JUDGMENT No, 40.4.5, 36 7 OY eececesorscs CATCHWORDS LEAVE to appeal from interlocutory judgment - relevant principles for review of discretion - no new question of principle LIMITATION OF ACTIONS - review of discretion granting extension of time - factual errors Limitation Act 1985 (ACT), ss.11, 36 Federal Court of Australia Act 1976, s.28(1)(B) Lovell v Lovell (1950) 81 CLR 513 In Re Will of Gilbert (1946) 46 SR(NSW) 318 McKain v R.W. Miller & Company (South Australia) Pty Ltd (1991) 174 CLR 1 Powell v Streatham Manor Nursing Home [1935] AC 243 Adam P Brown Male Fashions Pty Limited v Phillip Morris Inc (1981) 148 CLR 170 Commissioner of Taxation v Nestle Australia Limited (1986) 86 ATC 4760 Neimann v Electrical Industries Ltd [1978] VR 431 Commissioner of Taxation v Hydrocarbon Pty Ltd (1987) 14 FCR Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR Daroczy v B & J Engineering Pty ltd (In Liq) (1986) 67 ACTR 1 Bell v SPC Limited [1988] VR 123 Bell v SPC [1989] VR 170 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Taylor v Western General Hospital [1986} VR 250 Koumorou v The State of Victoria [1991] 2 VR 265 Jarrett v Seymour (1993) 46 FCR 557 House v The King (1936) 55 CLR 449 Forbes v Davies and the Commonwealth of Australia (1994) Aust Torts Reports 81-279 Thompson v Brown [1981] 1 WLR 744 Walla v State Transport Authority [1985] VR 327 Tointon v H W Greenham & Sons Pty Ltd [1986] VR 666 Marr v Green (1994) Aust Torts Reports 81-277 Noja v Civic Pty Ltd (1990) 26 FCR 95 ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY S & B PTY LIMITED v. IRENE PODOBNIK No. ACT G28 of 1994 Coram: Gallop, Neaves and Carr JJ. Date: 28 October 1994 14 NOV 1994 Place: Canberra. FED AUSTRAUe PRINCIPAL REGISTRY IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ) ) ) ) No. ACT G28 of 1994 ) ) GENERAL DIVISION ) ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: S & B PTY LIMITED Applicant AND: IRENE PODOBNIK Respondent MINUTES OF ORDER JUDGES MAKING ORDER: Gallop, Neaves and Carr JJ. DATE OF ORDER: 28 October 1994. WHERE MADE: Canberra. THE COURT ORDERS THAT: 1. Leave to appeal be granted. 2. The appeal be upheld. 3. The order extending the period within which action may be taken on the respondent's cause of action be set aside and the application for extension of time be dismissed. 4. The respondent pay the applicant's costs of the application for extension of time in the Supreme Court and of the proceedings in this Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G28 of 1994 DISTRICT REGISTRY GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: S & B PTY LIMITED Applicant AND: IRENE PODOBNIK Respondent Coram: Gallop, Neaves and Carr JJ. Date: 28 October 1994 Canberra. REASONS FOR JUDGMENT GALLOP J.: This is an application for leave to appeal from a discretionary judgment of a single Judge of the Supreme Court of the Australian Capital Territory. On 14 April 1994 his Honour ordered, pursuant to s.36 of the Limitation Act 1985 (ACT) that the period within which the respondent in these proceedings (Mrs Podobnik) may bring an action against the applicant in these proceedings (S & B Pty Limited) ("the employer") be extended to 3 November 1993. On an appeal from a judgment involving the exercise of a discretion, the grounds upon which an appellate court will interfere are well known and have been cited many times. They were discussed by Kitto J. in Lovell v. Lovell (1950) 81 CLR 513 at 532-534. First, his Honour referred to what had been said by Jordan CJ in In Re Will of Gilbert (1946) 46 SR(NSW) 318 at 323 that the restraint to which a court of appeal should submit itself is less stringent where the exercise of discretion is determinative of legal rights than it is where the discretion relates to points of practice or procedure. That principle has to be kept in mind in the present case as it was submitted on behalf of the respondent that the decision under review was one of practice and procedure. I do not accept that submission in the circumstances of this case. The writ of summons based on a cause of action arising on 24 May 1983 was issued on 3 November 1993. The applicant has filed a defence pleading, inter alia, that the alleged cause of action did not arise within six years before the commencement of the action and was barred by s.1l of the Limitation Act. If this application for leave to appeal is granted and the appeal succeeds, so that the exercise of the discretion results in a refusal to Mrs Podobnik of an extension of time within which to bring her claim for personal injuries against the employer, this Court's decision will in effect determine her legal rights because it will bring an end to the litgation by barring her remedy, namely her claim for damages (McKain v R.W. Miller & Company (South Australia) Pty Ltd (1991) 174 CLR 1. The matter under review is not a matter of practice or procedure and hence the restraint referred to by Kitto J. is less stringent. Kitto J. next observed that the onus of showing that the decision under appeal was wrong lies upon the appellant (Powell v Streatham Manor Nursing Home [1935] AC 243 at 249- 255) and that the onus is particularly heavy where an attack is made upon findings of fact made by a judge who had the advantage of seeing and hearing the witnesses. The hearing of the motion before the Judge of the Supreme Court was conducted on affidavit evidence. No witnesses gave evidence before his Honour. Hence this Court is as well equipped as his Honour was to interpret the evidence without regard to demeanour of witnesses. Kitto J. said that "a clear conclusion that the judge was plainly wrong" is the sole justification for a reversal of his decision. The appellate court must not reverse the judge's decision "on a mere measuring cast or on a bare balance". The approach to be taken by an appellate court to whether it should grant leave to appeal from an interlocutory order has received various formulations (see, for example, Adam P Brown Male Fashions Pty Limited v Phillip Morris Inc (1981) 148 CLR 170 followed by a Full Court of the Federal Court in Commissioner of Taxation v Nestle Australia Limited (1986) 86 ATC 4760). Reference was also made to Niemann v Electrical Industries Ltd [1978] VR 431 where Murphy J., with whom McInerney J. agreed, suggested that for leave to be granted the order in respect of which it is sought must be seen clearly to be "attended with sufficient doubt" and, if wrong, to work substantial injustice. In Commissioner of Taxation v Hydrocarbon Pty Limited (1987) 14 FCR 359-375, a Full Court of this Court regarded that formulation as an adequate, although not necessarily exhaustive, test to be applied. More recently this Court approved the same test in Decor Corporation Pty Ltd v Dart Industries Inc. (1991) 33 FCR 397. The contention on behalf of the respondent to this appeal was that it would be appropriate to examine whether the decision of the Supreme Court was attended with sufficient doubt and I am content to approach the application for leave to appeal accordingly. The factual background to the application for leave to appeal is set out in the judgment of Carr J. which I have 'had the benefit of reading in draft form and I respectfully adopt that exposition of the facts. Section 36 of the Limitation Act is in the following terms: "36. (1) This section applies to any action for damages where the damages claimed consist of or include damages in respect of personal injuries to any person. (2) Where an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to subsection (3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for such period as it determines. (3) In exercising the powers conferred on it by subsection (2), a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following: (a) the length of and reasons for the delay on the part of the plaintiff; (b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant; (c) the conduct of the defendant after the cause of action accrued to the plaintiff, including the extent, if any, to which the defendant took steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant; (d) the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action; {e) the extent to which the plaintiff acted promptly and reasonably once he or she knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages; (f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received. (4) The powers conferred on a court by subsection (2) may be exercised at any time notwithstanding - (a) that the limitation period in respect of the relevant cause of action has expired since the cause of action accrued; or (b) that an action in respect of such personal injuries has been commenced. (5) ..." The decision in the Supreme Court After referring to s.36 of the Limitation Act 1985 his Honour said that the test to be applied is that set out by Kelly J. in Daroczy v. B & J Engineering Pty Ltd (In Liq) (1986) 67 ACTR 1. His Honour did not specify what the test was. In the case cited, Kelly J. pronounced upon a number of Matters to be taken into account in the construction of 8.36 of the Limitation Act before observing that s.36 has a retrospective effect so as to enable the Court to extend the limitation period and thus enabling an action to be commenced or maintained notwithstanding that the action would have been barred at the commencement of the Ordinance (as the Limitation Act was then known) by a law in force in the Territory repealed or amended by the Ordinance (at p.15). Kelly J. said that s.36(4), read in conjunction with s.35, is to have retrospective effect in the widest possible way and that the section is clearly designed to have a beneficial effect. In my opinion, that is the ratio of Daroczy v. B & J Engineering Pty Ltd, but it has nothing to do with the present application. However, it may be that the Judge of the Supreme Court was referring to Kelly J.'s observation concerning the unfettered nature of the discretion to extend time as specified in 5.36. Kelly J. expressed the opinion that "just and reasonable", as those words appeared in s.36(2), means fair and reasonable. No doubt that is the proper construction of those words. His Honour found that the normal limitation period had expired on 24 May 1989. This was a correct finding as the cause of action arose on 24 May 1983 (see Interpretation Act 1967 (ACT), s.36). He further found that Mrs Podobnik did not seek legal advice until January 1991. Hence the normal limitation period had already expired by almost two years before Mrs Podobnik sought any advice. In her affidavit she cited two reasons for her failure to seek legal advice before January 1991 and those reasons were apparently accepted by his Honour, namely: "I did not seek legal advice in relation to my back injury until January 1991. The reason for this was that I always felt that the injury to my back was not a serious injury although it did cause me constant pain, but I always felt it would get better and I would be able to rejoin the workforce. I was also fearful that if I instituted any proceedings that they may not. be successful and I would have a huge legal bill to pay which my husband and I could simply not afford as at the time of my injury we had three young children. However, in January 1991 I consulted Messrs Vandenberg Reid Pappas & McDonald regarding the injury to my back as it had been some years since the injury and my back was not getting any better and I was unable to return to the workforce as I had hoped. I then saw Dr Chandran once again in February 1991 and had a further appointment with Dr Ashman in April 1991." His Honour then referred to the evidence of subsequent events. During 1991 medical reports were obtained. In May 1992 Mrs Podobnik was advised as to the likely cost of bringing a claim. His Honour said "it is not clear whether she was advised of the limitation problem". His Honour then referred to her evidence that she was unwilling to proceed because of concern as to what would happen to her financially if she lost the case and suffered an order for costs. Her affidavit reads: "I then had a further conference with my solicitors in May 1992 when I was advised of the likely costs involved in commencing proceedings for the injury to my back. In view of the fact that our financial position was not strong at that time I had to give serious consideration whether to proceed with a claim or not. I was very concerned about the legal costs involved as I had heard horrible stories from people who had lost compensation cases and were faced with massive legal costs which caused them to lose their homes and this concerned me greatly. In October 1992 I was still suffering back pain so I instructed my solicitors to explore more thoroughly the possibility of commencing proceedings and I then instructed Messrs Vandenberg Reid to obtain an Advice from a Barrister regarding my prospects of success. T was then requested to provide certain information to the Barrister which took me some time to organise due to the amount of time which had elapsed since the date of my injury. Following the supplying of that information I received an Advice from the Barrister in July 1993 advising that I had a claim which was worth pursuing. I then instructed my solicitors to commence proceedings on my behalf." His Honour found that on 20 December 1993 Dr Chandran operated on Mrs Podobnik's back and that according to her second affidavit her back continued to cause significant pain. His Honour then said: "This is not a case where the plaintiff could reasonably have been in doubt, at least after 1985, that her back condition was ongoing. She may have entertained some hope of spontaneous improvement, but I cannot accept that she had that belief as at May 1989. Indeed, the plaintiff does not, in terms, suggest that her decision not to seek legal advice before May 1989 was due to a belief that her injury was less serious than it was in reality. Concern about legal costs was, I accept, a reasonable concern from the view point of the plaintiff, at least up until she sought legal advice in January 1991. She should, at that time have been reassured that she need not have committed herself to substantial costs unless she was likely to win the case. In any event, the enquiries made to enable her to form a view as to her prospects for success took from October 1992 until August 1993. I do not believe that the delay between January 1991 and October 1992 is satisfactorily explained. However, against that is the serious nature of the injury and the apparent strength of the plaintiff's claim. The length of the unwarranted delay is, also, not great compared with the overall delay since the cause of action accrued." His Honour then turned to the question of prejudice to the employer and detailed the evidence adduced on behalf of the employer in that respect. He concluded by stating that it was obvious that as at May 1989 the employer's insurance company had no relevant documents, it had no real lead as to any witnesses to or concerning the accident in question except the plaintiff, it had no medical records relating to the plaintiff, and said "It is obvious that such prejudice to Royal [the employer's insurer] as now exists had already become entrenched by May 1989 and it has not got any worse since. Further, such disadvantage as Royal now suffers derives in large measure from its own failure to preserve the relevant file in a retrievable form. It would be unfair to treat the plaintiff's application more adversely because Royal has lost its file." His Honour's concluding remarks were that it was a matter of balance but, on balance, he considered it just and reasonable to grant the plaintiff's application. The applicant's submissions First, it was submitted on behalf of the applicant that Mrs Podobnik bore the onus of establishing that it was just and reasonable to extend the time, having regard to the criteria enumerated in s.36(3) where relevant. That the onus was on Mrs Podobnik is clearly established by authority (see, for example, Daroczy v B & J Engineering Pty Ltd, supra, at p.17, line 19; Bell v SPC Limited [1988] VR 123 at 126, upheld on appeal by the Full Court in Bell v SPC [1989] VR 170 at 175. See also the decision of Wilcox J. in a different context but still in respect of an application for an extension of time in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348). Having read and reread his Honour's judgment, it is not clear to me that his Honour required Mrs Podobnik to discharge the onus of establishing that it was just and reasonable for her to obtain an extension of time. In the submission on behalf of Mrs Podobnik her counsel conceded that his Honour did not deal with the exercise of the wide discretion in terms of onus. It was argued that his Honour correctly identified the process required by s.36(2) as being one of balancing the various relevant considerations and that he had not fallen into any error in not applying the concept of onus. In my opinion, his Honour was clearly wrong in failing to require Mrs Podobnik to discharge the onus of establishing that it was just and reasonable to extend the time having regard to the criteria enumerated in s.36(3) where relevant. For this reason alone, leave to appeal should be granted because the failure to adopt the appropriate approach taints the decision with sufficient doubt. Next, it was submitted on behalf of the applicant that his Honour made a number of factual errors. I shall deal with those in the order in which they were argued by counsel for the applicant. His Honour took into account the serious nature of the injury and the apparent strength of the plaintiff's claim. Earlier in his judgment, he said that if Mrs Podobnik's account of the accident was to be accepted, a tribunal of fact might well conclude that the system of work was unsafe. In Taylor v. Western General Hospital [1986] VR 250, King J. observed that under the Limitation of Actions Act 1958 (Vic) the prospects of success of the proposed action is no longer a factor to be taken into account, subject only to the possibility that in a particular case it is obvious that an applicant has no case either on its pleadings or otherwise. Thus, if it were made clear to the Court that the action, if it proceeded, would be an abuse of process, it would be a matter to be taken into account in the exercise of the court's discretion. In Bell v SPC Limited, supra, Brooking J. agreed with that decision and held that the prospects of success of a proposed action were not in themselves a relevant matter, at the same time observing that on the material before him the proposed action could be said to have been "somewhat speculative". There is no provision in s.36 expressly requiring the prospects of success to be taken into account, but in the prefatory words of s.36(3), a court shall have regard to all the circumstances including the enumerated criteria. In those circumstances I would not be prepared to conclude that his Honour was wrong to make some assessment of Mrs Podobnik's prospects of success. On the frugal material available, however, I would not be prepared to conclude that her case could be described as strong. It is not a hopeless case, but it is not strong. The next factual error relied upon by the applicant is the finding by his Honour that it is not clear that Mrs Podobnik was told of the limitation problem in May 1992. Mrs Podobnik was not cross-examined but, in my opinion, it is a reasonable inference that her solicitors, when consulted in January 1991 about an occurrence on 24 May 1983, would have adverted to the limitation problem and would have advised her accordingly in January 1991, if not in May 1992. Certainly it is not clear that the plaintiff was told of the limitation problem in May 1992 as his Honour found, but in my opinion it does not matter whether she was told or not. By the time she decided to seek legal advice she was already almost two years out of time. That is a very substantial delay, whether time runs from the date of accrual of the cause of action, namely 24 May 1983 or the date of expiration of the time limit, namely 24 May 1989. That leads to the next factual matter said to be an error by his Honour. He said that she had not said in terms that her decision not to seek legal advice before May 1989 was due to a belief that her injury was less serious than it was in reality. That statement was factually inaccurate. In paragraph 7 of her affidavit of 2 February 1994 set out above, she said quite clearly that she did not seek legal advice in relation to her back injury until January 1991 and that the reason for this was that she always felt that the injury to her back was not a serious injury. To my mind this is a serious factual error. The reasons for delay in the institution of proceedings are specifically enumerated in s.36(3){a) as matters to be taken into account. His Honour found that Mrs Podobnik could not reasonably have been in doubt, at least after 1985, that her back condition was ongoing and although she may have entertained some hope of spontaneous improvement, he could not accept that she had that belief as at May 1989. That finding does give rise to a conclusion that the delay in seeking legal advice until January 1991 was the result of a deliberate decision not to seek a legal remedy and that decision was maintained until well after the expiration of the time period. The decision is all the more significant if the delay dates from the accrual of the cause of action. Counsel for the applicant also attacked his Honour's finding that concern about legal costs was a reasonable concern from the viewpoint of the plaintiff, at least up until she sought legal advice in January 1991. It was submitted that such a concern is not reasonable and is no excuse at all. It is effectively saying that the plaintiff is prepared to take the risk of losing any rights. I do not accept that submission. In my opinion, all his Honour was saying was that from a subjective point of view it was reasonable for Mrs Podobnik to be concerned about legal costs. His Honour was not saying that that concern provided an excusable reason for the delay. Further, her concern about legal costs as a reason for not seeking legal advice about the institution of proceedings in respect of the subject incident and her ongoing back condition do give rise to an awareness on Mrs Podobnik's part that she may have had a legal remedy but did nothing to explore her prospects, being deterred by the costs. It makes it difficult to believe that she did not, long before May 1989, turn her mind to the question whether the law gave her a possible right to damages against her employer. It was submitted that his Honour made a number of factual errors relating to the prejudice to the employer's insurer. After finding that the plaintiff was employed by Goldstar Cleaning Co. (Acton) Pty Ltd, his Honour found that that employer ceased operations in 1984. Its insurer was Royal Insurance Australia Limited, later to become Sun Alliance & Royal Insurance Australia Limited. Mr Bahr, its Casualty Claims Manager, made a search of the records of the insurer, as to which his Honour said: "That search confirmed that a claim was made in 1983. It cost Royal $1,774.85, including $957.05 for 'Investigations Expenses'. The claim was finalised on 21 May 1984. The record located was a computerised summary. The file to which that summary relates was also sought. Royal's system with completed files, at least in 1984, was that they were stored in a warehouse at Ultimo, New South Wales. Each group of completed files was assigned to a numbered box. They were stored in order of their date of closure. The claim file was allocated number 8350321. However, it was not present in the box to which it should have been allocated. It was not recorded on the list of files closed and allocated to storage boxes. The plaintiff's 1983 claim was investigated by a firm or company known as 'Nationwide Investigations'. It is reasonable to assume that file no. 8350321 would have contained not only a claim form and a report of the accident in 1983, but also an investigator's report thereon. Mr Bahr suggests that 'Nationwide Investigations' went into liquidation in 1989. That statement is offered, it seems, to explain why a further copy of the relevant report cannot be obtained. However, a search of the records of the Australian Securities Commission does not support Mr_ Bahr's assertion concerning the liquidation of 'Nationwide Investigations'. It may be, of course, that the investigators referred to changed names or business in 1989. I am not, however, positively persuaded that Royal could not obtain a copy of the report apparently made by 'Nationwide Investigations'. Royal is the relevant party to complain of prejudice, because it will be the source of funds to pay the claim if it succeeds. It is obvious that, as at May 1989, Royal had no relevant documents. It has no real lead as to any witnesses to, or concerning, the accident in question except the plaintiff. It has no medical records relating to the plaintiff. I do not consider that this latter consideration is, however, of any great significance. There is no reason to suppose that the records of the plaintiff's treating doctors are unreliable or incomplete. It is obvious that such prejudice to Royal as now exists had already become entrenched by May 1989 and it has not got any worse since then. Further, such disadvantage as Royal now suffers derives in large measure from its own failure to preserve the relevant file in a retrievable form. It would be unfair to treat the plaintiff's application more adversely because Royal has lost its file." The applicant asserted that there are a number of factual errors in that part of his Honour's judgment. In particular, it was submitted that whilst it was reasonable to assume that the relevant file would have contained a claim form, a report of the accident in 1983, and also an investigator's report thereon, it was not reasonable to assume that the report would contain relevant material. There is very little material upon which such an inference could have been drawn. What records are available show that there were weekly payments of compensation paid to Mrs Podobnik in the sum of $442.80 less tax $59.25, representing only a few weeks of workers' compensation. The other amounts were in-house legal expenses, $375.00, and investigations expenses, $957.05. The total amount of the claim was $1,774.85. In my opinion, there was just enough evidence to support an assumption that there would have been a report of the accident and also an investigator's report thereon. However, his Honour's finding of fact to that effect carries with it the assumption that the report contained material relevant to the proposed common law action and that that material could be tendered in evidence, or at least would be sufficient to provide a trail to witnesses who would be able to give evidence concerning liability at common law, touching upon such matters as the system of work and any instructions in relation thereto, any warnings given to employees, the weight of the heavy trolley and the rubbish which Mrs Podobnik was required to empty from the trolley, whether the accident happened in the way Mrs Podobnik described, whether any assistance would have been available to her, the degree of supervision and any other facts relevant to the liability of the employer. In my opinion, there is much force in the criticism of his Honour's finding that a report of the accident and an investigator's report would have assisted the applicant in its defence of the action. So far as obtaining a report from Nationwide Investigations is concerned, his Honour was not positively persuaded that the insurer could not obtain a copy of the report. Mr Bahr said in his affidavit that Nationwide Investigations is no longer in business because it went into liquidation in 1989. His Honour did not accept Mr Bahr's assertion concerning the liquidation of Nationwide Investigations because a search of the records of the Australian Securities Commission showed that no company of the name Nationwide Investigations was in liquidation. Nevertheless Mr Bahr said that Nationwide Investigations was not trading. He was not cross-examined and the prospect of obtaining a copy of a report from a company that stopped trading in 1989, even if it did not go into liquidation, is too big a leap on the material before his Honour. I am left with the strong impression that the prejudice to the employer's insurer, the real defendant in any proposed action for damages, is much greater than that considered by his Honour. Lastly, I turn to the length of the delay on Mrs Podobnik's part. On one view time commenced to run from the date of the cause of action accruing, namely 24 May 1983. On another view, the delay runs from the date when the limitation period of six years expired, namely 24 May 1989. On any view, the delay was substantial. As to which is the correct approach, I am persuaded by the reasoning of Brooking J. in Koumorou v. The State of Victoria [1991] 2 vR 265 at 271-3 where he construed s.23A of the Limitation of Actions Act (Vic). I am of the opinion that the length of the delay referred to in s.36(3)(a) of the Act is the whole period from the date of the accident to the date of making the application for an extension of time. On the facts of this case that is a delay dating from 24 May 1983 to 3 November 1993, a period of over ten years. It follows that the application for leave to appeal should be granted, the appeal upheld and the order extending the period within which action may be taken on Mrs Podobnik's cause of action be set aside. Whether any further order should be made is a matter which has caused me some concern as the orders which I have just proposed could give rise to some uncertainty as to whether Mrs Podobnik's application for an extension of time remains unresolved, notwithstanding those proposed orders. In my opinion, the order allowing the appeal effectively determines the primary application for extension of time, but I recognise there could be some doubt about that. In the exercise of its appellate jurisdiction, this Court may, inter alia, give such judgment or make such order as in all the circumstances it thinks fit, or refuse to make an order (Federal Court of Australia Act 1976, s.28(1)(B)). In the circumstances, and in the interests of certainty and finality, I am of the opinion that this is a case in which this Court should exercise its own discretion and make an order dismissing Mrs Podobnik's application for an extension of time. The orders I propose, therefore, are to grant leave to appeal, uphold the appeal, set aside the order extending the period within which action may be taken on Mrs Podobnik's cause of action and order that her application for extension of time be dismissed. The respondent should pay the applicant's costs of the application for extension of time in the Supreme Court and of the proceedings in this Court. I certify that this and the preceding nineteen pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Gallop. Dated: 28 October 1994 Associate IN THE ERAL RT _OF AUSTRALIA AUST: AN CAPITAL TERRITORY No. ACT G 28 of 1994 RICT R TRY ENE DIVISION BETWEEN: S_& B PTY LIMITED Applicant AND: IRENE PODOBNIK Respondent : Gallop, Neaves and Carr JJ. DATE: 28 October 1994 RE NS FOR DGMENT EAVE 2? S & B Pty Limited ("the applicant") has applied for leave to appeal from the interlocutory judgment of the Supreme Court of the Australian Capital Territory (Higgins J.) given on 14 April 1994 upon an application made pursuant to s.36 of the Limitation Act 1985 (A.C.T.). The Supreme Court extended until 3 November 1993 the period within which Irene Podobnik ("the respondent") might commence proceedings in that Court against the applicant, formerly known as Goldstar Cleaning Company (Acton) Pty Limited, for damages in respect of personal injuries alleged to have been suffered by her as an employee of that company. With the concurrence of the parties, the Court, without at that stage determining the application for leave to appeal, heard full argument upon the issues that would arise in the event that leave to appeal were granted. Those issues are identified in the draft notice of appeal included in the Material before the Court. The principles to be applied in determining whether to grant leave to appeal from an interlocutory judgment are well established (see, for example, Jarrett v Seymour (1993) 46 FCR 557 per Lockhart and Beaumont JJ. at pp.559-560 and the cases there referred to) as are the principles governing the circumstances in which an appeal from a discretionary judgment may succeed (see House v The King (1936) 55 CLR 449 at pp.504- 5; Lovell v Lovell (1950) 81 CLR 513 per Kitto J. at pp.532-4 and the many cases in which those passages have been cited). In relation to the question whether leave to appeal should be granted, there can be no doubt in this case that, if the judgment under review is wrong, the applicant will suffer substantial injustice unless it is corrected. The sole issue for determination, therefore, is whether, in all the circumstances, the judgment is attended with sufficient doubt to warrant it being reconsidered by the Full Court. If leave is granted, the issue for determination 1s whether it is clearly established that the exercise of the discretion conferred by s.36 of the Limitation Act miscarried. The circumstances in which the matter comes before this Court may be shortly stated. On 3 November 1993, a writ of summons was issued out of the Supreme Court on behalf of the respondent. By the statement of claim endorsed on the writ, the respondent alleged that, at the material time, the applicant carried on the business of contract cleaners, that the respondent was employed by the applicant as a part-time cleaner in the Australian Capital Territory and that, on or about June 1983 whilst engaged in her employment with the applicant, the respondent attempted to lift a heavy bag containing telephone books whereby she suffered injury to her lumbar spine. The injuries, loss and expenses suffered by the respondent were alleged to have been caused by the negligence of the applicant or those for whom it is responsible. On 10 January 1994 a defence was filed on behalf of the applicant. Apart from admitting that at all material times it carried on the business of contract cleaners, the applicant denied the allegations in the statement of claim and pleaded that the alleged cause of action did not arise within six years before the commencement of the action and was barred by s.11 of the Limitation Act. The relevant period prescribed by that section is the period of 6 years running from the date on which the cause of action first accrues. On 2 February 1994 the respondent gave notice of a motion for an order, pursuant to 8.36 of that Act, that the period within which an action on the cause of action might be commenced be extended to the date upon which the writ of summons was issued. The matter proceeded before the primary judge on affidavit evidence. No oral evidence was given and none of the deponents to the affidavits was cross-examined. In an affidavit sworn on 2 February 1994, the respondent deposed that in 1983 she was employed as a cleaner by the applicant and that she had been so employed for approximately three months when, on or about 24 May 1983, she injured her lower back during the course of her cleaning duties. She also deposed that prior to that injury she had never experienced any problems with either her back or her neck. She further deposed that she was normally responsible for cleaning, without assistance, three floors of the building where the injury is alleged to have been suffered; that on the day of the injury there were a number of old telephone books and other books and rubbish in a trolley the contents of which she was to empty into a canvas bag; that the trolley was too heavy for her to lift; that she removed several of the books and again attempted to lift the trolley; that she found it extremely difficult and in doing so felt a sharp pain in the lower part of her back. In a further affidavit sworn on 18 March 1994 the respondent explained that, when in her earlier affidavit she stated that she cleaned the floors without assistance, she was referring to the fact that she worked alone, that she was unaware of any other persons on the floor where she was working when she injured her back and that she did not see any other persons in the building from the time she injured her back until she went home. The respondent further deposed that she was examined by her general practitioner, Dr Jacob Foo, on the following day and by Drs Wright and Chandran the following month. After having seen Dr Foo, she telephoned her employer and informed him that she had hurt her back the previous evening whilst at work. She said that the following day the employer's insurer, Royal Insurance Australia Limited, was in touch with her and that an application form was sent to her. It may be assumed that what was sent to her was a form for workers' compensation. She said that she completed the form, that her injury was accepted and that some payments were made by the insurer. It appears from other material before the Court that an amount of $422.80 was paid by way of compensation in respect of the period from 6 June to 25 July 1983. The respondent said that, as she was unable to return to work after about two months, her employment was terminated. Why no further payments of compensation were made is not explained by the evidence. The respondent said that she undertook physiotherapy and attended for treatment with a chiropractor; that she believed that the injury to her back was going to be minor and that she would recover and be able to continue working; that in 1984 she applied for a job at a nursing home but was unsuccessful; that in about 1985 she worked at a coffee shop for three months on a part-time basis but was unable to continue because her lower back was causing her problems. She said that at this time she was still consulting Dr Foo. She further said that she continued to rest her back hoping it would get better; that in 1989 she again attempted to join the work force; that she obtained a job as a cook but was unable to remain in the job for more than three months because her back was causing too much pain; and that she has not worked since. Paragraph 7 of her affidavit sworn on 2 February 1994 is in the following terms: "I did not seek legal advice in relation to my back injury until January 1991. The reason for this was that I always felt that the injury to my back was not a serious injury although it did cause me constant pain, but I always felt it would get better and I would be able to rejoin the workforce. I was also fearful that if I instituted any proceedings that they may not be successful and I would have a huge legal bill to pay which my husband and I could simply not afford as at the time of my injury we had three young children. However, in January 1991 I consulted Messrs. Vandenberg Reid Pappas & MacDonald regarding the injury to my back as it had been some years since the injury and my back was not getting any better and I was unable to return to the workforce as I had hoped. I then saw Dr. Chandran once again in February 1991 and had a further appointment with Dr. Ashman in April 1991." The applicant further deposed that her solicitors requested a medical report from Dr Foo in March 1991 but that the report did not arrive until November 1991. The solicitors, she said, had advised her that they were unable properly to provide her with legal advice until they had received that report. She said she had a further conference with her solicitors in May 1992 when she was informed of the likely costs involved in commencing proceedings in respect of the injury to her back. She said she was concerned about the legal costs involved but in October 1992 she instructed her solicitors to explore more thoroughly the possibility of commencing proceedings and to obtain advice from a barrister concerning her prospects of success. She said that she was requested to provide certain information to the barrister but that it took her some time to collect the information due to the amount of time that had elapsed since the date of the injury. According to her affidavit, an advice from the barrister was received in July 1993 and she then instructed her solicitors to commence proceedings. In an affidavit sworn on 2 February 1994, Roderick William MacDonald, Solicitor of the firm of Vandenberg Reid, deposed that he took over the conduct of the matter on behalf of the respondent in October 1992 when he was instructed to seek advice from a barrister regarding her prospects of success in commencing common law and workers' compensation proceedings in respect of the injuries sustained in 1983. He said that he sought advice from counsel and was informed that various matters needed to be clarified by the respondent; that he subsequently received further instructions from the respondent and delivered a further brief to counsel in June 1993. One of the major difficulties, he said, was to ascertain the precise name of the respondent's employer at the relevant time as there were various companies with similar names to the former name of the applicant. In July 1993, that matter was clarified and counsel's final advice as to the respondent's likely prospects of success was received in August 1993. He said that there was, however, a further delay in locating the applicant and, on 30 August 1993, proceedings were instituted against the directors of the applicant personally. It appears that those proceedings were taken against Giovanni Ciuffetelli and Serafina Ciuffetelli on the basis that, at the time of the respondent's injury, they carried on the business of contract cleaners in the name of an unregistered company. Subsequently those proceedings were discontinued and on 3 November 1993 the proceedings the subject of the present application were commenced. There was evidence before the Supreme Court that the only directors and shareholders of Goldstar Cleaning Co. (Acton) Pty Limited were Giovanni Ciuffetelli and his wife, Serafina Ciuffetelli; that they sold their shares in the company in 1984; and that all the company's records were transferred to the new shareholders at that time. There was, however, evidence that the persons who became the owners of the shares did not have in their possession any records relating to the company's operations in 1983. Mr Ciuffetelli had no recollection of the respondent being an employee of the company or of her suffering an injury in the course of any employment she may have had with the company. There was also evidence before the Supreme Court that, in 1983, Royal Insurance Australia Limited was a licensed workers' compensation insurer carrying on business in the Australian Capital Territory, Sun Alliance & Royal Insurance Australia Limited being the successor of that company. Brenton Dean Bahr, the Manager of the latter company, deposed in an affidavit sworn on 16 March 1994, that he had searched the computerised records of the company relating to a claim made by the respondent and numbered 8350321. He said that the search revealed that the payments made in respect of the claim were: "Weekly payments of compensation due $442.80 to Irene Podobnik Less Taxation $59.25 In-house Legal Expenses $375.00 Investigations Expenses $957.05 TOTAL $1,774.85" The search also showed, he said, that the claim "was finalised on 21 May 1984". Mr Bahr's affidavit further stated: "6. Following the computerised search I have attempted to locate the documentary records of Sun Alliance & Royal Insurance Australia Limited relating to the claim. All of the documentary files to finalised claims are held by a company trading as Document Security in a warehouse in Ultimo in the State of New South Wales. In order to retrieve a file from that warehouse, it is necessary to give Document Security a box number so that they can locate the specific file in question. After 1 April 1984 all closed files were put in boxes in date order. Therefore, the finalising date on the file is important in that it is necessary to look at the list of files closed and the corresponding box numbers on the date the file was finalised. I have inspected the document security listing relating to files covering the period 16 to 22 May 1984 but there is no such file shown. Hence, I am unable to locate the documentary file relating to claim number 8350321." He said he had inspected the list of files closed and the corresponding box numbers for all files closed during the month of May 1984 but no file relating to the claim by the respondent was amongst that list. following "8. Paragraph 8 of Mr Bahr's affidavit was in the terms : The computer search suggests to me that there may have been some investigation undertaken by Nationwide Investigations. Io am aware from my experience in the insurance industry that' that company is no longer in business because it went into liquidation in 1989 and so it is not possible for me to locate any investigation reports by contacting that company." Mr Bahr also asserted that Sun Alliance & Royal Insurance Australia Limited would be prejudiced by any extension of the limitation period because - "(a) (b) (c) the company has no practical way of locating any documentary records which might have been in existence and which relate to the plaintiff's injury, the circumstances thereof and any witnesses to that injury, and any documentary evidence that relates to medical treatment obtained by the plaintiff at that time; the company .... has not had the opportunity to have the plaintiff medically examined between 1983 and the present time and, because Mrs Podobnik made no claim for workers compensation extending beyond 1983, had no reason to do so. with the passage of time, the memory of any witnesses as to the events will naturally be dimmed. Section 36 of the Limitation Act provides, in subs.(1), that the section applies to any action for damages where the damages claimed consist of or include damages in respect of personal injuries to any person. Subsections (2), (3) and (4) of that section provide: "(2) Where an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to subsection (3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for such period as it determines. (3) In exercising the powers conferred on it by subsection (2), a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following: (a) the length of and reasons for the delay on the part of the plaintiff; (b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant; (c) the conduct of the defendant after the cause of action accrued to the plaintiff, including the extent, if any, to which the defendant took steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant; (d) the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he or she knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages; (f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received. (4) The powers conferred on a court by subsection (2) may be exercised at any time notwithstanding - (a) that the limitation period in respect of the relevant cause of action has expired since the cause of action accrued; or (b) that an action in respect of such personal injuries has been commenced." Differing views have been expressed on the question whether the references to delay in pars (a) and (b) of subs.36(3) of the Limitation Act, or in comparable provisions in the legislation in force in other jurisdictions, are to be read as references to the period which has elapsed since the accrual of the cause of action or to the period after the expiration of the relevant limitation period. Although the primary judge did not expressly state upon which of the alternative views he was proceeding, it is tolerably clear that he was proceeding on the latter view. In Koumorou v The State of Victoria [1991} 2 V.R. 265, Brooking J., speaking of the provisions of s.23A of the Limitation of Actions Act 1958 (Vic) - provisions in similar terms to s.36 of the Australian Capital Territory enactment - said at p.271: "Paragraph (a) refers to 'the delay on the part of the plaintiff' and para. (b) simply to 'the delay'. No doubt 'the delay' in para. (b) means 'the delay on the part of the plaintiff' mentioned in para. (a). Paragraph (a) does not expressly state what it is the plaintiff has delayed doing. Both it and par. (b), unlike paras (c), (d) and (f), which use the words 'if any' or 'any', presuppose that their subject matter - delay - will exist in every case. This, I think shows that the paragraphs cannot be concerned only with delay on the part of the plaintiff in making his application under s.23A, for there may well have been no such delay. Having regard to this consideration and to the Nature of the order which the section authorises, in my view paras (a) and (b) are concerned, at least in part, with delay in the sense of the failure to bring an action for damages. I think they are also concerned with the period of time which has elapsed before the making of the application under the section. In my view both paragraphs are concerned with delay in taking steps to enforce the plaintiff's rights either by bringing an action for damages or by making application under the section. I should say that I do not think that the word 'delay' connotes knowledge on the part of the plaintiff of his right or ability to do the act which be had delayed doing. I think it is concerned simply with the facts of effluxion of time and inaction. Whether the plaintiff was aware of his right or ability to bring an action or make an application is a matter to which regard may be had in considering the reasons for the delay under para. (a). In addition, para (e) allows regard to be had to the state of mind of the plaintiff. To say that paras (a) and (b) are concerned with delay in the sense of failure to bring an action and make an application is perhaps only another way of saying that 'delay' in those paragraphs means the delay between accrual of cause of action and making of application for an extension of time." I. respectfully agree with his Honour's' conclusion. The approach taken by the primary judge in this case was, in my opinion, incorrect. Under s.36, the court hearing an application for an extension of time within which to bring proceedings may grant the extension if it decides, having regard to all the circumstances of the case, including the matters identified in subs.(3), that it is just and reasonable so to do. Although the section does not speak in terms of onus in the sense that it does not, in terms, place any onus upon an applicant, the court will only grant an extension if it is positively satisfied that it is just and reasonable to do so. As part of that process, it is for the applicant for the extension of time to give an acceptable explanation for the delay that has occurred. It clearly appears that it was not until January 1991, that is to say 7 years 8 months after the accrual of the cause of action and 20 months after the expiration of the limitation period, that the respondent took any step in relation to her claim for damages for the injuries to her back. The action she then took was to seek legal advice. The reasons advanced by the respondent for that long period of delay were twofold. They were contained in par.7 of her affidavit sworn on 2 February 1994, the text of which 18 set out earlier in these reasons. One of those reasons was expressed in the following terms: ".... I always felt that the injury to my back was not a serious injury although it did cause me considerable pain, but I always felt it would get better and I would be able to rejoin the workforce." The primary judge found, however, that the case was not one "where the plaintiff [respondent] could reasonably have been in doubt, at least after 1985, that her back condition was ongoing". It must, therefore, be accepted that, in his Honour's view, the explanation based on the nature of her injury which had been offered by the respondent for the delay after 1985 was not accepted. In this regard it is to be noted that his Honour says, incorrectly, that the respondent did not, in terms, suggest that her decision not to seek legal advice before May 1989 was due to a belief that her injury was less serious than it was in reality. The second explanation offered by the respondent for the lengthy delay in seeking legal advice was her fear of incurring "a huge legal bill" which she and her husband could not afford. The reference by the respondent to her concern about the costs of legal proceedings supports an inference that she was well aware that it might be possible, having regard to the circumstances in which she said her injuries had been suffered, to make a claim for damages against her employer. It is also of some significance that the respondent did not assert in either of her affidavits that she was not aware of the possibility of taking legal proceedings against her employer in respect of her injuries or that she was not aware that the law prescribed a time limit within which such proceedings might be taken. It would be reasonable to conclude that, having turned her mind to the possibility of taking such legal proceedings, she was content to allow the matter to rest. The primary judge found that the period of delay between January 1991 and October 1992 had not' been satisfactorily explained. He made no finding, however, in relation to the periods prior to January 1991 unless his statement that concern about legal costs was "a reasonable concern from the viewpoint of the plaintiff [respondent]" is to be taken to be a finding that that was a satisfactory explanation for that delay. In this regard, it is to be noted that he expressed the view that "[t]he length of the unwarranted delay is not great compared with the overall delay since the cause of action accrued". It would seem that that could only be a relevant factor if one were satisfied that the delay since the cause of action accrued had otherwise been satisfactorily explained. As against the unexplained delay, his Honour considered two matters, namely the serious nature of the injury and the apparent strength of the respondent's claim. With due respect to his Honour, there was no material before him upon which a considered view could be formed as to the likelihood of the respondent succeeding in her claim. Dealing with the question of prejudice to the applicant, or more accurately its insurer, his Honour said: "It is obvious that, as at May 1989, Royal had no relevant documents. It has no real lead as to any witnesses to, or concerning, the accident in question except the plaintiff. It has no medical records relating to the plaintiff. I do not consider that this latter consideration is, however, of any great significance. There is no reason to suppose that the records of the plaintiff's treating doctors are unreliable or incomplete. It is obvious that such prejudice to Royal as now exists had already become entrenched by May 1989 and it has not got any worse since. Further, such disadvantage as Royal now suffers derives in large measure from its own failure to preserve the relevant file in a retrievable form. It would be unfair to treat the plaintiff's application more adversely because Royal has lost its file." The first observation to make on this passage is that it does not follow from the evidence that the file relating to the respondent's claim for workers' compensation could not be found when a search was made by Mr Bahr, presumably at or about the time of swearing his affidavit on 16 March 1994, that the insurer had no relevant documents in May 1989. It is clear that no notice of the common law claim was given to the insurer before August 1993 and it may well be that if notice of the claim had been given at an earlier time, a search for the relevant documents at about that time may have been successful. His Honour also assumed that the file numbered 8350321 referred to by Mr Bahr in his affidavit sworn on 16 March 1994 "would have contained not only a claim form and a report of the accident in 1983, but also an investigator's report thereon". While it may be reasonable to assume that the file would contain an investigator's report concerning the claim for workers' compensation, there is no basis in the evidence for assuming, as his Honour appears to have done, that it would have contained material specifically referable to the claim for damages which the respondent now seeks to pursue. His Honour also stated that the records of the Australian Securities Commission did not support Mr Bahr's assertion concerning the liquidation of "Nationwide Investigations" and that he was not "positively persuaded" that the insurer could not obtain a copy of the investigator's report apparently made by "Nationwide Investigations". It must be said, however, that the extracts from the records of the Australian Securities Commission that were in evidence, while they do not corroborate Mr Bahr's assertion, do not disprove it and Mr Bahr was not cross-examined. The evidence does not provide any support for the view that a copy of the report, whatever its materiality, can be obtained by the applicant. In my opinion, the matters to which I have referred provided a sufficient foundation for the view that the judgment of the Supreme Court is attended with sufficient doubt to warrant it being reconsidered by this Court. As I have already indicated, there can be no doubt that, if the judgment under review is wrong, the applicant will suffer substantial injustice unless it is corrected. Leave to appeal should be granted. The matters to which I have referred also satisfy me that the exercise of the discretion conferred by s.36 of the Limitation Act miscarried. The appeal should be allowed and the judgment of the Supreme Court set aside. The case is, in my opinion, one in which it is appropriate for this Court to exercise its own discretion in substitution for that of the primary judge. I have already said sufficient to indicate that, in my view, the delay in this case was inordinate and was not satisfactorily explained. I am of opinion that, having regard to all the circumstances of the case, it would not be just and reasonable to grant a sufficient extension of time within which the respondent might institute proceedings against the applicant for damages in respect of the personal injuries alleged to have been suffered by her on 24 May 1983 so as to avoid the defence available to the applicant under 8.11 of the Limitation Act. I would, therefore, dismiss the application. The respondent should pay the applicant's costs of the application for extension of time in the Supreme Court and of the proceedings in this Court. I certify that this and the preceding 18 pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Neaves. Associa Dated: 28 October 1994 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION Vee No, G28 of 1994 BETWEEN: S & B PTY LTD Applicant and IRENE PODOBNIK Respondent CORAM: GALLOP, NEAVES & CARR JJ DATE: 28 October 1994 REASONS FOR JUDGMENT CARR J. This is an application for leave to appeal from the judgment of Higgins J. given on 14 April 1994 in the Supreme Court of the Australtan Capital Territory. By that judgment, his Honour ordered pursuant to s.36 of the Limitation Act 1985 (ACT) that the period within which the respondent in these proceedings, Irene Podobmk ("Mrs Podobnik") may bring an action against the applicant, S & B Pty Ltd ("the Employer") be extended to 3 November 1993. After | had prepared a draft of these reasons I had the advantage of reading, in draft form, the reasons for yudgment of Gallop J. With respect, | agree with much of what 1s contained in those reasons but, untortunately, I disagree with his Honour's conclusions, First I should say that on the question of leave to appeal I agree with Gallop J's characterisation of the matter as not being one of practice and procedure. Although interlocutory in the technical sense, the judgment in respect of which leave Is sought has serious consequences of a substantial nature. In those circumstances, it seems to me to be appropriate and useful to examine first whether the exercise of discretion can be seen to be clearly "attended with sufficient doubt" to warrant this Court re-examining the considerations to be taken into account. It so, the second part of what is not an exhaustive test 1s to consider whether the extension of the limitation period ordered by Higgins J. would work substantial injustice: Commussioner of Taxation v. Hydrocarbon Products Pty Ltd (1987) 14 FCR 359 at p.375 (Full Court). At the same time, as Kitto J. warned in Lovell y. Lovell (1950) 81 CLR 513 at p.532 when referring to the less stringent restraint: the court of appeal must guard against reversing a discretionary decision merely because it would itself have decided the matter differently, it 1s not justified in substituting its Own judgment for that of the primary judge unless it is Clearly satisfied that his judgment was crroneous " Factual Bac! und Mrs Podobnik has no forma] qualitications and her education extended only to year 8. Hitherto, Mrs Podobnik has never been involved in any type of court proceedings and nor has her husband. In February 1983 Mrs Podobnik commenced work with the Employer as a cleaner. On 24 May 1983 she was cleaning three floors at McArthur House in Canberra and was working on her own. Part of her duties involved emptying what were described as "trolleys" full of rubbish into a canvas bag. In one such trolley there were old telephone books together with other books and rubbish. The trolley was too heavy for Mrs Podobmk when she tried to [itt it imitially so she removed several of the books. When again attempting to lift the trolley into the canvas bag she found it extremely difficult and felt a sharp pain in the lower part of her back. She did not carry out any further lifting that day as her back was hurting, but carried out some other duties and then went home where she had a bath, lay on the floor and took some pain killmg medication. The next day Mrs Podobnik saw her local medical practitioner, Dr Foo, who arranged for her to be examined by specialists. Later on the same date she telephoned the person whom she knew as her employer (someone whose name she was unable precisely to recall, but believed was "Jim") and advised him that she had hurt her back the previous evening whilst at work. The following day the Employer's insurer, Royal Insurance Australia Ltd contacted Mrs Podobnik and sent her what she described as an application torm which she duly completed. Royal Insurance Australia Ltd is now known as Sun Alliance & Royal Insurance Australia Ltd. I shall henceforth refer to it as "the Insurer". The Insurer then paid Mrs Podobnik's medical expenses and made certain weekly payments to her. The Insurer also sent Mrs Podobnik to a doctor for examination. After about two months of being away from her employment by virtue of her disability, Mrs Podobnik contacted "Jim" who told her that they could no longer keep her cleaning job open. It appears that at this time the weekly payments to Mrs Podobnik were terminated despite her apparent continuing unfitness for work. Later Mrs Podobnik underwent physiotherapy and treatment trom a chiropractor and at least initially believed that the injury to her back was going to be UL SUAPIAD S,yluUgOpoOd SIP "WIR]O eB BurButg Jo ys09 ATayI] SY} JOY Pjo} OYM sJOUATIOS JO ULIY owes 3yy YM sdUOIIJUOA JOYyN] e pey ylugopog sl 7661 ACW UY 'yoda yey) payddns 00,5 1q 1eY) 1661 JoquIaAON IL [gun yOu sem 4 Ng yUqopog SI] JO Wodsar ut y10deI [espaul e JO} 00.] Iq payse preuoqoerypy 9 seddeg ploy Troquapue, SIssop] 1661 YOR Ul Jey) VOUOPIAD st JOU], «padoy pey | se 910;7I0M oy) 07 wiNjaI O17 2IqeUN sem | puR JoONIOg AUB BUIII03 10U sem yORq AW pue Aanful oy) Souls siBo oWOS Udaq peY 1 se yoeg Aw oj Ainful oy Surpse3or preuoqoeyy 2 seddeg ploy Bioquopued sisso~y pownsuos | [661 Alenuer ul 'aAoMOY uospytys Bunok soy) pey om Arnfur Aw Jo own 9y] 1e se ployye you Ajdurs Pino> | pue pueqsny Aw yrrym Avd oF [IIq [eso] OSny e oAeY pinom | pue nNyssaoons oq you Aeuw Ady) yey) sdumpaooosd Aue paynynysui J Jl yey nyiesy ose sem J s0s0720M OY? UTOla2 OF BIGe 9q P[NOM | pUe JayVEq 103 plnom 1 yay sAemye 7 Ing 'ured jUR)sSUOD OW osNe? pIP Ht YSnoyyye Amiu snowes e& Jou sem yorq Aw on Ainfur oy yey) yoy shemye | sey] SBM SITY JO} UOSeI SELL, 'SU19} SUIMOTIO} ayy UT paieis a1aM Uoy} [UN aolape [V9] Yaas 0} OuNpIeJ JOY JO} 9ABs Ys YIM suOSseaI DY], 'I66] Arenuer jyun Aimfut youq 19y 0} UONR{aI UT soIApe [eAa] Yoes OU PIp yluqopog SIN "6861 ABW pz UO pesdxa poled uONE TUN, JURAZ[e oy) IBY) puNoIS UOUWUTOS Sl 4 "E861 ARI pZ 9oUIs pokojdura usaq jou sey yUQgopog sp (swe[qoid ured yoeq JOMOT 0} onp Ysinburjal 01 pry ylUgopog sI_ Ulese yoy juouACTdUIe) 6861 UI 92]U90 BIRD PyIyD B IR Youd B sv ywawAOjdua syUOW 9oI41 WoI yedy 'ured yoeq Jamoy 0} 9np juowAodua yey) Yysinbutjal 0} paosoj sem ays 3nq siseq oUINN-jed Be UO syuoW 9914} INOgGeE JO} doys 99jJO9 B UL PayIOM YIUQOPOd SII SSG] UT "WewAC;dws yey) Buruieygo ul jnjssasonsun sem 'req Joy 01 Ainfur ue poloyns prey oys ey} WORN sul yey pasiApe ays UaYyM nq atuoy Butsinu e ye gol e 10} paydde sys pg6T Ul Jayey JOR} UT "BULJOM aNUTUOD OF ajqe aq puUR JOAOIaI Pynom sys yey) pue JOUIL v explanation of why proceedings were not then commenced was in the following terms: "In view of the fact that our financial postion was not strong al that ume | had to give serious consideration whether to proceed with a claim or not { was very concerned about the legal costs involved as I had heard horrible stories from people who had lost compensation cases and were faced with massive legal costs which caused them to lose their homes and this concerned me greatly." In October 1992 Mrs Podobnik was still suffering back pain so she instructed her solicitors to explore more thoroughly the possibility of commencing proceedings. She then instructed them to obtain an advice from a barrister regarding her prospects of success. Mrs Podobnik's solicitors requested her to provide certain information tor counsel which, as she put it, "... took me some time to organise due to the amount of time which had elapsed since the date of my injury." Having supplied that information, Mrs Podobnik received counsel's advice in July 1993 advising that she had a claim which was worth pursuing. She then instructed her solicitors to commence proceedings on her behalf. Mrs Podobnik's former solicitor swore an affidavit in which he outlined the difficulties encountered from October 1992 onwards. He said there were various matters which counsel needed to be clarified by Mrs Podobmik and that when he received those instructions he sent a further brief to counsel in June 1993. One of what he described as "the major difficulties" was the lack of information held by Mrs Podobnik as to the precise name of her employer at the time of the accident. At that date the Employer was known as Goldstar Cleaning Co. (Acton) Pty Ltd which was one of many companies in a group which had similar names. His Honour held that the number of these companies did contribute to delay at least between October 1992 6. and August 1993 and that that delay was not unreasonably contributed to by Mrs Podobnik or her advisers. When, in July 1993 Mrs Podobnik's solicitors believed that their enquiries had located the right "Goldstar Cleaning" company they so advised counsel and in August 1993 received counsel's advice in relation to the prospects of successfully bringing proceedings against the Employer. It would seem that by August 1993 Mrs Podobnik's solicitors arranged a search which failed to disclose the existence of any company bearing the name Goldstar Cleaning Co. (Acton) Pty Ltd. Accordingly, on 30 August 1993 they issued a writ of summons on behalf of Mrs Podobnik against the directors of the company personally. It transpired subsequently that the Employer was still m existence but had adopted the name S & B Pty Ltd The action against the former directors of the Employer was discontinued and on 3 November 1993 Mrs Podobnik sued the Employer in the Supreme Court of the Australian Capital Territory claiming damages for negligence in respect of injurtes sustained in the accident on 24 May 1983. The Employer, 1n its defence dated 10 January 1994 pleaded that Mrs Podobnik's cause of action did not arise within six years before the commencement of the action and was barred by s.11 of the Lumitation Act 1985. By notice ot motion filed on 2 February 1994 Mrs Podobnik sought an order under s.36 of the Limitation Act extending the penod within which her action might be brought to the date upon which her writ was filed in the Supreme Court of the Australian Capital Territory. 7. The Statutory Provision Section 36 of the Lunitation Act 1985, so far as ts relevant, provides as tollows: "Personal inguries 36 (1) This section applies to any action tor damages where the damages claimed consist of or include damages in respect of personal injuries to any person (2) Where an application 1s made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to subsection (3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if 11 decides that 1 1s just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for such period as it determines (3) In exerctsing the powers conferred on it by subsection (2), a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following (a) the length of and reasons for the delay on the part of the plaintiff, (b) the extent to which, having regard to the delay, there 1s or 1s likely to be prejudice to the defendant, (c) the conduct of the defendant after the cause of action accrued to the plaintiff, including the extent, if any, to which the defendant took steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant; (d) the duration of any disability of the plamtuff arising on or after the date of the accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he or she knew that the act or omission of the defendant, to which the injury of the plainuff was attributable, might be capable at that tume of giving rise to an action for damages; (f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received. (4) The powers conferred on a court by subsection (2) may be exercised at any tame notwithstanding - (a) that the Lmitation period tn respect of the relevant cause of action has expired since the cause of action accrued; or (b) that an action in respect of such personal injurics has been commenced " 8. The Decision in the Supreme Court and the Evidence which was before that Court His Honour found that Mrs Podobnik could not reasonably have been in doubt, at least atter 1985, that her back condition was ongoing. His Honour found that while Mrs Podobmik may have entertained some hope of spontaneous improvement, he could not accept that she had that beliet as at May 1989 In respect of the delay in bringing proceedings, his Honour added the following comments: "Concern about legal costs was, I accept, a reasonable concern from the view point of the piainuff, at least up until she sought legal advice m January 1991 She should, at that time have been reassured that she necd not have committed herself to substantial costs unless she was likely to win the case In any event, the enquiries made to enable her to form a vicw as to her prospects for success took from October 1992 until August 1993 | do not believe that the delay between January 1991 and October 1992 1s satisfactorily explamed. However, against that 1s the scrious nature of the injury and the apparent strength of the plainuffs clam The length of the unwarranted delay ts, also, not great compared with the overall delay since the cause of action accrued " His Honour then turned to the question of prejudice to the Employer. The Employer was, at the time of the accident, a family company in which the only directors were a Mr & Mrs Giavanni Ciuffetell. Mr Ciuffetelli deposed in an affidavit to the fact that the Employer ceased operations in 1984 when the shares owned by him and his wife were sold. Mr Cuiuffetelli swore that the only remaining company record held by him and his wife was a copy of its Certiticate of Incorporation dated 25 June 1980 and that he had no recollection of Mrs Podobnik. However, Mr Ciuffetelli deposed that the Employer was insured and that any claim would have been forwarded to that insurer. The Insurer's casualty claims manager, Brenton Dean Bahr, swore an attidavit as to the searches made by the Insurer tor details of the accident and subsequent claim. First a computer search was made which disclosed a claim number, 8350321, for a claim made by Mrs Podobnik. The search also showed that the Insurer had made weekly payments of compensation to Mrs Podobnik in the gross amount of $442.80, that in-house legal expenses of $37500 had been incurred and also investigation expenses totalling $957.05. Mr Bahr described the Insurer's system of dealing with its claim files. All files concerning finalised claims were held on the Insurer's behalf by a company trading as Documents Security in a warehouse in Ultimo in New South Wales. From 1 April 1984 all closed files were put in numbered boxes in accordance with what Mr Bahr described as the "finalising date". In respect of this claim, Mr Bahr swore that the computer showed that it had been finalised on 21 May 1984, although Annexure 'A' to his affidavit which shows this date also shows a reference to a last transaction on 31 December 1984. Mr Bahr's evidence was that he searched for particulars of all files finalised between 16 and 22 May 1984 but the file for claim number 8350321 did not appear in the relevant list. According to Mr Bahr, the result was that he could not find the file. To use his words "hence, | am unable to locate the documentary file relating to clam number 8350321." Apart trom inspecting the list of files closed during the month of May 1984 as a whole, there was no evidence from the Insurer that it made any further efforts to tind that tile. 10. The computer search indicated that the investigation, for which the Insurer paid the sum of $957.05 referred to above, had been undertaken by a company which Mr Bahr described as "Nationwide Investigations" Mr Bahr swore that he was aware that Nationwide Investigations "... 1s no longer in business because it went into liquidation in 1989 and so it is not possible for me to locate any investigation reports by contacting that company." There was no evidence that the respondent had made any efforts to contact the liquidator of the relevant company or any one concerned in its former management to ascertain what might have become of its records. Mrs Podobmik's solicitors filed an affidavit annexing a search trom the Australian Securities Commission showing numerous companies which included the words "Nationwide Investigation" in their name but none which was presently in hquidation. On the question whether a copy of the report could still be obtained his Honour found in these terms: "I am not, however, positively persuaded that Royal could not obtain a copy of the report apparently made by "Nationwide Investigations™ His Honour's reasons for judgment on this aspect continued in the following terms: "Royal is the relevant party to complain of prejudice, because it will be the source of funds to pay the claim if 1t succeeds It is obvious that, as at May 1989, Royal had no relevant documents It has no real lead as to any witnesses to, or concerning, the accident tn question except the plaintiff It has no medical records relating to the plamtiff [do not consider that this latter consideration 1s, however, of any great significance There ts no reason to suppose that the records of the plaintiffs treating doctors are unreliable or incomplete It 1s obvious that such preyudice to Royal as now exists had already become entrenched by May 1989 and 1t has not got any worse since. Further, such disadvantage as Royal now suffers derives in large measure from us own failure to preserve the relevant file in a retrievable form It would be unfair to treat the plaintiff's application more adversely because Royal has lost its file. 11. [t 1s a matter of balance but, on balance, | consider that i 1s just and reasonable to grant the plaintiffs application " It 1s not entirely clear but, in my view, It 1s a reasonable implication from the first four paragraphs on page 4 of his Honour's reasons tor judgment that his Honour accepted as reasonable (both from the viewpoint ot Mrs Podobnik and objectively) the delay between 24 May 1989 and January 1991 when she sought legal advice. His Honour did not accept that the delay between January 1991 and October 1992 was satisfactorily explained but seems to have accepted that the delay between October 1992 and August 1993 was occupied by the enquiries made to enable Mrs Podobnik to form a view as to her prospects of success. At the hearing of the appeal the Employer conceded that the delay trom August 1993 onwards was reasonable. His Honour then weighed up what he described as the "unwarranted delay" between January 1991 and October 1992 against "... the serious nature of the injury and the apparent strength of the plaintiff's claim" and further commented that "the length of the unwarranted delay is, also, not great compared with the overall delay since the cause of action accrued." In summary, his Honour considered the Employer's case that it would be prejudiced if an extension of time were granted, and held on balance that 1t was just and reasonable to grant the respondent's application. 12. The Contentions The applicant contended that leave to appeal should be granted for three reasons. First that the decision was attended with sufficient doubt. Secondly the decision, if wrong, would cause substantial injustice by depriving the Employer of a defence to a substantial claim. Thirdly there was the question of principle as to what is the relevant delay referred to in s.36(3)(a) and (b) of the Limitation Act. Whether the decision is attended with sufficient doubt The applicant's first complaint was that his Honour did not explain or identify the test to be apphed and that ns Honour appeared to have reversed the onus of proof. The applicant acknowledged that failure to identify the relevant test was not necessarily an error. In respect of the alleged reversal of the onus of proof the applicant relied on the passage quoted above in which his Honour stated that he was not positively persuaded that the Insurer could not obtain a copy of the report apparently made by Nationwide Investigations. That comment was in relation to one of the several circumstances of the case and in my opinion does not indicate that his Honour regarded the Employer as having any onus of proof with regard to whether it was just and reasonable to extend the limitation period. The Employer had chosen to assert as a fact that it was unable to obtain a copy of the accident report trom Nationwide Investigations and I read his Honour's comment as being simply a rejection of the proposition that the evidence tendered by the Employer justified the conclusion which his Honour was asked to draw, namely that the Insurer could not obtain a copy of the report apparently made 13. by Nationwide Investigations His Honour noted that the Australian Securities Commission search (put into evidence on behalf of Mrs Podobmk and referred to above) did not support Mr Bahr's assertion concerning the liquidation of Nationwide Investigations. However, his Honour made no finding that Nationwide Investigations had not been put into liquidation. He acknowledged that there may have been a change of names or business in 1989. I would have thought that whilst on the one hand a liquidation commenced in 1989 would most probably have been completed by 1994 and thus no continuing record might exist for the company in question, on the other hand the proofs offered by the Employer, which comprised only Mr Bahr's assertion, could have been stronger. In my opinion, on the evidence adduced, it was open to his Honour to make the finding that he was not satisfied that the Insurer could not obtain a copy of the report from the investigators. Furthermore, in doing so he was not reversing the overall onus which Mrs Podobmk carried when she invoked s.36(2) of the Limitation Act. When his Honour stated at the conclusion of his reasons "it 1s a matter of balance but, on balance, | consider that it 1s just and reasonable to grant the plaintiff's application" he not only expressed the test referred to in s.36(2) of the Limitation Act but also expressed a conclusion that Mrs Podobnik had discharged any onus of proof which she might have borne in relation to the matter. In any event, the Employer was not only seeking to have prejudice interred from the mere length of the delay, but relied upon its inability to find the mvestigators' report as part of its claim ot prejudice in detending the claim. In those circumstances the effect of the authorities seems to be that a defendant does carry an evidentiary burden - see Forbes v Davies and the Commonwealth of Australia (1994) Aust Torts Reports 81-279 at p.61,405 and the cases there cited. Next it was complained that his Honour erred in having regard to the apparent strength of Mrs Podobnik's claim. The case of Taylor v. Western General Hospital [1986] VR 250 was relied upon. As the headnote of that case discloses, 1t is authority for several propositions. First, that an applicant under the simular but not identical Victorian provision, 1s not required to show that there 1s evidence supporting his or her claimed cause of action. Secondly, that if it 1s obvious that the applicant has no case so that it would be an abuse of process tor the case to proceed, this would be a relevant matter to the exercise of the court's discretion to extend time. It 1s not, in my opinion, authority for the proposition that the apparent strength of the plaintiff's claim is irrelevant in the context of s.36(3) ot the Limutation Act. The words "... a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following ..." are so wide that I would not be prepared to hold that it was an error in the exercise of his Honour's discretion to take into account the apparent strength of the plaintiff's claim in this matter. What 1s involved is a weighing process balancing all the circumstances of the case including prejudice to a detendant and I would have thought that often the apparent strength of the plaintiff's claim would play a part in that assessment. 15. Next the applicant complains of a statement made by his Honour that it was not clear that Mrs Podobnik was advised in May 1992 of the hmutation problem. It was argued that because Mrs Podobnik had the onus ot proot then, in the absence otf any assertion to the contrary, it should be interred that she knew of the limitation period. In my opinion, that 1s not a logical conclusion. If there 1s no evidence of a fact and no relevant presumption applies, where 1s the basis for an inference either way? The truth ot the matter is that there was some (albeit slight) evidence from which tt might have been interred that Mrs Podobntk had no knowledge of the limitation period. I refer to paragraphs 3 and 4 of her attidavit dated 18 March 1994 which indicate that she was educated only to the level of year 8 and that neither she nor her husband had ever been involved in any type of court proceedings. In any event his Honour made no finding either way about Mrs Podobnik's state of knowledge. Notwithstanding all of the above, there 1s, in my opimion, substantial merit in the submission made on behalf of the applicant that it cannot reasonably be thought that Mrs Podobmik or her agents, the solicitors, did not know that the limitation period had expired by January 1991 when she first saw them. However, his Honour did in fact have regard to the delay between January 1991 and October 1992 and found it to be unwarranted. His Honour did this as part of his due consideration of the overall question of delay. Furthermore, it should be noted that Mrs Podobnik was 16. not cross-examined. Complaint ts then made about the inconsistency, between his Honour's comment that Mrs Podobnik did not, in terms, suggest that her decision not to seek legal advice before May 1989 was due to her beltef that her myjury was less serious than it was in reality and the express statement of that reason in paragraph 7 of her first affidavit. In my view, nothing turns on this because his Honour specifically stated in the previous sentence that he could not accept that Mrs Podobnik had that belief as at May 1989. The applicant submitted that concern about legal expense 1s not reasonable and is no excuse at all for delaying proceedings. Insofar as the delay was prior to first consulting solicitors in January 1991 in a situation where there is no evidence that Mrs Podobnik knew there was a limitation period, | consider that in terms of s.36(3)(a) his Honour was entitled to take into account a concern about legal costs as being to some extent a reasonable reason for the delay on Mrs Podobnik's part. It is clear from his Honour's reasons for judgment that he was not prepared to treat that excuse as being reasonable after she obtained legal advice in January 1991. The applicant next complains that his Honour erred in identifying what was primarily m issue when he stated: "The matter put in issue by the defendant was, primarily, whether the prejudice resulting to it from an extension of time was such that, on balance, the application should be refused." The applicant says that that was not its position. On my reading of the papers I have formed the view that even if preyudice may not have been the primary matter put in issue by the Employer, it certainly was a major factor upon which it relied. This can be seen from paragraph 10 of Mr Bahr's affidavit sworn on 16 March 1994. Furthermore, having dealt with the length and reasons for the delay, as required by s.36(3)(a), the next matter which s.36(3) of the Act requires a court to consider 1s the extent to which, having regard to the delay, there is or 1s likely to be prejudice to the defendant - see s.36(3)(b). On any reading of the reasons for judgment, I do not think st can be inferred that his Honour concentrated on the matter of prejudice at the expense of giving due and fair consideration to the matter of delay. I return below to the matter of delay, but there were certain other factual matters raised by the applicant which it is convenient to consider at this point. The applicant, in its written submissions, complained of his Honour's inference that there was a report provided to the Insurer by Nationwide Investigations. The written submission was that "there was no doubt" that it was possible and even likely "but not necessarily so" that a report was provided to the Insurer. In argument it was put that because the accident was reported as a worker's compensation claim it might not have contained "anything like" the material which would have been obtained if there had been notification of a common law claim. In my opinion, the findings made by his Honour were certainly open to him in view of the evidence that in 1983 Nationwide Investigations rendered an account to the Insurer for "Investigations Expenses" in the amount of $957.05. In those circumstances, it can readily be inferred from the fact that there were investigations, and that those investigations cost $957.05 18. in 1983, that a file had been created which contained a report relating to the circumstances of the accident. When an insurer pays an investigator $957.05 (in 1983 dollars) the inference that it would get a comprehensive report for its money seems to me most reasonable. The circumstances of the accident were not complex. His Honour accepted the Insurer's evidence that it had lost its file relating to claim number 8350321. Mr Bahr, in his affidavit, gave evidence that this particular claim was finalised on 21 May 1984, all closed files were put in boxes in date order and that there was no record of this claim tile in the boxes containing files closed in May 1984, It was open to his Honour to tind, on that evidence, that the tile had become lost prior to the expiration of the limitation period m May 1989. In my opinion, it was equally open to his Honour to find (as he did - see p.6) that he was not positively persuaded that the Insurer could not obtain a copy of the report made by Nationwide Investigations. In my view the evidence showed only a half-hearted effort to obtain such a copy. The fact that Nationwide Investigations may have gone into liquidation does not Justify the absence of any other efforts whatsoever. Complaint was also made that his Honour had fatled to consider various other matters which were said to be relevant. The first was an absence of any warning to the Insurer until late 1993. 1 think that has to be weighed im the light of the circumstances that within two days of the date of the accident the Insurer was aware of the fact of the accident and had sent to Mrs Podobnik certam torms for 19. completion. There was complaint that his Honour had not considered the fact that Mrs Podobnik had compensation rights. The question whether Mrs Podobnik had an entitlement to workers' compensation rights does not immediately appear to be of relevance to the question whether it 1s just and reasonable to extend the time for bringing the action. It would not seem to have any bearing on any prejudice to the Employer. It seems to be an entirely neutral matter. Mrs Podobnik's entitlement to workers' compensation rights are co-extensive with the Employer's obligations in that regard. The question was whether it was just and reasonable that Mrs Podobnik should be granted an extension of time in which to sue tor damages. I do not think the learned judge at first instance erred in tailing to take this factor into account. In any event, it does not appear that the matter was the subject of any evidence before his Honour. The next matter raised by the applicant 1s the question whether the delay referred to in s.36(3)(a) and (b) is the delay between the accrual of the cause of action and the institution of proceedings (either by way of principal proceedings or an application under the sub-section), or the delay between the expiry of the limitation period and the institution of either of such proceedings. The authorities appear to be divided on this pomt. The Full Court of the Supreme Court of Victoria in Bell v S.P.C. Lid [1989] VR 170 at p.176 was disposed to think that the delay referred to in the two sub-paragraphs should be the former of 20. these two meanings but acknowledged that there was some statements in the authorities to the contrary. One ot those statements was in Thompson v Brown [1981] 1 WLR 744 at p.751 but, as the Full Court noted, Lord Diplock gave no reasons for that conclusion other than stating that the delay referred to m each of sub-paragraphs (a) and (b) must be the same. In Walla v. State Transport Authority [1985] VR 327 at p.329 Murray J. referred to sub-paragraph (e) ot the Victorian provision [which 1s in relevantly identical terms to sub-paragraph (€) above] as the basis for concluding that the delay referred to in sub-paragraphs (a) and (b) must be the delay occurring between the expiration of the limitation period and the application for extension of time. Kelly J. in Daroczy v. B & J Engineerng Pty Ltd (1986) 67 ACTR 3 at p.17 came to the same conclusion, as did Murray J. again in Townton v H W Greenham & Sons Pty Lid [1986] VR 666 at p.668. There are several other decisions which are in conflict on this point. The authorities were reviewed by Brooking J. im Kourmorou v. The State of Victoria [1991] 2 VR 265 at pp.271-273. His Honour came to the conclusion that the delay referred to in paragraphs (a) and (b) was not confined to delay which followed the expiration of the limitation period and included delay prior to the expiration of that period. His Honour's reasoning was based on the proposition that although an application to extend time could be made before expiry of the limitation period, most such applications would be made atter the expiration of the limitation period. His Honour thought that it would be Ighly probable that the legislature was concerned at all events in large part, with delay in the sense of failing to commence the action within the limitation period or within a period falling just short of the hnmmtation period 1e. 21. failure to file a writ promptly. The two sub-paragraphs pre-supposed that there would have always been delay on the part of the plaintiftt because unlike certain other paragraphs they do not use the words "it any" or "any". Because it could not be said that in the case of every application under the section there would have been such delay (i.e. some applications might be made before expiry of the limitation period), the delay referred to included the delay prior to the expiration of the limitation period. In Marr v. Green (1994) Aust. Torts Reports 81-277 at p.61376 Green C.J. expressed the opinion that delay following the expiration of the mutation period 1s plainly more significant than such delay betore the limitation period had expired. Wright J. came to a similar conclusion as to the comparatively minor sigmticance of the delay "... occurring as it did entirely betore the expiration of the limitation period .." (see p.61,384). In my view, It 1s not necessary to decide that pomt for the disposal of this appeal because it 1s clear that his Honour had regard to the period both before and after the expiration of the limitation period in this matter. This can be seen at page 3 of his Honour's reasons where there is the observation: "This is not a case where the plaintiff could reasonably have been in doubt, at least after 1985, that her back condition was ongoing She may have entertained some hope of spontaneous improvement, but | cannot accept that she had that belief as at May 1989" I refer also to the three paragraphs from his Honour's reasons for yudgment which I have set out at page 8 of these reasons. 22. Conclusions I do not consider that, in all the circumstances, the decision at first instance was attended with sufficient doubt to warrant it being reconsidered by this Court. Secondly, on the supposition that the decision was wrong, tt has not in my view been demonstrated that substantial injustice would result. The substantial injustice to which we were referred was that the Employer would be deprived of a defence to a substantial claim. That does not appear to be an appropriate test. In Noja v. Civic Pty Lid (1990) 26 FCR 95 at p.110 the Full Court of this Court referred to the prejudice to the respondents in that case as not extending: ".. beyond the general preyudice which would result from there being deprived of a defence under the Limitation Ordinance to which they would otherwise be entitled." See also the reference of the Full Court of the Supreme Court of Victoria in Bell v. S.P.C. Ltd [1989] VR 170 at p.174: "By the very existence of s.23A a respondent's entitlement to rely upon the Statute of Lumuations 1s always subject to being defeated by an order in favour of an applicant extending the time within which an action may be brought " I have already dealt above with the matter of the prejudice said to have arisen from the loss of the Insurer's file and the alleged unavailability of the investigator's report. Accordingly, I would dismiss the application for leave. Alternatively, it leave is granted, I would dismiss the appeal. 23. I certify that this and the preceding twenty-two (22) Pages are a true copy of the Reasons for Judgment ot Justice Carr Associate: Bee " bascr Date. 2g October 1994 Counsel for the Applicant: | Mr B. Meagher Solicitors for the Applicant. Blake Dawson Waldron Counsel tor the Respondent: Mr R Crowe Solicitors for the Respondent: Vandenberg Reid Date of Hearing: 29 June 1994 Date of Judgment: 28 October 1994