New South Wales Court of Appeal CITATION : Astill v Newman [1999] NSWCA 43 FILE NUMBER(S) : CA 40621/97 HEARING DATE(S) : 04/03/99 JUDGMENT DATE : 4 March 1999 PARTIES : Glen Astill v Paul Edward Newman JUDGMENT OF : Sheller JA at 21; Beazley JA at 22; Fitzgerald JA at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 71/97 LOWER COURT JUDICIAL OFFICER : Ainslie-Wallace DCJ COUNSEL : J D Hislop QC/D J Russell (Appellant) B K Ralston (Respondent) SOLICITORS : B Ramrakha (Appellant) Mathew Savage & Associates (Respondent) CATCHWORDS : Limitation period; s52(4) Motor Accidents Act 1988; trial judge erred in carrying out a "balancing exercise" to determine whether leave should be granted; miscarriage of discretion; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. DECISION : Appeal allowed THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40621/97 DC 71/97 SHELLER JA BEAZLEY JA FITZGERALD JA Thursday 4 March 1999 Glen ASTILL v Paul Edward NEWMAN JUDGMENT 1 FITZGERALD JA: In this Judgment I propose to refer to the appellant as the defendant, and to the respondent as the plaintiff. The defendant has appealed by leave of this Court from a decision of a District Court judge given on 10 September 1997, granting the plaintiff leave to bring proceedings outside the three year limitation period in subs 52(4) of the Motor Accidents Act 1988. 2 The plaintiff claims that he was injured in a motor vehicle accident on 2 October 1989. He was a passenger in a vehicle driven by the defendant, which left the roadway and struck a pole. Another passenger in the vehicle was killed as a result of the accident. It is not clear whether or not the plaintiff was wearing a seat belt at the time. There is also a possibility that alcohol was a factor in the accident, and it has been suggested by the defendant that both he and the plaintiff were affected by alcohol. However, that is not a matter for determination now. 3 The plaintiff sought legal advice in 1990, 1993 and 1996 in relation to the accident, but he did not serve the defendant's insurer with a claim form until 24 March 1997, some seven and a half years after the accident. This was the first notification that the defendant's insurer received of the plaintiff's claim, although there had been another claim earlier in relation to another person injured or killed in the accident, which had been compromised. 4 The plaintiff alleges that he sustained orthopaedic injuries and post-traumatic stress disorder as a result of the accident. A principal part of his claim relates to the post-traumatic stress disorder, the major symptoms of which, according to the medical evidence, are deep depression and despair. 5 The primary Judge noted that subs 52(4) of the Act requires her "to be satisfied that before I grant leave that there has been, in general terms, an explanation of the delay, and that it is an appropriate case in which I ought to exercise my discretion". Her Honour described the exercise of her discretion as a balancing exercise, and at another point expressed the view that it was "reasonable" to allow the plaintiff to commence his action. 6 In considering the balancing exercise which her Honour appears to have undertaken, she noted the following factors as explanations for the plaintiff's delay in making the claim. One, as a result of his psychiatric disorder, the plaintiff was depressed and robbed of the motivation necessary to pursue the claim. Two, although he sought legal advice in 1990, 1993 and 1996, he was unwilling or unable, by reason of his depression, to take the steps necessary to make the claim. It was also noted that the appellant alleged that he was not in sufficient funds to pay to his solicitors the amount requested of him for disbursements, although this amount was "in very small order indeed". Finally, her Honour referred to the circumstance that it was not until 1996 that the plaintiff began to receive psychiatric or psychological assistance which enabled him to be more active in pursuing the claim. Even then, the defendant's insurer was not notified until the following year. 7 Her Honour also referred to the following factors advanced on behalf of the insurer in support of its contention that it would suffer prejudice were leave to be given. One, the fact that there was an absence of evidence from the general practitioner who treated the plaintiff apparently from the time of the accident until the general practitioner's death, and there was no evidence whether his records are still available. 8 Two, the only medical evidence certainly available is from medical practitioners who first examined the respondent in or after 1996. 9 Three, there is no evidence whether the police records concerning the accident are still available. 10 Four, there would be inherent difficulties in unravelling from the plaintiff's present social and emotional problems what, if anything, flows from the accident, and what is the consequence of other events in the plaintiff's life or has some other cause. 11 Five, the difficulty, if not impossibility, of properly investigating the alcohol factor or whether the plaintiff was wearing a seat belt, which might give rise to defences of the voluntary assumption of risk and/or contributory negligence. 12 Her Honour noted that there was almost always some disadvantage to be suffered by a defendant by the late making of a claim, but, after consideration of the foregoing factors, concluded that, "on balance", she was "of the view that it is reasonable to allow the plaintiff to commence his action notwithstanding the fact that time for so commencing has expired". 13 This Court has accepted in cases such as South Sydney Council v Zegarac (1998) 42 NSWLR 195., and Kinnas v Petricca Unreported, 1 December 1998. that the principles established by the majority of the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541., are applicable to subs 52(4) of the Motor Vehicles Act. Consistently with the latter decision, a balancing exercise of the respective prejudices to one party or the other depending on whether leave is granted or refused was described in South Sydney Council v Zegarac as "unhelpful and misleading". 14 While a prospective defendant might have an evidentiary onus to raise any considerations telling against the grant of leave, the applicant bears the onus of showing that justice requires the grant of leave, and must at least show that the prima facie prejudice to a prospective defendant, or any specific prejudice demonstrated, are not so significant that a fair trial is unlikely. Unless an applicant demonstrates that, despite the delay and other circumstances of prejudice to the defendant, the defendant will have a fair trial, leave should be refused. 15 In my view, the District Court Judge misdirected herself in her approach to the exercise of her discretion. I am satisfied that she acted under the misconception that the sole or principal onus on the plaintiff was merely to provide an adequate explanation of the delay even though she did not expressly find what was the explanation for the delay in this instance. 16 After stating that she believed that the section of the Act required her to be satisfied that there has been "in general terms an explanation of the delay" her Honour stated that this case was "in appropriate case" in which she ought to exercise her discretion in favour of the plaintiff. At no point in the Judgment did she reveal that she understood the task of the plaintiff to be that indicated by the High Court in Brisbane South Regional Health Authority v Taylor. She did not provide any explanation of what she understood to be the indicia of "an appropriate case" except in so far as that might emerge from the later reference to what was "reasonable". 17 Furthermore, both the language which her Honour used throughout the judgment, and the manner in which it is structured, indicate that she was in fact undertaking, as she described it, a balancing exercise between the respective prejudices to the parties from the grant or refusal of the application. 18 I am comfortably satisfied that her Honour's exercise of discretion miscarried, and this Court must therefore undertake the exercise afresh. 19 I am also satisfied that the defendant is no longer in a position to satisfactorily carry out investigations concerning both liability and damages which are essential to the proper defence of the plaintiff's action, and that the defendant is so prejudiced that there cannot be a fair trial. 20 Accordingly, in my opinion, the appeal should be allowed with costs, the orders made below set aside, and in lieu thereof it should be ordered that the notice of motion of 10 September 1997 be dismissed with costs. The respondent should have a Certificate under the Suitor's Fund Act if otherwise eligible. 21 SHELLER JA: I agree. 22 BEAZLEY JA: I agree. 23 SHELLER JA: I agree. The orders of the Court will be as proposed by Fitzgerald JA. The Court will now adjourn. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.