Bartlett v Bartlett

Federal Court of Australia|1998-11-06|Before: Gallop J, Higgins J, Wilcox J, As Wilcox J, Studdert J, Kenny JJ

The application of s55 36 It is common ground between the parties to the present application that the three year limitation period prescribed by s52(4) of the New South Wales Act applies to Ms Bartlett's claim. However, counsel for Mr Bartlett, Mr R L Crowe, goes further. He says s52(1A) also applies to the claim: no proceeding may be commenced until after the expiration of six months after notice of the claim is given under s43. He contends that a proceeding commenced before the expiration of that six months period is premature and liable to be struck out. In that connection, Mr Crowe cites a decision of Studdert J of the Supreme Court of New South Wales: Budge v Kimmorley (1991) 14 MVR 245. In that case the date of the alleged accident was 17 July 1989. A notice of claim was given to the insurer on 16 February 1990 but the notice was deficient in that it lacked any medical certificate or certificate of earnings. These deficiencies were not finally rectified until 7 June 1991. Before that date, the plaintiff filed a Statement of Claim instituting the proceeding. Studdert J held it was premature for him to have done so. At 249-250 his Honour said: "Section 52 postpones any right to sue until after the expiration of a period of 6 months, subject to subs (2). The right asserted by the plaintiff was not immediately available when the statement of claim issued, and the date of the issue of the statement of claim is the relevant date for the purposes of s52(1) … The conclusion is inescapable that the scheme of Pt 5 requires the giving of notice of the claim before a statement of claim can issue. Under s52(2) once a notice of claim has been given a claimant need not wait for the period of 6 months contemplated by s52(1) if the insurer denies liability in respect of the claim or if it only admits partial liability: s52(2)." 37 Counsel for Ms Bartlett, Mr Bryan Meagher, does not suggest that Budge v Kimmorley was incorrectly decided, but he argues it is irrelevant to the critical question in this case concerning s52: whether s52(1A) is a "limitation law" within the meaning of the Australian Capital Territory Limitation Act. He argues the definition in s55 should be read as referring only to the barring of a right of action because of the effluxion of time after a particular event; this is the usual and well-understood meaning of the term "limitation", as exemplified by the Australian Capital Territory Act itself. Mr Meagher calls in aid a decision of Gallop J in the Australian Capital Territory Supreme Court, Byrne v Australian Associated Motor Insurers Limited (6 November 1998, not reported). That was an application for extension of time to commence a proceeding in relation to a motor accident that had occurred near Albury, in New South Wales. No notice of claim had been given and it was argued that s52(1) barred the action until it was given. Counsel for the defendant argued s52(1) was a "limitation law" within the meaning of s55 of the Limitation Act but Gallop J rejected that submission. He said at para 11: "In my opinion, s 52(1) of the Motor Accidents Act 1988 is not a law that provides for the limitation or exclusion of any liability in the barring of a right of action by reference to the time when a proceeding on the claim is commenced. The relevant limitation law of New South Wales is s52(4) of that Act which provides that proceedings are to be brought within three years after the date on which the claim must be made in accordance with s43 of that Act. The failure of the plaintiff to give notice pursuant to s52(1) does not bar the plaintiff's action. But he still needs an extension of time pursuant to s52(4)." Although the question is not easy to resolve, I think the better view is that s52(1A) of the current New South Wales Act is a "limitation law" within the meaning of s55 of the Australian Capital Territory Act. It is true, as Mr Meagher points out, that it does not follow the traditional form of barring an action by reference to the time that has elapsed since the cause of action arose; so, if the term were not defined, it would not be considered to be a limitation law. But the term is defined and, it seems to me, s52(1A) falls within that definition. The section bars a right of action (although possibly only temporarily) in respect of a claim (as defined) by reference to the time when a proceeding on the claim is commenced (that is, before the expiration of six months after the making of a s43 claim). 38 I see no policy reason for reading down the words of the definition so as to exclude a "not before" limitation. Sections 55 to 57 of the Australian Capital Territory Act, like their counterparts in other States and Territories, were enacted to prevent people avoiding time limitations imposed by the law of the place where the right of action arose by suing in another jurisdiction. That purpose is as relevant to a "not before" limitation, enacted to maximise the possibility of extra-curial settlement of claims, as it is to a "not after" provision, enacted to minimise litigation of old claims. 39 I agree with the statement of Gallop J in Byrne that s52(4) of the New South Wales Act is a "limitation law". However, with respect, I do not think it follows that s52(1)(or s52(1A), as the case may be) cannot also be a "limitation law". I see no reason to exclude the possibility that there may be two laws within a particular jurisdiction that fall within the s55 definition of "limitation law". It seems this possibility was not advanced in argument in Byrne. 40 It follows that an extension of time ought not have been granted in May 1999, if only because the institution of the action at that time would have involved a contravention of s52(1A) of the New South Wales Act.

The primary judge's exercise of discretion 41 If the effect of s52(1A) was the only problem about the primary judge's decision, any success in the appeal achieved by the appellant might prove transitory. Ms Bartlett could give a proper notice under s43 and, after the expiration of six months or an earlier relevant event, make a fresh application for extension of time. That application would have to be evaluated in the light of the circumstances then ensuing, but those circumstances would include the fact that the insurer had been on notice of the claim since June 1998. The subsequent application would probably raise issues like those addressed by Mr Crowe in his alternative submission. Accordingly, notwithstanding my view about the first point, it seems desirable for me to deal with those issues. 42 Mr Crowe recognises that the decision of Higgins J was a discretionary decision; so it is necessary for him to demonstrate an error of the kind described by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505. Their Honours said: "It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so." In the present case, Mr Crowe argues, the primary judge did err in exercising the discretion; he wrongly rejected material evidence. 43 Mr Blank made an affidavit in support of the application for extension of time. He was required to attend for cross-examination before Higgins J and Mr Crowe asked him about references in his affidavit to his investigation of Ms Bartlett's claim. Mr Blank agreed he was aware the claim included an allegation of loss of earning capacity. Mr Crowe then asked Mr Blank whether he obtained from Ms Bartlett "copies of all of her tax returns for the years leading up to and since the time of the accident". Higgins J inquired whether this was relevant. Mr Crowe said it was; the question whether copies of tax returns were available was relevant to the question whether the defendant would be prejudiced, if the extension of time was granted. However, Higgins J was not persuaded; he rejected the question. He also said, when asked by Mr Crowe, that he took the same view about medical records. In particular, he rejected the submission that it was relevant to the issue of extension of time for questions to be asked as to the existence of pre-accident medical records. 44 I respectfully think Higgins J was wrong to reject evidence about these matters. Section 36(3)(b) of the Limitation Act requires a court, in considering whether or not to grant an extension of time, to have regard to "the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant". Whether prejudice has been caused by delay is a matter likely to be affected by the availability or non-availability of relevant records. Ms Bartlett claimed she had suffered health problems as a result of a whiplash injury sustained in the accident of 9 January 1992. In considering that claim, it would be material to know something about her prior state of health; in particular whether she had previously suffered any neck or spinal problems. If prior medical records were lost, during the period of delay, the effect was to prejudice the defendant's ability to test, and possibly rebut, Ms Bartlett's apparent claim that her problems all stemmed from the accident. Furthermore, records of her post-accident medical history and course of treatment were relevant in relation to both the causation and extent of her present disabilities. 45 Similarly, it seems to me, it was relevant to know whether taxation records were available. Ms Bartlett made a claim for loss of earning capacity, albeit a small one. So her working history was material. In cases where a claim of economic loss is made, it is commonplace for defendants to inspect copies of income tax returns. Sometimes the returns contain information that enables the defendant to rebut or reduce the claim. If copies of taxation returns have been lost or destroyed during a period of delay in bringing the action, this may adversely affect defence of the claim. 46 If it had turned out these records were unavailable, that fact would not necessarily have required Higgins J to refuse the application for extension of time. Although this would have been an important factor, it would have been only one of several matters requiring consideration. But it seems to me the availability or otherwise of the records was a most material matter; it was an error of law for his Honour to reject questions about it. This is one of the exceptional cases, listed in House v The King, in which an appellate court is entitled to substitute its own discretion for that of the primary judge.

The proper exercise of discretion 47 In my opinion, the Court's discretion ought to be exercised in favour of the appellant, the defendant below. This follows from my view about the application of s52(4) of the Motor Accidents Act. But I would take that view in any event. 48 Paragraph (a) of s36(3) of the Limitation Act requires the court to have regard to "the length of and reasons for the delay on the part of the plaintiff". The delay in this case was extensive. There was a delay of some six and a half years between the date of the accident and the first notification of the claim to the relevant insurer. This compares with the period of six months required under the New South Wales legislation, which governs claims in respect of accidents occurring in that State. Even a "late claim" is required to be made within 12 months, and then with a "full and satisfactory explanation" for the delay. 49 There was not only excessive delay relative to the period within which notices of claims are required to be given; the delay was excessive in relation to the date of commencement of the action. No proceeding was commenced until the Notice of Motion was filed in December 1998, almost seven years after the date of the accident. This was well outside the three year period stipulated by s52(4) of the Motor Accidents Act and even outside the normal six year limitation prescribed by s11 of the Limitation Act. The delay can only be described as gross, and not satisfactorily explained. 50 In considering delay, it is relevant also to note para (e) of s36(3): "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 of damages". There is no evidence as to whether Ms Bartlett had any such knowledge until August 1995, but she certainly did have after 28 August 1995. Yet she seems to have left the matter entirely in the hands of her solicitors, without any instructions for more decisive action, for almost another three years. A similar comment may be made in relation to para (f), which directs attention to any steps taken by the plaintiff to obtain expert (including legal) advice. 51 Little need be said about the other matters itemised in s36(3). There seems to be no conduct of the defendant falling within (c). Not much is known about the plaintiff's disabilities, save that they are apparently continuing: see para (d). This factor cuts both ways. On the one hand, it excites sympathy and the wish not to allow the plaintiff to go uncompensated, if she has a good cause of action. On the other hand, it underlines her failure to safeguard her own interests. 52 In the present case, the Supreme Court did not exercise a discretion conferred under New South Wales law. The source of its power to extend time was s36(2) of the Limitation Act. Therefore, s57 of the Limitation Act did not directly apply. However, the Court's discretion had to be exercised in relation to the period of three years fixed by the New South Wales Act, a period that was extendable, by a New South Wales court, under that Act. Under those circumstances, it was relevant for the Supreme Court to take into account the principles applied by New South Wales courts in relation to an extension of the three year period. Harmony in approach to the exercise of the discretion to extend time is more than a matter of comity; it is a necessary safeguard against forum shopping. 53 The proper approach to be taken to applications to extend time under s52(4) of the Motor Accidents Act was discussed in the New South Wales Court of Appeal by Cole JA (with whom Beazley and Stein JJA agreed) in Henricks v Agnew (1997) MVR 277 at 283-285. His Honour commenced by noting the Court of Appeal decision in Salido v Nominal Defendant (1993) 32 NSWLR 524, made in respect of the form of s52(4) originally enacted in 1988. In Salido Gleeson CJ at 532 enunciated some guidelines. They included: "1. Section 52(4) confers a discretion which is to be exercised judicially, in a manner that furthers the purposes of the statutory context in which it appears. The immediate purpose, as with any limitation period, is to protect defendants against the injustice of stale claims; the statute is also aimed at promoting forensic diligence. 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. 3. The diligence, or lack of diligence, shown by a plaintiff or a plaintiff's representatives, in ascertaining and asserting his or her rights will ordinarily be a material factor, as will the extent of the relevant delay, and the reason for it. 4. The nature and extent of any forensic disadvantage to a defendant resulting from a plaintiff's delay will also be material. The effect, if any, of the delay upon the defendant's ability to defend an action is a matter to be taken into account, and may in some cases be of decisive importance." Kirby P also propounded some guidelines, similar in principle although differently expressed. 54 In Henricks Cole JA went on to refer to statements made in the High Court, in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; in particular the following extracts from the judgment of Toohey and Gummow JJ at 547-550: "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 or her 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)[1964] VR 788 at 793 in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd [1966] Qd R 465 at 474: '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.' … Once an applicant satisfies pars (a) and (b), the Court has a discretion to extend the time for the bringing of an action. A material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is possible. Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application. It is no sufficient answer to a claim of prejudice to say that, in any event, the defendant might have suffered some prejudice if the applicant had not begun proceedings until just before the limitation period had expired. … … we have difficulty with the notion of weighing prejudice to an applicant against prejudice to the respondent. In one obvious sense the prejudice to the present respondent is absolute if her application is refused. She can never litigate her claim. But that cannot be enough of itself to warrant an extension of time; in truth there would be no discretion to be exercised. For that reason we do not accept the respondent's argument that the District Court fell into error in failing to balance the prejudice to the appellant against the prejudice against the respondent. It may be appropriate to temper that approach and to say that because the respondent has satisfied par (b) of sub-s (2), there is therefore evidence to establish her right of action. Even then, a weighing process is not called for. The real question is whether the delay has made the chances of a fair trial unlikely." 55 Cole JA applied the approach taken in Brisbane South Regional Health Authority to s52(4) of the Motor Accidents Act Motor Accidents Act. He found there was a seven months unexplained delay between the date the plaintiff consulted a solicitor and the date of his notice of claim. "Liability not being in issue", Cole JA said at 286, "the issue which would arise is the extent to which the injuries and disabilities from which the respondent plainly suffers are attributable to the motor accident, or to the work injury". He agreed with the primary judge that there was prejudice to the defendant in having no opportunity to examine the plaintiff "in a case where confusion with regard to the real cause of the ongoing condition of the plaintiff is likely to have been further clouded by time". Although some medical reports were available, Cole JA thought the plaintiff had not discharged the onus of establishing it is likely there could now be a fair trial. 56 Unlike the situation in Henricks, there is no suggestion that Ms Bartlett suffered two accidents. However, there are questions as to Ms Bartlett's pre-accident condition and the course of her post-accident disability. She will be able to give evidence about those matters, but there may be little material available to the defendant to check the accuracy of her evidence. Furthermore, there may not be any documents concerning her earnings. The delay in this case is very considerable. There is a real prospect that it would prejudice the defendant's conduct of the action, if the action were allowed to proceed. 57 I do not think it is possible to say the defendant would certainly suffer prejudice in the conduct of the action; so much depends on the number and quality of the medical examinations that Ms Bartlett has undergone over the years. However, there is at least a significant possibility of prejudice. This points up Gleeson CJ's comment about protecting defendants from the injustice of stale claims and promoting forensic diligence. His Honour said, in guideline 2, "the question is whether … the applicant for leave has demonstrated that it is fair and just that leave should be granted". That test is not dissimilar from the one posed by Toohey and Gummow JJ in Brisbane South Regional Health Authority: whether the applicant has satisfied the court "that grounds exist for exercising the discretion in his or her favour". Having regard to the gross delay, both in notifying the claim and instituting legal action, and the real possibility of prejudice, I am not able to hold that either of these tests has been met.

Disposition 58 I would grant leave to appeal, allow the appeal and set aside the order of Higgins J extending time. In lieu of that order, I would order that the Notice of Motion dated 22 December 1998 be dismissed with costs. The respondent, Joan Bartlett, should pay the costs of the application for leave to appeal. I certify that the preceding paragraphs numbered ten to fiftyeight (10-58) are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 39 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

REASONS FOR JUDGMENT 59 KENNY J: I have had the advantage of reading in draft the reasons for judgment prepared by Wilcox J. I agree in them and in the disposition that his Honour proposes. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Counsel for the Applicant: Mr R L Crowe Solicitor for the Applicant: Hunt & Hunt Counsel for the Respondent: Mr B A Meagher Solicitor for the Respondent: Ken Cush & Associates Date of Hearing: 12 November 1999 Date of Judgment: 18 February 2000

Transport Accidents Compensation Act 1987(NSW)

REASONS FOR JUDGMENT 1 GALLOP J: I have read the judgment of Wilcox J in draft form. I am grateful to his Honour for his exposition of the facts, the relevant legislation and the relevant histories of that legislation. I agree with his Honour's reasons and the conclusion reached that leave to appeal should be granted, the appeal allowed and the decision of Higgins J extending time be set aside. 2 Because I took a different view about the operation of s 52 of the Motor Accidents Act 1988 (NSW) in Byrne v Australian Associated Motor Insurers Ltd (unreported, Supreme Court of the Australian Capital Territory, 6 November 1998), it is necessary that I say something about the submissions by the parties in this matter. 3 As Wilcox J has pointed out, the critical question in this case is whether s 52(1A) is a "limitation law" within the meaning of ss 55, 56 and 57 of the Limitation Act 1985 (ACT). I held in Byrne (supra) that s 52(1) of the Motor Accidents Act 1988 (NSW) is not a law that provides for the limitation or exclusion of any liability in the barring of a right of action by reference to the time when a proceeding on the claim is commenced. I said that the relevant limitation law of New South Wales is s 52(4) of that Act which prescribed a three year time limit after the date on which the claim had to be made pursuant to s 43 of that Act. 4 I now agree that the better view is that s 52(1) of the Motor Accidents Act as in force in relation to the plaintiff's claim is a "limitation law". I have come to that conclusion having considered the submissions of the parties in this case and with the benefit of Wilcox J's conclusions. Shortly put, a law which bars the institution of proceedings, if only temporarily, until the expiration of a period, in this case six months, after appropriate notice is given can properly be described as a limitation law. Such a law does bar the institution of proceedings by reference to the time when the proceeding on the claim is commenced. 5 I think that Studdert J in Budge v Kimmorley (1991) 14 MVR 245 properly analysed the scheme of the Motor Accidents Act 1988 as being to provide for proper opportunity for the relevant third party insurer to endeavour to resolve a claim by settlement prior to the institution of proceedings on the claim. Furthermore, the Act imposes the duty on the claimant to "cooperate fully in respect of the claim with the person against whom the claim is made and the person's insurer". 6 I also agree with Wilcox J, for the reasons propounded by his Honour, in his conclusion that Higgins J was wrong to disallow cross-examination of the claimant's solicitor in relation to the claimant's pre-accident income and health. 7 In regard to the question whether an application for an extension of time is interlocutory or final, it seems now to be clear law that any order made on such an application, whether allowing or disallowing the application, is interlocutory in nature (see the full discussion of the matter in Dousi v Colgate Parmolive Pty Ltd (1987) 9 NSWLR 374 per Kirby and Glass JJ at p 367 et seq and per Mahoney JA at p 381). Hence the applicant bears the onus of demonstrating error in the exercise of a discretion in accordance with the well-known authority of House v King (1936) 55 CLR 499. 8 Wilcox J has propounded the guidelines laid down by the New South Wales Court of Appeal in respect of applications to extend time and the observations of Toohey and Gummow JJ on the subject in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. In the same case, the observations of McHugh J are of substantial weight and compelling authority, at pp 551-554, "The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates" (R v Lawrence [1982] AC 510 at 517, per Lord Hailsham of St Marylebone LC). Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo (1972) 407 US 514 at 532, "what has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose. ... The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost (Jones v Bellgrove Properties Ltd [1949] 2 KB 700 at 704). Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed (RB Policies at Lloyd's v Butler [1950] 1 KB 76 at 81-82). Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them (New South Wales Law Reform Commission, Limitation of Actions for Personal Injury Claims (1986) LRC 50, p 3; Law Reform Commission of Western Australia, Limitation and Notice of Actions, discussion Paper (1992) Project No 36, Pt II, p 11). Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period (In Limitation of Actions for Latent Personal Injuries (1992) Report No 69, p 10, the Law Reform Commissioner of Tasmania said: "The need for certainty can be justified in many cases. For example, manufacturers need to be able to 'close their books' and calculate the potential liability of their business enterprise with some degree of certainty before embarking on future development. Under modern circumstances, an award of damages compensation may be so large as to jeopardise the financial viability of a business. The threat of open-ended liability from unforeseen claims may be an unreasonable burden on business. Limitation periods may allow for more accurate and certain assessment of potential liability."). ... 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 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 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" (Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 635). 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 requires that extension." 9 There was gross delay on the part of the claimant. It was demonstrated that on the hearing of the action there would be such prejudice to the defendant's conduct of the action if it were allowed to proceed that there would be a real risk that a fair trial would not be possible. I, too, would grant leave to appeal, allow the appeal and set aside the order extending time. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gallop. Associate: Dated: 18 February 2000

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