Clark v McGuinness [2005] VSCA 108

Clark v McGuinness [2005] VSCA 108 - VSCA 2005 case summary — Zoe

1 An appeal is brought against an order made in the County Court on 7 May 2003 that the respondent, Joanne McGuinness, be granted leave for an extension of time pursuant to s.23A of the Limitation of Actions Act 1958 to bring proceedings against the appellant, Geoffrey Clark.

2 By Writ filed on 20 August 2002, the respondent alleged she was sexually assaulted by the appellant on 14 February 1981. She claimed damages for personal injury and breach of duty alleged to arise from the assault. As the claim was brought after the limitation period had expired it was necessary for the respondent to apply to the court below for an extension of time under the statute. The respondent also applied in the court below for leave pursuant to s. 23A of the Act in relation to personal injuries alleged to have been suffered by her on 18 July 1987 at Purnim. The judge found that the respondent received legal advice shortly following the alleged attack at Purnim and that she had the capacity to bring civil proceedings against the appellant with respect to that matter. His Honour concluded that the extension of time should not be granted under s. 23A with respect to the alleged assault at Purnim. The application was dismissed and that particular matter is not the subject of the appeal.

3 The appellant and the respondent are first cousins and knew each other and their respective families from living in the Warrnambool area and, in particular, through an Aboriginal mission at Framlingham, near Warrnambool.

4 The events surrounding the alleged sexual assault on 14 February 1981 may be set out briefly for the purposes of the appeal. The appellant strenuously denied the allegations. The respondent alleged that the sexual assault occurred at Logan's Beach, Warrnambool, when the appellant drove her there in the company of several others. One person present was an associate of the appellant, Frank Abraham; another, a friend of the respondent at the time, Angie Anderson; and a person known to both the appellant and the respondent, one David Clark, also known as Charlie Clark. The respondent alleged that after the appellant parked the car at Logan's Beach he pulled her from it and violently raped her. The respondent alleged that Frank Abrahams was witness to the attack and that he was nearby at the time masturbating. The respondent said that at the time of the attack she called out to David (Charlie) Clark who she believed was nearby but he did not respond. Angie Anderson was not present at the time but the respondent alleged that she told Anderson about the attack some time afterwards. For various reasons each of the potential witnesses to the alleged attack are unwilling, unavailable or unlikely to be able to give evidence at any trial. Abrahams is apparently so affected by alcohol that his memory is severely impaired and he has no memory of the incident. Charlie Clark is in prison but is evidently ill with schizophrenia and incapable of effective communication. Anderson has not had any contact with the appellant since the early 1980's and apparently has no recollection of the alleged events.

5 A short time after the alleged assault the respondent reported the matter to the police. The respondent described that very shortly after reporting the matter she was forced by her family to travel to Perth. Whilst in Perth the respondent was interviewed by a police detective from Warrnambool. He was unable to persuade the respondent to return to Warrnambool to assist the police with their enquiries. A short time later the respondent returned to Warrnambool independently. In the event, the police did not pursue the matter any further at that time. It transpired that the police file was later lost.

6 The respondent alleged that on 18 July 1987, approximately six years after the event at Logan's Beach, she was assaulted by the appellant at a hotel at Purnim. She made a complaint to the police at the time and also sought advice from a firm of solicitors, McCulloch & Peters. The police advised the solicitors that the incident at the hotel at Purnim would be treated as a civil matter when she attended the offices of the law firm in Warrnambool, the respondent was accompanied by an Aboriginal elder who is now deceased, Banjo Clarke. At the solicitors, the respondent saw Roy Reekie, then an articled clerk. In the records of the firm of solicitors there was a file note made in 1987 that included a reference to an allegation by the respondent that the appellant had raped her approximately seven years earlier when she was 16 years old. The file note of the solicitors was to the effect that the earlier episode was reported to the police but nothing eventuated. There was evidence before the judge below that Mr Reekie said that at the time of the interview he would have been conscious of the then six year limitation period[1] and the fact that time had not expired but that he did not give advice about it. The evidence of Mr Reekie was that during the interview the respondent was in a distressed condition when referring to the 1981 episode and that her prevailing interest was to pursue a police prosecution arising from the alleged assault in 1987 at the hotel at Purnim. Subsequent to the interview with Mr Reekie, the plaintiff was advised by letter from the solicitors dated 26 August 1987 that she could bring civil action for the Purnim assault. The judge below concluded that the advice was received by the plaintiff but that she decided not to proceed with a civil action for the alleged assault at Purnim.

7 In considering the evidence and the advice of the solicitors concerning the 1981 incident his Honour observed:

[36]

28 His Honour observed that the considerations referred to in s.23A(3)(a) and (b) are concerned with the length of delay and the reasons for the delay by the Plaintiff in commencing proceedings and the extent to which, having regard to the delay, there is or is likely to be prejudice to the Defendant. In that respect his Honour made observations with respect to the capacity of the respondent to recall events and the relevance of the fact that the respondent was not responsible for the police failure to interview the appellant in 1981.

29 His Honour therefore essentially considered together the considerations provided for by s.23A(3)(a) and (b). No consideration was given explicitly to s.23A(3)(c), nor do I consider that it was relevant to do so. In respect of the circumstances as provided for by s.23A(3)(d), the judge below considered the duration of any disability of the respondent on or after the accrual of the cause of action. Ultimately, this consideration was critical to the judge's resolution in favour of the respondent.

30 The assessment of the respondent by the judge and the extent to which the respondent acted promptly once she knew that her injury "was attributable, might be capable at that time of giving rise to an action in damages" was also critical to his Honour's consideration of s.23A(3)(e). In determining the time when knowledge attached to the respondent, his Honour took account of the indigenous background and education of the respondent and, also, her psychological problems and difficulties with alcohol and marijuana about which there was evidence before the court.

31 As to what steps the respondent had taken with regard to obtaining "medical, legal or other expert advice and the nature of any such advice" that the respondent may have received, as provided for by s.23A(3)(f), the judge below found that the respondent could not be fully advised and did not apply her mind to the initiation of civil proceedings in 1987 with respect to the alleged assault in 1981 because she was preoccupied with the alleged events at Purnim in 1987 and was also embarrassed and distressed with respect to 1981 incident. His Honour considered that the delay between the dismissal of the charges at the committal proceedings and the subsequent contact with solicitors some eight months later was reasonable. He also considered that the complaint was made to the police in relation to both alleged assaults in 1981 and in 1987 within a reasonable period. With respect to the failure of the respondent to pursue her complaints to the police concerning the appellant his Honour accepted and attributed the failure to the Aboriginal elder, Banjo Clarke, to reactivate the investigation and also the fear by the respondent of the appellant and the prospect of reprisal.

32 Ultimately, his Honour concluded that there was prejudice to the appellant caused by the very long delay in the commencement of the proceeding but concluded that "strong and persuasive reasons have been advanced on behalf of the Plaintiff for her delay". The judge concluded that it was just and reasonable in all the circumstances that the extension of time sought be granted with respect of the 1981 incident.

33 By way of "one additional consideration" the judge below observed that criminal prosecutions for sexual offences that occur up to 20 or more years past are regularly conducted in the County Court of Victoria. His Honour relied upon his judicial experience in those cases where he observed there is usually no evidence to corroborate the evidence of the complainant but that appropriate warnings are given to juries. His Honour stated that he would have reached the same conclusion with respect to the application for the extension of time by the respondent without regard to his criminal experience but went on to observe:

"...However, in relation to the likely prejudice suffered by the Defendant as a result of the delay, in the exercise of the discretion vested in the Court under s.23A, the prosecution of criminal charges of the kind referred to in this paragraph adds weight to the outcome that I have already determined."

34 With respect, I find that the "additional consideration" highlighted by his Honour is unhelpful, indeed, inappropriate and irrelevant in answering the central question posed by this case, namely, whether or not the prejudice to the appellant is so significant as to outweigh any legitimate claims by the respondent and make the imposition of the claim unjust and unreasonable?

35 However, before turning to the central issue of prejudice, a problematic aspect of this case is the provision or otherwise of adequate legal advice to the respondent, that being a factor specifically provided for by s.23A(3)(f). The respondent freely admitted that she sought legal advice with Banjo Clarke at the offices of the law firm McCulloch & Peters in July 1987. Mr Reekie stated in his evidence that the respondent apparently referred to the alleged 1981 assault almost as an adjunct to the later assault. It raises the question as to why the respondent did not also legally pursue the (apparently) more serious and earlier complaint. If the evidence of Mr Reekie is accepted, this could be explained by several factors. Mr Reekie stated in his evidence that Banjo Clarke informed him of the knowledge of the police of the matter, but that the file had been lost. Mr Reekie stated that he discussed the possibility of taking civil action with the respondent, however, that she feared what the appellant might do to her. If such fear was genuine, it should not be underestimated; the appellant is not only the respondent's cousin but he had by this stage had become a well-known and powerful figure in the Aboriginal community.

36 Mr Reekie also recollected that the respondent became very distressed and tearful when referring to the 1981 incident and preferred to emphasise the Purnim incident, making it perhaps more difficult for the respondent to understand her legal rights in the matter. The judge below was able to distinguish between the advice received about the 1987 allegation which was conveyed to the respondent in writing, and an apparent vagueness about what advice had or had not been received in relation to the 1981 allegation that is the subject of this appeal.

37 The appellant in his submissions relied extensively upon Brisbane South Regional Health Authority v Taylor [12] as authority for the principle that, essentially, an application for an extension of time under limitation legislation ought to be refused if the effect of granting the extension causes significant prejudice to the potential defendant.[13] The appellant submitted that the judge below erred in finding that the decision of the Victorian Court of Appeal in Tsiadis v Patterson[14] has to an extent qualified the principles enunciated in Brisbane South when considering applications under s.23A of the Limitation of Actions Act.

38 In my view, the primary judge was correct in his finding. The decision in Tsiadis has to an extent qualified Brisbane South. As explained by Buchanan, J.A. in Tsiadis, the limitations legislation considered by the High Court in Brisbane South, despite being similar in some respects to the Limitation of Actions Act, in other ways was distinctive. In comparing applications made pursuant to s.23A and that legislation, Buchanan, J.A. made the following pertinent observations:

[45]

47 By way of reply, counsel for the appellant claimed that the appellant could point to a number of matters which would affect any attempt to defend the respondent's claim should it go to trial. In cases such as these, where psychiatric disturbance and alcohol and substance abuse is claimed to result from (whether partially or wholly) an event which happened many years before, it is imperative that there be conducted a thorough investigation into the potential plaintiff's medical history. This is so that diagnosis of any condition can be sufficiently linked to any alleged incident and a causal relationship possibly found. To do so here would prove extremely difficult in the circumstances given the fact that not only did the respondent fail to seek medical treatment directly following the alleged attack, so that there are now no records at all of physical injuries which may or may not have been sustained, but also because the respondent appears to have only received counselling from the year 2000. No medical, psychological or counselling records may therefore be adduced by the respondent prior to this date. There is also an extensive gap of some nineteen years between the alleged incident and the time at which the respondent finally received counselling. Not only does this make it extremely difficult to relate a patient's history to the alleged attack, it does nothing to dismiss the notion that there could be other causes behind the respondent's abuse of alcohol and marijuana during this time, and other reasons as to why the respondent suffered from a psychological condition.

48 Counsel for the appellant submitted that the absence and/or unwillingness of witnesses identified by the respondent constituted significant prejudice against him. I accept this submission, particularly having regard to the illness of one of the witnesses (Charlie Clark), the inability of another to recall due to alcoholism (Frank Abrahams) and the inability of a third witness to recall events of that night (Angela Anderson), whether this was due to her absence from the scene of the alleged events, memory failure or reluctance to do so for other reasons.

[51]

54 I have read the reasons which the Chief Justice proposes to publish in this appeal. I agree with her Honour's conclusion that the appeal should be allowed, and the order for extension of time made by the judge in the County Court be set aside. I do so in part for the reasons which her Honour gives. Because this Court is in possession of the material which was before the County Court judge, we are in a position to exercise the discretion for ourselves without remitting the matter to the County Court. Indeed, I did not understand counsel in this Court to submit otherwise. For my own part, I would order that the respondent's application, pursuant to s.23A of the Limitation of Actions Act 1958 ("the Act"), to extend the time within which to commence an action for common law damages against the appellant, be dismissed. I desire to add some reasons of my own for reaching that conclusion.

55 The cause of action which the respondent wished to pursue against the appellant was very old; or "stale" as the lawyers would say. The events giving rise to it, she said, occurred at Logan's Beach in Warrnambool in February 1981 when she was about 161/2 years of age. She alleged that the appellant had assaulted and raped her in the presence of other persons. It follows that, when she issued her writ in August 2002, that cause of action was more than 21 years old. The appellant, who said that he had no knowledge of the respondent's allegations until the year 2000, has consistently denied them. His case was that he only became aware of them in 2000 because the police charged him with the alleged rape upon the respondent's complaint; but the charges were dismissed, upon committal hearing, on 1 November

2000. Even then, almost two years passed before the respondent's writ was issued in the County Court.

56 The respondent's application seeking the exercise of the Court's discretion to extend the time was filed on 22 November 2002. That application was heard in April/May 2003; and on 7 May 2003 the judge exercised his discretion in favour of the respondent by concluding that it was just and reasonable in the circumstances to extend the period within which the cause of action upon the assault and rape could be brought until 20 August 2002[25]; that is, the date upon which the writ was issued. The statement of claim annexed to that writ had alleged a further assault by the appellant of the respondent at the Bush Inn Hotel, Purnim (near Warrnambool) on 18 July 1987. His Honour concluded that he would not exercise his discretion in favour of the respondent to extend the time in respect of that cause of action because she had received legal advice in 1987 that she could bring proceedings against the respondent, but had taken no further action. For those reasons his Honour concluded that it was not just and reasonable to extend the time within which to pursue that cause of action. His reasons with respect to the cause of action based on the 1981 "rape allegations" were in contrast. His Honour said:

[55]

58 Mr. Stanley's submission was, inter alia, that the primary judge in this case had acted upon a wrong principle in assessing the degree of prejudice which had flowed to the appellant from the respondent's lengthy delay in initiating her action; and by underestimating the nature of the onus which the respondent bore in demonstrating that the discretion to extend the time should be exercised in her favour. In response to Mr. Stanley's submission, Mr. Tobin (who appeared with Mr. Roseman for the respondent) contended that no basis could be shown for interfering with the exercise of the primary judge's discretion under s.23A of the Act; a discretion of substantial width. He submitted that the section requires the judge to have regard to "all the circumstances of the case" and that the specific matters referred to in sub-s. (3) are "non-exhaustive". Mr. Tobin submitted that the judge had not been shown to have acted upon erroneous principles; nor was he mistaken as to relevant facts, nor could it be demonstrated that his conclusions were unreasonable. In particular Mr. Tobin submitted that the judge had made appropriate findings on the issue of "prejudice" and the part which it played in the conclusion to which he came.

59 For my own part, I think Mr. Stanley is correct in his submission that his Honour's conclusion was affected by error, and cannot stand. His Honour's reasons, although commendably brief, are, in many respects, cryptic and, accordingly, not always easy to understand. However, it is tolerably clear, in my view, that his Honour allowed irrelevant matters to intrude into his consideration of the weight which ought to be attributed to the prejudice accruing to the appellant from the lengthy delay of the respondent in seeking to pursue her civil remedy against him. It is clear that his Honour did conclude that there was prejudice to the appellant which was to be implied from the length of the delay itself; and that there was specific prejudice occasioned by the effect of time delay upon witnesses who had said, either that they had no recollection of the events alleged, or that such events did not occur. Further, it was clear - as his Honour acknowledged - that the appellant had lost any reasonable chance of being able to lead evidence of "alibi material". Although the respondent had nominated the date of the assault as 14 February 1981, the material before the judge suggested that there was even doubt about that.

60 Pursuant to the pertinent provisions of the Act - as they applied to the respondent's claim - actions for damages for personal injury based on (inter alia) breach of duty were required to be brought within 6 years of the cause of action accruing; although, in the respondent's case, that period was extended for approximately 16 months to take account of her "legal disability" until she attained the age of 18 years. Thus the time for bringing her action would, in accordance with the dictates of the Act, have expired at some time in June 1988. However, pursuant to s.23A(2) of the Act, the Court is given a wide discretion to extend the limitation period if it decides that "it is just and reasonable to do so". The Chief Justice has set out the relevant provisions of s.23A in her judgment, and I will not burden these reasons with a repetition of them. Suffice it to say that sub-section (3) of the section requires the Court exercising the powers conferred by sub-section (2) to have regard to "all the circumstances of the case" including a non-exhaustive list of six specified matters set out in sub-paragraphs (a) to (f).

61 Having acknowledged that matters of prejudice to the appellant arising from the significant delay had been demonstrated and were clearly relevant to his consideration pursuant to sub-paragraph (b), the judge continued:

[82]

(a) Although it is true that there was "very long delay" which has caused prejudice to the appellant, it seems to me that the judge has failed, in the findings which he made, to identify the "strong and persuasive reasons" advanced by the [respondent] for her delay in pursuing her civil remedy. His Honour said that that "civil remedy" had only recently come to her notice. Again, this latter statement is not explained, but I assume that it means that she only became aware of her right to take civil action when she consulted with CASA in April 2000. If that is so, it does not appear to me to be in accordance with the evidence before his Honour. It is true that, in her supporting affidavit, she swore that, before she had been counselled by CASA in April/May 2000, she "did not appreciate the extent to which the assaults by [the appellant] upon me continued to contribute to those problems" (i.e. the problems which had previously beset her); and that it was not until she had been counselled that she had "obtained a fuller appreciation", and "felt capable of ... recognizing the need for obtaining acknowledgment by the [appellant] of his assault upon me ...". However, nowhere, (so far as I can see) does she say that she was unaware of her right to take civil action. Indeed, the evidence shows that she had been aware of that since advice was given to her in 1987; but that she chose not to pursue that action because she feared the consequences; and preferred to agitate the police to take action. The judge found that it was "appropriate" for her to await the outcome of the criminal proceedings before bringing a civil action. Nevertheless, that was her choice.

(b) No action was taken by the respondent for nearly 10 months following the conclusion of the criminal proceedings before she consulted a solicitor with a view to bringing civil proceedings; and a further year elapsed before she issued those proceedings. His Honour regarded these delays as "reasonable". In the circumstances, I do not agree with that conclusion. On any view of those circumstances, it was very leisurely conduct.

(c) His Honour appears to have taken the view that it was not until April 2000 that the respondent "believed that there was a causal connection between her emotional and psychological problems and ... the events of 1981". In truth, the evidence revealed that it was not until April 2000 that the respondent knew the connection between the "full extent" of her psychological problems and the appellant's conduct. However, even if his Honour was correct, he failed to recognize the prejudice which had flowed to the appellant by April 2000 in meeting a claim for damages based on a connection between his alleged conduct and her claimed psychological trauma. The type of prejudice to which I refer was pointed out by this Court in Calder v. Uzelac[44] where Ashley, A.J.A. said (at [22]-[23]):

[87]

83 I have had the advantage of reading in draft the judgments of Warren, C.J. and Winneke, P. As the reasons given by their Honours demonstrate, the appellant could not receive a fair trial were an extension of time granted to the respondent so as to bring her proceeding out of time. I agree that the appeal ought be allowed and the respondent's application for an extension of time under s.23A ought be refused.

84 In this case, while the judge was required by s.23A(3) to have regard to all the circumstances of the case, including the range of factors therein listed, the onus remained on the respondent to demonstrate why it was just and reasonable to override the right of the appellant to be shielded by the limitation period[51]. Consideration of an application under the section involves a synthesis of a multiplicity of factors[52], the factor stated in 23A(3)(b) as "the extent to which . . . there is or is likely to be prejudice", being merely one of many. Nonetheless, the very fact that an applicant carries the onus reflects the fact that this legislation, in common with similar legislation in other states, is set against the background of presumed prejudice, which justifies the setting of time limits in the first place.

85 In Brisbane South Regional Health Authority v. Taylor[53] McHugh, J. spoke of the "presumptive prejudice"[54] which applies, and in my opinion the fact that s.23A(3)(b) uses the words "the extent . . . there is prejudice'' is an acknowledgment of that presumption. I do not take Buchanan, J.A. as having concluded otherwise in Tsiadis v. Patterson[55]. Indeed, his Honour cited and adopted the underlying rationales stated in the judgment of McHugh, J., when saying as to the circumstances in Tsiadis that: "The lapse of time since the occurrence of the accident alone warrants an inference of prejudice. Not only do memories fade; evidence which might have been available may be lost without any knowledge of the loss"[56]. His Honour said that "s.23(3)(b) requires the court to have regard not only to established prejudice, but also to consider the extent to which there is likely to be prejudice"[57]. As his Honour held, however, the terms of s.23A do not permit the court to reject an application by virtue of prejudice (actual and potential) "considered alone"[58]. His Honour's conclusion as to the effect of s.23A(3) was that :

[90]

"To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action. This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent. But 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 delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action.

Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff's lost right should not be revived than that the defendant should have a spent liability reimposed upon it. This is so irrespective of whether the limitation period extinguishes or merely bars the cause of action."

[91]

87 Nothing therein stated is inconsistent, in my view, with the approach by way of synthesis of specified and unspecified factors which s.23A requires of the judge hearing an application for leave to proceed out of time[61]. If the approach of McHugh, J. was applied to a case where "actual prejudice of a significant kind" was shown to exist it would be difficult to conceive how an application under s.23A could succeed, whatever weight might be given to other relevant factors. In their joint judgment in Brisbane South Toohey and Gummow, JJ., held that the denial of a fair trial was "[a] material consideration (the most important consideration in many cases) . . ."[62] and concluded that "[t]he real question" on such an application "is whether the delay has made the chances of a fair trial unlikely"[63]. No lesser standard would be appropriate when considering an application under s.23A.

88 In the present case, for the reasons set out in the judgments of the Chief Justice and the President, it is clear that the appellant would suffer very significant prejudice in his defence of the proceeding were it to be maintained against him The extent of the prejudice would be such as to deny him a fair trial. That conclusion ought to have been reached by the judge and, even allowing for the requirement that the judge must have regard to all of the other factors to which s.23A(3) directs attention, should have led to the rejection of the application, in my view. In any event, the discretion of the judge miscarried by virtue of him having regard to the irrelevant factor of the conduct of criminal trials, and that would re-open the discretion. Having regard to the conclusion I have reached about the want of a fair trial it follows that upon reconsideration of the relevant factors under s.23A the weight of that factor was such that the synthesis could produce only one answer. The application should be refused.

89 Finally, I respectfully agree with the learned Chief Justice that s.23A does extend to claims arising out of an intentional assault. As to that question the decision of the Court in Mason v Mason[64] was the subject of analysis by me in my judgment in Clark v. Stingel[65], and I am content to adopt that analysis.

[94]

[5] Mason v Mason [1997] 1 V.R. 325.

[6] Act Number 52 of 2002 substituted "three years" for "six years" for causes of action falling under s.5(1A).

[7] Callaway J.A. observed that by the time s5.(1A) and both versions of s.23A were enacted that Hayward v Georges Ltd [1966] VicRp 28; [1966] V.R. 202 in Victoria and Long v Hepworth [1968] 1 W.L.R. 1299 in England followed Kruber v Grzesiak [1963] VicRp 84; [1963] V.R. 621 on the issue. Kruber v Grzesiak was expressly approved the English Court of Appeal in Letang v Cooper [1968] 1 W.L.R. 1299 i.e. that the wording of s.5(6) of the Victorian legislation applied to an action for assault. Mason v Mason [1997] 1 V.R. 325 at 329.

[8] See Stubbings v Webb (1993) A.C. 498, where the House of Lords unanimously ruled to exclude actions for trespass to the person with regard to a similar provision existing in the English Limitation Act 1939: see Mason v Mason at 328-329.

[9] Mason v Mason [1997] 1 V.R. 325 at 330.

[10] [2005] VSCA 107

[11] See Britton v Department of Land Crowns and Survey (unreported, Gobbo, J., 13 June 1984); Walla v State Transport Authority [1985] VicRp 32; [1985] V.R. 327; Ford Motor Co (Aust) Ltd v Kulic [1988] VicRp 20; [1988] V.R. 152; Lord v Australian Safeway Stores Pty Ltd [1995] 1 V.R. 614 at 617, per Phillips J.A.

[12] [1996] HCA 25; (1996) 186 C.L.R. 541

[13] See the analysis of Brisbane South by the N.S.W. Court of Appeal in Holt v Wynter [2000] NSWCA 143; (2000) 49 N.S.W.L.R. 128 at 147 per Sheller J.A., with whom Meagher and Handley J.J.A and Brownie A.J.A. agreed. Priestley J.A. gave separate analysis of Brisbane South at 136 to 141. He stated that with regard to this particular point, it was, in his opinion, difficult to state just what was authoritatively stated in Brisbane South by way of binding precedent (at 136). Nevertheless, his Honour concluded that of the five Judges sitting on that case, "Toohey J and Gummow J's reasons clearly support" the proposition that "in considering whether it is fair and just to grant leave, the disadvantage to the defendant which would result from the granting of leave is a material but not a conclusive consideration", whereas McHugh J's views would probably require it to end with the words "is a highly material and in a great many cases an almost conclusive consideration" (at 141).

[14] Tsiadis v Patterson [2001] VSCA 138; (2001) 4 V.R. 114.

[15] Buchanan J.A. held that the proper course was to "see the legislative history described by Priestley J.A. in Sydney City Council v Zegerac" (1998) 43 N.S.W.L.R. 195 at 202-2.

[16] Tsiadis v Patterson [2001] VSCA 138; (2001) 4 V.R. 114 at 122-123, per Buchanan J.A.

[17] Ormiston and Callaway JJ.A.

[18] Tsiadis v Patterson [2001] VSCA 138; (2001) 4 V.R. 114 at 122, per Buchanan J.A.

[19] Bell v SPC Ltd [1988] VicRp 16; [1988] V.R. 123 at 125-126, per Brooking J.A.

[20] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 C.L.R. 541.

[21] Kosky v Trustees of Sisters of Charity [1982] VicRp 98; [1982] V.R. 961.

[22] Ibid. at 969.

[23] Cowie v State Electricity Commission of Victoria [1964] VicRp 103; [1964] V.R. 788 at 793.

[24] Campbell v United Pacific Transport Pty Ltd [1966] Qd.R. 465 at 474.

[25] S.23A(2) of the Act.

[26] Paragraph [13].

[27] [1936] HCA 40; (1936) 55 C.L.R. 499 at 504-5.

[28] [1996] HCA 25; (1996) 186 C.L.R. 541 at 551-3.

[29] Sola Optical Australia Pty. Ltd. v. Mills [1987] HCA 57; (1987) 163 C.L.R. 628 at 635.

[30] As to which see the reasons for judgment of Sheller, J.A. in Holt v. Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 at 145 ff.

[31] Cf. Sydney City Council v. Zegarac (1998) 43 NSWLR 195 at 197, per Mason, P.; it is also to be noted that Kirby, J., in his dissenting judgment in the Brisbane South case at pp.563-4, referred to similar principles.

[32] [1988] VicRp 16; [1988] V.R. 123, per Brooking, J. (as he then was)

[33] [2001] VSCA 138; (2001) 4 V.R. 114.

[34] [2001] VSCA 138; (2001) 4 V.R. 114.

[35] At paragraphs [20]-[22], pp. 119-120.

[36] [1964] VicRp 103; [1964] V.R. 788 at 793.

[37] Supra at 547.

[38] Cowie v. State of Victoria (supra) involved the application of the long repealed s.34 of the Act the provisions of which were quite different from those of s.23A; as to which cf. Bell v. S.P.C., supra, at 126 per Brooking, J.

[39] Unreported, Supreme Court of Victoria, 31 October 2002.

[40] Paragraph [16] of his judgment.

[41] (1995) 127 F.L.R. 372 at 378.

[42] I have not overlooked the reasons for decision given by Priestley, J.A. in Holt v. Wynter (supra at 142) where his Honour, when considering whether a "fair trial" could be had considered the analogy of criminal trials. His Honour's reasons were not adopted by the other four justices comprising the court.

[43] [1991] VicRp 66; [1991] 2 V.R. 265, at 274.

[44] Unreported, Court of Appeal, 14 November 2003 [2003] VSCA 175.

[45] [1997] 1 V.R. 325.

[46] At [9] to [12] above.

[47] [1996] HCA 25; (1996) 186 C.L.R. 541.

[48] [2001] VSCA 138; (2001) 4 V.R. 114.

[49] [1964] VicRp 103; [1964] V.R. 788 at 793.

[50] Compare Tsiadis v. Patterson [2001] VSCA 138; (2001) 4 V.R. 114 at 116-117 [6] and 122-123 [31] and Calder v. Uzelac [2003] VSCA 175 at [16] -[17] and [23].

[51] Bell v. SPC Ltd [1998] V.R. 123, at 125-6

[52] Tsiadis v. Patterson [2001] VSCA 138; (2001) 4 V.R. 114, at 123, per Buchanan, J.A. and at 116, per Callaway, J.A. ("a synthesis of incommensurable considerations").

[53] [1996] HCA 25; (1996) 186 C.L.R. 541.

[54] At 555.

[55] [2001] VSCA 138; (2001) 4 V.R. 114.

[56] Tsiadis, at [32], emphasis added.

[57] Tsiadis, at [22], emphasis added_._

[58] At [31].

[59] At [31]

[60] At 555.

[61] I respectfully adopt the analysis of Winneke, P., at [63], on the question whether the approach to such applications stated by Gowans, J. in Cowie v. State Electricity Commission (Vic) [1964] VicRp 103; [1964] V.R. 788, at 793, has any continuing relevance to an application under s.23A.

[62] At 548.

[63] At 550. In Calder v. Uzelac [2003] VSCA 175, at [17] Buchanan, J.A., with whom Chernov, J.A. agreed, rejected an application for extension of time because there was "a significant risk that there can not be a fair trial of the applicant's claim". See, too Ashley, A.J.A., at [23].

[64] [1997] 1 V.R. 325.

[65] [2005] VSCA 107.

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