New South Wales Court of Appeal CITATION : D'Aquino Bros Pty Limited v Glanville [2003] NSWCA 276 HEARING DATE(S) : 22/09/03 JUDGMENT DATE : 22 October 2003 JUDGMENT OF : Meagher JA at 1; Santow JA at 2; Ipp JA at 3 DECISION : (1) Appeal upheld to the extent that declaratory orders made by Boyd-Boland ADCJ relating to the opponent's full and satisfactory explanation of the delay and to the identification of the Isuzu as being the vehicle that was used by the opponent at the time of his accident on 27 January 1994 be set aside. Otherwise appeal dismissed; (2) Claimant to pay the costs of the appeal. CATCHWORDS : LIMITATION OF ACTIONS - Motor Accidents Act 1988, s 52(4) - Whether it was fair and just to grant leave to commence proceedings out of time - Whether plaintiff or legal representatives demonstrated a lack of diligence in ascertaining and asserting plaintiff's rights - Whether the defendant would suffer significant prejudice by reason of the delay. ND LEGISLATION CITED : Motor Accidents Act 1988, s 52(4) Workers Compensation Act 1987, s 151D Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 CASES CITED : Commonwealth of Australia v Diston (2003] NSWCA 51 Salido v Nominal Defendant (1993) 32 NSWLR 524 PARTIES : D'Aquino Bros Pty Limited (Claimant) Colin John Glanville (Opponent) FILE NUMBER(S) : CA 40277/02 COUNSEL : J D Hislop QC/P Gormly (Claimant) K Rewell SC/K Andrews (Opponent) SOLICITORS : Turner Whelan (Claimant) Keddies (Opponent) LOWER COURT District Court JURISDICTION : LOWER COURT DC 4377/00 FILE NUMBER(S) : LOWER COURT Boyd-Boland ADCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40277/02 DC 4377/00 MEAGHER JA SANTOW JA IPP JA Wednesday 22 October 2003 D'AQUINO BROS PTY LIMITED v COLIN JOHN GLANVILLE Judgment 1 MEAGHER JA: I agree with Ipp JA. 2 SANTOW JA: I agree with Ipp JA. 3 IPP JA: This is an appeal against a decision by Boyd-Boland ADCJ delivered on 25 January 2002 whereby he granted the opponent leave pursuant to s 151D of the Workers Compensation Act 1987 and s 52(4) of the Motor Accidents Act 1988 to commence proceedings out of time against the claimant. The proceedings in question concern a claim by the opponent for damages for serious personal injuries he sustained on 27 January 1994 while being employed by the claimant. 4 The leave granted to the opponent under the Workers Compensation Act is not of relevance in the appeal. By statutory curiosity, the opponent needs to obtain leave under that Act as well as the Motor Accidents Act, but, under the statutory regime in force on 27 January 1994, leave under the Workers Compensation Act is of no utility without leave under the Motor Accidents Act. Hence, argument on appeal proceeded only by reference to the Motor Accidents Act. 5 On 21 April 1994 the opponent completed and submitted to the claimant a claim form pursuant to a claim made by him under the Workers Compensation Act. At that stage the opponent was not aware that he might be able to claim damages under the Motor Accidents Act. In the claim form, the opponent asserted that he was injured while "lifting, and throwing boxes of [sic] a truck". The boxes were boxes or cartons of beer that the opponent was delivering, on behalf of the claimant, to one of the claimant's customers in Wentworthville in the Sydney area. Since then the opponent has consistently maintained that he was injured in those circumstances. 6 It is common ground that, in accordance with the provisions of the Motor Accidents Act as at the date that the opponent sustained his injuries (27 January 1994), it is reasonably arguable that that Act governs any claim for damages that the opponent may have against the claimant. That is to say, even though the conduct that brought about the opponent's injuries was the off-loading of boxes from the stationary vehicle. 7 A further matter needs to be noticed at this preliminary stage. In the course of granting the opponent leave as sought, Boyd-Boland ADCJ made a number of other ancillary orders. One was an order that the opponent have leave to file an amended statement of claim (that then formed part of the opponent's application) within a stipulated time. He made two other ancillary orders. These were: (a) Declaring that the opponent had provided a full and satisfactory explanation for the delay in providing the notice of claim to the claimant and its insurer as prescribed by s 43(2) of the Motor Accidents Act; and (b) Declaring that an Isuzu truck, registration number PGA 216, was the vehicle being used by the opponent at the time he was injured on 27 January 1994. 8 Both parties accept that his Honour should not have made the last-mentioned two orders. They were orders in final form and the judge, who was dealing with an interlocutory application, had no power to make them. It is common ground that these two orders should be set aside. 9 The principal issue in the appeal, therefore, is whether Boyd-Boland ADCJ erred in his discretion in granting leave to the opponent to commence his action against the claimant beyond the time provided by the Motor Accidents Act. As mentioned, the accident occurred on 27 January 1994 and on 19 June 2000 the opponent filed a notice of motion seeking leave to commence proceedings out of time. Therefore, the delay involved more than three years. 10 An unusual feature of the case is the confusion on the part of the opponent as to the identity of the motor vehicle on which he was working at the time of the accident. 11 In the claim form signed by the opponent on 21 April 1994 (only some three months after the accident), he asserted that at the relevant time he was working on a motor vehicle having the registration number SIB 173, which was a Volvo truck. 12 On 7 December 1999, the opponent submitted a claim form under the Motor Accidents Act in which he nominated an Isuzu truck, registration number PGA 216, as the vehicle on which he was working when the accident occurred. Since then, in various pleadings, affidavits and in oral testimony, the opponent has persisted in his allegation that the Isuzu and not the Volvo was the relevant vehicle. 13 The importance in identifying the correct vehicle is significant, as the third party insurers of the Isuzu and the Volvo were different companies. 14 The circumstances I have described meant that three different insurance companies were potentially affected by claims the opponent might bring for the damages he suffered by reason of his injuries sustained on 27 January 1994. These were the claimant's workers compensation insurer, the third party insurer of the Isuzu truck and the third party insurer of the Volvo truck. 15 The opponent recognised the interests of the three insurers and served them with his application for an extension of time. Each one of the three insurers were separately represented before Boyd-Boland ADCJ. In the appeal, Mr Hislop QC, together with Miss Gormley, appeared for the claimant representing the interests of the third party insurer of the Isuzu. The workers compensation insurer and the third party insurer of the Volvo in effect submitted to the orders to be made by this Court. 16 As mentioned, in the proceedings before Boyd-Boland ADCJ, the opponent was granted leave to commence proceedings by way of an amended statement of claim. This asserted that the claimant was liable to the opponent under the Motor Accidents Act on the basis that his injuries were sustained when off-loading the Isuzu or, alternatively, the Volvo. Curiously, his Honour granted leave in these terms even though he found, purportedly in final form, that the vehicle from which the off-loading took place was the Isuzu. 17 Before Boyd-Boland ADCJ, counsel for the third party insurer of the Isuzu opposed the grant of leave on the ground that "it was not possible that his client could be held liable because the evidence indicated clearly it was the Volvo SIB 173 that was involved in the incident and not the Isuzu PGA 216 insured by his client". 18 Counsel for the third party insurer of the Isuzu submitted further that his client would be prejudiced in the conduct of any trial that might be ordered as, in July 2000, the logbook for the Volvo (which had been given by the claimant to the opponent) had been stolen from the opponent's motor vehicle. The logbook contained a contemporary record of the persons who had driven the vehicle over a period that included the date on which the opponent was injured. The loss of the logbook meant that there was no objective, contemporary, evidence as to whether the opponent drove the Volvo on the day in question. 19 Counsel also submitted that the delay in bringing proceedings prejudiced investigations into the true cause of the injuries sustained by the opponent and the circumstances of the collision. 20 Boyd-Boland ADCJ found that any prejudice resulting from the loss of the logbook did not go, in any material way, "to the issue as to whether or not a just and fair trial can take place". He came to a similar conclusion concerning the other points raised by those who were opposing the opponent's application. 21 Mr Hislop submitted that the interests of the third party insurer of the Isuzu should be taken into account when considering whether, by reason of the delay, prejudice was caused to the claimant. It is plain from the structure of the Motor Accidents Act that third party insurers are closely identified with their insureds and in many respects their interests are identical. I accept Mr Hislop's submission. 22 The question for the Court when leave is sought to commence proceedings outside the time limits under s 52(4) of the Motor Accidents Act is to determine what is fair and just: Salido v Nominal Defendant (1993) 32 NSWLR 524. In that case, the Chief Justice pointed out that the diligence, or lack thereof, shown by the plaintiff or the plaintiff's representatives, in ascertaining and asserting his or her rights, would ordinarily be a material factor, as would the extent of the relevant delay and the reasons for it. In addition "the nature and extent of any forensic disadvantage to a defendant resulting from a plaintiff's delay will also be material. The effect, if any, of the delay upon the defendant's ability to defend an action is a matter to be taken into account, and may in some cases be of decisive importance." In Commonwealth of Australia v Diston [2003] NSWCA 51, Sheller JA (with whom Mason P and Grove J agreed) said, after referring to Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 555: "Thus it seems to me that a finding that there is a real possibility of significant prejudice to a defendant will lead to the application being refused though it does not follow that in the absence of that possibility the application will necessarily be granted". 23 The opponent explained his delay by saying that he did not realise until very late in the day that he was entitled to make a claim for damages under the Motor Accidents Act. He did not appreciate that it was arguably open to him to bring such a claim in respect of an injury he suffered while off-loading from the truck he had been driving. Initially, when he did seek legal advice, he was not informed that a claim for damages might be open to him. It was only when he changed his solicitors and had a conference with counsel in September 1999 that he became aware that he might have such a claim. Boyd-Boland ADCJ found that the explanations provided by the opponent demonstrated that there had been no lack of diligence on his part or on the part of his present solicitors. These findings were not challenged on appeal. 24 In essence, the claimant submitted that Boyd-Boland ADCJ was wrong in finding that it had suffered no significant prejudice by reason of the delay. The claimant submitted that it had suffered material prejudice in three respects. Firstly, the loss of the opportunity to prove that the vehicle from which the opponent was off-loading was not the Isuzu but was the Volvo; this submission was based largely on the loss of the logbook. Secondly, it was said that the claimant was prejudiced by the delay in determining the extent to which the opponent's injuries had been caused by the off-loading and the extent to which those injuries had been aggravated by a further incident that had occurred in April 1994. Thirdly, it was said that the delay made it virtually impossible for the claimant to find witnesses to the incident on 27 January 1994. 25 I turn firstly to the loss of the logbook. 26 Plainly, the identification of the vehicle that the opponent was driving on 27 January 1994 and from which he conducted the off-loading is of vital importance (at least to the third party insurers of the Isuzu and the Volvo, respectively). 27 At the hearing before Boyd-Boland ADCJ, the claimant adduced evidence to the effect that the vehicle concerned was the Volvo. Mr D'Aquino, a manager of the claimant, said that, in January 1994, the Volvo and the Isuzu "were predominantly used for Sydney deliveries". The delivery undertaken by the opponent on 27 January 1994 was classified as a Sydney delivery. Mr D'Aquino said that: "The Volvo is virtually Sydney/Orange all the time". He said that the Isuzu also did runs to Bathurst and Dubbo. According to Mr D'Aquino only two drivers were permitted to drive the Volvo, namely, the opponent and Mr James Edwin Hughan. Mr Hughan was on leave on 27 January 1994. Mr D'Aquino's evidence, in essence, was supported by the evidence of Mr Hughan himself. In addition, Mr Hughan said that it was his understanding that, while he was on holiday, the opponent drove the Volvo. 28 On the strength of this evidence, it was submitted that the probabilities were that the opponent was driving the Volvo. This inference was reinforced, it was argued, by the fact that on the initial claim form, sent some three months after the injuries were sustained, the opponent asserted that the vehicle was indeed the Volvo. 29 In the course of giving oral evidence before Boyd-Boland ADCJ, the opponent was asked why he had stated in the claim form that the vehicle concerned was the Volvo. He replied: "Well, at the time I believe I aggravated the injury on the [Volvo] back in April. In April they told me that they will date it back to the January one and at the time, until a few years ago when I met up with Keddies [the opponent's present solicitors] to represent me, I had no idea that the vehicle would come into play of it". His Honour accepted that the opponent was being truthful and he accepted this explanation. 30 The opponent gave firm evidence that he was injured when he was unloading cartons of beer from Isuzu vehicle. He said that the vehicle he was driving at the time of his injury "was not a twin steer vehicle". The Volvo was such a vehicle, but the Isuzu was not. He said that he had no doubt in his mind that the Isuzu was the vehicle that he was driving at the time. Despite being cross-examined on the issue, the opponent was unshaken in his evidence that the vehicle in question was the Isuzu. He was believed in this regard by his Honour. 31 The opponent said that he made a mistake when referring in the claim form to the Volvo. The opponent was cross-examined by counsel for the third party insurer of the Volvo and was asked whether he had examined the logbook. The opponent replied in the affirmative. Counsel then asked whether what he had seen shed any light upon the identity of the vehicle he was driving on 27 January 1994. Counsel for the third party insurer of the Isuzu objected to this question on the grounds that it was prejudicial. Boyd-Boland ADCJ allowed the question to be asked. The following exchange then occurred: "Q. So you had the opportunity of looking at that diary? A. Yes. Q. And at the time that you looked at it, did that confirm in your mind what vehicle you were driving on 27 January 1994? A. Yes, the PTA, the Isuzu. Q. The Isuzu? A. Yes". Again, it is apparent, that the opponent was believed by Boyd-Boland ADCJ on this issue. 32 Undoubtedly, the availability of the logbook would have removed any doubt about the identity of the vehicle. But the missing logbook creates a situation that is different to that which obtains when witnesses are not available by reason of delay and where it is known that their testimony would support the defendant or where it is not known what their testimony would be. In the present situation, the available evidence, believed by his Honour, is that the logbook contained material that supported the opponent's case and not that of the claimant. There was no direct evidence to the contrary. 33 Evidence that becomes unavailable by reason of delay, and that is likely not to advance the cause of a defendant, will not ordinarily be regarded as giving rise to significant prejudice to the defendant. 34 True it is that the opponent may not be telling the truth. He was, however, very clear in his evidence on the question of which vehicle was involved and there is nothing to suggest that his evidence was not candidly and honestly given. It is not without relevance that the statement of claim in respect of which the opponent sought leave to commence proceedings asserted that, in the alternative, the vehicle was not the Isuzu but the Volvo. In other words, at the time of the hearing before Boyd-Boland ADCJ, it was immaterial to the opponent whether the vehicle was the Volvo or the Isuzu, as long as it was the one or the other. 35 It will of course be open at the trial for the claimant to challenge the opponent's evidence that the vehicle was the Isuzu, but, in the circumstances, the weight of the evidentiary material available is to the effect that the logbook was not likely to have advanced the case of the claimant. In these circumstances, I would not uphold the claimant's submissions in this regard. 36 I turn now to the effect of the delay in determining the extent of the aggravation of the opponent's injuries. We were told that many medical practitioners have seen the opponent for the purposes of alleviating his symptoms and also for forensic purposes. He was, for example, seen by a specialist medical practitioner, Dr Worsley, on 28 April 1994. Dr Worsley produced a report on 2 May 1994 and we were informed that nothing in this report referred to any aggravation of the opponent's condition. We were also informed that none of the other medical practitioners who reported made any such reference. Mr Rewell SC, who together with Mr Andrews, appeared for the opponent, submitted that the inference to be drawn from the absence of any reference to an aggravating factor was that the aggravation was likely to be insignificant. In my view, having regard to the fairly intense focus that has been given to the opponent's injuries since shortly after 27 January 1994, it should reasonably be possible to ascertain whether there was any material aggravation to his injuries in April 1994. I would add that, when cross-examining the opponent before Boyd-Boland ADCJ counsel for the third party insurer of the Isuzu made no point of the aggravation in April, save to the extent that it bore on the opponent's explanation for denoting the Volvo as the vehicle he was driving on 27 January 1994 (i.e. in the initial claim form). 37 Boyd-Boland ADCJ said in regard to this issue: "[The opponent] has submitted to numerous doctors, since his initial injury and those doctors have provided detailed reports, from time to time during the matter's history. He has also submitted himself to a series of medical examinations requested by the defendant. If there is a genuine issue on aggravation, concerning its impact on the ultimate ongoing disability, it is to my mind a matter that can be well and truly canvassed by a referral back to the voluminous medical evidence … The absence of any reference to aggravation by those doctors suggests the issue is unlikely to be of any real significance". In my view, his Honour was entitled to come to this conclusion. 38 Finally, there is the issue involving the identification of any witnesses to the occurrence on 27 January 1994. Difficulties have arisen in identifying the particular customer to whom beer was being delivered on that day. This means that the claimant has not been able to investigate whether there were any witnesses to the occurrence. 39 For two reasons, I am not persuaded that this gives rise to any significant prejudice. First, in the initial claim form, the opponent asserted that there were no witnesses to the occurrence. Secondly, in the proceedings before Boyd-Boland ADCJ, the opponent was not cross-examined as to whether there were any witnesses. 40 In the circumstances, I do not see how it could now be said that difficulties in investigating whether there were witnesses could give rise to significant prejudice. 41 In the circumstances, I would uphold the appeal to the extent that I would set aside the declaratory orders made by Boyd-Boland ADCJ relating to the opponent's full and satisfactory explanation of the delay and to the identification of the Isuzu as being the vehicle that was used by the opponent at the time of his accident on 27 January 1994. I would otherwise dismiss the appeal. 42 As to costs, it was necessary for the claimant to proceed with the appeal in order to set aside the declaratory orders that his Honour made. On the other hand, the declaratory orders were made against the submissions of the opponent himself. No argument during the appeal was addressed to the issue of the declaratory orders. In the circumstances, it seems to me to be fair to order the claimant to pay the costs of the appeal and I so propose. ********** Last Modified: 10/23/2003 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.