New South Wales Court of Appeal CITATION : ONDROVCIK v ONDROVCIK [1999] NSWCA 325 FILE NUMBER(S) : CA 40243/99 HEARING DATE(S) : 31 August 1999 JUDGMENT DATE : 31 August 1999 PARTIES : Michael John Ondrovcik v Dennis Ondrovcik JUDGMENT OF : Stein JA at 1; Davies AJA at 14; Wood CJatCL at 15 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 140/98 LOWER COURT JUDICIAL OFFICER : Patten DCJ COUNSEL : L. King SC/D. Richard (Claimant) H. Shore (Opponent) SOLICITORS : Peacocke Dickens & Price (Claimant) Abbott Tout (Opponent) CATCHWORDS : DISTRICT COURT - MVA - refusal of extension of time - Motor Accidents Act 1988 - unsatisfactory explanation - concurrent application for leave to appeal ACTS CITED : Motor Accidents Act 1988, s 52 CASES CITED: Salido v The Nominal Defendant (1993) 33 NSWLR 524 Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866 DECISION : Leave to appeal refused with costs IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40243/99 STEIN JA DAVIES AJA WOOD CJ at CL Tuesday, 31 August 1999 Michael John ONDROVCIK v Dennis ONDROVCIK JUDGMENT 1 STEIN JA: The claimant, Michael John Ondrovcik, seeks leave to appeal from a decision of Patten DCJ given in the District Court at Dubbo on 10 March 1999. His Honour had before him an application for leave under ss 43A and 52(4) of the Motor Accidents Act 1988 in relation to a motor vehicle accident which occurred on 23 October 1992. The application for leave to extend the time to commence the proceedings against the opponent, his brother, Dennis Ondrovcik, had been filed in the District Court in December 1998, heard by his Honour on 1 March 1999 and decided by a judgment published on 9 March refusing the claimant leave. 2 The claimant was severely injured in the motor vehicle accident when the motor vehicle in which he was one of the occupants left the road somewhere between Cumborah and Lightning Ridge when it failed to negotiate a bend. Following the accident the claimant told ambulance officers who attended the scene that he was the driver of the motor vehicle and, it followed, that his brother, the opponent, was the passenger. He repeated this explanation when interviewed by investigating police and on his initial hospitalisation and to other hospitals. Also, to a large number of medical practitioners and to his former solicitors. Indeed, in 1995 he commenced proceedings in the Supreme Court claiming damages for negligence against the Walgett Shire Council, the owner of the road in question. These proceedings were settled on 23 September 1997, the terms of settlement involving a verdict for the defendant council. After some further delay, which the claimant explained in his affidavit in support of the application in the District Court, he consulted new solicitors and gave the appropriate notices which maintained that he was in fact the passenger in the accident on 23 October 1992 and not the driver as he had repeatedly claimed for a period well in excess of five years from the accident. The reason he gave for his previous explanations that he was the driver was his immense fear of his brother. His affidavits and evidence before Patten DCJ explain this in greater detail. 3 The situation, therefore, is that from the time of the accident until some time around about August 1998, the claimant maintained that he was the driver and not the passenger and thereafter his position changed. 4 The statutory limitation for bringing proceedings under the Motor Accidents Act is three years, (s 52), which expired in October 1995. 5 When the application came on for hearing, the claimant was cross-examined at some length by counsel for the defendant. The opponent, Dennis Ondrovcik, gave evidence under subpoena. Evidence was also before the court of the claimant's partner, Ms Castleton. It appeared from her evidence that she had commenced a relationship with the claimant in early 1997 and, for a period thereafter, the claimant had maintained to her that he was the driver. However, at a certain point of time he changed his story. 6 Patten DCJ gave a reasoned judgment for his refusal to grant leave to proceed. His judgment contains findings of credit in relation to the claimant, indeed also in relation to his brother, Dennis. In relation to the claimant, his Honour said: In considering the credibility of the applicant allowances must be made for his medical condition. He is confined to a wheelchair and it was apparent that the task of giving evidence in court was one that caused him more than the usual stress and discomfort. He was, as I have indicated, cross-examined by Mr Shaw and in my opinion that cross-examination was to some effect. His explanations as to relatively minor, but nonetheless not insignificant discrepancies between an affidavit sworn by him on 2 December 1998 and the affidavit relied upon, sworn 1 March 1999 were, in my view, unconvincing. Equally unconvincing I thought were the reasons proffered for his conduct, over a lengthy period of time, in maintaining that he and not his brother was the driver of the car. To my mind it would stretch credulity to breaking point to accept that a person injured as seriously as this applicant was, would lie, disastrously against his interests, merely in order to protect his brother from what, at the most, would have been a serious traffic charge. 7 His Honour then referred to Salido v The Nominal Defendant (1993) 33 NSWLR 524 and Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866 extracting some of the significant principles from the judgments. His Honour then said that, applying the principles from Salido and Brisbane South, he was not persuaded that the relief sought should be granted. He continued that he thought there was significant prejudice to the defendant and further, that it would be close to futile to grant leave because it seemed to his Honour that it would be virtually impossible for the applicant to satisfy a tribunal of fact that Dennis and not himself was the driver of the vehicle. His Honour concluded by stating: I am of the opinion that the applicant has, for the reasons indicated, failed to provide a full and satisfactory explanation for his failure to give notice of his claim as required by the statute. I am also of the opinion, that the applicant has not established that the justice of the case requires orders to be made in his favour. 8 Mr King of Senior Counsel, has appeared for the claimant on the leave application and succinctly put to the Court what he submits are the errors to be found in his Honour's judgment. 9 I should mention that there were three principal points made by the claimant in its submissions contained in the White Book. The first is that his Honour had prematurely determined the issue of fact as to who was the driver at the relevant time. The second point is that as contained (in a number of paragraphs of the draft notice of appeal) improper weight had been given to certain aspects of the evidence of various parties. The third was a misapplication of the discretionary principles relevant to such an application for leave. 10 As I have indicated, in the oral hearing for leave, Mr King has refined the claimant's case in essence to the following, that the reasons that his Honour refused to grant leave are to be found in the middle paragraph on page 8 of his Honour's judgment, that those reasons were prejudice to the defendant and the futility of granting leave. Mr King submits that there was no real prejudice to the defendant and no deprivation of the opportunity of investigation. Indeed, the evidence that came out on the leave application would only assist the defendant in the case. In respect of the issue of futility, it is put that his Honour misconceived his interlocutory task and was, in effect holding that there was no triable issue. His Honour was determining an issue which was really for the trial court to determine. In other words, he went further than he should have and was necessary for the purposes of the leave application. 11 I should also mention that the submissions made orally by Mr King do not canvass the issues raised as to weight of the evidence, nor a misapplication of the discretionary principles arising from the relevant authorities, including Salido and Brisbane South et cetera. I think this stance is correct. Weight of the evidence was a matter for his Honour and it has not been shown that he fell into error in placing improper weight upon the evidence that he did. Neither does it appear that the judge misapplied the principles to be found in the authorities. 12 The issue really comes down to what is a fair reading of his Honour's judgment. Is it to be seen that the two matters referred to in the middle paragraph on page 8, dealing with prejudice and futility, are the essence of the judgment, or are the findings of credit clearly made against the claimant, as well as his brother, what led his Honour to conclude in the final paragraph on page 8 that the applicant had failed to provide full and satisfactory explanation of the delay? 13 In my opinion, a fair reading of the judgment, including its structure and his Honour's findings as to credit, indeed even his comments about futility, lead to the conclusion that his Honour was saying quite unambiguously that the claimant, because he was not believed in relation to his change of story, had failed to provide the full and satisfactory explanation for his failure to give notice of his claim within the time provided by the statute. The findings of credit against the claimant were well and truly open to his Honour and supported by a deal of the evidence. In my opinion, his Honour's decision was correct and leave to appeal should be refused with costs. 14 DAVIES AJA: I agree with Stein JA. 15 WOOD CJ at CL: I also agree. 16 STEIN JA: Those will be the orders of the Court. oOo 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.