S.57(2)(b) MAIA – exercise of the discretion – unfettered?

Blundstone v Johnson & Anor [2010] QCA 148

I refer to my earlier posting of the first instance decision and refer you to the appeal decision refusing leave.

HOLMES JA:

[15] The applicants contended that the learned primary judge had erred in proceeding on the premise that the discretion under s 57(2)(b) was unfettered. Their basis for that contention was his Honour’s adoption of a summary of principles as to the application of s 57(2)(b), taken from the decision of McMeekin J in Paterson v Leigh,[14] of which it is only necessary to set out the first four:

“(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;” (citations omitted)

[16] The discretion was not unfettered, the applicants said; it fell to be exercised on the basis that an extension was an exception to the operation of the three year limitation period for an action for damages for negligence contained in s 11 of the Limitation of Actions Act 1974 (Qld), and was to be exercised with regard to the purpose for which s 57(2)(b) conferred it.[15] As to that purpose, the applicants relied again on Keane JA’s judgment in Spencer v Nominal Defendant, in which his Honour said this on the topic:

“Section 57(2)(b) of the Act cannot be regarded as standing free of the considerations which explain its presence in the Act. These considerations serve to inform the proper exercise of the discretion. If a person who seeks the exercise of the discretion conferred by s 57(2)(b) of the Act were not required to show good reason why that should occur in terms of the exigencies of the Act, the limitations upon the grant of an extension of the limitation period contained in Pt 3 of the Limitation of Actions Act would be written out of the law in any case of a motor vehicle claim where a notice of claim was given under the Act. That is not an intention which can sensibly be attributed to the legislature.”[16]

The learned primary judge had erred too, the applicants said, in his characterisation of the respondent’s delay in instituting proceedings. His Honour had spoken of the delay occurring “in the context of a timeline set by reference to an order of the Court made under the Act”, but the reason for the delay had nothing to do with the requirements of the Act.

[17] The principles which McMeekin J set out in Paterson v Leigh were, as he made clear, a distillation of the case law in relation to the s 57(2)(b) discretion. His description of the discretion in the first of those principles as “unfettered” derived from its characterisation as such in Morrison-Gardiner v Car Choice Pty Ltd;[17] that is, as a discretion not subject to express statutory qualification. The principles immediately following in the extract from McMeekin J’s judgment at [15] above make it abundantly clear that the discretion is to be exercised with regard to its statutory purpose. And it is plain that the learned judge in the present case did not ignore either the statutory purpose of the discretion or its effect on the limitation defence. His Honour’s reasons for exercising the discretion in favour of the respondent were as follows:

“The period of delay in bringing the proceedings in court is short. The applicant has co-operated with the insurer throughout the intervening period, making disclosure, subjecting himself to examination by specialists, attending the compulsory conference and giving instructions regarding the mandatory final offer. The applicant and his solicitor have deposed to the applicant’s steady and conscientious efforts to comply with the requirements of the MAIA and co-operate with the insurer. The delay is explained. The applicant was not personally at fault. In the particular circumstances of this case that is very material. He retained a solicitor early and did everything reasonably required of him. This may not be a case where the delay was obviously caused by a conscientious effort to comply with the Act, but the delay occurred in the context of a timeline set by reference to an order of the Court made under the Act. Given the early notice of the claim, the short period of delay and the full disclosure regarding the only issue – quantum – one can be confident a fair trial can be had. These matters outweigh, in this case, the prejudice to the insurer of the loss of the defence afforded by the statutory time bar.

It could not be said the claim had been let go to sleep. The insurer does not assert loss of evidence. The applicant has not, but for his solicitors’ 7 day lapse, failed to prosecute his claim.”[18] (Citations omitted.)

[18] The learned judge correctly characterised the context in which the delay occurred. While the existence of a relationship between the delay involved and the plaintiff’s attempt to apply with the Act’s requirements is an important consideration, it is not indispensable to the favourable exercise of the discretion under s 57(2)(b).[19] In fact, there was such a connection here: the failure to commence in time was the direct result of an error in calculating the time prescribed for filing upon completion of the pre-proceedings steps. The other matters identified by the learned judge – that the respondent had endeavoured to comply with the requirements of the Act, the early notice of the claim, the very short period of the delay, the fact that it was not attributable to any personal fault on the respondent’s part and the full disclosure in relation to quantum (the only live issue in considering the question of prejudice) – were all relevant considerations in the larger context of the Act’s aim of speedy resolution of personal injuries actions, and the more immediate context of s 57(2)(b)’s intent, to alleviate the difficulties arising from the need to comply with the Act’s requirements.

Conclusion

[19] No error of principle or of substance has been identified in the way in which the learned primary judge exercised the discretion. I would refuse leave to appeal. The applicants should pay the costs of the application.

[20] CHESTERMAN JA: I agree that the application for leave to appeal should be refused, with costs, for the reasons given by Holmes JA.

[21] ATKINSON J: I agree with the order proposed by Holmes JA and with her Honour’s reasons.

Brisbane Barrister – David Cormack

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