete.
And paragraph 9:
I was also informed at that time that the Claim Form was required to be submitted to the Compulsory Third Party Insurer within 6 months of the date of accident –
and he nominates the date. He says:
I was not confident in relation to the strength of my claim.
Well, he had been a passenger in a car that hit a rock wall, so if there was any advice given to him that his claim was not wonderful, it must have been advice about damages and thresholds and things like that, and he simply did not complete it and went overseas. Came back, still did not complete it. It is a simple matter and the point I seek to make in response to Mr Hall’s submission is that there is nothing in this case to suggest that the first solicitor bears any fault for the delay.
Further, there was a specific attack at the trial of the motion on just the particular delay that disqualified this plaintiff from proceeding and it was not anything to do with that period when he was in the hands of the first solicitor and it was not anything to do with when he was in Italy; it was when he came back and just gave no explanation as to when he realised his problems were as bad as they were. So the Court should not take any account of any notion that the first solicitor was part of the problem; that was never advanced at the trial.
KIRBY J: I think in fairness, Mr Hall was responding to some questions I put to him of my feelings of what the solicitor might have done in those cases. You see, clients are very dependent on professional people, and here we are years later trying to sort out this matter. Had the solicitor said, “Well, I think you should put this in and you can think about it later”, the possibility is the client would do it. But the client gets the form, is worried about whether he will reach the threshold and he is going to Italy and thinks: I will think about that later. We all know how this happens. We get the problems years later.
MR RUSSELL: May I say that the plaintiff himself did not advance as a reason for his delay any fault on the part of the first solicitor.
KIRBY J: He did say that he thought the solicitor was young and inexperienced though.
MR RUSSELL: Yes.
KIRBY J: I was just thinking of how some of the solicitors I have known would have handled the matter.
MR RUSSELL: Being young and inexperienced, it is interesting that he gave the right advice about the time limit and handed over a claim form and obviously provided his own view about the worth of the case, because the plaintiff did not go to another solicitor, he did not go back to that solicitor, he just did nothing.
KIRBY J: We get prisoners and others, in special leave applications, who are out of time all the time with the Court’s Rules and, normally, the Court goes to the substance of the matter. If there is substance and there is some explanation – and often the explanations are pretty imperfect as to particular times – the Court looks at the substance, and that has been the big change in the law in my lifetime. The law is now less rigid. This Act does seem to reintroduce an element of rigidity.
MR RUSSELL: It does, and may I just point out that it ‑ ‑ ‑
KIRBY J: If we look at the substance of this matter, the man did have an accident, he did have disabilities – at least, he says he is suffering from them and if your case is successful, he never gets to a court. It is not something I embrace with much enthusiasm. If the Act requires it, well, that will be so but ‑ ‑ ‑
MR RUSSELL: Justice Young described it as a very serious matter to dismiss a man’s proceedings without a trial. May I point out firstly that to dismiss a statement of claim without a hearing on the facts does not put an end to one’s rights. Dismissal, under the District Court Rules, is specifically defined to be the dismissal of those proceedings without prejudice to bring another statement of claim on the same cause of action ‑ ‑ ‑
KIRBY J: Yes, but the likelihood is, if you do not get up on the first one, you are not going to get up on the second and, anyway, all the costs are going to make you a little bit disinclined. We are told there are thousands of these cases – 20 per cent of the earlier years.
MR RUSSELL: There are not, may I say, in my experience, thousands of these applications before the District Court. There may be thousands of late claims, but a lot of them are never seen by the court because the insurer accepts the explanation for delay. There are not thousands of these claims before the District Court. Mr Hall demurs. May I say that until 1 October this year I was there fairly regularly on a Friday and there were not a large number of these. Now, 52(4) about extension of time – the time limit being three years – there were a lot of those, but not many 43A claims.
Can I just respond to one matter raised by your Honour the Chief Justice. Your Honour raised Salido and the criticism made in Salido of the woolliness of this notion of explanation. The second reading speech does not say that these amendments were brought in because of Salido. Nevertheless, Parliament in 1995 went and inserted the definition of “full and satisfactory explanation”; made it apply not only to 43A, which is an entirely new section, but made it apply to 52(4) claims, where you need the leave of the court to bring proceedings if you are outside the three‑year time limit. So nowadays – indeed, after 1995 – people who want an indulgence from the court and who bear the onus of showing that a fair trial can be had, have to provide this statutory full and satisfactory explanation. So I cannot say to your Honour that the amendment was because of Salido, but it certainly addressed the problem raised by Salido.
Now, I think there is one other matter raised by the Court. Your Honour Justice McHugh raised two matters with Mr Hall towards the end of his submissions. One was, what if the insurer pleads the failure to provide a full and satisfactory explanation in bar of the claim? My response is, I do not think the insurer can do that. The insurer will lose the right to challenge the proceedings – that is, the court process – on the ground of delay, if it does not, under 43A(6)(c) “within 2 months after the statement of claim is served”:
apply to have the proceedings dismissed on:
(i) the ground of delay –
Now, it would not be enough to raise it as a defence. “Apply” connotes “make some application to the court to dismiss the proceedings”. I suppose one could do it by cross‑claim, but I must say I have never seen it done that way. The way it happens is, it is done by a motion filed within the two months.
The second matter raised by your Honour Justice McHugh that I want to respond to is that I think your Honour was concerned as to whether the court, on hearing an application of this kind, can look at only the explanation under 43A(2) given to the insurer or can look at other material. While I am sure my client insurer would like to confine the material that the court has to look at in the way proposed in argument by your Honour Justice McHugh, may I say, firstly, it is not the way it happens in practice. The insurer puts on a motion, everyone puts on their evidence, and this raises the matter, I think, raised by your Honour Chief Justice, can it be the case that you just give a desultory attempt at explanation in two or three paragraphs to the insurer, but then you get to the insurer’s motion and you put on an extensive application and you win. The answer is, in practice, yes, that happens. It can be dealt with by cost consequences on the motion. Can I point out that there is no linking of the explanation in 43A(7) to the explanation in 43A(2) by, firstly, defining the term “explanation”. There is no linking by 43A(7) saying the court has to be ‑ ‑ ‑
McHUGH J: Except the whole sequence of the – I understand what you are saying, but if you look at the history of it, and it would seem remarkable to me anyway, that there could be perfunctory compliance with the
plaintiff’s obligation under 43A(2), particularly having regard to the objects of the Act in section 43 about making claims:
to commence investigations while evidence relating to a claim is available –
and so on. On the hypothesis contended for by the appellant, the objects of 43 may not be complied with until you get to the hearing and which could be a long time after the accident.
MR RUSSELL: I must confess that I had never considered that proposition before your Honour raised it. It does not arise for decision in this appeal and, of course, not only it does not arise for decision on the papers, but here, as a fact, Mr Russo merely gave an explanation to the insurer by statutory declaration and then repeated it on the affidavit. Justice Young recognised that on appeal book 151, line 34:
However, in a case where the plaintiff does not furnish the District Court with any greater explanation than that provided to the insurer, for all intents and purposes, the Court can consider the fullness and adequacy of the explanation furnished to the insurer.
And over the page, 152, paragraph 48:
the material before his Honour was, on any view of it, very light on detail as to the reason for delay in making a claim within time.
So the interesting matter raised by your Honour simply does not arise for those reasons in this case. They are the additional submissions I wish to make.
GLEESON CJ: Thank you, Mr Russell. Yes, Mr Hall.
MR HALL: Well, your Honour, I am grappling with that last throwaway line of my learned friend. What more can a person say other than, “At some stage, I decided to go to a solicitor, and I went to a solicitor”? In this very case, if one goes to page 113, which is the appellant’s affidavit – see, the gap is said to be between December 1997 and October 1998, and in paragraph 15 he says:
I decided to seek further legal advice and on or about 6 October 1998 I –
went and got – now, what does it matter ‑ ‑ ‑
KIRBY J: It does matter, because the Parliament of New South Wales in plenary power said, “You have to give a full and satisfactory explanation”, and you are seeking a benefit. You are going before a judge. It matters to a judge to have some basis for making a decision.
MR HALL: But one is looking then for some prejudicial information. What if the only facts are, for example, that he came back on 6 December and it was not until 6 October that he made up his mind to seek legal advice?
GLEESON CJ: Well, we know that he had been informed of the six month time limit ‑ ‑ ‑
MR HALL: Yes, a long time ‑ ‑ ‑
GLEESON CJ: Well, no. He had been informed within 10 days of the accident of the existence of the six month time limit.
MR HALL: Yes. You see, my friend keeps on mentioning “the gap” but the insurer has never at any stage in this case, does not even here today, point to any adverse matter flowing from this alleged gap.
McHUGH J: It does not seem to be a relevant consideration. Prejudice is relevant in cases like South Brisbane Hospital v Taylor or in Salido because of questions of discretion but the terms of the Act are mandatory. You either have a full and satisfactory explanation or you have not. If you have not, that is the end of it.
MR HALL: Grappling with that, if those are the facts, that he does nothing for 10 months, then in October he goes to the solicitor, why is there not still a full and satisfactory explanation of his delay in this case, bearing in mind ‑ ‑ ‑
KIRBY J: The word “full” is there.
MR HALL: Yes.
KIRBY J: And even if he had said, “Between my return in December 1997 and October 1998 when I went to see the solicitors, I was still hoping that my back condition would settle down and that I would not need to have to go to court because this would have involved expense and disruption, but unfortunately it did not settle down”, instead there is nothing. This is not a unique affidavit, believe me. In special leaves where people are out of time, you get affidavits where there are just periods that they just do not bother explaining. However imperfect their explanation, if you have to give a full explanation you would do better to give something.
MR HALL: In this case what that amounts to is not a fault on the part of this man. It is a fault in the draftsmanship of his lawyers. You see, if you go back, if you look at page 48 ‑ ‑ ‑
McHUGH J: He may have rights against his lawyers.
MR HALL: Well, we are grappling here with the Act trying to make it manageable and workable and I understand that point, but it is an unsatisfactory solution. In the context, if one goes to appeal book 48, there are - in the middle, about line 25, he has a list of his problems. One of them is concentration, motivation. If I may say, as your Honour has said, it is not an untypical situation and should he be penalised in those circumstances? That is what this case is all about really. That is why I have pressed in my submissions that the Court should say that it is entitled to consider and should consider prejudice in dealing with this section. My junior says 43(7), “if the Court is satisfied”, those words must import some element of discretion in the Court. May it please the Court, those are our submissions in reply.
GLEESON CJ: Thank you. We will reserve our decision in this matter. We will adjourn until 9.30 tomorrow morning in Melbourne and 9.30 tomorrow morning in Sydney.
AT 12.25 PM THE MATTER WAS ADJOURNED
Key Legal Topics
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Civil Procedure
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Negligence & Tort
Legal Concepts
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Appeal
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Causation
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Damages
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Duty of Care
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Negligence
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