The Nominal Defendant v Wardle

NSWLR 728; Markwort v The Nominal Defendant [1999] NSWCA 267. 12 In any event, the trial Judge’s summary of the evidence overestated the nature and extent of the use of the material section of the land, that is, the part on which trail bikes were ridden. That part of the land was used only by Council employees in the course of their duties and, on weekends, contrary to the Council’s policy, by a small group of young trail bike riders and sometimes a small group of spectators. Other use of the overall land seems to have been substantially confined to occasional pedestrians along trails some distance away on the banks of the creek. 13 In Schubert v Lee (1945) 71 CLR 589, the High Court said at p 592: “The words ‘open to or used by the public’ are apt to describe a factual condition consisting of any real use of the place by the public as the public - as distinct from use by licence of a particular person or only casual or occasional use. 14 The very limited evidence did not persuade me that the material section of the land was “open to or used by the public”. Accordingly, I am not satisfied that the collision occurred on a “Public street”. However, it is unnecessary to decide the appeal on that basis. Leave to Proceed 15 As noted earlier, Master Malpass refused leave on 22 August 1996 but Simpson J granted leave on 24 November 1997. An application by the Nominal Defendant for leave to appeal was refused by two members of this Court on 2 February 1998. At that time the Court was not persuaded “.. that the judgment of Simpson J is vitiated by appellable error given that it relates to a discretionary judgment”, but added “.. that it would be open to [The Nominal Defendant] if it suffers an adverse final judgment to reagitate the matter for which leave has presently been sought and to do so in a context in which prejudice, if any, at the final trial can be more clearly determined.” 16 Wardle submitted that the evidence at the trial did not establish prejudice to the Nominal Defendant more clearly than previously, or that the Nominal Defendant sustained prejudice additional to that recognised by Simpson J. I will proceed on that basis. Nonetheless, as was acknowledged when leave to appeal was refused, it remains open to the Nominal Defendant to appeal against the final judgment in Wardle’s favour on the basis that leave to proceed should not have been granted. 17 In Holt v Winter (2000) 49 NSWLR 128, three other members of the Court agreed with the judgment of Sheller JA. After a review of the authorities to that time, his Honour said (at para 119): “ In my opinion, the effect of the decision of the High Court in Brisbane South Regional Health Authority is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant.” 18 Wardle did not challenge the correctness of Sheller JA’s view or its application to this case or dispute that, as the Court subsequently stated in BHP Steel (AIS) Pty Limited v Lakovski [2000] NSWCA 334, there is significant prejudice in the material sense if the trial of the proposed action would not be (or was not) fair to the defendant. 19 However, Wardle argued that, although both Master Malpass and Simpson J referred to the prejudice to the Nominal Defendant, which Simpson J described as “significant”, the difficulties caused by Wardle’s delay did not constitute “significant prejudice” in the sense used in Holt v Winter 49 NSWLR 128 and that the trial which was held was fair to the Nominal Defendant. 20 In her reasons for judgment, Simpson J said: - “ Prejudice to the Respondent The [Nominal Defendant] made out a strong case of actual as well as presumed prejudice. It relied on evidence of its searches to locate the person identified by [Wardle] as the rider of the motorcycle with which he had collided… Despite substantial efforts… there has been no success locating this individual. [Wardle] has no recollection of the accident and has retrograde amnesia to about a week before. There is only one known witness to the collision, and that is a cousin and associate of [Wardle] who was riding with him at the time. There is virtually no opportunity for the [Nominal Defendant] to investigate the circumstances in which the accident occurred. Although there is evidence that the police have been involved and have made some investigations, enquiries made of police have produced nothing in the way of note books, occurrence pad entries or other records of contemporaneous investigation… Had the [Nominal Defendant] been given early notice of [Wardle’s] claim it may well have been in the position to make its own investigations and to locate Sammari or other witnesses. It may have obtained copies of any police records before they were lost or destroyed…. I accept that the absence of early notice to the [Nominal Defendant] constitutes a matter of real prejudice.” 21 Later, her Honour referred to “.. the very significant prejudice caused to the [Nominal Defendant] by the loss of the opportunity to locate witnesses to the accident” and stated that “ even if they were now to be located, their recollections could not be expected to be as fresh as they would have been six months, or even three and a half years, after the event.” Subsequently, her Honour referred again to “ the strong case made by the [Nominal Defendant] of actual prejudice”, which she described as “considerable”. 22 Wardle’s case that the rider of the other trail bike deliberately swerved towards him was supported only by the evidence of his cousin, Filce. There were inconsistencies in that evidence, and critical parts of it were confused and confusing. That might well have been, as suggested by Wardle, caused by Filce’s illiteracy and his difficulty in distinguishing between left and right. Nonetheless, Wardle could not succeed unless Filce’s evidence was accepted, as it was. Other evidence, if available, might have led to the rejection of Filce’s evidence upon which Wardle’s case depended. Each of Wardle and Filce gave evidence that he was informed by a police officer that accounts of what occurred which had been given by other persons who were present differed from Filce’s version. 23 By the time Wardle first notified the Nominal Defendant of his claim, it had lost the opportunity to obtain that evidence. As a result, it effectively lost the ability to challenge Wardle’s case at trial. That constituted “significant prejudice” in the sense used by Sheller JA in Holt v Wynter (2000) 49 NSWLR 128. Accordingly, leave to proceed should not have been granted. 24 The Nominal Defendant’s appeal against the judgment in favour of Wardle must therefore be allowed with costs. In the circumstances, its appeal against the dismissal of its cross-claim against the Council should be dismissed with costs. The parties should file short minutes to give effect to the Court’s judgment.