Stanley v Drew

[2006] NSWSC 123

CITATION:	Stanley v Drew [2006] NSWSC 123
HEARING DATE(S):	6 March 2006
JUDGMENT DATE :	10 March 2006
JURISDICTION:	Common Law Division
JUDGMENT OF:	Associate Justice Harrison
DECISION:	(1) Leave to commence proceedings is refused; (2) The plaintiff's amended notice of motion filed 26 August 2005 is dismissed; (3) These proceedings are dismissed; (4) The plaintiff is to pay the defendant's costs of both motions as agreed or assessed.
CATCHWORDS:	Leave to commence proceedings - s 52(4) MAA - dismiss proceedings
LEGISLATION CITED:	Motor Accidents Act 1988 - s 52(3) & (4)
CASES CITED:	Parsons v Dovkas [2001] NSWCA 128 Salido v Nominal Defendant (1993) 32 NSWLR 524
PARTIES:	Vickie Louise Bucknall & Stacey Anne Logue (as executrixes of the estate of the late Susan Joy Stanley) (Plaintiff) Gladys Rachel Drew (Defendant)
FILE NUMBER(S):	SC 20464/2004
COUNSEL:	Mr M L Williams SC (Plaintiff) Mr R R Bartlett SC (Defendant)
SOLICITORS:	Firths (Plaintiff) Hunt & Hunt (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

FRIDAY, 10 MARCH 2006

20464/2004 - VICKI LOUISE BUCKNALL &
STACEY ANNE LOGUE (as executrixes of the estate of the late SUSAN JOY STANLEY) v GLADYS RACHEL DREW
JUDGMENT (Leave to commence proceedings
– s 52(4) MAA; dismiss proceedings)

1 HER HONOUR: There are two notices of motion before the court. By notice of motion filed 28 March 1995, the defendant seeks, an order that these proceedings be dismissed. By amended notice of motion filed 26 August 2005 Vicki Louise Bucknall and Stacey Anne Logue, plaintiffs (as executrixes of the estate of the late Susan Joy Stanley (deceased) pursuant to grant of Probate made on 8 August 2005) seeks an order that the application filed in court on behalf of the plaintiff on 13 June 1995 whereby the plaintiff sought leave to commence these proceedings out of time pursuant to s 52(4) of the Motor Accidents Act 1988 (MAA) be restored to the list.

2 The plaintiff relied on her affidavit sworn 18 November 2004, an affidavit of Kenneth Albert Baker sworn 30 September 2004 and an affidavit of Stephen Paul Firth sworn 18 November 2004. The defendant relied on the affidavit of David Robert Grant sworn 6 May 2005 and John Paffey sworn 8 August 2005.

3 On 24 December 1988 the plaintiff was driving a motor vehicle which was stationary at a giveway sign at the intersection of Oxley Highway and Newell Highway, Gilgandra when she was struck from behind by a Holden panel van. The plaintiff was taken by ambulance to Gilgandra Hospital where she was treated by Dr A E Pollard. About one week after the accident the plaintiff consulted a solicitor Kenneth Albert Baker of Quirk Davidson Baker at Dubbo.

The first statement of claim

4 The accident was reported to the Police and a P4 traffic accident report form was completed. On 20 November 1989 Mr Baker wrote to the plaintiff enclosing a personal injury claim form. On 18 December 1989 this claim form was served on the GIO, the insurer. On 29 June 1990 a statement of claim was issued at Dubbo District Court. On 19 June 1992 a further statement of claim issued at Dubbo Supreme Court. On 21 August 1992 defence was filed. On 15 October 1993 Wood J (as he then was) struck out the statement of claim due to the plaintiff’s failure to comply with the then s 43 of the MAA. Wood J explained in his judgment (at 4-5):

“Regrettably, the history of this matter is one of error and omission on the plaintiff’s side of the record from the start, and I am satisfied that each submission made by the defendant is made good. The consequence is that the Statement of Claim must be set aside. Clearly, the claim form is defective in not revealing the details of the earning loss claimed and in not annexing any certificate of the earnings, the plaintiff claimed to have been receiving at the time of the accident. No sufficient reason has been given for the non-supply of the relevant information. Since the claim form did not comply with Section 44 at the time the Statement of Claim was filed, its issue was premature and contrary to Section 52 (1) of the Act. The deficiency is incurable and there has been no waiver, having regard to the terms of the defence, and the fact that it was not until August 1993 that particulars disclosing the existence of a claim for loss of earnings was supplied.”

5 The plaintiff’s solicitor was put on notice that rectification of these deficiencies needed to be attended to without delay. Most of the delay can be sheeted home to the solicitor. After all the plaintiff cannot be expected to know the notice provisions of the MAA.

6 That meant that the plaintiff had to recommence proceedings and overcome procedural defects.

The current statement of claim

7 On 28 June 1994 a further claim form was served. On 30 December 1994 a further statement of claim was filed in the Central West Registry of the Supreme Court (these current proceedings). On 28 March 1995 the defendant filed a notice of motion (which is now being determined) to dismiss these proceedings. As a response, the plaintiff filed a notice of motion seeking to discontinue proceedings and commence proceedings pursuant to s 52(4) of the MAA. On 13 June 1995, Mr Conomos QC for the plaintiff and Ms Holz for the defendant appeared before Master Greenwood. On that day Master Greenwood made orders firstly, that further evidence concerning delay was required; secondly, that the plaintiff was to pay the defendant’s costs; and thirdly, liberty to restore on 7 days notice. In other words, the plaintiff had not at that stage given a full and satisfactory explanation for the delay. It certainly was a very long time (some 9 years) before the plaintiff sought to restore the motion to the court list for hearing.

8 On 14 October 2004 the plaintiff’s new solicitors, Firths, filed a notice of motion to restore the s 52(4) motion.

9 The defendant submitted that the explanation firstly was not full; secondly, not satisfactory, thirdly, it will not receive a fair trial; and fourthly, the plaintiff has waived her rights by commencing professional negligence proceedings against her former solicitor.

10 As the second proceedings in this court commenced after 12 April 1991 and prior to 1 January 1996 the pre-amended ss 52(3) and 52(4) apply which obliges the plaintiff to provide a full and satisfactory explanation for delay – see Salido v Nominal Defendant (1993) 32 NSWLR 524 at 528 per Gleeson CJ and Parsons v Dovkas [2001] NSWCA 128 at [33] per Powell JA (with whom Shellar and Davies JJA agreed).

The relevant provisions of the MAA

11 Section 52(3) provided:

“If a claimant commences proceedings in respect of a claim more than 12 months after the date on which the claim must be made in accordance with section 43, the claimant must provide a full and satisfactory explanation to the court for the delay.”

12 Section 52(4) provides:

“A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after the date on which the claim must be made in accordance with section 43 except with the leave of the court in which the proceedings are to be taken.”

13 Aside from the court adjudications, which are beyond dispute, the plaintiff’s version of events differs from those of her solicitor. In particular, at odds, is the plaintiff’s state of knowledge of the progress of her claim and the level of contract maintained between the two. These differences now cannot be reconciled because the plaintiff is now deceased.

14 The plaintiff deposed that in October 1990 she contacted Mr Baker by telephone on a number of occasions to enquire as to the progress of her matter. According to the plaintiff, on each occasion Mr Baker informed the plaintiff that the matter was going to court and he advised her that he would let her know when a court date was obtained. It was at time that the plaintiff became dissatisfied with Mr Baker. In November 1990 the plaintiff saw North & Badgery Solicitors in Dubbo and instructed them to obtain her file from Mr Baker. Mr Baker would not release the file to North & Badgery and as she did not have the money available to pay his fees the plaintiff reluctantly decided to reinstruct Mr Baker on or about 2 April 1991.

15 In early 1990 the plaintiff’s medical condition worsened in that she began having fits. In about June 1990 she had a severe fit and suffered loss of consciousness. Medical reports were obtained in 1991, 1992, 1993 and 1994. The report of Geoffrey Fox, a clinical neuropsychologist, dated March 1993, paints an alarming picture of the plaintiff he states (at 3):

“Mrs Stanley is quite grossly limited. I believe I have evidence which indicates a very significant cognitive impairment. In particular her performance on the Middlesex Elderly Assessment was so bad that one would be tempted to describe the condition as bordering on dementia. Naturally, one cannot make such a serious diagnosis on one assessment. If this serious deficiency were to persist over a period of 6 to 12 months, and was confirmed in a second assessment, then one could be more confident in pointing to a serious impairment in intelligence. Other evidence which I gathered indicated to me that this is likely to be an acquired deficit, and did not pre-exist her injury.”

16 There is no neurological report available which links the severe fits with the injuries suffered in the motor vehicle accident.

17 The plaintiff deposed that she was never informed by Mr Baker of the orders striking out the statement of claim made by Wood J on 15 October 1993. Nor was she aware of a letter dated 10 January 1994 from Mr Baker to the defendant’s solicitors informing them that she would declare herself bankrupt rather than pay their costs. She did not give authority or instructions for this letter to be sent. On 22 February 1994 the plaintiff signed a further claim form.

18 On 30 December 1994 a further statement of claim was filed in the Supreme Court at Dubbo. The plaintiff was not told of this event. From 1989, Mr Baker had employed a solicitor Mr Glen Turner, whom he thought was familiar with the provisions of the MAA. Mr Baker had handed the file to Mr Turner to take whatever steps were necessary. Mr Baker personally did not take any steps to notify the plaintiff of the provisions of the MAA nor did he check on the progress of the file. Mr Baker cannot give any explanation for the delay in taking proceedings except to say that there was a shortfall in the practice. The plaintiff was not informed of the orders made by Master Greenwood on 13 June 1995. It is interesting to note that the plaintiff in her affidavit did not make any reference to the involvement of Mr Turner in her proceedings.

19 In February 1995 the plaintiff’s solicitor, Mr Baker, moved his legal practice from Dubbo to Wellington. In June 1995 he wrote letters to all the clients of the practice and notified them of the changes that were about to occur. He requested that they advise him whether they wished him to continue to act for them. He heard nothing from the plaintiff. In June 1995 Mr Baker took all the inactive files and stored them in his shearing shed on his property in Wongarbon. These files were later destroyed.

20 Around October 1995 the solicitors for the defendant wrote to their client insurer and advised them that they had heard nothing further from the plaintiff’s solicitor, and recommended they close their file. The defendant’s then solicitors closed their file. That file has since been destroyed. The insurer still had its file.

21 The plaintiff deposed that from 1995 to about 1999 the plaintiff contacted Mr Baker to enquire of the status of her matter. Each time Mr Baker ensured her that the matter was fine. The plaintiff further deposed that Mr Baker never informed her that her matter was inactive.

22 In 1999 the plaintiff says that she saw Mr Baker in Wellington and was told “I want it finalised too because I have money tied up in it too… I will look into the matter and get back to you”. The plaintiff deposed that she heard nothing more from Mr Baker. However Mr Baker deposed that he has no recall of any conversation with Mrs Stanley from June 1995 to about 2001.

23 On 15 July 2003 the plaintiff and a friend attended Mr Baker’s office in Wellington where they were informed that the matter went to court in about 1994 or 1995 and it was “squashed”. According to the plaintiff, Mr Baker also informed them that he was unable to find the file and thought it was destroyed as it was over seven years old. He stated that he would get information on the files and contact the plaintiff the week after.

24 Mr Baker says that it was in 2001 or 2002 that the plaintiff came to see him. He says that the plaintiff came to his office with her father and said, “What’s going on in my matter?” He replied in words to the effect that he would have to find the file and he could not remember what had happened to it. Mr Baker then searched his shearing shed and concluded that he could not find it but did not advise the plaintiff of this fact. Then in 2003, the plaintiff attended his office in Wellington and again asked, “What happened to my matter?” and he replied that he did look for the file but he could not locate it.

25 On 12 August 2003 Vicki Howarth, on behalf of the plaintiff contacted Mr Baker. She was told that he was unaware what year the matter went to court and he would look into it. Shortly after, the plaintiff enquired what date the matter went to court and Mr Baker stated that he did not know. On about 23 September 2003 the plaintiff contacted Mr Firth and instructed him in the matter. On 14 October 2004 the motion to reactivate the s 52(4) application was filed.

Subsequent professional negligence proceedings against Mr Baker

26 On 27 January 2004 the plaintiff commenced proceedings against Mr Baker in the District Court at Sydney for professional negligence. On 1 July 2004 Mr Baker’s solicitors requested that the plaintiff’s solicitors to make an application to reactivate these proceedings. The insurer’s file in these proceedings was produced under subpoena and the solicitors for the plaintiff had access to it. The file contained documents which would have attracted legal professional privilege had the defendant been aware that there was to be an attempt to reactive these proceedings. The defendant was waiting on an extension of time being granted before it obtained medical reports. Thus it never had the plaintiff medically examined.

The conclusion

27 It is my view that even if the plaintiff’s explanation can be said to be full, ie. a full account of the conduct, including actions, knowledge and belief of the claimant from the day of the accident to the date of her affidavit (18 November 2004) it cannot be said to be satisfactory. The plaintiff was aware that the accident occurred in 1988. In 1991 she became dissatisfied with her solicitor. By 1993 the plaintiff was no longer being sent to medical appointments. From 1995 to 1999, even on the plaintiff’s own evidence, she contacted her solicitor but nothing occurred other than she was reassured her matter was fine. Sometime between 1999 and 2001 Mr Baker told the plaintiff that he would get back to her yet she heard nothing more. It was only in 2003 when Mr Baker told her that her file could not be located that she went elsewhere.

28 If I am wrong, I turn to consider whether leave should be granted pursuant to s 52(4). Breach of duty of care would appear not to be an issue. That leaves the issues of causation and damages. Seventeen years has elapsed since the accident occurred and witnesses’ memories will have faded. The difficulty here is that the plaintiff’s medical condition worsened in 1990 and there is no medical evidence that establishes a connection between the accident and epilepsy or her cognitive impairment. While this poses a problem for the plaintiff, the defendant has been denied the opportunity to have the plaintiff’s injuries medically investigated. The defendant has suffered further prejudice because it has made its insurer’s file available to the plaintiff’s solicitors by force of subpoena in the professional negligence proceedings. It is my view that the defendant suffers prejudice to the extent that it will be denied a fair trial.

29 Leave to commence proceedings is refused. I dismiss the plaintiff’s amended notice of motion. These proceedings are dismissed.

30 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant’s costs of both motions as agreed or assessed.

The court orders:

(1) Leave to commence proceedings is refused.

(2) The plaintiff’s amended notice of motion filed 26 August 2005 is dismissed.

(3) These proceedings are dismissed.

(4) The plaintiff is to pay the defendant’s costs of both motions as agreed or assessed.
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