1 SHELLER JA: I have had the benefit of reading the reasons for judgment prepared by Powell JA and by Davies AJA. In my reasons for judgment in Holt v Wynter

1 SHELLER JA: I have had the benefit of reading the reasons for judgment prepared by Powell JA and by Davies AJA. In my reasons for judgment in Holt v Wynter - [2001] NSWCA 128 - NSWCA 2001 case summary — Zoe

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3 POWELL JA: Pursuant to leave granted on 26 June 2000, the Appellant appeals from a judgment delivered, and order made, by Christie DCJ on 23 June 1999, on which day his Honour dismissed with costs a Notice of Motion which had been filed on behalf of the Appellant. In that Notice of Motion the Appellant had sought leave to commence proceedings under the Motor Accidents Act 1988 ("the Act") for damages arising from injuries sustained by him in a motor vehicle accident on 12 April 1990, when the motor cycle which the Appellant was riding and the Toyota Landcruiser which was then being driven by the Respondent collided in Knight Street, Arncliffe. 4 At the time of the collision, the Appellant, who was then 24 years of age and who was employed as a stonemason by an organisation apparently known as Surface Restorations, was travelling from work to his home which seems then to have been in Forest Road, Arncliffe. 5 Following the collision, the Appellant was taken to St. George Hospital at Kogarah where he was admitted and treated for his injuries which are said to have been a fractured pelvis, torn ligaments and cartilage damage to the left knee, contusions to the left shoulder and a ruptured bladder. The Appellant was discharged from hospital on 27 April 1990 but appears to have been admitted for further surgery for a short time in June 1990. Following his discharge from hospital on the second occasion the Appellant, at the request of the St. George Hospital, signed a Compensable Patient Declaration which he then returned to the hospital. 6 In April 1990, the Act provided (inter alia) as follows: "TIME FOR AND NOTICE OF MAKING OF CLAIMS 43(1) A claim must be made within 6 months after: (a) except as provided by paragraph (b), the date of the motor accident to which the claim relates; or (b) if the claim is made in respect of the death of a person, the date of death. (2) If a claim is made more than 6 months after the date determined under this section, the claimant shall provide a full and satisfactory explanation for the delay in making the claim. (3) Evidence as to any delay in the onset of symptoms related to the injury suffered by the injured person as a result of the motor accident may be given in any such explanation. (4) Notice of a claim is required to be given to the person against whom the claim is made and, if that person's insurer is a third party insurer, to the insurer. (5) The requirement under subsection (4) (only insofar as it is a requirement to give notice of a claim to the person against whom the claim is made and without affecting the requirement to give notice to the insurer) does not apply if: (a) that person is dead; or (b) that person cannot be given notice. ……… TIME LIMITATIONS ON COMMENCEMENT OF COURT PROCEEDINGS 52(1) A claimant is not entitled to commence court proceedings against another person in respect of a claim until 6 months have elapsed since notice of the claim was given to the other person and (if required by section 43(4)) to the other person's insurer. (2) If notice is given to the other person's insurer (being a third party insurer) then despite subsection (1) the claimant is entitled to commence court proceedings if either of the following occurs: (a) the insurer denies all liability in respect of the claim; (b) the insurer admits partial liability in respect of the claim but the claimant is dissatisfied with the extent to which liability is admitted. (3) If a claimant commences proceedings in respect of a claim more than 12 months after the date on which the claim must be made in accordance with section 43, the claimant must provide a full and satisfactory explanation to the court for the delay. (4) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after the date on which the claim must be made in accordance with section 43 except with the leave of the court in which the proceedings are to be taken. (5) The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim."

[8]

7 Despite the provisions of ss. 43, 52, as they then were, of the Act , no notice to the Respondent or to NRMA Insurance Limited ("NRMA"), her compulsory third party insurer, of the Appellant's intention to make a claim under the Act was given prior to December 1996 nor, as is apparent, were any steps taken on behalf of the Appellant which would have enabled him to commence proceedings under the Act against the Respondent prior to the filing, on 19 April 1999, of the Notice of Motion which was dealt with by Christie DCJ in June 1999. 8 Meantime, on 8 May 1990, NRMA, which was also the Respondent's motor vehicle property insurer, wrote to the Appellant foreshadowing a claim against him for the damage which had been sustained by the Respondent's vehicle in the collision. A further letter foreshadowing the commencement of proceedings was written by the NRMA to the Appellant on 6 June 1990. 9 Meantime, on 16 May 1990, the Appellant signed a Compensation Claim addressed to Surface Restorations, and on 28 May 1990 signed a Claim for injury "on the journey" which claim forms appear clearly enough to have been forwarded to Surface Restorations' workers compensation insurer, MMI Workers Compensation (NSW) Limited ("MMI"), which seems then to have made payments of weekly compensation until the Appellant was able to return to work, which seems to have been in August 1990. 10 Following his receipt of the NRMA's letter of 6 June 1990, the Appellant sought the assistance of Professor David Flint - whose secretary the Appellant's mother then was - who appears to have had a right of private practice. Thereafter, on 18 June 1990, Professor Flint wrote to the NRMA as follows: "I refer to your letter of 6 June 1990 to my client Mr. R. Parsons. Mr. Parsons was injured in the accident, and his motor cycle was damaged. From my instructions, it appears that my client is entitled to reimbursement for his loss from your client, and to make a claim for personal injuries against you if you are the third party insurer. If so, please provide a copy of the relevant form."

[11]

14 Thereafter, on 1 May 1991, Mr. Moore caused to be filed in the Downing Centre Local Court, a Statement of Claim in which the Appellant sought to recover from the Respondent damages in respect of the damage to his motor cycle which it was said had been written off. To that Statement of Claim the NRMA's solicitors, on 8 March 1991, caused to be filed on behalf of the Respondent a Defence and a Cross-Claim in which the Respondent sought to recover damages in respect of the damage to the Respondent's motor vehicle which had been sustained in the collision. The materials which are before the Court do not record what, if any steps were taken in those proceedings in the following four years before, as I will later record, they were settled. 15 Although it is not entirely clear, it would appear that in July 1991, the Appellant was examined by a Dr. Mastroianni, who was seemingly retained on behalf of MMI, and who, on 25 July 1991, reported (inter alia) as follows: "EXAMINATION Young man of stated age who walks with a normal gait and appears to be in no discomfort. He dresses and undresses with no difficulty and no restrictions were noted in his movements. Examination of the pelvis reveals tenderness over the pubic symphasis (sic). No lower back pain was localised with a full range of lower back movements. Examination of the left knee reveals a scar on the medial anterior aspect of the knee with a widening scar in the way that it has healed. There is no tenderness on palpating the knee with full range of flexion and extension. There is laxity in both medial and collateral ligament (sic) of the knee although minor. There is no muscle wasting in the leg. No abnormality was found in the right knee or the left shoulder. OPINION This patient sustained multiple contusions and the various injuries as described. He has required a medial menisectomy. He has returned to his pre-accident duties but does experience some minor discomfort in the knee depending on certain activities and also he is restricted in activities due to pain from the separation of the pubic symphasis (sic) The condition appears to have stabilised and it is appropriate to settle his Section 66 entitlements. In my opinion the patient has 30% impairment of his pelvis and 15% loss of efficient use of the left leg above the level of the knee." 16 Thereafter, on 15 October 1991, MMI wrote to the Appellant (inter alia) as follows: "RE: INJURY ON 12.4.90 - SECTION 66 & 67 ENTITLEMENTS We refer to your workers compensation claim and advise that we are prepared to make an offer based on Dr. Mastroiammi's assessment of your loss. An amount of $4,164.75 is offered for 30% loss of the pelvis, $10,411.88 for 15% loss of efficient use of the left leg and $7,500.00 for Pain and Suffering (Section 67) pursuant to the applicable Table of Maims under the Workers Compensation Act 1987. ………" 17 That offer appears to have been referred to Dr. Evans, who had been the Appellant's treating orthopaedic surgeon, and who, on 31 October 1991, wrote to the Appellant's general medical practitioner (inter alia) as follows: "This man saw me again today. He complained of quite a lot of back ache in the region of the sacro-iliac joints and both of these joints are tender. He is also tender over the pubis. I note that he has been made an offer for disability. His disability in the pelvis is much more distressing than that in the leg but I note that the amount for the pelvic disability is very small. However, I suppose this is the statutory amount and, as I have said, I think the percentage disability of 30% for the pelvis is reasonable. Under the circumstances, I suppose he should accept this amount." 18 Although the Appellant claims not to have sought, or received, any legal advice in relation to the settlement which was offered, in December 1991 he accepted it and, thereafter, on 10 January 1992, there was filed by MMI, on his behalf, an Application for Determination, which application sought an award - which I assume was subsequently made - in terms of the offer which had been made and accepted. 19 As from 1 January 1994, the Act was further amended (inter alia) in the following respects:

[14]

(ii) by omitting from sub-s. 3 the words "must be made in accordance with section 43" and inserting in lieu the words " is made ". 20 The Appellant asserts that, although he saw Mr. Moore on a number of occasions between 1991 and 1995, on no occasion after the first did they discuss the Appellant's claim to recover damages for his personal injuries and at no time did Mr. Moore advise him that, in order that he might maintain a claim for personal injuries, he was required first to lodge a claim form or that there were time limits in relation to the lodgment of that claim form and the commencement of proceedings. 21 The proceedings in the Downing Centre Local Court were settled on 28 April 1995 upon terms (inter alia) that there be a verdict for the Appellant in the sum of $4,000.00 and that there be a verdict for the Appellant on the Cross-Claim which had been raised on behalf of the Respondent. 22 Despite the fact that the proceedings in the Downing Street Local Court were terminated by verdicts to be found by consent (see Kinch v. Walcott [1929] AC 482; Crago v. McIntyre [1976] 1 NSWLR 729) and despite the fact that those proceedings were limited to competing claims for damages for property damage, and not for personal injury, the termination of those proceedings in that way, in my view, determined the issue of negligence between the Appellant and the Respondent and, thus, gave rise to an issue estoppel between them, which issue estoppel would operate to prevent the issue of negligence being re-litigated in any action for damages for personal injury between the Appellant and the Respondent (see Tiufino v. Warland (2000) 50 NSWLR 104). 23 On 30 May 1995, Mr. Moore wrote to the Appellant a letter which was (in part) as follows: "We believe that on the evidence which has become available in the course of this matter, that you should pursue a claim for damages as soon as possible. The writer will be closing this Practice on 30 June 1995 - a rather sudden decision - pursuing other interests. We would suggest that you approach another solicitor as quickly as possible and arrange for the file which we hold to be transmitted to that new solicitor as quickly as possible. We are sorry that we cannot assist you further. We enclose herewith our Account which is $1,900.00 plus disbursements, as agreed at Court, together with a cheque made payable to yourself and our Trust Account Statement. We thank you for your instructions and regret that we are not able to continue acting for you."

[15]

24 Although the matter is not entirely clear, it would seem that, having received that letter from Mr. Moore, the Appellant retained the firm of Van Aalst Roth, solicitors, to act for him in relation to his claim to recover damages for his injury, and, having done so, advised Mr. Moore, who then forwarded his file to Van Aalst Roth under cover of a letter dated 16 June 1995 marked for the attention of Mr. Roth. 25 Although, again, the matter is less than clear, it would seem that a Mr. Saab, now a solicitor, but then a paralegal employed by Van Aalst Roth, was given the initial conduct of the matter under the direction of Mr. Van Aalst. 26 Very little progress appears to have occurred in the following 6 months for, on 4 December 1995, Mr. Van Aalst wrote to the Appellant a letter which, after referring to a conference - which Mr. Saab had had - with the Appellant on 24 August 1995 and after referring (inter alia) to the provisions of ss. 43, 52(4) of the Motor Accidents Act, continued (inter alia) as follows: "Nevertheless, under the provisions of Section 52(4) your claim is out of time. The steps we now must follow are as follows: 1. You must complete a personal injury claim form which must be forwarded to the relevant insurer. 2. In order to find out the third party insurer at the time accident (sic) we will have to apply for a Section 132A Certificate from the Roads and Traffic Authority. 3. As part of your claim, we require medical reports from the doctors who have treated you. In conference you gave me the names of Dr. Anthony Tynan and also James Evans. We have written to these two doctors requesting information in relation to your claim. We will also need to have one of these doctors to (sic) complete the medical certificate which form (sic) part of your personal injury claim form. 4. We will then need to await the reply of the insurer. If they reject your claim because it is out of time, we will then need to approach the Court for special leave in order to commence proceedings for your claim. Your claim, therefore, is complicated by the extensive period with which (sic) you are out of time in making your claim. If your claim is rejected by the insurer then you are at the discretion of the Court as to whether they will grant leave for you to commence proceedings. In this regard, there are no hard or fast rules that the Court looks at and each case is determined on its own facts. The onus on (sic) establishing whether leave should be granted is on the party seeking the benefit of that leave. In other words, we must demonstrate that it is fair and just for you to have leave to be (sic) granted and that there was a reasonable and acceptable explanation as to why you failed to bring the claim within the statutory time period. ……… Please find enclosed a copy of a personal injury claim form. Please complete as much of the claim form as you can and return it as soon as possible. We will help you with any questions which require assistance. We wish to advise you at the outset that after perusing the correspondence file of your previous solicitor it appears they may have been negligent in respect of the above matter in failing to act on your behalf in any personal injury claim or failing to advise you of the availability of such a claim. We note that practice (sic) of Brendon Moore and Associates closed on 30 June 1995. We further note your refusal, in conference, to pursue any action against your previous solicitor. We advise that we will initially pursue your claim under the Motor Accidents Act and cross the second bridge if and when we come to it. What you must keep in mind however is that your previous solicitors (sic) actions, or failure to act have caused any claim you may have for damages to be made way outside the statutory time period. If the insurer rejects our claim and leave is not subsequently granted by the Court to commence proceedings, then you will have no claim. Further, we must stress that any action against your solicitor will be referred to his indemnity insurer who will be responsible for payment if our claim is successful. We would propose that we write to Mr. Moore to put him on notice of possible impending action. Mr. Moore should then refer the matter to his professional indemnity insurer. We would ask you to consider the above and to instruct us whether you wish to pursue that course of action. ………" 27 Despite the terms of that letter, it would appear that in November 1995 or thereabouts Mr. Van Aalst had informed Mr. Roth that he proposed to terminate the partnership effective as and from 31 December 1995. 28 In an Affidavit sworn by him in support of the Notice of Motion, Mr. Roth deposed (inter alia): "On 1 January 1996 I commenced practising under the name 'Charles G. Roth & Co.' and Robert Van Aalst commencing (sic) practising under the name Van Aalst Lawyers. Both practices were conducted at the same premises as the partnership had been conducted and due to the circumstances of the termination and events arising therefrom there was no personal communication between us and written communication was virtually non-existent. On the termination of the partnership each partner retained conduct of those matters for which they had either the conduct or responsibility unless specifically requested otherwise by the client. Van Aalst Lawyers retained the file pursuant to that implied agreement and there was limited co-operation from them in obtaining files or information." 29 According to the Appellant, he partly completed the claim form which had been forwarded to him with the letter of 5 December 1995 and returned it to Van Aalst Roth in early January 1996 together with a signed cost agreement - the form of cost agreement had also been forwarded with that letter. 30 Quite what happened thereafter is less than clear, as the versions given by the Appellant and Mr. Roth in their respective Affidavits differ. However, it seems that, at some time in the early part of 1996, the Appellant spoke to Mr. Roth and asked him to take over carriage of the matter. 31 Mr. Roth, in his Affidavit said (inter alia): "In early 1996 the plaintiff instructed me to act for him in relation to his personal injury claim and through my then secretary I made inquiries of Van Aalst Lawyers to obtain the file. I was not able to obtain the file until 26 July 1996. I perused the file and noted the personal injury claim form sent to Mr. Parsons for completion was not on file. I recall that there appeared to be other documents missing also. I telephoned Mr. Parsons in relation to the form and was informed by him that he had forwarded it to Van Aalst Roth with a signed Cost Agreement in early January 1996. This form and other documents were not located until about October 1996." 32 Meantime, as from 1 January 1996, the Act had been further amended (inter alia) in the following respects:

[16]

(a) s.43 was amended in the following respects: (i) s.43(1) was renumbered as s.43(2); (ii) there was inserted before s.43(2) as renumbered the following: "(1) the object of this section is to promote the early making of claims to enable the insurer: (a) to commence investigations whilst evidence relating to the claim is available, and (b) to identify injuries and facilitate the access of claimants to appropriate injury management and rehabilitation services and thus to expedite the claimant's recovery, and (c) to allow the insurer to more accurately predict claim frequency and hence formulate premiums." (b) s.43A was omitted and there was inserted in lieu the following: "43A LATE MAKING OF CLAIMS (1) The objects of this section are: (a) to ensure that the issue of the lateness of a claim is dealt with as soon as possible after receipt of the claim, and (b) to ensure that any delay caused to the consideration of the substantive claim by the lateness issue is kept to a minimum, and (c) to ensure that the lateness issue is either resolved or made a mutually apparent substantive issue at an early date. (2) A claim may be made more than 6 months after the date determined under section 43 (in this section called a late claim) if the claimant provides a full and satisfactory explanation for the delay in making the claim. The explanation is to be provided in the first instance to the third-party insurer concerned (if there is one) or to the Nominal Defendant. (3) Evidence as to any delay in the onset of symptoms relating to the injury suffered by the injured person as a result of the motor accident may be given in any such explanation. (4) A late claim may not be made more than 12 months after the date determined under section 43 unless, in addition to the provision of a full and satisfactory explanation, the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 10 per cent of the maximum amount that may be awarded for non-economic loss under section 79 or 79A as at the date of the relevant motor accident. (5) Subsection (4) does not apply to a claimant who is legally incapacitated because of the claimant's age or mental capacity. (6) This subsection applies if the person against whom the late claim is made is insured by a third-party insurer. (a) If within 2 months after receiving a late claim for which no explanation for delay is provided, the insurer does not reject the claim or ask the claimant to provide a full and satisfactory explanation for the delay in making the claim, the insurer (and the person against whom the claim is made) lose the right to challenge the claim on the ground of delay; (b) If, within 2 months after receiving an explanation for delay in the making of a late claim the insurer does not reject the explanation, the insurer (and the person against whom the claim is made) lose the right to challenge the claim on the ground of delay. (c) If court proceedings are commenced in respect of a late claim, an insurer (or the person against whom the claim is made) may apply to have the proceedings dismissed on: (i) the ground of delay, or (ii) in the case of a late claim that is made more than 12 months after the date determined under section 43, the ground of the amount of damages, or both, only within 2 months after the statement of claim is served on the defendant and received by the insurer. The insurer (or the person against whom the claim is made) may only apply to have the proceedings dismissed on the ground of delay if the insurer (or the person) has not lost the right to challenge the claim on the claim of delay. (7) A court must dismiss proceedings commenced in respect of a late claim if the court is satisfied that the claimant does not have a full and satisfactory explanation for the delay in making the claim and, alternatively or in addition in the case of a late claim, that is made more than 12 months after the date determined under section 43, that the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are less than 10 percent of the maximum amount that may be awarded for non-economic loss under section 79 or 79A as at the date of the relevant motor accident."

[27]

It was following the latter conference that the personal injury claim form was forwarded to the NRMA by Mr. Roth under cover of a letter dated 3 December 1996. 36 Whether or not Mr. Schwartz possessed the expertise which Mr. Roth appears to have believed him to have may be doubted since, as is apparent from what I have earlier written, it was the better part of two years and six months after Mr. Schwartz' services were retained by Mr. Roth before the Notice of Motion which Christie DCJ was concerned to deal was filed - this, so Mr. Schwartz seemed to suggest in an Affidavit sworn by him in support of that Notice of Motion, was because of Mr. Schwartz' belief that it was in the Appellant's best interests that NRMA "should be given every opportunity to assess his claim and attempt to negotiate a settlement with in compliance with it obligations under s.45". 37 Having received Mr. Roth's letter of 3 December 1996 and the claim form, the NRMA, on 17 December 1996, wrote to Mr. Roth (inter alia) as follows: "We refer to your letter of 3 December 1996 and confirm that we are the compulsory third party insurer of the vehicle nominated as being at fault in this accident. As you have noted, unfortunately your client's claim has not been made within the six (6) month period referred to in S.43 of the Motor Accidents Act and we draw your attention to the objects of this section as well as to your client's obligation under S.39 of the Act. Please let us have a signed statement from your client giving a full and satisfactory explanation for the delay in making this claim. The explanation should give a full account of your client's conduct, including his actions, knowledge and belief, from the date of the accident until the date providing the explanation. The explanation is not satisfactory unless a reasonable person in the position of the claimant would have failed to comply with S.43 or have been justified in experiencing the same delay. As your client's claim was received by us more than 12 months after the date of the accident, the claimant must show that if his/her claim succeeds the total damages of all kinds likely to be awarded to him are not less than 10% (i.e. $4,200.00) of the maximum amount that may be awarded for non-economic loss at the date of the accident. We look forward to receiving your client's explanation and supporting evidence concerning the 10% threshold without delay. This evidence could include the medical reports and documentation as to economic loss. We ask that you note that we have not been notified by MMI of any workers compensation recovery. We consider that as this is the first we have been informed of your client's claim, we have been seriously prejudice (sic) in investigating the circumstances of this incident. ………"

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47 Thereafter, in mid-August 1998, a conference to discuss the prospects of settlement was held at the offices of the NRMA but no agreement was reached. 48 Despite the failure to reach agreement as to a possible settlement of the Appellant's claim the matter was allowed to drift aimlessly on into 1999. 49 No brief to counsel to advise the Appellant as to his position, or to draft any necessary pleadings and affidavits in support of an application for leave to commenced proceedings out of time was delivered until 5 February 1999. However, on 9 February 1999, counsel to whom that brief had been delivered advised that because of his other commitments he could not accept the brief. Following that advice, Mr. Roth arranged for the brief to be forwarded to Mr. P.P. Strasser of counsel but, again, no great sense of urgency appears to have affected the matter, as Mr. Roth and Mr. Parsons did not attend in conference with Mr. Strasser until 24 February 1999. Finally, as I have earlier recorded, the Notice of Motion with which Christie DCJ was concerned to deal was filed on 19 April 1999, that is, a little over nine years from the date of the motor vehicle accident, eight and a half years after the last date before which the claim was prime facie to be made, over seven and a half years after the date upon which, as s.52(3) of the Act stood at the date of the accident, the Appellant, if commencing proceedings, was required to provide to the Court a full and satisfactory explanation for the delay, and over five and a half years after the date on which, as s.52(4) of the Act stood at the date of the accident, the Appellant was precluded from commencing proceedings except with the leave of the Court. 50 When the Notice of Motion came on for hearing before Christie DCJ it was supported by affidavits sworn by the Appellant, Mr. Roth, Professor Flint and Mr. Schwartz, the latter affidavit, in my view, providing no, let alone any satisfactory, explanation for what can only be described as the inordinate delay which occurred after his services had been retained by Mr. Roth. 51 Some weeks before the Notice of Motion came on for hearing before Christie DCJ the NRMA's solicitors had sought from Mr. Roth's firm further particulars as to the Appellant's claim. Particulars of a sort - they were written by Mr. Strasser during the course of the luncheon adjournment on 21 June 1999, the day when the Notice of Motion came on for hearing before Christie DCJ - were eventually delivered to the Respondent's counsel after the hearing of the Notice of Motion had commenced. The significance of those particulars lies in the fact that, although, in the report which she provided in July 1997, Dr. Middleton noted that "in the past (the Appellant) reported no previous back or lower limb injuries", the particulars supplied revealed two - seemingly insignificant - injuries sustained by the Appellant to his left knee and right foot in incidents in the 1980's. 52 In the Judgment which he was to deliver on 23 June 1999, Christie DCJ said: "The decided cases by the superior courts are familiar to all District Court Judges I shall not go through them, there are a number of them. It is important to remember that the High Court since Taylor's Case have made it clear that it is the plaintiff who carries the onus of establishing first of all that the plaintiff ought to receive the benefit of the section. That of course being the benefit of any extension of time section or limitation section. It is there after (sic) if that onus is discharged that one comes to consider the question of prejudice if any, and the extent of the prejudice if any, to a prospective defendant. I have already said there is no prejudice to the prospective defendant in respect of the issue of liability. The defendant makes a number of submissions in respect of the perceived prejudice on the issue of damages and those submissions are familiar. That is the failure of the defendant to have the opportunity to get hold of some contemporaneous medical opinion and the like in this particular case possibly exacerbated by a prior injury to the knee which appears to be a fairly similar type injury in the year immediately before the accident. So I suppose that would be regarded as an exacerbating factor in terms of prejudice. One would have to agree with the defendant's submission that in delay of this kind which is significant delay, one is entitled to assume some prejudice against the defendant in respect of the issue of damages. I say that whilst noting the not insubstantial amount of evidence put forward in Exhibit A. I have reached this conclusion and it is a case of an application that has troubled me a bit, or more than a bit, because when one boils it down (and in all the decided cases the superior courts demonstrate that the real issue) in the finish, is whether a fair trail may still be had, having regard to all of the circumstances of the case including the delay. I am very concerned with, not only the delay which appears prime facie in a way to be capable of being laid at the door of the former solicitor, Mr. Moore. As I say Mr. Moore has not had a chance to have been heard here so I do not want to say anything too strongly about that without having heard from him. I am very concerned about that. I am equally concerned about the fact that Exhibit 1, the medical certificate for the claim form was dated January '96 and the claim form does not find its way to the NRMA until December 1996 and I am even more concerned that the application then is not made until 18 May 1999. I am not entirely persuaded one way or the other that a fair trial could not be had, because there is some information that does alert the defendant to some medical issues and it is a frank injury. And I do not think in this particular case there is any real blame one could lay at the door of Mr. Parsons although he was clearly advised in December '95 what his situation was. I just feel in the light of all of the delay that has occurred here I do not accept that the prospective plaintiff has discharged the onus of establishing that he would be entitled to bring this action so many years after the prospective defendant has otherwise escaped from this litigation. After all the limitation period is there for a purpose and those purposes are referred to quite clearly by Mr. Justice McHugh in Taylor's Case in the High Court. The first set of delay would be forgiven, it seems to me up until December 1995 when he sees some solicitors and gets some pretty sound advice. I appreciate that the change of solicitor such as it was in January '96 would exacerbate the matter for some little time. I do not think it explains why the claim form was not the NRMA's desk until December '96 and it certainly does not explain why this application was not brought until May 1999. It my view enough is enough and in relation to this application I think the prospective plaintiff's application must fail for the reasons that he has not sufficiently explained to my mind anyway and it is my discretion that's got to be exercised. He has not explained sufficiently why it was that after December 1995 he did not move this Court to exercise discretion until May 1999. Certainly there is affidavit evidence setting out what happened and what did not happen in that period of time but I do not think it satisfactorily explains, to my mind anyway, such a lengthy delay superimposed on what was already a very significant delay at the time he got the proper advice in December 1995. ……… As I say there is quite a lot of medical evidence here, I mean it is a finely balanced case, I want to make it clear, that it was a frank injury and that I am not entirely convinced that a fair trial could not be had and I say that quite clearly because it would not entirely surprise me if another view prevailed at another time and another place but I must exercise a discretion as I see it and I just think this delay is beyond that which I would be prepared to sanction in the exercise in my discretion in favour of the prospective plaintiff. For those reasons the motion will be refused with costs."

[38]

53 In the Notice of Appeal which, pursuant to the grant of leave was filed on behalf of the Appellant the following grounds of appeal were taken 1. His Honour erred in law in failing to find upon the evidence there was no prejudice to the Respondent by the granting of leave. 2. The Respondent has failed to discharge the evidentiary onus of showing likely significant prejudice in the event of the granting of leave. 3. In the alternative, that (sic) his Honour erred in law in failing to find upon the evidence that the prejudice (if any) to the Respondent would not threaten the prospect of a fair trial. 4. In the alternative, that (sic) his Honour erred in law in failing to recognise that the prejudice caused by the delay, if any, would be so slight that it did not justify the refusal to grant leave. 5. That (sic) his Honour erred in the exercise of his discretion in refusing to grant leave by reason of delay without finding that such delay caused or contributed to any prejudice or was likely to affect a fair trial. 6. That (sic) his Honour erred in the exercise of his discretion in failing to properly apply the principles stated in Brisbane South Regional Authority v. Taylor 1996 186 CLR 541. 7. That is (sic) Honour erred in the exercise of his discretion in failing to grant leave, in view of his Honour's conclusions that he could not be persuaded that the granting of leave would lead to an unfair trial. 8. That (sic) his Honour erred in the exercise of his discretion in failing to find that the Appellant had discharged his onus of showing that the justice of the case required leave to be granted. 9. That Appellant (sic) had discharged the onus of showing that it was fair and just that leave should be granted." 54 In the Notice of Contention that was filed on her behalf, the Respondent sought to contend that Christie DCJ's decision should be affirmed on the following grounds: "2. That the appellant's notification of claim to the respondent over six years and one month after it was required pursuant to section 43 of the Motor Accidents Act, 1988 ('the Act') resulted in the Respondent suffering such prejudice that a fair trial could not be held. 3. That the commencement of proceedings on 19 April 1999, some five years and six months after proceedings were required to be commenced, pursuant to section 52(4) of the Act, resulted in the respondent suffering such prejudice that a fair trial could not be held. 4. That the evidence of the plaintiff suffering an injury to his left knee in 1988, with a subsequent aggravation in July 1990, established that the respondent would suffer such prejudice in defending the appellant's claim, which included an injury to the left knee, that a fair trial could not be held. 5. That the plaintiff's (sic) failure to lead any evidence that medical records were still available in respect of the plaintiff's injury to his left knee in 1988 and subsequent aggravation in July 1990 resulting in the appellant not satisfying the onus of proof that a fair trial could be held." 55 Despite the number of grounds of appeal taken on behalf of the Appellant, the burden of the submissions - both written and oral - advanced on behalf of the Appellant in support of the appeal are sufficiently indicated by the following passages in the Written Submissions: "6. His Honour the trial Judge misapplied the test in Taylor's case in a number of essential respects:- (a) His Honour did not see these two medical issues (strained cartilage two years prior to accident and left knee giving way aggravating pre-existing right foot injuries) as matters which actually prejudiced the Respondent; he saw them merely as 'demonstrative of the prejudice that is inherent in a six or seven year delay' page 23 line 40 and page 28 line 25 of Transcript; pages 23 and 28 of Combined Appeal Book respectively. Indeed, it is plain that His Honour treated this case as one of presumptive rather than actual prejudice; see pages 22, line 45, page 23, line 10 and page 23, line 40; at pages 22 and 23 of Combined Appeal Book respectively. See also page 10 of the judgment, the passage beginning '… I just fee (sic) in the light of all the delay … from this litigation …'. His Honour in effect is saying that one can assume prejudice merely having regard to the delay. This is an incorrect application of the principles in Brisbane South Regional Health Authority v. Taylor 1996 106 (sic) CLR 541; see George v. Estate Bailey & Ors. 1988 Aust. Torts Reports 81-455 at 64(sic), 647-9; Holt v. Wynter NSW Court of Appeal unreported 26 June 2000; the Judgment of Sheller JA 1 December 1996 (sic); CA 40371/97. (b) He first determined whether the extension should be granted and went on to the question of prejudice (page 8 of the Judgment; page 159 of Amended Red Appeal Book); this is reversing the test. The correct approach is that if no significant prejudice is shown, then the extension should be granted; George's Case (supra); Holt's case also Kinnas v. Petricca NSW Court of Appeal, unreported, 16 November, 1998; (c) His Honour refused to extend the limitation period because of delay - in effect to punish the Claimant; as he says at page 10 of Judgment (page 161 of Amended Red Appeal Book) '… Enough is enough'. The discretion should not be exercised in this way; Szerdahely v. The Estate of Bailey unreported 1 May; referred to in George's Case (supra) at page 64, 649. 7. The principles relevant to the present case are as follows: (a) a Defendant is not entitled to rely on presumptive prejudice i.e. merely that based on delay; (b) in order to justify the refusal to exercise the discretion to extend the time, it must be shown that actual injustice is likely to be caused to the Defendant by the granting of leave; (c) in relation to onus, it is for the respondent to place evidence of facts showing prejudice, and then for the appellant to show that those facts do not constitute material prejudice; Holt's case (supra);judgment of Sheller JA; (d) even if actual prejudice is shown, that does not automatically lead to the discretion being exercised against the plaintiff; Sydney City Council v. Zegarac 43 NSWLR 195 at 199, 200; see also George's case (supra) at pages 64, 647-9." 56 Given these submissions, it is necessary to consider with some care the authorities to which reference has been made in them. This is because the language of the statutory provisions considered in those authorities varies. 57 In Brisbane South Regional Health Authority v. Taylor (1996) 186 CLR 541 the court was concerned to deal with an application which had been made pursuant to the provisions of s.31 of the Limitation of Actions Act 1974 (Q) (see also s.58 of the Limitation Act 1969 (NSW)). So far as is relevant that section was as follows: "(1) This section applies to actions for damages for negligence or breach of duty … where the damages claimed by the plaintiff … consist of or include damages in respect of personal injury to any person … (2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court - (a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for that action; and (b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation; the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly."

[39]

58 In her application to the District Court, Ms. Taylor had sought an extension of time in which to commence proceedings against the Authority - which operated the Princess Alexandria Hospital in Brisbane - in respect of what she said was negligent advice and treatment given to her in 1979 by a gynaecologist at the hospital. Although the hospital records, to which Ms. Taylor obtained access in early 1994, contained a note, apparently in the handwriting of the gynaecologist, relating to what was said to be a discussion with Ms. Taylor, evidence filed on behalf of the Authority indicated that the gynaecologist then lived in Hong Kong but that the solicitor for the Authority had been unable to contact him. Assuming that Ms. Taylor had satisfied the provisions of s.31 of the Act, the trial Judge held that there was still a general discretion vested in the Court to make an order, or not, as the justice of the case required. In determining that the order should not be made, the trial Judge said, inter alia: "Nevertheless, I think the respondent is placed in the position of serious prejudice having regard to the lapse of time which has occurred. It is not certain that the respondent will be able to locate Dr. Chang and even if it can it would seem unlikely that Dr. Chang would have any recollection of the conversation which the applicant alleges. The circumstances of this case are quite unlike those of ( Kosky v. The Trustees of Sisters of Charity [1982] VR 961, 968 (a decision of Tadgell J (as he then was))) and in my opinion are such that the lapse of time between the allegedly negligent conduct and the action, if it were to be commenced now, would render a fair trial of the issues highly improbable." 59 An appeal against the decision of the trial Judge having been upheld by the Court of Appeal, the Authority appealed to the High Court. 60 Of the majority in the High Court (Dawson, Toohey, McHugh and Gummow JJ) who upheld the appeal, Dawson J said supra at 544: "I agree with McHugh J for the reasons which he gives that section 31 of the Limitation of Actions Act 1974(Q) does not confer upon an applicant for an extension of time a presumptive right to an order once the two conditions laid down by sub-s.(2)(a) are satisfied. The section confers a discretion upon a court to extend time and that discretion should only be exercised in favour of an applicant where in all the circumstances, justice is best served by so doing. The onus of satisfying the court that the discretion should be exercised in favour of an applicant lies on the applicant. To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant. I agree with McHugh J that, once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation. For the reasons given by McHugh J, the Queensland Court of Appeal was in error." 61 In his Judgment, McHugh J said supra at 553-554: "In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating the provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s.31 is 'to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced'. But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case require the extension."

[41]

62 The joint Judgment of Toohey and Gummow JJ - which is clearly the source of the present Appellant's submission that, on the hearing before Christie DCJ, the present respondent bore an evidentiary onus of demonstrating actual prejudice - might be thought to reveal a differing approach from that adopted by Dawson and McHugh JJ. In their Judgment their Honours said supra at 547-8 "The discretion conferred by the sub-section is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the Court that grounds exist for exercising the discretion in his favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the Court that time should be extended remains on the applicant. Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v. State Electricity Commission (Vict) in a passage which was endorsed by Gibbs J in Campbell v. United Pacific Transport Pty. Ltd: 'It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.' In the District Court Judge McLauchlan outlined the facts as they emerge from the material before him. He then referred to the judgment of Tadgell in Kosky v. Trustees of Sisters of Charity which concern an application for extension of time under the Limitation of Actions Act 1958 (Vic). Tadgell J referred to the discretion under the Victorian Act and continued: 'There are no doubt some cases in which a lapse of 14 years from the time of allegedly negligent conduct until the commencement of an action in respect of it would itself render a fair trial of the issues impossible or so unlikely that a trial ought not to countenanced. In such a case it would presumably be right to refuse to make an order … even if the applicant were otherwise entitled to ask for one.'"

[45]

a view which, as Gowans J noted, was later adopted by the Full Court (Herring CJ, Lowe and Dean JJ) in Black v. City of South Melbourne [1963] VR 34, 36 . In the circumstances, as it seems to me, the passage from Gowans J's Judgment cannot be regarded as having laid down a general rule applicable to all applications to extend limitation periods or for leave to commence proceedings which would otherwise be barred, but is to be regarded as no more than a statement as to the proper construction of a particular statutory provision and as to the manner of application of that construction to applications brought pursuant to it. 64 The decision of the High Court in Brisbane South Regional Authority v. Taylor supra and its relationship to the decision of this Court in Salido v. Nominal Defendant (1993) 32 NSWLR 524 - which concerned an application pursuant to the provisions of s.52(4) of the Act as it stood in July 1993 - was considered by Cole JA with whose Judgment Beazley and Stein JJA concurred, in Henricks v. Agnew supra. Henricks v. Agnew involved an appeal heard in September 1997 - that is, after the coming into operation, of the provisions of the Motor Accident Amendment Act 1997 - against an order made by Phegan A-DCJ (as he then was) pursuant to the provisions of s.52 of the Act as amended by the Motor Accidents Amendment Act 1995, the relevant motor accident having occurred in June 1990; the Respondent having sought, and received, appropriate workers compensation payments over the course of the following five years until October 1995 when he sought and received advice as to his entitlement to claim damages pursuant to the provisions of the Act; no claim having been lodged until May 1996, the Respondent's explanation for late lodging of the claim having been rejected by the Appellant's third party insurer in May 1996; and the proceedings which the Respondent had commenced, without leave, in August 1996 had been dismissed in November 1996 pursuant to a Notice of Motion which had been filed on behalf of the Appellant. 65 In the course of his Judgment, Cole JA, after referring to the amendments to the Act made by the 1995 and 1997 amending Acts, which amendments I have set out above, said supra at 283-286: "There was thus no statutory requirement that this claimant was seeking leave to commence proceedings in respect of the claim more than 3 years after the date upon which the claim was required to be made in accordance with section 43 provide a full and satisfactory explanation to the Court for the delay, presumably in commencing the proceedings. In Salido v. Nominal Defendant (NSW) , which addressed a statutory regime incorporating section 52(3) requiring the provision of a satisfactory explanation for delay, the Chief Justice made clear that the ultimate test of whether leave to commence proceedings beyond time should be granted, was wether it was 'fair and just' to do so. The circumstances in which leave might be granted need not be extraordinary or special. If the applicant, carrying the onus, satisfied the Court that 'it is fair and just that in his or her case there should be a dispensation from a general rule established by the statute' leave would be granted. Various factors which might guide the Court in reaching a decision whether the onus of establishing that it was fair and just for leave to be granted had been satisfied were indicated. In Brisbane South Regional Health Authority v. Taylor Toomey and Gummow JJ enunciated a not dissimilar test."

[47]

Then, after referring (inter alia) to the passage from the Judgment of McHugh J which I have set out above (para. 59 (supra)), his Honour continued: "DID THE DISCRETION MISCARRY? No doubt because the parties before him addressed the issue of whether there had been a full and satisfactory explanation of delay, because there was not then an appreciation that the statutory requirement in that respect previously operative in relation to this accident had been repealed, the trial Judge gave some emphasis to the finding of absence of explanation of that delay. Section 17(7) (sic) makes clear that this applicant did not have a to provide a full and satisfactory explanation to the court for the delay in commencing proceedings. Nonetheless, the applicant bore the onus of establishing that it was fair and just that a discretion be exercised in his favour to extend the time for bringing an action having regard to the background reasons for limitation periods as noted by McHugh J, the ultimate test being whether the applicant satisfied the Court that, notwithstanding the delay, and its effects, a just and fair trial could still be held. I do not think that the trial judge approached the question in that way. He approached it by considering as is (sic) 'overriding concern … the extent to which an injustice might be done to a plaintiff in circumstances of this kind, if too much importance is attached to the defendant's prejudice'. In stating that 'I am not persuaded that the prejudice to the defendant is of a sufficiently substantial kind to justify refusing to grant leave for the matter to proceed', his Honour misstated the test and misapplied the onus. The 'blamelessness' which the trial Judge emphasised as attaching to the plaintiff, if it be a relevant consideration at all (which I doubt), was given inappropriate weight in considering the true issue of whether a fair and just trial could now be held. Similarly whether the workers compensation or motor accident insurers, or the plaintiff's solicitors, had been inattentive or unco-operative do not address the true question of whether a fair trial can now be held. For these reasons in my view the trial Judge's discretion miscarried."

[48]

In the event, the Court, exercising the discretion afresh, upheld the appeal, set aside the orders of Phegan A-DCJ and ordered that the Notice of Motion which had been filed in the District Court should be dismissed with costs. 66 The relationship between the Judgment of the High Court in Brisbane South Regional Health Authority v. Taylor and the Judgment of this Court in Salido v. Nominal Defendant was considered again, on this occasion by a five Judge Court in Holt v. Wynter (2000) 49 NSWLR 128. In the course of his reasons, Priestley JA, when dealing with Salido v. The Nominal Defendant, wrote (inter alia) supra at 135-136: "Despite the differences of expression by the three judges, I think there can be derived from the lists of Gleeson CJ and Kirby P five propositions in common. In setting these out I will indicate after each proposition its number in the lists of the two judges, using their initials to identify them. The propositions are: 1. Section 52(4) confers a discretion which is to be exercised for the purposes of the Act; these purposes include forensic diligence; a corollary of the forensic diligent purpose is what Gleeson CJ called protection of defendants against the injustice of stale claims (G1, K2, K6). 2. The eventual question to be decided in the light of the purpose of the Act, is whether it is fair and just to grant leave (G2, K8). 3. The onus is on the applicant to show that it is fair and just to grant leave (G2, K4). 4. In considering whether the applicant has shown that it is fair and just to grant leave it is material for the Court to take into account the delay and the applicant's explanation for it (G1, G3, K7 and K8). 5. In considering whether it is fair and just to grant leave, the disadvantage to the defendant which would result from the granting of leave is a material but not a conclusive consideration (G4, K5, K7 and K8). The two matters which Powell JA thought were the material questions for determination are, in the order in which he stated them, contained in propositions 4 and 2 above."

[51]

said supra at 146-147 : "I do not believe that their Honours intended to suggest that even if the respondent was placed in a position of serious prejudice it remained open to the Court to extend the time. Salido v. Nominal Defendant (1993) 32 NSWLR 524 was quite different factually. At first instance leave was refused because the applicant had not demonstrated he was entitled to it: see at 530. No mention was made of prima facie prejudice. That may have been implicit. In the lists of guidelines to which Priestley JA has referred, Gleeson CJ (at 532) having identified the immediate purpose of the legislation as being to protect defendants against the injustice of stale claims and the additional purpose to promote forensic diligence, said (at 534): '2. Bearing in mind those statutory purposes, the question is whether, in the circumstances of each individual case, the applicant for leave has demonstrated that it is fair and just that leave should be granted.' This may be more broadly stated than the 'real question' which Toohey J and Gummow J described. But bearing in mind the immediate purpose to which the Chief Justice referred, I do not think an applicant would demonstrate that it was fair and just that leave should be granted if to do so would result in significant prejudice to the potential defendant. Rather, these tests are directed to a broader context such as the situation where there has been long and unexplained delay which has not resulted in significance prejudice to the potential defendant. It may be that in the absence of significant prejudice to a potential defendant, in the words of Toohey J and Gummow J which I have quoted, there is no reason why the discretion should not be exercised in favour of the applicant. In Salido , Kirby P (at 538-539) said that it was relevant, in considering whether or not to grant leave, to take into account any proved, apparent or inferred prejudice to the putative defendant. As his Honour's dissent in Brisbane South Regional Health Authority bears out (at 564 and following), Kirby P's judgment in Salido is not consistent with the view of the majority of the High Court as to the decisiveness of significant prejudice to the potential defendant. ……… In my opinion, the effect of the decision of the High Court in Brisbane South Regional Health Authority is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant."

[52]

68 Despite the stress which Mr. Strasser, both in his written and oral submissions, sought to place upon the Judgment of Sheller JA in Holt v. Wynter, I do not read his Honour's Judgment as establishing that upon an application pursuant to the provisions of s.54 of the Act leave to commence proceedings must be granted unless it appears that the granting of such leave would cause substantial prejudice to the proposed defendant, and still less, that the onus of establishing such substantial prejudice lies upon the proposed defendant. Rather, it seems to me that his Honour's Judgment establishes no more than that, in a case in which it appears that the proposed defendant was placed in a position of significant prejudice, it is not open to the Court to extend the time to commence proceedings. 69 Whether it is possible fully to reconcile the seemingly divergent approaches reflected on the one hand in the Judgments of Dawson J and McHugh J and, on the other in the joint Judgment of Toohey and Gummow JJ, in Brisbane South Regional Health Authority v. Taylor, one thing remains clear and that is that all of the four judges in the majority in that case were of the view that, in a case such as this, the relevant discretion is a discretion to grant, and not a discretion to refuse, and that an applicant must satisfy the Court that grounds exist for the exercise of the discretion in his or her favour, the ultimate onus of satisfying the Court that time should be extended remaining on the applicant throughout. 70 Although the language of Christie DCJ's Judgment is somewhat infelicitous, it is clear, first, that his Honour was aware of the views expressed by the majority of the High Court in Brisbane South Regional Authority v. Taylor; second, that his Honour appreciated that the onus of establishing some ground or grounds upon which the exercise of the Court's discretion to extend time might properly be founded lay upon the Appellant; third, that, if time were extended, the Respondent would not be subjected to any prejudice in so far as the question of liability was concerned; fourth, that if time were extended, it was at least likely that the Respondent would be subjected to prejudice insofar as the issue of damages were concerned; fifth, that, in any event, if time were extended the Respondent would be subjected to potential liability in respect of a claim which had long since become stale; and, finally, that in all the circumstances, he was not satisfied that the onus which lay upon the Appellant of establishing that it was property that time be extended had not be discharged. 71 Although Christie DCJ did not, in his Judgment, refer to the fact, it is pertinent to point out that, as the legislative history which I have earlier recorded demonstrates, in the years which had passed between the time when the claim ought properly to have been delivered and proceedings ought properly to have been commenced and the time of the hearing of the Notice of Motion which was filed in May 1989, the Respondent had been progressively deprived of the benefit of various protective provisions of the Act such as ss. 43(3), 52(3), 43A(1), 52(3),(4), 43A(2),(4),(7) and s.52(4), (4A), (4B). 72 I am not persuaded that Christie DCJ erred in the exercise of his discretion and, that being so, I would propose that the Appeal be dismissed with costs.

[54]

Clause 17(7) of Part 7 of Schedule 4 to the Act provided, in relation to a person in the claimant's position, that a full and satisfactory explanation to the court for the delay in commencing proceedings did not have to be provided. 75 Statutory provisions establishing a limitation period must be construed having regard to their own terms. The relevant legislation did not require a full and satisfactory explanation of the delay. Nor did it require that a material fact of a decisive character relating to the right of action not be within the means of knowledge of the applicant until after the expiration of the period of limitation. Under this legislation, it would not be appropriate to adopt the words of Toohey and Gummow JJ in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, where their Honours said, at p 550:- "The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent." 76 Under the subject legislation, a broad discretion was conferred. Relevant factors included the broad range of factors to which McHugh J referred in Brisbane South Regional Health Authority v Taylor, at pp 551-556 and, more recently, in Re Commonwealth of Australia; Ex Parte Marks (2000) 75 ALJR 470. The factors included the statutory policy. In this regard, McHugh J said in Brisbane South Regional Health Authority v Taylor, at pp 553-554:- "A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. … The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question."

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