Christakos Transport Pty Ltd (in liq) v Croft

The Sydney City Council v Zegarac (1998) 43 NSWLR 195 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Holt v Wynter (2000) 49 NSWLR 128 McLean v Sydney Water Corporation (2001) NSWCA 122 Maviglia v Maviglia [1999] NSWCA 188 Abalos v Australian Postal Commission (1990) 171 CLR 167 CASES CITED: Commonwealth v McLean (1996) 41 NSWLR 389 South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 House v The King (1936) 55 CLR 499 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Gorczynski v Perera [2004] NSWCA 71 Wentworth v Rogers (No 3) (1986) 6 NSWLR 642 Will of F B Gilbert (Deceased) (1946) 46 SR (NSW) 318

Christakos Transport Pty Ltd - Claimant PARTIES: Lance Croft - Opponent

J E Maconachie QC with Ms V M Heath - Claimant COUNSEL: J L Sharpe - Opponent

Henry Davis York - Claimant SOLICITORS: Maurice Blackburn Cashman - Opponent

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40097/05 DC 12840/01

SANTOW JA McCOLL JA M W CAMPBELL AJA

Thursday 22 December 2005 CHRISTAKOS TRANSPORT PTY LTD (in liquidation) v CROFT JUDGMENT 1 SANTOW JA: I agree with M W Campbell AJA. 2 McCOLL JA: I agree with M W Campbell AJA 3 M W CAMPBELL AJA: INTRODUCTION

On 3 September 2004 Her Honour Judge Quirk of the District Court, pursuant to s 60C of the Limitation Act 1969 (the Act), extended the relevant limitation period thus enabling the opponent to bring proceedings against the claimant. 4 The claimant seeks leave to appeal from that decision. The leave application has been argued on the basis that, if leave is granted, the appeal will be determined without further argument. I should note that procedural difficulty has resulted in a need to seek an extension of time in which to file the ordinary summons for leave to appeal. I propose that that extension be granted. 5 The proceedings relate to the joinder of the claimant (CT) as the fourth defendant in a District Court action in which the opponent (Croft) claims damages for personal injury. 6 In the District Court action Croft sued as first defendant Lau Nay Nominees Pty Ltd t/as ABS Transport (ABS), as second defendant Christakos Bros Transport Pty Ltd (in liq.) (CBT) and as third defendant Christakos Bros Pty Ltd (CB). The proceedings against CB have been discontinued.

THE CIRCUMSTANCES 7 On 1 May 2000 Croft, in the course of his employment as a truck driver with ABS, was assisting (on his account) in the loading of a tanning machine, by employees of CT, onto the truck of which he was the driver in premises at 47- 49 Boolcarrol Road, Wee Waa occupied by CT. He said that oil escaped from the tanning machine onto the tray of the truck and that, as a result, he slipped from the tray and injured, primarily, his left foot. He also alleged that the lighting was inadequate. 8 At the time of the fall, it appears, there were four employees of CT present including Mr Muscara, the yard manager. I shall return to the identity of the others later. 9 Croft first sought treatment for his foot in Brisbane on the following day. There is a dispute as to the consequences of a possible further injury to his foot some time later. 10 About 23 May 2001 Croft instructed solicitors and on 23 November 2001 proceedings were commenced against his employer ABS. An amended statement of claim filed on 20 August 2002 joined CBT and CB as defendants. 11 The first relevant reference to CT, so far as Croft's solicitors were concerned, was when a letter was received from Phillips Fox, solicitors who acted for CB advising that at the relevant time, so far as their enquiries revealed, CBT or CT were the occupiers of 47 - 49 Boolcarrol Road Wee Waa. That letter was dated 31 October 2003. 12 The Notice of Motion seeking an extension of time was filed on 24 March 2004.

THE LIMITATION ACT 1969 13 Section 60C provides: "Ordinary action (including surviving action) (1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897 .

(2) If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period, not exceeding 5 years, as it determines." 14 Section 60E provides: "Matters to be considered by court (1) In exercising the powers conferred on it by section 60C or 60D, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following: (a) the length of and reasons for the delay,

(b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available,

(c) the time at which the injury became known to the plaintiff,

(d) the time at which the nature and extent of the injury became known to the plaintiff,

(e) the time at which the plaintiff became aware of a connection between the injury and the defendant's act or omission,

(f) any conduct of the defendant which induced the plaintiff to delay bringing the action,

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

THE PRIMARY JUDGE'S REASONS 15 Judge Quirk noted the reliance by Croft upon his affidavit and the affidavits of Ms Piper, a solicitor who formerly had the conduct of his case and Ms Colubriale who is the solicitor with the present day to day conduct of the matter. Croft was required for cross-examination and had travelled from Tasmania for that purpose. 16 The Judge noted that she had given leave to Croft to re-open his case in chief and give evidence to describe the accident, a matter not dealt with in his affidavit. 17 CT relied upon a number of affidavits from its solicitor Mr Freeman of Henry Davis York, an affidavit from Mr Muscara, an affidavit of Michael Hall and an unsworn affidavit of Ken Hall. There was also an affidavit of a commercial agent John O'Neil as to a conversation with Ken Hall. 18 The Judge accepted that the accident occurred on 1 May 2000 and that the delay beyond the expiry of the limitation period was almost eleven months. 19 In respect of the submission of Ms Heath of Counsel, appearing for CT, that the extension required by the time of the hearing of one year and three months was "significant", the Judge noted adjournments on the application of CT in June. She observed that the preparation of neither side was as it should have been and noted that Mr Freeman deposed that he had had a number of difficulties obtaining instructions and information with CT being in liquidation. It is to be observed that Henry Davis York had at least some instructions by November 2003. 20 Her Honour noted that there was no dispute as to an injury to Croft's foot of some kind at the premises of which CT was the occupier and where it carried on business. 21 The Judge said: "It is not disputed that Mr George Christakos was a director of CBT. He had been a director of the third defendant, but it seems from company searches, was not a director of the third defendant at the time of the plaintiff's injury. His father, John Christakos, was. Mr George Christakos was a director of CT at the time of the plaintiff's injury, which company, Mr Christakos concedes in his affidavit, was operating out of the premises at 47 to 49 Boolcarrol Road, Wee Waa, as at 1 May 2000. The proceedings against CBT are still on foot. CBT is currently represented by Henry Davis York, the solicitors for CT, although in a limited capacity only. Both CBT and CT were insured at the relevant time by CGU, although CGU have not agreed to indemnify either at this stage." 22 Her Honour then set out extracts from the amended statement of claim which was filed on 21 (20) August 2002 as follows: "2. The plaintiff, being unsure of whether the second or third defendant is liable to him, proceeds against both defendants in the alternative. 3. At all material times the second or third defendant was the owner, occupier, manager and/or controller of premises at 47 Boolcarrol [Road], Wee Waa. 4. At all material times the plaintiff was employed by the first defendant. 5. On 2 May (2000 while the plaintiff in the course of his employment was at the said premises, he slipped and fell on the oily surface of a trailer which was being loaded with a tanning machine by the servants or agents of the second or third defendant.' The plaintiff particularises the allegations of negligence against the second or third defendant, including particulars relating to a slippery floor surface, and in subparagraph (g) of those particulars: 'Failing to provide any or adequate lighting to the work area, failure to remove oil from the tanning machine prior to loading it, failure to warn that there was oil in the tanning machine, failure to adequate (sic) pack the tanning machine prior to loading it, failure to remove the oil from the truck surface after it had transferred from the tanning machine.' " 23 The Judge noted that it was not disputed that the statement of claim and other related documents, including medical reports, were "served" on George Christakos as director of CBT on or about 21 August 2002. CBT was in liquidation and the question whether the service was proper service was in dispute. 24 After noting that Ms Piper assumed conduct of the matter in late June 2003, the Judge observed that there was no affidavit from a solicitor with earlier conduct of Croft's case. Ms Piper's affidavit did annex a good deal of correspondence. 25 The judgement continued: "Ms Piper does not refer in her affidavit to previous asset searches being undertaken, but such searches were produced by Ms Colubriale during cross-examination and were tendered in the plaintiff's case, those searches having been conducted in February 2002, prior to the time at which the second defendant went into liquidation. Those searches reveal that CBT, as at 12 February 2002, had its principal place of business at 47 Boolcarrol Road, Wee Waa, and that CB had its principal place of business at 52 George Street, Wee Waa. Land title searches were also undertaken on 12 February 2002 in respect of 52 George Street, Wee Waa, and 47 Boolcarrol Road. The property at 47 Boolcarrol Road appears to consist of at least two lots, one of which was owned by CB and the other by CBT." 26 Her Honour then dealt with certain relevant correspondence which I will set out in shortened form. A letter dated 9 January 2003 to Croft's solicitors from Alex Martin, a solicitor practising in the firm Sagacious Legal, contained the following passage: "We act for Christakos Brothers Transport Pty Limited (in liquidation) (subject to deed of company arrangement) ('CBT'). Our client, George Christakos is a director and shareholder of CBT. He is the son of John Christakos who is a director and shareholder of Christakos Brothers Pty Limited (CB). We have been provided with a bundle of documents including the amended statement of claim dated 20 August 2002. We anticipate that the extent of our instructions only goes to the location by us of the lawyers who acted for CBT pursuant to the Workers Compensation Insurance Policy held by CBT with GIO. We do not act for CB in any capacity."

27 In correspondence Croft's solicitor pointed out to Mr Martin that workers compensation insurance would have no application as he was not employed by the second or third defendants. A later letter of 28 February 2003 advised that the claim against the two Christakos companies was based on a public liability claim and asked the following question: "We also request that you advise which company was the owner/occupier of the premises known at 47 Boolcarrol Road, Wee Waa, as this will assist in determining which of the Christakos companies is not involved in this claim." 28 Mr Martin wrote back on 21 March 2003 advising that CBT went into liquidation on 11 April 2002 and adding: "We are instructed that, before it went into liquidation CBT was the owner/occupier of the premises at 47 Boolcarrol, Wee Waa."

29 There was then correspondence between Croft's solicitors and the liquidator of CBT Mr Tuckwell whose first letter was dated 4 June 2003. He advised that he did not know the identity of CBT's public liability insurer. 30 The Judge found that at that stage Croft's solicitors were relying on the fact that Sagacious Legal, on instructions, advised that the premises at 47-49 Boolcarrol were occupied by CBT prior to 11 April 2002. It is relevant to note that the reference was to "the owner/occupier" not to "an owner/occupier." 31 The Judge noted that subsequent communications from Mr Tuckwell put Croft's solicitors on notice that CBT allegedly ceased trading some three months before his accident, and commenced trading as CB. As mentioned Phillips Fox were instructed by CB and advised Croft's solicitors that CB was not the occupier and had nothing to do with the activities being carried on at 47-49 Boolcarrol Road. The Judge accepted that those proceedings had been discontinued. 32 As mentioned Phillips Fox advised on 31 October 2003 that their investigations revealed that at the relevant time the premises were occupied by CBT or CT.

33 The Judge continued: "Thereafter, correspondence was entered into between the plaintiff's solicitors and the solicitors for CBT, Henry Davis York, and it became apparent that CT, was an occupier of the relevant premises. 34 Judge Quirk then set out the relevant portions of ss 60C and 60E and turned to a summary of the relevant principles as set out in The Sydney City Council v Zegarac (1998) 43 NSWLR 195, Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, Holt v Wynter (2000) 49 NSWLR 128 and McLean v Sydney Water Corporation (2001) NSWCA 122. Amongst other things she said: "…..the ultimate onus of satisfying the Court that in all the circumstances of the case it is just and reasonable that an order may (sic) be made lies on the applicant."

35 She also said: "The principles concerning prejudice were considered in Holt v Wynter (2000) 49 NSWLR 128 (at 119) where the Court of Appeal stated that the effect of Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 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."

36 It may be accepted, I consider, that her Honour approached the concept of prejudice as requiring that the period from the accrual of the cause of action until the application is the relevant one rather than the period after the expiry of the limitation period. (Brisbane South per McHugh J at 556). 37 Her Honour then turned to a consideration of the various heads raised under s 60E. I propose to summarise briefly the matters raised under each head but obviously I do not set out all that her Honour has dealt with. It is also appropriate to remember that in a judgment such as this, there will be a considerable amount of overlapping between the various considerations to which the Statute requires that attention be paid.

38 (1)(a) The length and reasons for the delay. Her Honour said: "The reasons for the delay, it is submitted by Mr Gibson, counsel for the plaintiff, are that the plaintiff proceeded on information conveyed to it by Sagacious Legal after the proceedings had already been commenced, to the effect that CBT was, prior to its liquidation in 2002, the occupier of the premises at Wee Waa." 39 The Judge dealt with the submission that the Croft gave "full instructions" to his solicitors by pointing out that he was armed only with the information that there were a number of Christakos companies but he was not aware of the company structure of any one of them. 40 To a submission that Croft's solicitors failed to make any relevant inquiry or investigation or company search within the limitation period or before the proceedings had been commenced, her Honour observed: "In fact some ASIC and lands title searches were made. It is true that no company search was made in respect of CT. However, searches since have revealed that the principal place of business of CT is not Wee Waa, but rather Narrabri." 41 The Judge noted that Croft did not consult solicitors until May of the year following his injury and at that stage the solicitors took steps in relation to workers compensation proceedings in Victoria. Her Honour referred to a letter from Croft's solicitors to the senior conciliation officer of WorkCover Victoria dated 28 May 2001 which indicated that he had not sought advice until 23 May 2001. The Judge found:

"The reasons for delay, and the circumstances do not lie with the plaintiff himself. Any failure to identify the correct defendant lies with the plaintiff's solicitors, rather than the plaintiff, although he did not consult legal advice until approximately a year after his injury, was well within the limitation period." 42 (1)(b) The extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available.

The Judge noted that Ms Heath submitted that there had been prejudice to the defendant and that on the evidence of CT's witnesses "there is evidence that can now not be recalled by them, or cannot be recalled clearly, and with certainty, and of which there are no extant records in respect of critical aspects of the defence". 43 The Judge noted the submission that witnesses could not be identified or if they had been, for example the two Halls, could not remember the event. One witness present was Mr Muscara who deposed that as at 1st May 2000 he was employed as the manager for CT which operated from 47 Boolcarrol Road Wee Waa. 44 The Judge noted Mr Muscara's affidavit evidence as follows: "Mr Muscara recalls only one occasion when a front end loader was delivered to the depot, which is the occasion in question. He recalls that he was told by an employee of CT that the truck driver had fallen off the trailer and the driver had injured his foot. Mr Muscara deposed to the fact that he did not see the truck driver fall off the trailer, and that he could not remember the name of the employee who advised him of the incident. Mr Muscara was present on the day in question, it appears, and although the plaintiff in his affidavit identified the person to whom he spoke, and who he thought was in charge, as George Christakos, it appears he was probably mistaken. Mr Muscara arranged for the unloading of the front-end loader, which the plaintiff had driven from Melbourne to Wee Waa, and was present during the rest of the evening although, as I have said, he did not, according to his affidavit, witness the fall. However, Mr Muscara does not say in his affidavit that he was not present for the loading of the tanning machine, which on the plaintiff's evidence, caused oil to be splashed and which caused him to fall off the tray of his truck." 45 Mr Muscara deposed that he was not able to recall which employees were present at the time of the loading and unloading of the truck but stated it was possible that it was Michael Hall, Kenneth Hall, Gavin Bowen or Trevor Laurence who may have assisted. 46 In an unsworn affidavit Muscara said that Croft was not at Wee Waa between 1.00 to 1.30 but arrived after 5 pm, perhaps between 5.30 and 6 pm. 47 George Christakos, in an unsworn affidavit, deposed to not being on the premises on the evening and that he was unable to recall employees other than Michael and Ken Hall. He recalled a yard hand by the name of Richard but he does not recall his last name. He does not have present contact details. 48 The Judge observed that Mr Christakos had stated that he was aware of three broad groups of documents held by Christakos Transport Pty Ltd as follows

(1) The liquidator for CT who was provided with a number of financial documents.

(2) Other documents which were placed into a container at the premises, some of which were destroyed by damp or mould. He cannot locate the document and expects they were destroyed; and

(3) he referred to other documents which were possibly sent elsewhere after he was involved in a serious car accident on 28 November 2002.

He subsequently stated that since the accident he suffered symptoms of short-term memory loss and cannot remember what happened to the documents. 49 Her Honour said: "The only relevant documents in respect of the prejudice which is claimed to have been suffered by the fourth defendant are records relating to employees present at the time of the plaintiff's injury." 50 Reference was made to unsuccessful attempts to find Gavin Brown, although it appears to be known who he worked for at the time of the application. 51 Her Honour continued: "Mr Freeman deposes in his first affidavit that he is instructed that if the insurer of CT, CGU, had been earlier informed of the claim against the proposed fourth defendant: 'It would have instructed solicitors to investigate the claim forthwith, including by interviewing any potential witness, and arranging medical examinations of the plaintiff including before the injury was allegedly further complicated by further injury.'" 52 The Judge referred to a further injury which allegedly complicated Croft's injury in or about March 2001 when he suffered some aggravation to his foot injury. 53 Her Honour noted it had been necessary for Croft's solicitors to obtain leave to continue the proceedings against CBT which was in liquidation. That company was represented, albeit in a limited manner, by Henry Davis York since about November 2003. 54 The Judge commented: "Although Mr Freeman deposes to investigations and medical examinations which could have been carried out, on his instructions by CGU in respect of CT it is notable there is no evidence of any investigations or medical examinations being conducted on behalf of CBT against which company proceedings are still on foot." 55 The Judge said that the affidavits of Michael Hall and Ken Hall were brief and in identical terms. They appear, she said, to have no relevant recollection of "any injury to a transport operator". As the Judge noted they did not state whether they recalled or did not recall the operation of loading the tanning machine onto the truck. Her Honour said that it was not apparent from their affidavits that they were incapable of giving evidence as to the circumstances of the loading of that machine. The judge refers to a telephone conversation between an investigator and Ken Hall from which the Judge concluded that Ken Hall was not disposed to be of assistance to Mr Christakos. She went on: "However, it is not apparent whether Mr Hall's recollection has faded or not. Whether or not any delay by the plaintiff in bringing his action against the fourth defendant has affected Mr Hall's attitude in respect of giving evidence, helpful or otherwise, is not apparent." 56 Her Honour noted that a Trevor Laurence worked at the premises on 1st May 2000 and was employed by CT. His recollection only went to the unloading of the front-end loader and he cannot remember any further work being conducted although he does remember being spoken to approximately two years ago about the matter by an investigator. As her Honour notes it is not clear who sent the investigator. 57 After noting the conflict in time between Croft and Mr Muscara, the Judge went on: "The plaintiff gave evidence of others being present, including a young mechanic driving a forklift, the person who he mistakenly thought was George Christakos, who it now appears was Rocky Muscara, and three other persons. Two of those persons, it seems, were the two Messrs Hall. One of them may have been Mr Laurence, although that is not clear, and one of them, although it is not clear either, given the inability of the solicitor for CT to speak to him, may have been Gavin Brown." 58 Her Honour noted Ms Heath's submission that CT was severely prejudiced by the lack of recollection of any of the witnesses. Her Honour, however, said: "However, as I have said, it is not clear whether or not either Mr Hall can give any evidence about the loading of the tanning machine, quite apart from the issue of the plaintiff's injury, and the oil which allegedly was sloshing about from the tanning machine." 59 Her Honour noted the claim to prejudice on the basis of lack of opportunity to have the applicant "surveilled", investigated by an investigator or have earlier medical examinations, particularly before the suggested second aggravating incident. 60 The Judge noted that Croft did not tender any medical evidence on this application but that CT did tender one report of a treating doctor dated 6 May 2003. In that report Dr Elsner summarised the history provided by Croft, the findings on examination and his management thereafter. Croft had first seen Dr Elsner on 8 May 2000 shortly after the accident. The Judge said: "It is apparent from the list of medical reports served upon CT, and on CBT, that the plaintiff has been examined, and as is apparent from Dr Elsner, on a regular basis since the injury occurred. There is no doubt that the plaintiff suffered a fracture of his foot, and has had not insignificant complaints since that time. The plaintiff's evidence of complaints was confined mainly to his adoption of the Part 9 particulars filed, which contain extensive descriptions of his complaints and disabilities. It is not seriously contended by the defendant that that the plaintiff does not have a significant injury, but the prejudice referred to in the defendant's submissions is the loss of the opportunity to have the plaintiff examined very early. It is suggested, that had it not been for the delay, CT would have had the plaintiff examined within an extremely short time of the injury." 61 The Judge commented that there was no doubt that Croft had reported his injury to Mr Muscara on the evening of its occurrence and that he had been extensively managed and examined by a number of doctors since that time. She observed: "The first defendant undoubtedly would have had the plaintiff medically examined as would the Workers Compensation Insurer in Victoria. Although it is true there is no evidence one way or the other as to treating doctors' notes, there is no suggestion that any such doctor's notes have been lost, or that they cannot be obtained. CT would probably have at the trial, in the usual course, given that, apart from liability, the interests of the first defendant and CT are similar, the advantage of some medical examinations conducted by the first defendant."

62 Her Honour noted that CT pointed to presumptive prejudice because of the passage of time, which she said at the time of filing of the motion was eleven months. 63 Her Honour then said: "The delay at the time of the filing of the motion was eleven months. In my view, the delay is not such as would cause 'not insignificant prejudice', unlike in Commonwealth v Diston [2003] NSWCA 51 to which I was referred by Ms Heath, which involved a lapse of time of some 37 years. This is not to suggest that any delay would not result in some presumptive prejudice. However, this accident occurred in unusual circumstances. It is not suggested that the loading of a tanning machine at the proposed fourth defendant's premises happened on a regular basis. The witnesses who were present at the time, and who included the two Messrs Hall and Mr Muscara could give salient evidence about that machine and the procedures used in loading the machine. I am not satisfied in those circumstances that the defendant has suffered a 'not insignificant prejudice' by reason of any delay, and in my view, the delay would not result in the defendant being unable to have a fair trial." 64 It was not relevant for her Honour to deal with (1)(c) or (1)(d) although she did make a brief comment about (1)(c).

65 (1)(e) The time at which the plaintiff became aware of the connection between the injury and the defendant's act or omission.

Her Honour noted that Croft became aware a day or two after the injury itself of the connection between the act or omission in his injury, "but not necessarily the correct identity of the defendant". She noted that within the limitation period he had brought proceedings against two of the other Christakos companies. 66 (1)(f) Any conduct of the defendant which induced the plaintiff to bringing the action.

The Judge noted that CT's submission that there was no such conduct is alleged or evident. It was submitted that the receipt by Mr Christakos of notice of the proceedings improperly commenced against CBT, in liquidation, was irrelevant. She noted Croft's submission that this was a relevant matter, that Mr Christakos as a director of CT and as a director of CBT, conveyed instructions to Sagacious Legal which instructions confirmed Croft's solicitor's view that the second defendant was the relevant occupier of the premises at Wee Waa. She said: "The instructions of Mr Christakos, conveyed to the plaintiff's solicitors by Sagacious Legal, it is submitted by plaintiff's counsel induced the plaintiff's solicitors to delay bringing the action against the proposed fourth defendant. There is some force in this submission." 67 (1)(g) The steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice.

The Judge found that Croft had not delayed in obtaining medical or legal advice. She noted that his solicitors had not obtained any expert report relating to the tanning machine or other circumstances of the incident. The tanning machine had been delivered to premises and persons unknown, the only documents which related to the delivery of the machine, which was an unscheduled delivery and unexpected to Croft, are referred to in his affidavit. 68 The Judge notes that Croft deposes as to not having been told by his employer that he was to pick up another piece of machinery. His evidence is that he collected some paper work before leaving. On the evidence of Mr Posselthwaite, who was called to give evidence for CT, Croft's employer now has no information relating to the tanning machine. Her Honour commented: "It seems rather extraordinary that would be the case." Mr Posselthwaite was in May 2000 transport manager for ABS and Croft's immediate supervisor. 69 The Judge said: Mr Posselthwaite gave evidence of a conversation with the plaintiff on the night of the accident in which a different version of the accident was allegedly recounted to him by the plaintiff in which no oil was involved. Thus the defendant has evidence available from Mr Posselthwaite which differs from the evidence of the plaintiff as to the circumstances of the accident." 70 The Judge noted that there was no evidence from Mr Muscara or Mr Posselthwaite that any particular documentation has been lost. There was no evidence as to at what stage the location of the tanning machine could no longer be ascertained. She said: "I am not satisfied that is a matter that either causes prejudice or should be held against Croft in the circumstances of this application." 71 Croft was cross-examined at length. The Judge said: "I formed the impression that although he did not have a perfect memory, which is not unexpected, he was doing his best to tell the truth." 72 She noted the dispute as to timing and said that during cross-examination Croft was asked to produce his logbook which he did on the following day. That noted his arrival at Wee Waa as between 2 pm and 3 pm which, the Judge noted, was more consistent with his evidence than that of Mr Muscara. 73 The Judge said: "Although, it is true that he was not always able to be precise and agreed that he has given some inconsistent histories as to the date of the second incident involving his foot in 2001, by and large, I did not form the impression that the plaintiff was generally unreliable."

74 Her Honour referred to the contention that Croft had not demonstrated that he had a real case to advance against CT. She said: "I accept that on the relatively low onus applicable, on the plaintiff's version of events, he would have a reasonable cause of action against the fourth defendant." 75 Her Honour referred to criticism by Ms Heath in relation to the allegations of negligence and struck out two paragraphs of the second amended statement of claim which appeared to relate to the slipperiness of the floor itself. No cross-appeal was filed in relation to this order and I need not say anything further of it. 76 Judge Quirk said: "In the circumstances, particularly because of the instructions conveyed by Sagacious Legal to the plaintiff's solicitors to the effect that they had sued the correct defendant, in that the occupier was CBT and in all the other circumstances, I am satisfied that it is just and reasonable to extend the limitation period pursuant to sections 60C and 60E of the Act."

77 Her Honour then went on to deal with a dispute as to costs to which I shall come later.

DRAFT GROUNDS OF APPEAL 78 The grounds of appeal as set out in the draft notice of appeal are as follows:

"Defendant's Conduct. 1. Her Honour erred in finding that conduct of the Appellant, or alternatively, another defendant, relevantly caused the Respondent to delay commencing proceedings against the Appellant. Prejudice 2. Her Honour misdirected herself as to the principles for assessing prejudice caused to the Appellant by the Respondent's delay in commencing proceedings against it, including as to (a) the period in which prejudice relevantly accrues (b) the standard and burden of proof required to establish that prejudice does not require the application to be refused (c) how actual and presumptive prejudice are taken into account on the application.

Her Honour reversed the onus of proof on the issue of prejudice caused to the Appellant by the Respondent's delay in commencing proceedings against it.

Her Honour erred in failing to consider what issues were likely to arise at trial and how the prejudice alleged by the Appellant to have arisen related to those issues.

Her Honour erred in failing to find that an important witness known as "Paul" or "Richard" was unable to be sufficiently identified so as to be secured to give evidence at trial.

Her Honour erred in finding there was no material prejudice caused to the Appellant by the Respondent's delay in commencing proceedings against it.

Her Honour erred in finding that prejudice caused to the Appellant by the Respondent's delay in commencing proceedings against it could be overcome by use of medical evidence obtained by another party when there was no evidence to support that finding.

Cause of Action 8. Her Honour erred in finding the Respondent had established a worthwhile cause of action to the extent necessary on the application.

Explanation for delay 9. Her Honour misdirected herself as to the principles for assessing delay and the adequacy of explanation for delay and how delay is taken into account on the application.

10. Her Honour erred in failing to properly take into account the reason for the delay, the lack of adequate explanation given and failing to consider the fact that the Respondent may have a cause of action against his solicitor. Other relevant circumstance 11. Her Honour erred in failing to take account of the Respondent's failure to give requested further and better particulars of the proposed claim as a relevant circumstance of the application.

Failure to give reasons 12. Her Honour failed to give any or proper reasons for her critical findings.

Costs 13. Her Honour misdirected herself as to the principles to be applied on the issue of costs and erred in failing to order that the Respondent pay the Appellant's costs of and occasioned by the application for leave and any orders made on the application.

Other 14. Such other or further grounds as the Appellant may be advised on receipt of the transcript of reasons for judgment."

THREE POINTS 79 Before turning to the general submissions of the parties it is convenient to deal with three matters. 80 First, Mr Maconachie of Queens Counsel, who appeared with Ms Heath of Counsel for CT, submitted that the Court would come to the conclusion that Judge Quirk erred in approaching the discretion she was to exercise as one to refuse to grant an extension of time rather than as one to grant an extension of time. Such an approach would, at least, affect the onus of proof. 81 Mr Maconachie, whilst making the point that he was "anxious not to cavil too much with the verbiage", referred to a passage in her judgment where her Honour, referring to the tanning machine and related documentation said: "I am not satisfied that is a matter which either causes prejudice or should be held against the plaintiff in the circumstances of this application." 82 Again the written submission referred to a passage in which the Judge said, dealing with prejudice: "I am not satisfied in those circumstances that the defendant has suffered a 'not insignificant prejudice' by reason of any delay, and in my view, the delay would not result in the defendant being unable to have a fair trial." 83 The judgment in this matter was delivered orally on the morning after a two-day hearing. In Maviglia v Maviglia [1999] NSWCA 188 Mason P said at [1]: "An ex tempore judgment should not be picked over. And appropriate allowance should be given for the pressures under which judges of the District Court are placed by the volume of cases coming before them." 84 In Brisbane South Kirby J said at 570: "9. In performing the appellate task, a court will address itself to the substance of the reasons under consideration, avoiding an over-nice attention to infelicitous expressions. Whilst the reasons under challenge are usually the only means by which the parties and the appellate court have to decide whether incorrect or irrelevant considerations have intruded into the exercise of statutory discretion, the ultimate concern of an appellate court is with the correctness or otherwise of the order under appeal. If that order appears to be correct, although some of the reasoning which supports it is imperfect, the appellate court will withhold interference, for its function is to correct orders, not to rewrite judicial reasons." 85 Kirby J dissented in that case, however, I do not take that circumstance to affect the principles he thus stated although his application of them was at odds with the majority decision. 86 Mr Maconachie conceded Judge Quirk had earlier set out the relevant principles including those dealing with onus. 87 In my view a reading of the judgment as a whole does not support a contention that the language of the judgment, as such, reflects a failure to apply the onus correctly. By way of example, the passage in [82] was preceded by the observation: "In my view, the delay is not such as would cause 'not insignificant prejudice'." 88 Having said that, I shall come later to Mr Maconachie's argument that the findings and reasoning of her Honour do demonstrate an inversion of the onus and a focus on whether CT has proved that it can not have a fair trial rather than has Croft established that CT can have a just and fair trial. 89 Second, her Honour accepted that the application should be refused if the effect of granting an extension would result in significant prejudice, of the kind discussed in Brisbane South, to the potential defendant. 90 Mr Sharpe of Counsel, who appeared for Croft, submitted that this acceptance was wrong and disadvantaged Croft. He relied, amongst other arguments, upon the very different wording of s 60E to that of the Act considered in Holt and Brisbane South. (See Zegarac per Mason P at 197 and 199). 91 However, no Notice of Contention was filed nor was any argument presented as to how the Judge, or for that matter the Court, should have applied the terms of s 60E(1)(b) in the present case. 92 In these circumstances it would seem that this matter should be dealt with, on this aspect, as her Honour did. Having regard to the view I have reached on that approach it is unnecessary for me to consider the point further. 93 And third, at the hearing before Judge Quirk and in the written submissions much attention has been given to the issue whether, to use the Judge's words "the plaintiff had demonstrated that he had a real case to advance against the fourth defendant". As to this her Honour said: "I accept that on the relatively low onus applicable, on the plaintiff's version of events, he would have a reasonable cause of action against the fourth defendant." 94 Her Honour had accepted that Croft was doing his best to tell the truth and that he was not generally unreliable. 95 Any further agitation of this issue confronts that credit finding (Abalos v Australian Postal Commission (1990) 171 CLR 167). At least in relation to the allegation relating to absent or defective lighting certain other issues raised by way of defence would be inapplicable. 96 It was pointed out in Commonwealth v McLean (1996) 41 NSWLR 389 at 395 per Handley and Beazley JJA that: "An application for extension is not a trial or a dress rehearsal for a trial. The court is concerned with whether there are serious questions to be tried……" 97 During address Mr Maconachie referred to conflicting versions as to what had occurred leading to Croft's injury. The following exchange then took place: "CAMPBELL AJA: But isn't this an issue for the trial rather than on an application of this nature? MACONACHIE: Indeed it is your Honour, but the reason that the evidence was called and the issue was advanced before Judge Quirk was to show, as we hope we can, that it is a critical issue for the trial and one, having regard to the circumstances of this case, we can't be expected fairly to be able to meet. Accordingly yes, it is a matter for the trial, but the materials available at the time of the incident and the materials available now in all of the circumstances give rise to a prejudice of the most tangible kind for the claimant. That's the basis upon which it's put." 98 The concession was properly made. I see no need to consider further, as an issue, whether for present purposes Croft has sufficiently demonstrated a cause of action. As Mr Maconachie has pointed out the nature of the issues on that question remains relevant in considering the matter of prejudice. 99 Whilst it is to be remembered that s 60E calls for a consideration of "all the circumstance of the case" the parties have conveniently grouped their other arguments primarily around the paragraphs of s 60E(i). The matters requiring consideration are (a), (b) and (f). I deal with them in that order.

Section 60E (1)(a) CT's Submissions 100 On this aspect the written submissions begin with the following summary: "Her Honour misdirected herself as to the principles for assessing delay and the adequacy of explanation for delay and how delay is taken into account on the application. Her Honour erred in failing to properly take into account the reason for the delay, the lack of adequate explanation given and failing to consider the fact that the Respondent may have a cause of action against his solicitor." 101 It was pointed out that there was no evidence from the solicitor having the conduct of the matter before Ms Piper. 102 The judgment had noted that a company search of CT had shown an address other than 47-49 Boolcarrol Road Wee Waa. Nothing was said in the judgment as to what followed from this. Attention was drawn to the word "transport" in the name. 103 It was put that her Honour did not expressly state that the reasons given for the delay were adequate or give her reasons for that view. It was put that the inquiry that should have been pursued was which company had charge of the consignment or loading operation. 104 It was put that the Judge did not consider the effect of the fact that Croft's solicitor did little actively to pursue the claim after being told by the liquidator that CT may have been a relevant entity. 105 It was put that whilst her Honour noted that the delay in proceedings against CT was not that of Croft personally she did not consider the lack of diligence by his solicitors, and appeared to consider that such lack could not be weighed against Croft. She also did not consider that Croft may have a cause of action against his solicitors which would mitigate his loss.

Section 60E (1)(a) Croft's submissions. 106 Croft's written submissions relied upon an assertion that Judge Quirk had correctly stated the law and held accordingly. 107 Mr Sharpe put that although there was no evidence from earlier solicitors the correspondence put before the Judge "clearly explained what happened". He put that such solicitors were not members of the firm and that they could only reinforce what the documents show. 108 In respect of an issue raised by the Bench as to why CB and CBT were sued within time and CT was not, Mr Sharpe took the Court to the searches carried out in February 2002 [25]. He referred to further searches in September 2003 which also showed such ownership. 109 Mr Sharpe referred to the letter from Sagacious Legal of 21 March 2003 which included the statement "we are instructed that before it went into liquidation CBT was the owner/occupier of the premises known as 47 Boolcarrol Road Wee Waa." 110 Mr Sharpe also referred to the advice from Mr Tuckwell as to CB [31] and to the later letter from Phillips Fox advising that the premises were occupied at the relevant time by either CBT or CT. [11].

Section 60E (1)(a) Consideration 111 As I have mentioned there is an overlapping element in the consideration of these separate matters and, at the end, a determination to be made upon all the circumstances of the case. Nonetheless, it is useful to make some comments as to the separate elements. It would not be practicable to deal with every issue mentioned, although I have considered them all. CT's submissions are carefully drawn and obviously reflect much thought however, with respect, they rely significantly on the great advantage of hindsight and a level of perception and activity not found in the real world of litigation. A somewhat similar point was made by Judge Quirk when she referred to a contrast between what it was suggested would have been done for CT and what appeared to have been done for CBT. 112 I consider that Judge Quirk did deal with the question of delay. I think it was open to her to conclude that the delay was adequately explained. The course of events emerged clearly enough, as Mr Sharpe put, from the correspondence. The suggestions in the submissions as to what might or should have been done after the searches were received seem to me to depend very much on hindsight. 113 Near to the commencement of his address Mr Maconachie said: "….I want to stick as closely as I can to the written submissions which Ms Heath has, being (sic) principally responsible for because to do otherwise is to make that which is already complicated, even more complicated….." 114 Croft's solicitors had to cope with the complicated situation arising from the number of related Christakos companies, their difficulties and their connection with 47-49 Boolcarrol Road Wee Waa without the assistance of the information now available. 115 Amongst the company searches carried out on 12 February 2002 was one of CT. It is not an unreasonable inference that a search was carried out on all the Christakos companies. Whether that be so or not the principal place of business was stated to be "Lot 1022 Newell Highway Narrabri". 116 Judge Quirk appears to have been under the impression that this search was later, however, she identifies in her judgment not "an address other than 47-49 Boolcarrol Road Wee Waa" as the submission suggests, but Narrabri, as the principal place of business. 117 I do not think that without the advantage of hindsight and with the knowledge that CBT and CB owned parts of 47-49 Boolcarrol Road Wee Waa, it was unreasonable not to sue CT. 118 Indeed a letter from Mr Dunphy, the liquidator of CT, to Croft's solicitors of 9 March 2004 said, amongst other things: "You stated that the injury to your client occurred at 47 Boolcarrol Rd Wee Waa. During my investigation of the affairs of the Company I was unable to locate a lease of the premises from the owner RFI Pty Ltd. It is my understanding that the Company occupied the premises with the informal consent of the director of RFI Pty Ltd, Mr John Christakos until approximately 13 March 2003. At that time a payment of $16,500 was made by me as Liquidator of the Company to permit an on-site auction to be conducted at the premises on behalf of the Company, Christakos Bros Transport Pty Ltd and Sunderland Pastoral Co Pty Ltd. I provide this background information in case it is relevant to establishing the proper defendant in these proceedings." 119 Mr Maconachie, commenting in address upon the occupation of the premises with only the informal consent of the director of RFI, said: "That might explain why it was that CT was not the subject of attention before that letter was sent…." 120 He did, however, make the point that CT had been "in play" before that letter. He referred to the search mentioned above. There had already been the Phillips Fox letter of 31 October 2003, however, the Dunphy letter does show the difficulty of identifying CT as an occupant of the Wee Waa premises by conventional searches. 121 There is nothing unusual or inconsistent with normal litigious practice in Croft's solicitors relying upon the information they received from Sagacious Legal which appeared to correlate with the searches they had done. 122 In my view Judge Quirk was entitled to conclude that there was no unreasonable delay by Croft's solicitors. Her Honour referred only compendiously, for obvious reasons, to the quite extensive correspondence between Croft's solicitors and CT's solicitors. Ms Piper's affidavit annexes some five letters passing between Croft's solicitors and Sagacious Legal between 9 January 2003 and 21 March 2003; seven letters passing between Croft's solicitors and C. Tuckwell & Co, Auditors between 4 June 2003 and 8 October 2003, and a good deal of other correspondence. 123 On 5 December 2003 CT's solicitors wrote to Croft's solicitors and said, amongst other things: "We refer to your correspondence dated 4 December 2003 and confirm that CGU is on risk as the public liability insurer for both Christakos Transport Pty Ltd and CBT at the date of the accident." 124 These matters all support the view taken by the Judge that delay was properly explained. 125 The Judge referred to the circumstance that such delay as there was was not Croft's fault. That is a relevant factor. I see no occasion for her to deal separately with the consequences of suggested inappropriate delay on the part of the solicitors, much less to refer to possible causes of action against those solicitors.

Section 60E (1)(b) CT's submissions 126 On this aspect the written submissions begin with the following summary: "Her Honour misdirected herself as to the principles for assessing prejudice caused to the Claimant by the Opponent's delay in commencing proceedings against it, including as to (a) the period in which prejudice relevantly accrues (b) the standard and burden of proof required to establish that prejudice does not require the application to be refused (c) how actual and presumptive prejudice are taken into account of the application." 127 It was put that Judge Quirk appeared to have considered only prejudice arising after the expiry of the limitation period instead of the prejudice occurring during the whole period since the accident. Reference was made to Brisbane South at 645-5 and South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 at (42). 128 It was put that the Judge had reversed the onus of proof on the issue of prejudice. 129 It was put that there was no basis for factual findings that led her Honour to conclude there was no significant prejudice. The findings referred to were that the accident happened in unusual circumstances and that Mr Muscara and Messrs Hall could give evidence about the consigned machine and procedures for loading. As to the first of these matters Mr Maconachie pointed put that there was no evidence that movement of machinery was not a regular event.

130 It was put: "Her Honour failed to apply the correct test of actual prejudice being that if there was doubt as to whether evidence necessary for a fair trial was possibly available the application should be refused. ( Holt v Wynter (2000) 49 NSWLR 128 at 135; State of New South Wales v Donnelley [2004] NSWCA 133 at [52] per Giles JA with whose conclusion as to the existence of prejudice Handley JA agreed; SDC Kennedy & Bird v Kerry O'Brien; Kennedy & Bird (Builders) v Kerry O'Brien [2002] NSWCA 367 [18] - [20]}. Her Honour erred in failing to accept as a matter of principle that difficulty in identifying and locating relevant witnesses, the apparent loss of relevant records, the loss of the opportunity of having had earlier medical examinations of the Opponent and of having observations or investigations carried out to test his claim were capable of amounting to significant prejudice and in failing to find that it did in fact do so ( Sydney City Council v Zegarac (1986) 43 NSWLR 195). Her Honour erred in principle in considering prejudice by speculating what evidence might be available [JM 20-22] (eg whether witnesses could possibly give evidence of the 'factual matrix' of the loading of the machine) but without considering the relative importance to the Claimant's opportunity for a fair trial of what evidence is possibly lost being eye witness evidence of the accident itself or the immediate aftermath. The Opponent's case made no real attempt to establish that the relevant witnesses were identifiable, available and had sufficient recall of the events for a fair trial to be had. Her Honour erred in finding there was no material actual or presumptive prejudice to the Claimant." 131 It was submitted that Judge Quirk failed to consider the issues and defences likely to arise at the trial and the effect the passage of time would have on the acceptability of Mr Posselthwaite's evidence. 132 It was put that her Honour was in error in holding that there was no evidence that any particular document was lost or destroyed. 133 There should have been, it was put, consideration of the unavailability of the tanning machine for expert examination. 134 It was put that her Honour failed to find that the forklift driver was unable to be sufficiently identified to be secured as a witness and the effect of that unavailability. 135 It was put: "Her Honour erred in finding that prejudice caused to the Appellant by the Respondent's delay in commencing proceedings against it could be overcome by use of medical evidence obtained by another party when there was no evidence to support that finding." 136 This concept was developed in a number of ways including those of the possible effect of a further injury and of a failure of Croft to follow his doctor's orders. 137 It is convenient to say at this point that I do not consider it necessary to take time to deal further with this and related contentions. With the amended statement of claim there was served some 43 separate items including hospital notes, x-rays, specialist and other reports commencing on 2 May 2000 and going through to 22 October 2003. I regard as untenable the view that in the light of the availability of this material - not to mention other items to which the Judge referred - that CT would suffer "not insignificant prejudice" in relation to medical issues. 138 Mr Maconachie put that a consideration of the judgment as a whole leads to the conclusion that the Judge was not concentrating upon the fact that the discretion she was to exercise was to grant not to refuse the extension.

Section 60E (1)(b) Croft's submissions 139 It was put that the judgment demonstrated that her Honour had followed the principles set out in the cases to which she referred. In particular it was submitted that she considered the whole period from the accident to the hearing. 140 It was put that CT's submissions sought to equate a "fair trial" with an "ideal trial" which was not what the law required. 141 It was put that there was no significant prejudice so far as lay witnesses were concerned and that the evidence adduced clearly demonstrated the contest between the parties. 142 The submission asserted: "Apart from speculation, all relevant witnesses have been identified". 143 Attention was drawn to the fact that CGU was the insurer for CBT and CT.

Section 60E (1)(b) Consideration 144 At the conclusion of her judgment on this aspect Judge Quirk said, as I accept to be the position, that she was satisfied that CT had not suffered a "not insignificant prejudice". She also said "…and in my view, the delay would not result in the defendant being unable to have a fair trial." I do not consider that it has been shown that it was not open to her to so hold. 145 In particular, I do not agree with Mr Maconachie's submission that a reading of the judgment as a whole reveals that the Judge did not apply the onus correctly and did direct her mind rather to a discretion to refuse than to a discretion to grant. 146 I do agree that there are individual passages that might well support Mr Maconachie's contentions, but consider that a fair reading of the whole judgment does not do so. 147 It was put that the circumstances could not be regarded as unusual and therefore more likely to be remembered. I do not agree with that submission. 148 Judge Quirk had observed that there was no suggestion that there was regular movement of tanning machines. Not only does commonsense support that proposition but, having regard to the detailed way in which the case was conducted, one would have expected some reference to a regular trade in such items if it in fact took place. 149 Mr Maconachie referred to a failure to exclude a regular activity in the moving of mechanical equipment. However, such items are very different to large numbers of identical bags of wheat and the like. 150 As to the missing machine it is common practice in litigation for a suitably qualified expert to identify a type of machine by description and give evidence in relation to its characteristics. No doubt that is not as satisfactory as having the original machine but even then could it be realistically supposed that at any likely time of inspection it would have been in the same condition? 151 Mr Muscara and the Halls would appear to be available to give evidence albeit the fourth man remains apparently unidentifiable. 152 Mr Posselthwaite is available. Judge Quirk had heard him cross-examined. She clearly did not accept that his memory would constitute a problem. If George Christakos does have a memory problem following an accident he was not present at the accident. 153 It was necessary for Judge Quirk to consider these and other matters and decide whether Croft had shown that CT would not suffer a "not insignificant" prejudice if the extension was granted. She did so and reached the decision set out in her judgment which included her view that the delay would not result in CT being unable to have a fair trial.

Section 60E (1)(f) - CT's submissions 154 On this aspect the written submissions began with the following statement: "Her Honour erred in finding that conduct of the Claimant relevantly induced the Opponent to delay commencing proceedings against the Claimant." 155 It was put that Judge Quirk's finding on this point, whilst brief, "seems to be the principal basis for her Honour's decision to extend time." It asserts that the relevant conduct was found to be in the letter of Sagacious Legal of 21 March 2003. 156 It was submitted that there was no evidence to base the finding that the instructions came from Mr Christakos. The limited nature of the initial retainer given by him to the solicitors and the intervention of the liquidation of CBT were pointed out. 157 It was put that the conduct did not confirm that CBT was the relevant occupier or that Croft had sued the correct defendant. It was submitted: "At its highest, the conduct was an omission to volunteer that the Claimant was also an occupier of the premises: knowledge of which fact was not essential to the Opponent's claim but might have put his solicitors on further enquiry." 158 It was submitted that the Judge did not expressly consider whether the impugned conduct could properly be attributed to CT and that it could not be so attributed. For reasons which appear later I do not need to set out the argument on this point. 159 It was submitted that there was no basis in the evidence for the conclusion that Croft was induced to delay by reason of the letter. 160 It was put that the decision who to sue had been made earlier and that the letter seeking information was directed rather to whether a defendant might be discontinued against. The letter dealt with a claim based on occupation and not one based on consignment of the machine and/or casual acts of negligence. There was, it was put, no sense of urgency that might have been expected had the request been intended to elicit the identities of potential defendants. 161 It was pointed out that there was no evidence that the letter was relied upon and reference was made to the failure to call the solicitors having the conduct of the matter before Ms Piper. 162 It was submitted that s 60E(1)(f) requires more than a failure to assist. There must be an actual persuasion or influence to delay making a claim. Further, it was put, there must be an intention to so act or, at least, a full awareness of the nature of the transactions that the plaintiff has in contemplation and a knowledge that the information would be used in deciding upon the course to be taken. 163 It was put: "It was not established that the Claimant in fact engaged in the impugned conduct, that the Opponent relied on it causing him to delay taking action or that the Claimant intended to delay proceedings being taken against it or should have known that was the natural and probable result of the impugned conduct. It is submitted that her Honour was in error in finding that the impugned conduct was a reason to grant the extension of time."

Section 60E (1)(f) Croft's submissions 164 Croft relied substantially upon her Honour's judgment.

Section 60E (1)(f) Consideration 165 I do not think that the Judge made a finding that CT induced delay in suing or reached her decision on such a basis. 166 Having noted the parties' submissions on the point her Honour, in respect of Croft's submission, said: "There is some force in this submission." That is not a phrase that reflects a concluded finding. 167 After dealing with the various heads and other matters her Honour said: "In the circumstances, particularly because of the instructions conveyed by Sagacious Legal to the plaintiff's solicitors to the effect that they had sued the correct defendant, in that the occupier was CBT and in all the other circumstances, I am satisfied that it is just and reasonable to extend the limitation period pursuant to sections 60C and 60E of the Act."

168 That, in my view, simply reflects the situation that existed. Her Honour regarded as an important factor, as clearly it was, that Sagacious Legal had written a letter which the Judge considered reasonably justified a view that the correct defendant had been sued.

REASONS 169 The grounds of appeal rely upon a failure to give adequate reasons. I have already accepted that there are deficiencies in expression such as are to be expected in a near ex tempore judgment. In my opinion the reasons given by the Judge satisfy the requirements of the law (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247).

CONCLUSION 170 There are features of this case which militate against the grant of leave to appeal. However, it does seem to me that in the context of the litigation as a whole it is desirable that the limitation issue be finally resolved at this stage. Accordingly, I propose that leave to appeal be granted. 171 In my view CT has not established error on the part of Judge Quirk in the exercise of her discretion to extend the limitation period. (House v The King (1936) 55 CLR 499). Accordingly, I propose that the appeal be dismissed with costs.

COSTS 172 The order made on the hearing was that each party pay its own costs of the application. 173 The appellants seek an order that, whatever the outcome of this appeal, Croft pay the costs of the application. 174 Upon this question CT has the onus of showing a manifest error on the part of the trial judge and, moreover, of the kind warranting intervention in an area of discretion concerning practice and procedure. (See Gorczynski v Perera [2004] NSWCA 71 per Santow JA at [24], Wentworth v Rogers (No 3) (1986) 6 NSWLR 642). In the Will of F B Gilbert (Deceased) (1946) 46 SR (NSW) 318 at 323 Jordan CJ said: "…. there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of judges of first instance, the result would be disastrous to the proper administration of justice." 175 At the commencement of the portion of the judgment dealing with costs her Honour said: "The plaintiff seeks an order that the fourth defendant (CT) pay its costs, or alternatively an order that costs be costs in the cause. The defendant seeks costs from the plaintiff. Costs are discretionary." 176 Neither party appears to have drawn her Honour's attention to Part 29A rule 32 of the District Court Rules which provides: 32. Where a party applies for an extension of time, unless the Court otherwise orders, the party shall, after the conclusion of the proceedings, pay the costs of and occasioned by the application, or any order made on or in consequence of the application."

177 That rule leaves it open to "the Court to otherwise order." It is unnecessary to consider whether CT having failed to draw the Judge's attention to the rule, can rely upon it. For Ms Heath put to her Honour that where an indulgence is sought the normal order would be for the applicant to pay the costs even though otherwise successful. Mr Gibson of Counsel, who appeared for Croft at first instance, subsequently said: "My friend is correct is submitting to your Honour that in [an] application of this nature it is usual for the applicant to bear the costs even if successful." 178 He, however, put that in the circumstances of this case the order should be otherwise. He relied particularly upon the information supplied as to the occupier of the Wee Waa premises and to the difficulties which the applicant had in untangling the appropriate defendant the responsibility for which did not lie with Croft or his advisers. 179 Ms Heath pointed out that Croft's affidavit was defective in that it did not disclose material showing a cause of action. Mr Gibson relied, amongst other things, upon the already existing proceedings which were in time. 180 During addresses on costs the following exchange occurred: "HER HONOUR: Just remind me, the solicitors who act, as you've said from the Bar table, on a limited basis for the proposed fourth defendant and CGU have been acting for the second defendant since when? November last year, was it? HEATH: Yes and on the same basis your Honour. HER HONOUR: Do I know or is it apparent from the records - is it same insurer or different insurers? HEATH: No, it's the same."

181 Ms Heath referred to the inadequacy of Croft's preparation and also difficulties and expense incurred by the way in which, she put, Croft's solicitors had acted in relation to the proposed attendance at Court of Mr Christakos and Mr Muscara. It is apparent that compromises had been reached between the parties as to how the case would be conducted. 182 Her Honour referred to the deficiencies of both side's preparation and then said:

"In the circumstances that, unfortunately, the plaintiff had to attend from Tasmania, because he was required for cross-examination, had his affidavit been prepared properly and contained evidence of all the salient matters which he was obliged to prove, I would have considered making the order sought by Mr Gibson."

183 Having regard to what was put by Ms Heath and Mr Gibson this passage, in my view, indicates that the Judge accepted Mr Gibson's contention that Croft's conduct had been reasonable and CT's unreasonable in requiring a contested application. 184 It was put for CT that the Judge had considered an irrelevant matter in respect of Croft's attendance from Tasmania. However, it is apparent that was a reference to Croft's inadequately prepared case which led her to make the order she did rather than one more adverse to CT. 185 Another mind may have taken a different view as to the appropriate costs order, however, within the principles discussed above, I am not persuaded that it was not open to Judge Quirk to find as she did on this question.

PROPOSED ORDERS 186 I propose the following orders: (a) Extend time for filing and serving of ordinary summons for leave to appeal until date of filing and serving of ordinary summons for leave to appeal filed herein.

(c) Notice of appeal to be filed within seven days.

(d) Appeal dismissed with costs. **********

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