WOOD v ORGILL [1999] NSWCA 36

New South Wales Court of Appeal CITATION : WOOD v ORGILL [1999] NSWCA 36 revised - 15/04/99 FILE NUMBER(S) : CA 40252/98 HEARING DATE(S) : 1 March 1999 JUDGMENT DATE : 1 March 1999

PARTIES : ROBERT JAMES WOOD - Claimant JULIANE ORGILL - Opponent JUDGMENT OF : Meagher JA at 18; Sheller JA at 1; Sheppard AJA at 19

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 282/97 LOWER COURT JUDICIAL OFFICER : Phelan DCJ

COUNSEL : P M DONOHOE QC - Claimant G I CHARTERIS - Opponent SOLICITORS : WINDEYER DIBBS - Claimant RUSSELL McLELLAND & BROWN - Opponent CATCHWORDS : Leave to appeal; Statement of claim filed out of time ACTS CITED : Motor Accidents Act 1988 DECISION : Application for leave to appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40252/98 DC 282/97

MEAGHER JA SHELLER JA SHEPPARD AJA

1 March 1999

WOOD v ORGILL JUDGMENT

1 SHELLER JA: This is an application by the claimant, Robert James Wood, for leave to appeal from a decision of his Honour Judge Phelan given on 3 April 1998. The opponent is Juliane Orgill. The matter has proceeded before the Court today on the basis that if leave is granted, the appeal would proceed forthwith. 2 On 20 October 1993, Justin Ashley Neilson, then aged fifteen, was involved in a motor vehicle accident while crossing the Princes Highway, and severely injured. His mother, the opponent, Juliane Orgill, claimed to have come upon the scene and witnessed her son's head trapped under the wheel of a vehicle until his release half an hour later. Medical evidence showed he suffered brain damage, and despite lengthy efforts at rehabilitation has remained with considerable intellectual deficit. Amongst other things, he is unable properly to care for himself. 3 On 30 July 1997, the opponent filed a statement of claim in the District Court at Wollongong, claiming that by reason of her attendance at the scene of the accident, she suffered nervous shock due to the claimant's negligence. 4 The statement of claim was filed out of time. The provisions of the Motor Accidents Act 1988 , as applicable in this case, provided in s52 (4) that a claimant is not entitled to commence proceedings in respect of a claim more than three years after the date on which the claim must be made, in accordance with s43, except with the leave of the court in which the proceedings are to be taken. It is agreed that in accordance with that legislative scheme, the statement of claim should have been filed on or before 20 April 1997. 5 It also appears that not until 14 March 1995 was the compulsory third party insurer, Royal and Sun Alliance Insurance Australia Limited, served with a personal injury claim with a letter dated 8 March 1995. That also was out of time and also incomplete. Some correspondence took place between the insurer and the opponent, and reasons were sought and advanced for the delay in giving notice. Those reasons the insurer from time to time rejected. 6 Application was made to the Court by the claimant to have the statement of claim dismissed. At the same time, the opponent sought an order pursuant to s52 (4) of the Motor Accidents Act for leave effectively to continue on the statement of claim. 7 In his judgment delivered on 3 April 1998, his Honour described the history of the matter. It is unnecessary for present purposes to go into that in any detail. However, his Honour did observe that on 18 April 1995 the insurer arranged for the opponent to be seen by a psychiatrist on 8 May 1995. That, in fact, took place. 8 His Honour observed and described in some detail the problems that the opponent had had in terms of her marital affairs and also bringing up four children, including her injured son. He referred to the findings of a psychologist, Mr Bourke, as to the opponent's psychological reactivity to reminders of the accident, and observed that it was understandable that her condition had become more chronic and her awareness of it more acute. 9 His Honour then referred to the decision of the High Court in Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866, and said that the ultimate test in determining how he should deal with the applications before him was whether he was satisfied that notwithstanding the delay and its effects, a just and fair trial could still be held. It is agreed by Mr Donohoe QC, who appears for the claimant, that this was the correct test for his Honour to apply. 10 His Honour then carefully went through a number of matters which he weighed together to come to the conclusion that he did, namely, to grant the opponent relief and extend the time in which the statement of claim could be filed, and to dismiss the defendant's motion. There is perhaps some incongruity in those orders, but for present purposes that does not matter. 11 It is not suggested that any of the matters to which his Honour referred were matters that he should not have taken into account, nor are his findings in respect of them challenged. 12 The point taken on this application is a short one and is to be found in ground 8 of a notice of appeal that was filed on behalf of the claimant. It was submitted that the Judge's discretion miscarried because he failed to take into account a number of material considerations. These are helpfully set out in para 6 of the claimant's supplementary submissions. 13 In particular, Mr Donohoe referred to a letter of 10 March 1997 written by Mr McGrath, who at all relevant times was the opponent's solicitor, to her, referring to the fact that the time for bringing any court proceedings would expire on 20 April 1997 and the need to supply a medical certificate to the insurance company as a matter of urgency. It was said of this that by that time it had become apparent, if not earlier, to the solicitor that time was running out, and yet it was not brought to the client's attention that by that time the medical certificate had to be obtained and other steps taken. Further, it was pointed out that under the section there was no need for a medical certificate. It was quite open to the solicitor, on instructions, to file a statement of claim forthwith, and if that had been done in March 1997 it would have been within time. 14 In the same vein, reference is made to part of Mr McGrath's affidavit, in which he said that on 1 April 1997 he again advised her of the necessity to get a medical certificate before the claim ran out and that she was to make an appointment with her local doctor. 15 From this foundation, Mr Donohoe developed an argument that it was undesirable that on the application before the court seeking the indulgence of an extension of time, the same solicitor should have acted for the opponent, that by doing so there was a risk that a full and complete explanation of delay was not available to the Court. It is not necessary in this case, in my opinion, to express any view one way or another about the desirability of Mr McGrath continuing to act. 16 In my opinion, this application for leave can simply be disposed of by pointing to the fact that by concession the judge applied the right test, and that nothing has been advanced to show that the exercise of that discretion miscarried beyond what has been said about the various matters that are listed in the Applicant's supplementary submissions. 17 It is not plain to me that all or any of those matters, to the extent to which they were not referred to, were relied upon by the opponent or the claimant on the application, or that the point that is now being sought to be made about the solicitor is a matter which was relied upon by his Honour. I am not persuaded that his Honour's discretion in any way miscarried, and on that basis I would propose that the application for leave be dismissed with costs. 18 MEAGHER JA : I agree. 19 SHEPPARD AJA : I also agree. 20 MEAGHER JA : The order of the Court therefore is the application is dismissed with costs. *****