Jonathan v Mangera & Anor [2016] 86 QCA 86

Morrison JA delivered the leading judgment. Boddice and Burns JJ concurred.

SUMMARY:

The applicant, Mr Jonathan was injured in a motor vehicle collision on 4 August 2012 and gave the requisite Notice of Accident Claim Form under the Motor Accident Insurance Act 1994 (Qld) (“Act”) and the second respondent (RACQ) admitted liability on 15 November 2012. However, the applicant then failed to attend a medical appointment on 31 July 2013 and his solicitor advised RACQ that they had lost contact with him. It was believed he was on the run in connection with a house burning down.

On 10 July 2015 an application was filed seeking orders that leave be given to commence proceedings within 60 days because the limitation period was due to expire on 4 August 2015.

On 29 July 2015 Mr Jonathan contacted his solicitors stating he had been overseas for the past couple of years on a holiday. Mr Jonathan was told that the limitation period was due to expire and a court hearing was scheduled for 31 July 2015 – an attempt to extend the limitation period. Mr Jonathan was informed of this information again the following day on 30 July 2015.

On 6 August 2015 the learned primary judge dismissed the application.

The applicant sought leave to appeal from the dismissal of his application.

Appeal:

[9] The issues raised on appeal were that the learned trial judge’s discretion miscarried by finding that:

  • No good reason had been shown for granting leave to extend the time;
  • Mr Jonathan had no made a conscientious effort to comply with the MAIA (Qld);
  • Mr Jonathan had chosen to absent himself from the jurisdiction without providing instructions to his solicitors and regardless of the consequences;
  • RACQ was at risk of significant prejudice should leave be given.

[12] …Fresh evidence can be admitted if:

  1. It could not have been obtained with reasonable diligence for the original hearing;
  2. If given, it would probably have an important influence on the result of the case; and
  3. It is apparently credible.

None of these principles were met ([13]-[15]).

EXTENSION OF TIME UNDER S.57(2) OF THE MAIA:

[18] The power to extend time is discretionary and can be exercised within particular contexts. The objects of the Act are to keep the costs of insurance down and encourage the speedy resolution of personal injury claims. The Act is designed to promptly assess claims by the insurer relatively soon after the accident. Claims should be prosecuted diligently. Further, there are provisions which encourage both sides to make offers of settlement.

[19] The principles applicable to the exercise of the discretion on the question of leave to commence proceedings out of time, have been well established.

[20] In Morrison-Gardiner v Car Choice Pty Ltd[13] this Court referred to the context in which s 57(2)(b) exists and said:

“The discretion to permit the commencement of proceedings after the expiration of a limitation period is to be exercised in this context. It is clearly meant to ameliorate the plight of a claimant who is unable to comply with the requirements of the Act in time to commence proceedings and who, if justice is to be done, should be given the extension. The discretion is likely to be exercised favourably only in those cases where a claimant’s circumstances make it difficult to comply with the requirements of the Act and commence proceedings within three years or where, despite making conscientious efforts to comply with the requirements of the Act, a claimant nevertheless does not do so within three years of the accident. Any delay on the part of a claimant in complying with the Act’s requirements or in applying for an extension of time will be relevant to the exercise of the discretion. Claimants who ignore the obligations imposed on them by the Act or who make no conscientious effort to comply with them are unlikely to obtain an extension of time though, of course, each case must be decided on its individual merits.”

[21] Subsequently in Winters v Doyle & Anor[14] Keane JA referred to the passage above and said:

“It can be seen that each member of this Court in Morrison-Gardiner v Car Choice Pty Ltd identified, as a consideration of central relevance to the proper exercise of the discretion conferred by s 57(2)(b) of the MAI Act, the relationship between the delay which has occasioned the need to seek relief from the operation of the statutory time bar and the plaintiff’s attempts to comply with the requirements of the MAI Act. A plaintiff will usually be able to show good reason for the favourable exercise of the discretion conferred by s 57(2)(b) only if he or she can show that the delay which occurred was occasioned by a “conscientious effort to comply” with the MAI Act.”

[22] The applicable principles were later usefully summarised by McMeekin J in Paterson v Leigh & Anor,[15] in a way approved by this Court in Blundstone v Johnson.[16] His Honour referred to Morrison-Gardiner and Winters, and other authority, and said:[17]

“The principles that seem to be to emerge from these cases are:

(a) The discretion to be exercised in respect of an application pursuant to [s 57(2)(b)] of the Act is unfettered;

(b) The onus lies on the applicant to show good reason why the discretion ought to be exercised in his or her favour;

(c) Where an applicant is able to show that the delay which has occurred was occasioned by a ‘conscientious effort to comply’ with the Act then that would normally be good reason for the favourable exercise of the discretion but is not a ‘dominating consideration’. Conversely, claimants who ignore the obligations imposed on them by the Act or who make no conscientious effort to comply with them may have difficulty obtaining a favourable exercise of the discretion;

(d) Where an applicant is not able to show that the delay was occasioned by ‘a conscientious effort to comply’ with the Act that is not fatal to the application;

(e) Any delay on the part of a claimant in complying with the Act’s requirements or in applying for an extension of time will be relevant to the exercise of the discretion;

(f) The length of any delay is important and possible prejudice to the defendant is relevant;

(g) Depriving a defendant of the complete defence afforded by the statutory time bar is an important matter;

(h) The interests of justice are of course the overriding consideration and in that regard the question of whether a fair trial of the proceedings is unlikely is an important consideration;

(i) The giving of a notice of claim before the expiry of the limitation period and compliance by a claimant with the provisions of the Act that it provide any information sought by the insurer are both relevant factors.”

His Honour was unpersuaded as to the explanation or more relevantly lack thereof as to why the appellant failed to attend the medical examination or establish contact with his solicitor for two years. His Honour was of the view that these matters, the inconsistency in the medical examinations, and failure to make any conscientious effort to comply with the Act was the sort of prejudice contemplated in Ward v Wiltshire Australia and Anor:[26]

“[87] As was submitted for the second respondent, one example of the possible prejudice concerns the possibility that the appellant might now make a larger claim on the premise that her incapacity has increased beyond that reported in the early medical reports. The second respondent might be held liable for such a claim if it could not introduce evidence that showed that the appellant’s additional incapacity was attributable to some cause other than the accident: Watts v Rake[1960] HCA 58(1960) 108 CLR 158, 160, 164; [1960] HCA 58Purkess v Crittenden[1965] HCA 34(1965) 114 CLR 164, 167-168, 171; [1965] HCA 34. The second respondent might in such a case be prejudiced by the appellant’s delay in pursuing her claim, because it might be difficult for it now to obtain such evidence.

[88] The possibility of prejudice on this basis is speculative; but it has that character partly because the appellant’s evidence did not explain, as it easily might have done, whether or not the damages she now wishes to claim are of the order originally sought and whether or not her claim would be premised upon the nature and extent of whatever incapacity is described in the original medical reports. This is one example of the unsatisfactory nature of the evidence adduced by the appellant in this application.”

The appeal was dismissed.

David Cormack – Brisbane Barrister & Mediator

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