Bevilacqua v Giovanni Costa & Sons Pty Ltd [2017] VCC 1474

2 In July 2011, Mr Bevilacqua first sought advice from Arnold Thomas & Becker. Those solicitors failed to protect Mr Bevilacqua's common law rights within the six year limitation period.

3 In September 2016, Mr Bevilacqua was granted a serious injury certificate by the defendant's representatives for pain and suffering damages, and proceedings were issued in this Court on 16 February 2017. The defendant subsequently raised a limitation defence, on the basis the six-year limitation period had expired on 15 November 2012. Accordingly, Mr Bevilacqua now seeks an extension of time in which to issue common law proceedings pursuant to s23A(2) of the Limitation of Actions Act 1958 ("LAA"). It is for me to now determine whether, in all the circumstances of the case, it is just and reasonable to extend the limitation period.

4 Mr Bevilacqua is married and has one adult daughter. He left school at the age of 15 and is illiterate. After leaving school, Mr Bevilacqua worked on different farming properties, before commencing employment with the defendant in 1996, where he worked on one or other of the defendant's two orchards in Toolamba. Mr Bevilacqua said that his usual duties involved pruning fruit trees, but that he would occasionally be asked to work in the packing shed.

5 On 16 November 2006, Mr Bevilacqua suffered an injury to his right knee during the course of his employment with the defendant. Mr Bevilacqua claimed that he was required to move boxes of apricots from one conveyor to another, which caused him to twist and turn, and that, on one occasion, whilst lifting a full box of apricots, he felt a severe pain in his right knee. Mr Bevilacqua said that, at lunchtime on the day he suffered his injury, the shed manager, Mr Mark Battersby, had increased the speed of the grading machine, such that he was required to move the boxes at a much faster rate. Whilst there were no witnesses to this incident, Mr Bevilacqua said that Mr Harry Foster and Mrs Marlene Foster were both working in the packing shed at the time he suffered his injury. He also said that the defendant's former office worker, Ms Norma Thorne, was employed throughout this period, and that she would have known the system of work and the level of production in the packing room at the time.

6 Mr Bevilacqua said that his knee was swollen and painful in the following weeks, but that he continued to work. However, by 29 November 2006, Mr Bevilacqua said the pain was too great and he consulted his general practitioner, Dr Philip Lu, who subsequently referred him to orthopaedic surgeon, Mr Mulan Pavlovic.

7 On 6 December 2006, Mr Bevilacqua was assisted to complete and lodge a claim for compensation, which was subsequently accepted by the relevant WorkCover insurer. The form stated that, just prior to suffering his injury, Mr Bevilacqua had been pushing boxes along rollers, when he turned suddenly and twisted his right knee, causing him to feel a sharp pain.

8 On 19 January 2007, Mr Pavlovic performed an arthroscopy on Mr Bevilacqua's right knee.

9 On 20 March 2007, Mr Bevilacqua returned to work on light duties, before ultimately returning to his full-time duties on 23 May 2007. However, Mr Bevilacqua said that he continued to feel constant discomfort in his right knee, for which, at times, he took anti-inflammatory and painkilling medication.

10 On 19 May 2010, the defendant came under external administration, at which time Mr Bevilacqua's employment with the defendant ceased. Soon after, he obtained employment with Prima Fresh Orchards and Coolstores Pty Ltd, where he continues to work.

11 Unrelated to his right knee claim, Mr Bevilacqua also injured his lower back in May 2003, which he claims to have subsequently aggravated during the course of his employment with Prima Fresh Orchards.

12 In March 2011, Mr Bevilacqua was referred to orthopaedic surgeon, Mr Richard Horton, who recommended that he consider undergoing a total knee replacement.

13 Following this recommendation, Mr Bevilacqua considered that he should seek legal advice as to whether or not he was entitled to compensation in respect of his right knee injury. He then contacted solicitors, Arnold Thomas & Becker, as he understood them to specialise in personal injury claims.

14 On 27 July 2011, Mr Bevilacqua had a telephone conversation with solicitor, Lily Boskovski, at Arnold Thomas & Becker, regarding his right knee injury and his compensation entitlements.

15 The following day, Arnold Thomas & Becker wrote to Mr Bevilacqua regarding his possible legal entitlements, and included the following advice:

"The statute of limitations will expire on 16 November 2012; this means after that date you will be statute barred from pursuing any damages claim against your former employer, Giovanni Costa & Sons."

16 Mr Bevilacqua said that, upon receipt, his wife would have read the letter to him, but that he cannot recall the contents of the letter, or the specific advice in relation to the six year limitation period within which he was required to bring a common law claim.

17 On 16 September 2011, Mr Bevilacqua signed his conditional costs agreement with Arnold Thomas & Becker, together with some medical authorities. Thereafter, Arnold Thomas & Becker obtained a number of medical reports and medical records, including from Dr Lu, Mr Pavlovic and Mr Horton. Arnold Thomas & Becker also requested a copy of the QBE workers compensation insurance file in respect of Mr Bevilacqua's right knee injury.

18 On 16 November 2012, Mr Bevilacqua's limitation period expired. In the months and weeks leading up to this date, Arnold Thomas &Becker did not contact Mr Bevilacqua or make any attempt to seek instructions in relation to lodging either an impairment benefit claim, or a serious injury application.

19 In July 2013, Ms Boskovski left Arnold Thomas & Becker, at which time conduct of Mr Bevilacqua's claim was subsequently transferred to Mr Larry Dent, a partner of the firm.

20 Mr Dent said that he did not have the opportunity to review Mr Bevilacqua's file until 14 September 2013, and that, upon reading, he considered the file to be in a bad way. He was unable to locate any form of communication or letter to Mr Bevilacqua prior to November 2012, warning him of the imminent expiration of the limitation period.

21 Mr Dent said that he did not consider it necessary to advise Mr Bevilacqua of the expiration of the limitation period at that time, as he was unsure whether or not a common law claim would ever be brought.

22 On 13 December 2013, Mr Dent first contacted Mr Bevilacqua by telephone, before subsequently arranging to meet in person on 3 February 2014. At this time, Mr Dent advised Mr Bevilacqua of his possible common law entitlements in respect of his right knee and lower back injuries. At that time, Mr Dent said that he had considered it necessary to first obtain further medical evidence and material before proceeding with such a claim. However, he did advise Mr Bevilacqua in relation to his possible entitlement to an impairment benefit, as well as assisting him to deal with an issue relating to his medical and like expenses under the Accident Compensation Act 1985 ("the Act").

23 Mr Dent said that he had recommended that Mr Bevilacqua first proceed with a lump sum claim, on the basis that it would hopefully result in an entitlement to compensation, and a reimbursement of the costs associated with obtaining medical records and reports.

24 On 10 April 2014, Mr Bevilacqua lodged impairment benefit claims pursuant to s98C of the Act in respect of the following injuries:

(i) injury to his right knee sustained on 16 November 2006, and further injuries, namely injury to the left knee, gastrointestinal condition and psychiatric injury;

(ii) injury to his back sustained on 16 May 2003, and further injuries to the right buttock, right thigh, right calf, both testicles, gastrointestinal condition and psychiatric injury;

(iii) various injuries in the course of his employment between November 2005 and April 2006.

25 Arnold Thomas & Becker forwarded each of these lump sum claims directly to the Victorian WorkCover Authority ("VWA"), as Mr Dent was aware that the defendant's business had ceased operating.

26 On 10 December 2014, the authorised insurer accepted Mr Bevilacqua's impairment benefit claim in respect of his right knee injury, but rejected the injuries to the left knee, the gastrointestinal condition and the psychiatric injury. The insurer assessed Mr Bevilacqua as suffering a modified whole person impairment of 11 per cent and offered him $17,880.

27 At around the same time, the insurer also accepted Mr Bevilacqua's claim in respect of his back injury, but rejected the further injuries.

28 On 27 January 2015, Mr Dent telephoned Mr Bevilacqua to obtain instructions in relation to the insurer's decisions regarding his impairment benefit claims. At this stage, by virtue of the complexity of the matter, Mr Dent considered it appropriate to obtain the advice of counsel as to the possibility of a common law claim for damages in respect of Mr Bevilacqua's right knee and lower back injuries.

29 On 17 February 2015, Mr Dent conferred with counsel and obtained advice in relation to Mr Bevilacqua's impairment benefit claims, together with a recommendation that he pursue a serious injury application in respect of his right knee injury and possibly in respect of his lower back injury. Counsel further recommended that Mr Bevilacqua accept the liability decision of the insurer in respect of his right knee injury, as well as the impairment assessment.

30 On 24 February 2015, Mr Dent obtained instructions from Mr Bevilacqua to accept the impairment benefit sum in respect of his right knee injury and to proceed with a serious injury application for his right knee and lower back injuries.

31 On 23 March 2015, Arnold Thomas & Becker forwarded Mr Bevilacqua's acceptance of the impairment benefit claim in respect of his right knee injury to the insurer.

32 At about this time, Mr Bevilacqua was also advised to refer the impairment benefit in respect of his lower back injury to the Medical Panel. On 12 May 2015, the Medical Panel determined that Mr Bevilacqua suffered a zero per cent impairment in respect of his lower back injury.

33 Arrangements were then made for Mr Bevilacqua to be examined by medico-legal orthopaedic surgeon, Mr Paul Kierce, in August 2015. In addition, Arnold Thomas & Becker arranged for Mr Bevilacqua to confer with counsel on 24 September 2015, for the purpose of preparing documents in support of his serious injury application. Arnold Thomas & Becker subsequently received those documents on 7 October 2015.

34 Upon receipt of the documents, Mr Dent had some concerns as to the contents of the material, and the advice provided by counsel, so arranged for an additional conference on 8 December 2015. At that time, it was decided that Mr Bevilacqua should be advised to lodge a serious injury application in respect of loss of earning capacity, both in relation to his right knee injury and his lower back injury.

35 In February 2016, arrangements were made for Mr Bevilacqua to attend the offices of Arnold Thomas & Becker, to swear his affidavit together with other documents in support of his serious injury application. At that time, Mr Dent became aware that he did not have the complete set of taxation returns for Mr Bevilacqua, so made arrangements to obtain such records from the Australian Taxation Office.

36 On 16 May 2016, upon receipt of the further income taxation returns, Mr Dent arranged for Mr Bevilacqua's serious injury applications to be served on the VWA, both in respect of his right knee and lower back injuries.

37 On 13 September 2016, the defendant's solicitors, Messrs Wisewould Mahony Lawyers, advised Arnold Thomas & Becker that Mr Bevilacqua's serious injury applications had been rejected. The response material served with this correspondence included a proposed defence, which raised the limitation defence.

38 Following discussions between Wisewould Mahony Lawyers and Arnold Thomas & Becker, it was agreed that Mr Bevilacqua's claim in respect of his lower back injury would be discontinued, and that a serious injury certificate would be granted for pain and suffering damages only in respect of his right knee injury. A serious injury certificate to this effect was issued on 29 September 2016.

39 In November 2016, a statutory conference was held in this matter, after which Mr Dent said that he advised Mr Bevilacqua of the limitation defence.[1]

40 On 16 February 2017, Mr Bevilacqua's claim was issued in this Court. On 23 March 2017, the defendant then filed a Defence, which included the claim that Mr Bevilacqua's cause of action was barred by the provisions of the LAA.

41 Both Mr Bevilacqua and Mr Dent swore affidavits in support of Mr Bevilacqua's application for an extension of time, and were subsequently cross-examined at the hearing on 21 October 2017.

Mr Bevilacqua's evidence in support of his application

42 At the commencement of his evidence, Mr Bevilacqua was given a copy plan of the machine that was in the packing room at the time he suffered his injury. He accepted that it was an accurate plan, which reflected the set-up of the packing room at the time he suffered his injury.

43 Mr Bevilacqua was also shown 10 photographs of the packing room.

44 In evidence-in-chief, Mr Bevilacqua said that the photographs accurately depicted the packing room at the time he suffered his injury. However, in cross-examination, Mr Bevilacqua identified white rollers, which were evident beneath brown boxes of fruit at the end of the line, and said that the rollers were not in place at the time he suffered his injury. He said that he was required to move the boxes down the line, and that he would then lift and move them across to the other line, which subsequently took the box of fruit out to the stacking room. Mr Bevilacqua also identified a swivel arm at the end of the line, which would allow the box of fruit to be swivelled across to the rollers on the other side, and said that it was not in place at the time he suffered his injury.

45 Mr Bevilacqua also said that the photographs showed people packing pears, and said that, at the time he suffered his injury, he was packing stone fruit. He said the manner in which the stone fruit was packed was "totally different" to the manner in which the pears were packed, and that the box of stone fruit would sit up higher when coming down the conveyor belt. Mr Bevilacqua maintained that he had been required to lift the boxes of stone fruit and place them on the roller behind him, and that in so doing, he had suffered his injury.

46 Mr Bevilacqua was asked if he recognised any of the workers visible in the photographs of the packing room, and said that, aside from the owner of the defendant's business, Mr Costa, he did not otherwise recognise any of the workers.

47 Mr Bevilacqua was also referred to signed statements of Harry and Marlene Foster that his solicitors had exhibited to an affidavit. In her statement, Mrs Foster referred to Mr Bevilacqua putting boxes of apples onto pallets on the day he suffered his injury. Mr Bevilacqua stated that she was wrong in respect of this aspect of her statement. In his statement, Mr Foster referred to the work process as having to put a box of fruit onto a pallet. Mr Bevilacqua said that whilst he believed there was a pallet in the packing room, he denied that he was injured whilst lifting boxes onto a pallet.

48 Upon advising Arnold Thomas & Becker in relation to his rights, Mr Bevilacqua said that he then relied upon them to "do the right thing by me". He said that he had no idea when his limitation period was about to expire, and believed that he was first told it had expired only a few months ago. Mr Bevilacqua also said that Mr Dent had accepted that it was the fault of Arnold Thomas & Becker that the limitation period had expired, and that he was in no way responsible.

Mr Dent's evidence in support of Mr Bevilacqua's application

49 Mr Dent gave evidence that Arnold Thomas & Becker have a computerised diary system notifying practitioners of limitation dates, and confirmed that the system was in existence in 2011. Upon becoming aware that the limitation period in this case had expired, Mr Dent said that he did not, and has not, made any attempt to ascertain whether or not Mr Bevilacqua's claim had been, or was, entered into the diary, for the matter to be issued, or for action to be taken prior to 16 November 2012.

50 Mr Dent accepted that it would have been "a big error" if the limitation period had never been entered, or, if the limitation period had been entered and nothing had subsequently been done.

51 Mr Dent said that he did not consider it necessary to advise Mr Bevilacqua that the limitation period had expired at this point, as he was unsure whether or not a common law action would ever be brought. He also said that, in his experience, as the VWA rarely takes a limitation defence, it was not something he needed to worry about at the time.

52 Mr Dent accepted that it was not until the statutory conference, at which point the defendant advised Arnold Thomas & Becker of its intention to take the limitation defence, that he first informed Mr Bevilacqua that the limitation period had expired and that it would be necessary to obtain an extension of time from the court.

Defendant's material opposing the application for an extension of time

53 The defendant relied upon two affidavits of solicitor, Ms Stephanie Koochew, in support of its application that an extension of time should be refused.

54 Ms Koochew said that she had conferred with the former owner of the defendant's business, Mr Bruno Costa, who instructed her that the fruit grader machine was no longer in the possession of the defendant, as it had been sold with the business in around May 2010, after the defendant went into external administration.

55 Mr Costa instructed Ms Koochew that he had not been responsible for the speed of the machine on the day of the incident, and said that the speed was determined by the shed's manager, Mr Battersby. Ms Koochew stated that she had hired an investigator to locate Mr Battersby but that, to date, he had failed to respond to any correspondence.

56 Mr Costa also instructed Ms Koochew that his daughter, Ms Roslyn Costa, was responsible for the defendant's Occupational Health & Safety, and that she had conducted risk assessments with respect to the fruit grading machine. Ms Koochew stated that Ms Costa had initially been overseas but that, upon her return to Australia, she had been unsuccessful in her attempts to contact Ms Costa.

57 Mr Costa further instructed Ms Koochew that all of the defendant's records had been provided to external administrators when the business went into external administration in May 2010. Ms Koochew stated that she has attempted to obtain a copy of the defendant's books and records from the defendant's receivers, SV Partners, but has been informed that no such records have been identified.

58 The parties agree that the limitation period for this claim expired on 15 November 2012.

59 The High Court recently set out the principles relevant to such an application in the decision of Prince Alfred College Incorporated v ADC.[2] In the joint judgment of French CJ, Kiefel, Bell, Keane, Nettle JJ, it was stated that:

"...First, an applicant for an extension of time must prove the facts which enliven the discretion to grant the extension and also show good reason for exercising the discretion in his or her favour. An extension of time is not a presumptive entitlement which arises upon satisfaction of the pre-conditions that enliven the discretion. The onus of persuasion is upon the applicant for an extension of time. The exercise of the discretion to grant an extension of time must take account of the reasons for the limitation regime, and the discretionary nature of the decision to be made must be respected when conducting appellate review of a primary judge's decision. In Taylor, McHugh J said:

'The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates".'

Secondly, the purpose of the legislative conferral of the discretion is to ensure a fair trial on the merits of the case. The loss of evidence which will tend against the prospects of a fair trial will usually be a fatal deficit in an argument that good reason has been shown to exercise the discretion to grant an extension. As McHugh J pointed out in Taylor, the justice of a plaintiff's claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of the delay, is unable fairly to defend itself or is otherwise prejudiced. His Honour had earlier observed that, in cases of long delay, prejudice may exist without the parties or anyone else realising that it exists."[3]

60 In determining whether it is just and reasonable to grant Mr Bevilacqua an extension of time, s23A(3) of the LAA requires that I have regard to all of the circumstances of the case, including the following matters:

"(a) the length of and reasons for the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;

(c) the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;

(d) the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;

(e) the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received."

61 This list of factors is not exhaustive, nor should each of the individual factors be weighed against the other. In an application of this kind, the court must "endeavour to synthesize a number of competing considerations in arriving at a conclusion that takes account of them all."[4]

62 It was accepted by the parties that the relevant period of delay commenced from the date the cause of action accrued, and not from the date the matter was statute barred.

63 Mr Nightingale submitted that the relevant period of delay was therefore the period between 16 November 2006 until 16 May 2016, at which time Mr Bevilacqua's serious injury application was lodged.

64 Mr O'Meara submitted that the cessation of the relevant period of delay, whether it be 16 May 2016 or 16 February 2017, at which time the writ was issued, was of little relevance, in circumstances where the delay in either scenario, was approximately 10 years.

65 In Welsh v Adecco Industrial Pty Ltd and Ors,[5] Justice T Forrest considered the relevant period of delay to be that period between the accrual of the cause of action and the date upon which the plaintiff submitted her serious injury application pursuant to s134AB of the ACA. I agree with this approach.

66 The requirements for a valid serious injury application are set out in Ministerial Guidelines and include, amongst other requirements, an affidavit of the plaintiff, together with a draft Statement of Claim.[6] Both documents must then be served upon the VWA.

67 A serious injury application is the pre-cursor to the formal commencement of a common law claim. In this case, Mr Bevilacqua's affidavit sworn in support of his serious injury application, provided sufficient detail as to enable the defendant to understand the nature of the common law case the defendant would be expected to meet. I am therefore satisfied that the relevant period of delay is that period from 16 November 2006 until 16 May 2016, a period of just under 10 years.

68 I shall now consider those factors in s23A(3) which are relevant to this case.

(a) The length of and reasons for the delay on the part of the plaintiff

69 I consider the length of and reasons for the delay in this case to be substantial, and I attribute such delay, in its entirety, to Arnold Thomas & Becker.

70 Mr Bevilacqua instructed Arnold Thomas & Becker approximately 15 months prior to the expiration of the limitation period. He chose experienced solicitors to conduct his case, and relied upon those solicitors to protect his rights in relation to any legal entitlements arising from his workplace injury. His solicitors then missed the limitation period, and, upon becoming aware of their mistake, did not then inform Mr Bevilacqua of the expiration of the limitation period until years later. Mr Bevilacqua did not therefore have any knowledge of or reason to be concerned about the length of any delay.

71 I consider Mr Bevilacqua to be an unsophisticated, illiterate man, who both trusted and relied upon his solicitors for the conduct of his case. In such circumstances, I do not consider the length of or reasons for the delay to be in any way attributable to Mr Bevilacqua.

(b) The extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant

72 The defendant submitted that it suffered both presumptive and actual prejudice as a consequence of the almost 10 year delay, and that such prejudice was so great that a fair trial was not possible.

73 Mr O'Meara submitted that it is prima facie prejudicial to the defendant to commence proceedings outside the limitation period,[7] and that prejudice is presumed in a case of such delay. He also referred to the recent decision of Prince Alfred College[8] in which it was accepted that, by reason of delay, the quality of justice deteriorates and that in cases of long delay, prejudice may exist without the parties even realising it exists.[9]

74 In addition to presumptive prejudice, Mr O'Meara relied upon the following examples of actual prejudice suffered by the defendant:

(a) The absence of the system of work which was in place at the time Mr Bevilacqua was injured in the packing room, including an absence of the fruit grading machine, conveyor and roller system and pallet stacker;

(b) The loss or destruction of relevant documents, including production records for 16 November 2006, which could be expected to precisely demonstrate the speed and volume of production on the day Mr Bevilacqua suffered his injury. The defendant also claimed that any training records and risk assessments relevant to the packing room, were no longer in the defendant's possession;

(c) the defendant's inability to call Mr Mark Battersby, who would be a central witness in the case, in circumstances where he was the defendant's shed manager at the time, and where Mr Bevilacqua has alleged that he increased the speed of the machine on the day he suffered his injury.

75 In response, Mr Nightingale submitted that it was Mr Costa who was ultimately responsible for the speed of the production line, before noting that he was available to give evidence for the defendant. It was also noted that Mr Costa had referred to Ms Costa having undertaken manual handling assessments. However, he did not positively state that there had been records of such assessments.

76 In addition, Mr Bevilacqua provided signed statements from Ms Norma Thorne, and Mr and Mrs Foster, each of whom were working in the packing room at the time Mr Bevilacqua suffered his injury. However, each of these potential witnesses referred to Mr Bevilacqua lifting boxes of fruit onto pallets which, I note, is inconsistent with the circumstances under which Mr Bevilacqua claims he was injured. I consider the discrepancies between these statements and Mr Bevilacqua's oral evidence, to be indicative of the propensity of memory to fade with time, and I am of the opinion that it constitutes a further example of the presumptive prejudice suffered by the defendant as a consequence of the almost 10 year delay in this matter.

(e) The extent to which Mr Bevilacqua acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of Mr Bevilacqua was attributable, might be capable at that time of giving rise to an action for damages

77 Mr Bevilacqua acted reasonably and properly in obtaining legal advice. Upon instructing Arnold Thomas & Becker in July 2011, it was evident that Mr Bevilacqua trusted them to act in his best interests in the pursuit and prosecution of his legal entitlements, including this common law claim. As I have stated previously, in the circumstances of this case, I make no criticism of Mr Bevilacqua for not having acted in a more prompt or reasonable manner, upon becoming aware of his possible rights and entitlements.

(f) The steps, if any, taken by Mr Bevilacqua to obtain medical, legal or other expert advice and the nature of any such advice he may have received

78 Upon reviewing Mr Bevilacqua's file in September 2013, Mr Dent appreciated that Mr Bevilacqua may have a common law claim, and that such a claim was already statute barred. Notwithstanding that knowledge, however, Arnold Thomas & Becker acted with no sense of urgency in conferring with Mr Bevilacqua, in obtaining medical reports, records and taxation documents, in conferring with counsel or in lodging the serious injury application.

79 In April 2014, Mr Bevilacqua's impairment benefit claim was lodged and sent directly to the VWA. However, the enclosed correspondence made no reference to Mr Bevilacqua's intention to pursue a common law claim, or the nature of any intended claim.

80 In February 2015, counsel advised Mr Bevilacqua to proceed with a common law claim. I note, however, that a further 15 months passed before a serious injury application was subsequently lodged. I consider these examples to further demonstrate the inadequacy of the steps taken by Arnold Thomas & Becker in this case, even after it became aware that the limitation period had expired. I do not consider there to be any adequate explanation for such conduct. However, for the reasons stated previously, the delay on the part of Mr Bevilacqua's solicitors should not be sheeted home to Mr Bevilacqua.

S****ynthesis of these competing considerations

81 The granting of an extension of time involves a synthesising of these factors. I should exercise my discretion if I am satisfied it is just and reasonable to do so.

82 As part of the synthesising process, it is necessary to consider whether or not the presumptive and actual prejudice suffered by the defendant is so great that a fair trial is not possible. It need not be an ideal trial, but one that is acceptably fair.[10]

83 An almost 10 year delay will, of itself, give rise to presumptive prejudice. I accept that memories fade with the passage of time, and that the associated consequences are evident in this case, when one considers the statements of Mr and Mrs Foster, and Mrs Thorne, all of whom have provided recollections that are inconsistent with Mr Bevilacqua's oral evidence. Whilst these potential witnesses were not cross-examined, it is likely their inconsistent recollections stem from what is an unreliable memory of events that occurred over 10 years ago. With very little by way of records and physical evidence with which to verify these recollections, the utility of such statements is uncertain.

84 I accept the defendant's submission that it has suffered actual prejudice by virtue of the fact that the system of work that was in place in the packing room in November 2006, is no longer available for inspection. I accept that the fruit grading machine, conveyor and roller system and pallet stacker are no longer available. The extent of this prejudice became apparent when Mr Bevilacqua gave evidence that the system of work in place in the tendered photographs was different to the system of work in place at the time he suffered his injury. I accept that it will now be difficult for the defendant to dispute this allegation, as the relevant machines and the work set-up are not available for inspection.

85 Mr Nightingale contended that the defendant had not led evidence as to whether or not it had made any attempts to locate the machine and that, in such circumstances, I should not accept that the defendant suffers actual prejudice by reason of the apparent absence of the machine. I do not accept this submission. The onus rests on Mr Bevilacqua to satisfy me that, based on the evidence before me, it is just and reasonable to grant an extension of time. The defendant has presented prima facie evidence that the machine is no longer available, which, in my opinion, is sufficient to enable the defendant to contend that it suffers actual prejudice in relation to the machine's absence.

86 I accept that Mr Mark Battersby is a witness of some significance in this case, and is yet to be successfully located. As the shed manager at the time Mr Bevilacqua suffered his injury, Mr Battersby would be expected to give evidence as to whether or not the rollers and swivel arm were available for use in November 2006, whether or not the system of work differed depending upon the type of fruit being packed, the process and reasons for increasing the pace of work and his assessment as to the consequences of an increased machine speed on the workers.

87 Once again, Mr Nightingale submitted that I should not be satisfied that Mr Battersby is unavailable in circumstances where it is believed the defendant's investigator has an address for him, and that he has simply been non-responsive. However, I accept the defendant's evidence that Mr Battersby has not responded to their attempts to contact him through this investigator. As I have said previously, the onus rests on Mr Bevilacqua to establish that it is just and reasonable to grant an extension of time, and the defendant has presented prima facie evidence that Mr Battersby is not available as a witness.

88 I also consider it prejudicial to the defendant that there are no production records to determine the rate of production on the day Mr Bevilacqua suffered his injury.

89 Whilst acknowledging the presumptive and actual prejudice suffered by the defendant, in considering whether or not a fair trial is possible, it is also important to evaluate the evidence which does exist, and upon which the defendant can rely at trial.

90 The defendant's owner, Mr Ross Costa, has provided the defendant's solicitors with detailed instructions as to the system of work in place at the time, as well as the defendant's manual handling procedures and training processes. He has produced a plan of the machine as well as photographs of the packing room. I note, however, that Mr Bevilacqua disputes the accuracy of these photographs, in terms of the extent to which they accurately represent the work set-up on the day he was injured.

91 I note that Mr Costa has not positively stated that there were manual handling records, but that he referred to his daughter, Ms Costa, as being responsible for the defendant's OH & S. Whilst the defendant's solicitor is yet to speak with Ms Costa as she has been overseas, I consider it probable that, on the material before me, Ms Costa will, like her father, cooperate with the defendant's solicitors, and will be available to give evidence at a trial, in relation to the defendant's manual handling risk assessments. If such risk assessments were completed in written form, I accept they would have been provided, together with all the defendant's records, to the receivers when the business went into external administration. Without these records to refresh her memory, it is uncertain what Ms Costa will be able to recall in relation to the risk assessments she performed. I consider this to further demonstrate the difficulty the defendant faces in meeting this case.

92 In considering his application for an extension of time, it is permissible for me to consider the extent to which Mr Bevilacqua has a viable cause of action against his solicitors. Whilst this is a factor to be taken into account, it is not, of itself, determinative of the matter. The weight to be given to the availability of a cause of action against a solicitor will depend upon the circumstances of the case.[11]

93 Mr O'Meara referred me to a decision of Justice J Forrest in Gordon v Norwegian Capricorn Line (Aust) Pty Ltd.[12] In that case, the plaintiff suffered a serious heart attack whilst a passenger on board a cruise ship, the Norwegian Star, on 16 July 2000. The plaintiff then sought damages against the defendant for its failure to carry thrombolytic medication on board the ship. The plaintiff instructed solicitors two months after the incident, and was soon after advised that he had a viable claim against the defendant. A claim was issued within the three year limitation period. However, the claim was struck out on the basis that the plaintiff's solicitors failed to attend numerous directions hearings. Attempts to reinstate the claim were then unsuccessful, and the limitation period passed without a fresh proceeding being issued. When the plaintiff's solicitors subsequently issued a claim, the defendant raised a limitation defence. The plaintiff then brought an application for an extension of time to be granted. Whilst the application was made in accordance with the provisions of the Limitations Act 1969 of New South Wales, the factors for the court's consideration are very similar to those in the equivalent Victorian statute.

94 Justice Forrest held that, whilst the defendant had failed to demonstrate any specific significant prejudice, he accepted that there was a real presumptive prejudice. In ultimately deciding that it was not just and reasonable to grant the plaintiff an extension of time, Forrest J considered the "existence of a viable, indeed, strong cause of action against the plaintiff's original solicitors as being a significant consideration."[13]

95 I consider this application to be very similar to the case of Gordon, in that I am also satisfied the delay in this case has caused real prejudice to the defendant, as well as being satisfied that the plaintiff has a strong case in negligence against his solicitors.

96 Mr O'Meara also relied upon a decision of Justice Keogh in Mackenzie v Positive Concepts Pty Ltd & Anor.[14] In that case, the plaintiff was assaulted in the course of his employment on 6 October 2002. The plaintiff sought legal advice from solicitors who acted on his behalf from July 2003 through to about early 2005. During that time, the plaintiff said that, whilst the solicitors assisted him to lodge an impairment benefit claim, they never advised him as to his possible common law entitlements or the existence of any limitation period. The plaintiff believed that he had exhausted his legal entitlements. However, in 2012, a friend encouraged the plaintiff to seek advice from new solicitors, who subsequently advised him to proceed with a common law claim. The claim, when it was eventually issued, was issued outside of the relevant limitation period, and the defendant raised the limitation defence.

97 In the plaintiff's application for an extension of time, there was no evidence as to the former solicitor's file. Justice Keogh considered that it was "far from certain" that the plaintiff would be able to successfully establish a negligence claim against those solicitors, or the quantum of any such damages. Further, Justice Keogh was not satisfied that the defendants would suffer significant prejudice as a consequence of the delay, and, in such circumstances, he considered it just and reasonable to extend the limitation period. The case now before me is easily distinguishable, on the basis that the solicitor's file has been produced and the solicitor has admitted fault.

98 In response to those cases, Mr Nightingale referred me to the Court of Appeal decision of Millard v State of Victoria[15]. In that case, the plaintiff suffered injury in a bushfire incident in December 1994. It was accepted that his common law claim should have been issued by December 2000. The plaintiff's solicitors subsequently lodged a serious injury application with the VWA within the limitation period. However, after the limitation period had expired, it became apparent that the plaintiff would first need to comply with s93 of the Transport Accident Act 1986 (Vic) before being permitted to commence a common law claim, in circumstances where he was injured whilst driving a registered vehicle. The plaintiff was later granted a serious injury certificate and a writ was issued on 20 November 2003. The defendant raised the limitation defence, and the plaintiff subsequently made an application for an extension of time.

99 The primary Judge dismissed the plaintiff's application. However, the Court of Appeal considered that it was just and reasonable to extend the limitation period and allowed the appeal. In so doing, the Court held that the plaintiff should not be held responsible for the neglect and defaults of his solicitors, even when such defaults were "glaringly obvious". Whilst some prejudice is to be presumed as a result of the admittedly substantial delay, it was thought that there was "not likely to be significant or material prejudice to the defendant" such that a fair trial was not possible. Again, the case before me is distinguishable, on the basis that I am here satisfied that the defendant has suffered significant prejudice by virtue of the delay.

100 I am conscious that if an extension of time is not granted, Mr Bevilacqua will be precluded from seeking common law damages against the defendant. In previous applications in which an extension of time has been sought, it has been noted that a plaintiff's potential claim against a negligent solicitor is not identical to the claim against the original wrongdoer. It is recognised that even in circumstances where a plaintiff has good prospects of successfully suing his solicitor, he will still suffer some prejudice if the application is refused.[16] The prejudice may include the diminution in the value of the claim, as well as the added costs of proceeding in a claim against the solicitors.[17]

101 On the evidence before me, I consider Mr Bevilacqua appears to have a very strong, if not overwhelming claim against Arnold Thomas & Becker for their negligence. They had been acting for Mr Bevilacqua for a period of over 15 months at the time the limitation period had passed. In that time, they had obtained some medical material regarding Mr Bevilacqua's right knee injury, but had failed to both discuss this material with Mr Bevilacqua or to recommend that either an impairment benefit claim, or serious injury application be lodged prior to 16 November 2012. No excuse or explanation has been offered as to the reason for this course of action, and Mr Dent has accepted that the expiration of Mr Bevilacqua's limitation period was the fault of Arnold Thomas & Becker.

102 In circumstances where the defendant has demonstrated substantive prejudice and where Mr Bevilacqua appears to have a very strong claim in negligence against his solicitors, I am not persuaded that it is just and reasonable to extend the limitation period in this case. I therefore dismiss Mr Bevilacqua's application.

[1] Transcript ("T") 76, Line(s) ("L") 2-5

[2] [2016] HCA 37

[4] Tsiadis v Petterson [2001] VSCA 138 at [33]

[5] [2017] VSC 44

[7] Brisbane South Regional Health Authority v Taylor [1996] HCA 25

[8] [2016] HCA 37

[9] Brisbane South Regional Health Authority v Taylor [1996] HCA 25 at [4]

[11] Tsiadis v Patterson [2001] VSCA 138; (2001) 4 VR 114 at [28]

[12] [2007] VSC 517

[14] [2016] VSC 259

[15] [2006] VSCA 29

[16] Tsiadis v Patterson [2001] VSCA 138; (2001) 4 VR 114 at [28]