Clark v McGuinness [2005] VSCA 108

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:

"With respect to the 1981 matter, on 20th July 1987 [when the respondent saw Mr Reekie] the plaintiff was aged 23. The six year limitation period commenced on her 18th birthday and expired on 17th June 1988. The plaintiff said that on 20th July 1987 she was told by an older solicitor whose name she does not remember that seven years had expired and that there was nothing that she could do. She recalls no discussion about her right to sue the Defendant. In 1987 seven years had not expired and it is improbable that any solicitor would refer to a seven year limitation period. I prefer the account of Mr Reekie that the plaintiff's overriding interest was for the police to take the Defendant to court over the 1987 incident, as Reekie said it was his impression at the time that the Plaintiff wanted to "have her day in court". He said that he discussed with her a possible civil action but did not mention damages. He said that the Plaintiff became very emotional and broke down. There was no mention of funding and the Plaintiff's distressed state effectively ended any further consideration at that interview of civil action with respect to both the 1981 and 1987 incidents."

8 By the year 2000, the appellant had risen to a position of public prominence as chairperson of the Aboriginal and Torres Strait Islanders Commission and in other areas related to Aboriginal interests. As a result of the presence of the appellant in the media, the respondent said that she was reminded of the alleged assaults and sought counselling and became aware for the first time of the profound effect upon her of the alleged incident in 1981. The respondent revisited her complaint to the police on 18 May 2000 and subsequently, committal proceedings for criminal charges arising from the alleged events of 1981 commenced at the Warrnambool Magistrates' Court on 30 October 2000. On 1 December 2000 the charges were dismissed. On 29 August 2001 the Plaintiff retained new solicitors. A Writ was issued on 23 September 2002 with respect to both the 1981 and 1987 episodes.

9 In the reasons for judgment for the granting of an extension of time to bring the proceeding concerning the 1981 event the judge below said:

"In my assessment of the evidence on this interlocutory application I consider it appropriate to say no more than that I found the Plaintiff to be a credible witness, that is a witness whom a trial judge or jury could reasonably accept as a witness of truth. I see no need to assess on this Application the credibility of the other evidence before the court, although I take that evidence into account when assessing the evidence of the Plaintiff. It is not submitted that the Plaintiff's evidence is insufficient to found a proper cause of action. It is not suggested she has at any time received wrong or negligent legal advice. She makes no complaint against those who have advised her.

The finding I have made as to the Plaintiff's credibility is relevant to the evidence she gave as to the reasons and explanation advanced for the very long delay in the commencement of this action."

10 Section 23A of the Limitation of Actions Act provides that where the time for commencement of an action for personal injury has expired a court may determine to extend the period within which an action may be brought if the court decides that it is "just and reasonable" to do so (s.23A(2)).

11 Section 23A(3) further provides that:

"In exercising the powers conferred on it by sub-section (2) a court must have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following-

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

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

(c) the extent, if any, to which the defendant had taken steps to make available

to the plaintiff means of ascertaining facts which were or might be relevant to

the cause of action of the plaintiff against the defendant;

(d) the duration of any disability of the plaintiff arising on or after the date of

(e) the extent to which the plaintiff acted promptly and reasonably once he

knew that the act or omission of the defendant, to which the injury of the

plaintiff was attributable, might be capable at that time of giving rise to an

(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other

expert advice and the nature of any such advice he may have received."

12 The exercise of the discretion of the court to grant leave pursuant to s.23A to extend time in cases of personal injury was always intended by Parliament to be a broad one.[2] The intention of the legislation with respect to preserving the discretionary powers of the court is reflected in subsequent amendments to the original s23A, inserted into the Limitation of Actions Act by Act No. 8300 on 1 January 1973. The provision was substituted by Act No. 9884, the Limitation of Actions (Personal Injury Claims) Act 1983. Although s.23A has since been amended since that time,[3] those changes do not concern this appeal.

13 Central to the consideration of this appeal is an understanding of how the judge below analysed each of the six factors provided for in s.23A(3), and given the discretionary nature of these provisions, whether or not this Court should be seen as fettering the weight placed upon them by the judge. In considering this question, I am mindful of the oft-quoted observations of Kitto J in Australian Coal & Shale Employees' Federation v The Commonwealth[4]:

"There are to be found in many of the cases decided upon the wider question as to the proper attitude of a court of appeal to any judgment given in exercise of a discretion, statements appearing to limit the function of the appellate court to correcting errors of principle. Yet in that wider area it is clear that such statements are not exhaustive. I shall not repeat the references I made in Lovell v. Lovell [1950] HCA 52; (1950) 81 CLR 513, at pp 532-534 to cases of the highest authority which appear to me to establish that the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance: House v. The King [1936] HCA 40; (1936) 55 CLR 499, at pp 504, 505."

14 The grounds upon which the appellant relies in the Notice of Appeal overlap. However, they may be conveniently categorised as follows: the issue of prejudice to the appellant; the assertion that s.23A does not apply to extend time where causes of action arise from an alleged intentional assault; and issues of public policy. The appellant also challenges several factual findings of the judge. I intend to deal first with these last three matters before turning to address the issue of prejudice, which in my view forms the crux of the appeal.

15 The appellant contended that s.23A does not apply to extend time where causes of action arise form an alleged intentional assault.

16 In Mason v Mason,[5] the Victorian Court of Appeal (Hayne and Callaway JJ.A. and Smith A.J.A.) answered a question of law reserved by a judge of the County Court, concerning whether an action for damages for personal injuries which are the result of an intentional assault was an action "for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision)" within the meaning of those words in:

(a) s.5(1A) of the Limitation of Actions Act 1958;

(b) s.23A of the Limitation of Actions Act 1958 --

(i) as it existed prior to the commencement of Act number 9884 of 1983; and

(ii) as amended by Act number 9884 of 1983.

17 Section 5.(1A) was inserted into the Act by Act number 9884 of 1983. When it was introduced, that section provided that damages in respect of personal injuries consisting of a "disease or disorder" may be brought within six years from the date the person first knows he or she has suffered from those injuries and that those personal injuries were caused by the act or omission of some person.[6] Section 23A is the section permitting an extension of that time limit at the discretion of the court. In a unanimous judgment, the Victorian Court of Appeal in Mason answered "yes" to all questions listed in para. [16] above. In doing so, the court traced the history of the Victorian legislation[7] and specifically rejected English authority on the issue.[8] Mason therefore stands for the principle that an intentional assault is indeed an action "for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision)".

18 Whatever meaning the words in s.5(6) and s.5(1A) are attributed is also the meaning they bear in s.23A. After discussion of the extrinsic materials with reference to the legislative history of the relevant provisions of the Act which were first inserted in 1973, amended in 1983 (and amended subsequently in 2002), Callaway J.A. in Mason observed:

"It was, for all practical purposes, common ground that whatever meaning the critical words bore in s.5(6) they bear also in s.5(1 A) and both versions of s.23A. Subject to two qualifications, the remedial purpose of those three provisions is therefore irrelevant. The first qualification is that the original s. 23A must have been intended to operate in a rational and harmonious way with s.5(6)... The second qualification is that s.5(1A) and the new s.23A were inserted by the same statute and a fortiori a meaning is to be preferred that conduces to rational harmony in their operation."[9]

19 Mason v Mason has most recently been affirmed in Clark v Stingel.[10] Nothing has been said in this case that would cause me to deviate from the construction as set out in Mason and affirmed in Stingel. In my view the appellant's claim that s.23A is exclusive of intentional assault claims is not made out.

20 The appellant further contended that the judge at first instance failed to consider issues of public policy which arise when civil action is taken long after the expiration of the limitation period and where the respondent seeks to establish serious criminal conduct on the basis of the civil burden once criminal process failed. It is true that charges against the appellant were made, however, these were dismissed at the committal stage. In my view they are of no relevance to the issue before this Court. As for the argument that the primary judge failed to consider issues of public policy with respect to the length of time which has elapsed following the incident for which the respondent now claims damages, they are matters that I consider are properly dealt with under the prejudice component of the appeal. Although the length of time - 21 years - between the alleged events and the issue of a Writ in this case was undesirable and was dwelled upon by the judge at first instance as an element which was prejudicial to the appellant's case, in appropriate circumstances it is in fact sometimes in the community interest that cases be brought to trial despite the expiration of the limitation period.

21 There is likewise no case that the judge below erred in law by seeking to establish "serious criminal conduct" on a civil burden once criminal process has been unsuccessful for the plaintiff. It is not for this Court to question the dictates of Parliament with regard to allowable causes of action in the civil jurisdiction as well as prosecution of criminal conduct as set out in legislation. It is sufficient for this Court that the legislation allows action in the civil jurisdiction even though criminal process has failed.

22 Moreover, there may be other reasons open to the judge below to infer as to why the respondent did not pursue civil proceedings sooner than she did. That there was sufficient reason for delay was a matter on which it was open to the judge at first instance to conclude as he did[11]. Relevantly, the judge below concluded here that delay was caused by the respondent's lack of awareness of her injuries and of her legal rights. His Honour's factual findings in this regard were fully within the broad discretionary rights to so conclude.

23 For these reasons, I am not persuaded that there was an appellable error in this regard.

24 The appellant also challenged the findings of the judge at first instance with respect to the fact that His Honour found that the respondent's complaint had been withdrawn; the fact that the judge found it was not until the year 2000 and after counselling that the respondent realised the connection between the alleged assault and consequential injuries she had suffered since that time; the fact that the primary judge failed to find that the respondent made a deliberate and informed choice not to sue in 1987 (with respect also to the respondent's attendance at the offices of legal firm McCulloch & Peters in July 1987); and the fact that the primary judge also found that a jury was able to find the respondent to be a credible witness.

25 Nevertheless, all of these findings by the judge at first instance were open on the facts. As with the appeal ground in relation to public policy, it is not for this Court to question the factual findings of the trial judge unless they lead to an error. On analysis, thus far, the findings were open on the facts.

26 In my view, the critical issue in this case is the operation of prejudice and how that factor (as reflected in s.23A3(2)) is to be balanced against the other considerations enumerated in s.23A(3) that may predispose a court to support the respondent's claim for an extension of time. In other words, is the prejudice to the appellant so significant as to outweigh any legitimate claims by the respondent and make their imposition unjust and unreasonable?

27 Before the court below, the appellant relied upon a number of primary circumstances that were said to operate against the exercise of the court's discretion in s.23A to extend time: first, that over twenty years had expired since the date of the alleged rape; secondly, the unavailability or incapacity of potential witnesses to recall events and give evidence at trial; thirdly, that the police file was lost or destroyed; fourthly, that the prospect of any alibi evidence that might be called by the appellant or, for that matter, eyewitnesses, would not be able to be produced; and fifthly, that any injuries the Plaintiff may have suffered as at 1981 could not be the subject of evidence. The judge below observed that the considerations of prejudice urged by the appellant were accepted by the respondent but that the central issue in considering whether to grant the extension of time was the weight to be attached to those considerations. His Honour concluded that the period of delay was considerable and was likely to have an impact on the capacity of witnesses to recall events. His Honour also considered it unlikely that any alibi could be established. The judge observed:

"On the assumption that the Plaintiff has an honest recall of an incident that did take place it is likely that as a 16 year old girl she would be able to give a coherent account of events. It appeared to me from her police statements and evidence that she is able to do so. Equally of course if the Defendant was involved in such an incident it is a matter she could hardly forget.

The Defendant and other witnesses deny any such occurrence. Those denials rely directly on their ability to recall events after more than 20 years and quite apart from the specific memory disabilities referred to in evidence, that lapse of time poses a particular difficulty for each of those witnesses. It is unlikely that any alibi could be established. No evidence can be called as to any injuries to the participants."

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:

"The legislation considered by the High Court in Brisbane South provided that where a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until after the commencement of the year last preceding the expiration of the limitation period and there was evidence to establish the right of action, a court 'may order that the period of limitation for the action be extended.' The statute prescribed no matters the court was required to consider in determining whether to extend the period of limitation. Section 23A of the Act is quite different. Section 23A does not belong to that class of legislation providing for extensions to limitation periods that depend upon the discovery of new facts_[15]_ and, more importantly, requires the court to have regard to all the circumstances of the case, one of a number being the extent to which, having regard to the delay, there is likely to be prejudice to the proposed defendant. The form of the provision in my view does not permit the conclusion that proof of prejudice considered alone must lead to the refusal of an application. Prejudice to the potential defendant is to be considered together with all the circumstances of the case, although in a particular case it may be very significant if it is so severe as to preclude a fair trial of the applicant's claim".[16]

39 Given the statement of principle by Buchanan J.A., with whom the other members of the court agreed,[17] the judge at first instance was correct to follow Tsiadis. In summary, the principles espoused in Tsiadis make it clear that the court must have regard not only to established prejudice, but also to consider the extent to which there is likely to be prejudice.[18] In other words, potential prejudice is also a consideration the court should take into account. However, it is but one of the factors the court must take into account when determining a s.23A application. Indeed, the overriding question a court must have regard to in all circumstances where an application of this kind is made is whether it is "just and reasonable" to extend the period within which the applicant may bring proceedings: Bell v SPC Ltd.[19]

40 Notwithstanding the differences in the Queensland legislation considered in Brisbane South and the Victorian legislation in Tsiadis, the judicial statements on prejudice in both cases are in full agreement. It is clear that prejudice must be balanced against the "incommensurable" considerations which the court must take into account. As well, the extent of both actual and presumed prejudice to the potential defendant when considering whether to permit and extend the limitation period influences the weighting of factors which can in turn impact on whether it is just and reasonable to grant the extension.

41 In their joint judgment in Brisbane South, Toohey and Gummow JJ. observed that a material consideration, and perhaps the "most important" in many cases, is whether, by reason of the time which has elapsed a fair trial is possible.[20] In Kosky v Trustees of Sisters of Charity,[21] a case concerning an extension of time under s.23A of the Victorian Act where fourteen years had elapsed between the alleged incident and the commencement of legal action, Tadgell J in this Court observed that:

"There are no doubt some cases in which a lapse of 14 years from the time of allegedly negligent conduct until the commencement of an action in respect of it would of itself render a fair trial of the issues impossible or so unlikely that a trial ought not to be countenanced. In such a case it would presumably be right to refuse to make an order ... even if the applicant were otherwise entitled to ask for one." [22]

42 Where prejudice is asserted by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission of Victoria,[23] a passage endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd:[24] "

"It is for the respondent [in this case the appellant] to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant [respondent] to show that these facts do not amount to material prejudice."

43 The appellant in this case submitted prejudice as outlined before the court below, essentially contending that not enough weight was given to the issue of prejudice against him. Has the respondent, however, demonstrated that these facts do not amount to material prejudice?

44 In the affidavit relied upon by the respondent in the court below she stated that subsequent to making the complaint about the alleged assault at the hotel at Purnim she did not feel that there was "any point" in pursuing the complaint due to the appellant's ability to "influence witnesses" together with the failure by herself to "fully appreciate the magnitude of the consequence of psychological injury" suffered by her. The respondent stated that her psychological state was triggered by seeing Geoff Clark constantly in the news media.

45 The respondent also stated in her affidavit that prior to April or May of 2000, she realized she had "a range of problems" dealing with day to day matters, but that it was only when she received counselling that she obtained a "fuller appreciation" of the impact the alleged assault had had on her.

46 The report of a forensic psychologist, Ms Pamela Matthews, dated 19 November 2002, detailed the nature and extent of the respondent's turmoil as a result of the alleged assault. In the report, Ms Matthews stated that the respondent had always known that she had been sexually assaulted but that she was not aware of the gravity of the assault until May 2000 when she first attended counselling. The report noted that it was only by attending counselling that the respondent understood the gravity of the emotional disturbance which pervaded her life as a result. The abuse of alcohol and marijuana is documented as occurring shortly after the alleged sexual assault due to the respondent's low self-esteem and was used to assist the respondent's attempts to avoid thinking about the appellant and the guilt she felt was associated with the alleged attack. Ms Matthews also reported that the respondent felt a high degree of fear in coming forward. Upon psychometric assessment, the respondent was found to have a high level of depressive and post-trauma symptomatology, meeting the DSM-IV diagnostic criteria for Post-Traumatic Stress Disorder with delayed onset and a Major Depressive Episode. The fact of the injury would be, of course, a matter for trial. Here, I am concerned only with the issue of prejudice and not the fact of the alleged injury.

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.

49 Though the loss of the police file in relation to the alleged 1981 assault was not the fault of the respondent, nor would it appear to be that of the appellant. That is a matter which is prejudicial to the appellant's case for obvious reasons and it is not necessary to belabour the point.

50 The appellant also contended that the very long delay in bringing legal proceedings would prevent his ability to call alibi evidence for the time during which the incident allegedly occurred in 1981. I accept that proposition as prejudicial to the appellant's case also. It is highly unlikely that after a period of more than two decades has passed that a person would be able to recall with a great deal of accuracy where he or she was at that time in 1981, and whether in fact the appellant was present with them at the time the alleged incident occurred.

51 The discretion to extend the limitation period pursuant to s.23A should be seen as requiring the applicant to show that his or her case is a just and reasonable exception to the rule that the welfare of the State is best served by the limitation period in question. In this case, the respondent has failed to discharge the burden of proving that the justice of this case requires an extension. In my view therefore, the ground of prejudice is made out.

52 Applications for an extension of time under s.23A of the Limitation of Actions Act will always be determined on their individual facts. The exercise of the discretion is concerned with whether it is just and reasonable to grant the extension sought. On the facts of this matter, the prejudice to the appellant if the extension of time was granted lead to the strong conclusion that it would not be just and reasonable to do

so. In my view the discretion below was wrongly exercised below.

53 It follows, therefore, that the appeal should be allowed.

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:

"I reach an opposite conclusion with respect to the 1981 rape allegation. There is prejudice to the [appellant] caused by the very long delay. However, I conclude that strong and persuasive reasons have been advanced on behalf of the [respondent] for her delay in pursuing the civil remedy that has only relatively recently come to her notice. The community concept of rape is that it is a violent criminal offence, and civil proceedings arising out of such allegation are relatively rare."

57 Mr. Stanley, who appeared with Mr. O'Neill for the appellant in this Court, submitted that in concluding as he did on the material before him, his Honour's discretion had miscarried. As the Chief Justice has pointed out in her reasons[26], an appellate court is limited in its power to interfere with decisions involving discretionary judgments. The principle which, in such circumstances, an appellate court will apply is to presume the correctness of the decision appealed from, and affirm it, unless the appellate court is satisfied that it is clearly wrong. If the appellate court can discern error in the judge's reasons, in the form of acting upon a wrong principle, or in mistaking the facts, or an error in the application of weight to relevant factors, then no doubt it is open to it to conclude that the presumption in favour of the correctness of the primary judge's discretion should not apply. The relevant principles were explained in House v. The King[27] by Dixon, Evatt and Tiernan, JJ. as follows:

"The manner in which an appeal against the exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has materials for doing so. It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance."

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:

"A central issue is the weight to be given to them in relation to the present determination."

Having considered evidence which bore upon the matters expressed in sub-paragraphs (e) and (f) of s.23A(3) (to which I will return hereafter), his Honour said he "would refer to one additional consideration". This "consideration" he expressed in the terms referred to in paragraph [34] of the reasons of the Chief Justice; namely the fact that there "are regularly conducted in the County Court prosecutions for sexual offences where the alleged assaults took place up to 20 or more years ago". In some of those cases, he noted, there is no corroborative evidence, and appropriate warnings are given to juries. Notwithstanding the trial judge's "disclaimer" that he "would have reached the same determination of this application without regard to this particular factor", he went on to underline his proposition by concluding that in relation to the likely prejudice suffered by the appellant as a result of 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".

62 It seems to me that, notwithstanding the "disclaimer" to which I have referred, these remarks display a cast of mind on the part of the judge adverse to the interests of the appellant on the issue of the weight to be attributed to the factor of prejudice caused by the long delay. In my view, what does or does not happen in the prosecution by the State of serious sexual assaults has no relevance to the rationales which underlie the limitation provisions which fix time limits for the prosecution of civil claims; and accordingly should play no part in the exercise of the judge's discretion conferred by s.23A(2) of the Act. The "rationales" of which I speak were explained by McHugh, J. in Brisbane South Regional Authority v. Taylor[28]. Having identified them, his Honour said (at 553-4):

"[A limitation period fixed by the legislature] represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule : an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of such a provision as s.31 [of the Limitation of Actions Act 1974 (Qld)] is 'to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced[29]'. But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension."

63 Although the majority judges in the Brisbane South case (Dawson and McHugh, JJ. on the one hand, and Toohey and Gummow, JJ. on the other) expressed somewhat divergent views for arriving at the same conclusion[30], it seems to me these principles are of general application to all cases where a potential plaintiff asks a court to extend the time for bringing an action beyond the applicable limitation period[31]. In the course of his reasons in this case, and whilst referring to the issue of "onus of proof" with reference to the decisions in Bell v. S.P.C. Ltd.[32] and Tsiadis v. Patterson[33], the learned judge said that he accepted the submission made on behalf of the respondent that the decision of this Court in Tsiadis v. Patterson[34]:

"has, to a limited extent, qualified some of the passages in Brisbane South Regional Health Authority v. Taylor, passages relied upon by the [appellant]."

Consistently with what I have said about the cryptic nature of his Honour's reasons, we have not been informed of the content of the submissions, made on behalf of the respondent, which were said to "qualify" some of the passages in the Brisbane South case upon which the appellant had relied. It may be, as Mr. Stanley submitted to this Court, that his Honour's enigmatic reference to the Brisbane South case suggests that he failed to give effect to those aspects of the purpose of limitation periods (and extensions thereto) to which McHugh, J. referred in the Brisbane South case, and which, as I have said, would have application to our own Act. However, it is probable that the judge's remarks refer to those passages in the reasons for judgment of Buchanan, J.A. in the Tsiadis case[35], in the course of which his Honour distinguished the terms of the Queensland "extension of limitation provisions" from those of s.23A, and which led his Honour to the view that the approach taken by Gowans, J. in Cowie v. State Electricity Commission (Vic.)[36], and adopted by Toohey and Gummow, JJ. in the Brisbane South case[37], had no application to the interpretation of the provisions of s.23A of the Victorian Act[38].

64 The limit of the distinction, to which Buchanan, J.A. referred, between s.23A and its counterpart in the Queensland legislation, was taken up by Bongiorno, J. in Burk v. The Commonwealth of Australia[39] where his Honour was considering the provisions of s.36 of the Limitations Act 1985 (ACT), which - to all intents and purposes - are in the same form as s.23A of the Victorian Act. His Honour, having identified the distinction, went on to say (at paragraph [14]), correctly, in my view:

"Although the Court of Appeal distinguished Brisbane South [etc] v. Taylor in Tsiadis, it did not, either in terms or by implication distinguish judicial statements made in that case as to the rationale for the existence of limitation periods and the interaction between statutory time bars and the question of prejudice to a defendant when a court makes an order which effectively overrides them."

Bongiorno, J. then went on to refer to those passages in the reasons for judgment of McHugh, J. in the Brisbane South case to which I have previously referred, and said of them[40]:

"Notwithstanding the differences between the Queensland statute being considered by the High Court in Brisbane South and the A.C.T. statute with which this Court is now concerned, the general principles concerning prejudice enunciated by McHugh, J. are applicable when consideration is being given to the factors referred to in s.36(3)(b) of the A.C.T. Act."

65 I have referred to the above matters in some detail to emphasize that, although the discretion invested in the judge to extend the time for bringing an action is a wide one, it is nevertheless one which is to be exercised judicially in accordance with relevant factors. Those factors should be informed by the purposes which underlie the statutory prescription of "limitation periods", and extensions thereto, which were discussed by McHugh, J. in the Brisbane South case (supra). It seems to me that his Honour, by importing into his consideration the analogy of criminal prosecutions for "stale" sexual offences, was introducing into the synthesis of factors which he was required by s.23A to consider, an irrelevant factor which was calculated to reduce the impact of "prejudice" in that synthesis and, thus, to qualify the burden which the respondent bore of demonstrating that the justice of the case required the extension of time which she sought. In this regard, it is pertinent to note the views of Miles, C.J. expressed in the case of A. v. D.[41], a case in which the applicant had sought an extension of time (pursuant to s.36 of the Limitation Act 1985 (ACT)) to commence civil action against a medical practitioner for alleged sexual assaults committed some 25 years prior to the application. In the course of drawing the distinction between time limits for bringing civil action, on the one hand, and criminal charges, or professional disciplinary proceedings, on the other, his Honour made the following comments (at p.378):

"In general terms what distinguishes the present application from the proceedings which were the subject of the appeals to the Federal Court is that the latter were proceedings which could be commenced at any time. There is no statute of limitations for the bringing of serious criminal charges, nor ... for the bringing of disciplinary proceedings by the Medical Board. On the other hand, proceedings in a Court founded upon civil action may not be maintained unless commenced within the period fixed by the statute of limitations or such further time that the Court permits."

Miles, C.J. went on to point out that "time limits" for commencing civil actions and for the bringing of criminal charges were incommensurables, because of the differing public interests involved. Furthermore, in my view, there are strong practical reasons for distinguishing the two types of proceedings. Once an extension of time has been granted, there could be no basis for a trial judge hearing the ultimate proceedings, to employ methods which could avoid the (assumed) prejudice[42].

66 It follows from what I have so far said that it is my opinion that the learned judge has allowed inappropriate and irrelevant matters to intrude into his consideration of the weight to be attributed to prejudice which undeniably existed as the result of the delay in this case. The prejudice was both presumed and actual and, as it seems to me, was particularly significant in a case where the defence to the respondent's allegations was that "this never occurred". That is the exemplar of a case where fresh memories of witnesses, and opportunity for establishment of an alibi, are matters of importance. Indeed, it appears that his Honour accepted that the substantial delay, of itself, and its impact on potential witnesses would cause prejudice. At pp.7-8 of his reasons he referred to the delay from the accrual of the cause of action in February 1981 until the issue of the writ some 211/2 years later, saying:

"Those are very considerable periods. They are certainly likely to have a substantial impact on the recall of key persons who witnessed or took part in the alleged unlawful attack."

(His Honour used the word "they" in relation to the "periods of delay" because there were before him the two allegations of assault; namely the 1981 "rape" and the Bush Inn assault of 1987.) His Honour also referred to the specific prejudice flowing from the loss of recall of persons alleged to have been present when the 1981 assault occurred; and the loss of the 1981 "police file". He said that all of those factors had been accepted as "considerations prejudicial to the [appellant]" but that the "central issue is the weight to be given to them ... ."

67 In the course of concluding that the "considerable delay" had caused prejudice to the appellant, his Honour made certain assumptions which appear to have had little or no relevance to his task; but again tending to discount the degree of prejudice to the appellant. Thus when finding that the period of delay was "very considerable" and "likely to have a substantial impact on the recall by any person who witnessed ... the attack", he made the comment that "on the assumption that the [respondent] has an honest recall of an incident ... it is likely that she would be able to give a coherent account of events ... . Equally, of course, if the [appellant] was involved ... it is a matter he could hardly forget". The latter comment appears to me to be extraneous to the issues which had been put before his Honour to decide; but again seems to be calculated to suggest that prejudice occasioned by the delay was mitigated by his own knowledge of a rape which he denied had occurred. Likewise his Honour remarked immediately following the above, and when noting prejudice caused by the loss of the initial police file of a "cursory investigation which did not even extend to an interview with the [appellant]":

"It is an obvious but relevant fact that [the respondent] is not responsible for the police failure to interview the [appellant]."

Unless it is to be inferred that the failure to interview the appellant was the appellant's responsibility, it is difficult to see what relevance this issue had to his Honour's ultimate task. Next, his Honour - in the face of material put before him of the police assertion that the respondent had withdrawn her initial complaint to the police of the alleged "rape" - "found" that such complaint was not withdrawn. Although his Honour had not heard evidence from the police on that matter, he said that the respondent's claim was supported by the file of McCulloch & Peters (the firm of solicitors whom the respondent retained in 1987). Insofar as that file "supports" the claim it seems to me that it only does so inferentially by statements made by the respondent.

68 As I have earlier indicated, his Honour - having found that there were factors of prejudice to the appellant, both presumptive and specific - said that "a central issue is the weight to be given to them in the present determination". I think that there is substance in the submission by counsel for the appellant that his Honour did not specifically return to that issue. His Honour turned to the considerations stipulated in sub-paragraphs (d), (e) and (f) of s.23A(3) of the Act. As I have said, sub-section (3) requires the Court to have regard to all the circumstances of the case including:

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

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

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

It seems that no attention was given by his Honour to sub-paragraph (c) of sub-section (3) which refers to "the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant". There was, I think, nothing before the judge which suggested that that consideration was relevant. Furthermore, like Brooking, J. in Koumorou v. State of Victoria[43], I have some difficulty in determining whether the "disability" referred in sub-para (d) means "legal incapacity", or extends to any disability arising on or after the date of accrual of the cause of action. However, it is unnecessary to resolve the proper meaning of sub-paragraph (d) because the judge appears to have given scant, if any, attention to the considerations raised by it.

69 In respect of the matters referred to in sub-paragraph (e) he said:

"If the plaintiff was raped then she clearly knew that she had been physically injured. The issue arises as to when she knew that her injury might be capable of giving rise to an action for any psychological injury that she might have suffered. In that connection, I take account of her indigenous background ... and the onset of her psychological problems".

The appellant submitted that this reasoning disclosed error because sub-paragraph (e) does not refer to particular types of injury; but merely to knowledge that an act of the defendant to which the plaintiff's "injury" was attributable might be capable of giving rise to an action for damages. Although I think there is substance in this submission, it seems to me to be desirable to consider his Honour's reasons relating to sub-paragraph (e) together with those given with respect to sub-paragraph (f), which concerns the steps taken by the respondent to obtain legal and other expert advice.

70 The evidence before his Honour demonstrated that, following the alleged assault at the Bush Inn at Purnim in 1987, the respondent had - in company of a "respected aboriginal elder", Mr. "Banjo" Clarke - consulted a firm of solicitors, McCulloch & Peters, in Warrnambool, and had there spoken to a young articled clerk, Mr. Roy Reekie, whom his Honour described as giving "clear and convincing evidence" of the circumstances surrounding the complaint made to him. Mr. Reekie's contemporary file note of the meeting, his affidavit, and his oral evidence were all before his Honour. His Honour's conclusion from that material was that the advice sought by the respondent and Banjo Clarke on 20 July 1987 was predominantly in relation to the Bush Inn assault. His Honour concluded that the material suggested that the respondent's "overriding interest" was to pursue proceedings for that assault. Mr. Reekie's affidavit, which was before his Honour, included the following paragraphs:

"2. In July 1987, [the respondent] and Banjo Clarke attended the firm for an interview. I attended them.

3. The interview covered a number of matters, including the [respondent's] allegation of a sexual assault by [the appellant] some years prior.

4.B In [the respondent's] presence, Banjo explained that the Warrnambool C.I.B. investigation into that assault had stalled. They had been told that the file had been lost, and [the respondent] and he were dissatisfied with progress.

4. I discussed with [the respondent] an option of taking civil action. Her response was that if she did, she feared she would be assaulted. She believed that if police action over the sexual assault was pursued, she would receive protection from the police."

The transcript of his oral evidence appears to confirm what he said in these paragraphs of his affidavit.

71 The judge found, in respect of this matter, that the respondent's attendance on the solicitors in 1987 was "primarily with respect to the 1987 assault" and that "as a result of her embarrassment and distress concerning the 1981 matter she could not be fully advised and did not apply her mind to the initiation of civil proceedings as a result of either assault. She wanted police action in relation to the assault two days before, in part because of the rape allegation that in her view had not been properly handled by police."

72 His Honour further found that:

(a) Police action eventually resulted in the October 2001 (sic) committal proceedings. His Honour regarded it as relevant to the application before him that the respondent had proceeded with the allegations and that the proceedings were "an explanation for a small part of the very long delay" because it was appropriate for the respondent "to await the outcome of those proceedings before bringing civil action";

(b) That it was not until the year 2000, and after several sessions of counselling with CASA that the respondent believed there was a causal connection between her emotional and psychological problems and the 1981 abuse;

(c) That it was reasonable for the respondent to delay a further 8 (sic) months after the committal proceedings before consulting a solicitor;

(d) His Honour said that, "under sub-section (sic) (f) of the section, I take into account the fact that a complaint was made to the police of both assaults within a reasonable period". His Honour added that "there is also the failure of the respondent to pursue the rape allegation with the police although McCulloch & Peters had given "police contacts" to Banjo Clarke in 1987. His Honour, in this regard, "took into account" the respondent's stated "fear of physical reprisal" by the appellant.

73 It was after making these "findings", to which I have referred, that the judge concluded (as I have previously noted):

"There is prejudice to the [appellant] caused by the very long delay. However, I conclude that strong and persuasive reasons have been advanced on behalf of the [respondent] for her delay in pursuing the civil remedy that has only relatively recently come to her notice ... . It is just and reasonable in all the circumstances that the extension of time ought to be granted with respect to the 1981 matter."

74 It was submitted by the appellant that these conclusions were largely unexplained; and were not justified by the findings which his Honour had made. I agree with this submission for the following reasons:

(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]):

"22. On the other hand, if time was extended and a proceeding commenced, it must surely be very difficult at trial to determine whether any psychiatric or psychological condition from which the applicant was suffering when she was treated in 2000 by the psychologist ... could be causally linked to the respondent's conduct; let alone to determine whether the applicant had suffered psychiatric or psychological disability in the years past, and whether, if she had, that had been causally related to such conduct. That would be so because of the great elapse of time, the interposition of other stressors, and the absence of relevant medical consultations. It is no adequate answer to such difficulties to say that the other stressors mainly occurred in the period within which the applicant could have commenced an action without obtaining an extension of time.

23. The difficulties to which I have just referred cannot be said to be simply forensic difficulties which the applicant would confront at trial. They bear on the question whether in all the circumstances a fair trial could be had, a question of importance in the exercise of the ... discretion."

75 In the circumstances to which I have adverted, I do not agree with his Honour's conclusions that "strong and persuasive reasons have been advanced by the [respondent] for her delay in pursuing the civil remedy". On the contrary, I agree in the conclusion of the Chief Justice that the learned judge was in error in concluding as he did. In my opinion, the evidence which was before the judge (and is before this Court) should have led him to the opposite conclusion. I further agree in the conclusions reached by the Chief Justice that the second ground of appeal raised by the appellant - namely whether an application pursuant to s.23A of the Act applies to intentional assaults - has not been made good. The issue raised by the appellant under cover of this ground has been decided adversely to the appellant in the appeal of Clark v. Stingel [2005] VSCA 107. In that appeal, which was heard immediately before this appeal, we accepted the reasoning of this Court in Mason v. Mason[45] in deciding that a claim for damages for injuries arising from intentional assaults fell within the meaning of the phrase "damages for negligence, nuisance or breach of duty" as prescribed (inter alia) in s.23A of the Act.

76 Having regard to the conclusion to which I have come on the first ground argued in this appeal, it is unnecessary for me to consider the third issue raised by the grounds of appeal; namely whether the judge was in error in ordering the appellant to pay the costs of the application.

77 For the reasons given I would allow the appeal; set aside the learned judge's orders, and in lieu thereof, order that the respondent's application be dismissed with costs. The respondent should also pay the appellant's costs of the application to the County Court.

78 The reasons for judgment of the Chief Justice and the President show why it is that it is no longer possible to have a fair trial of this action, an issue to which the trial judge, with respect, did not in my view give adequate consideration.

79 Furthermore the fact that criminal prosecutions are regularly tried in the County Court for sexual offences committed up to 20 or more years ago, an issue to which the judge gave some significance is, I think, for the reasons given by the President, a factor irrelevant to the discretion exercised by the judge.

80 I also agree with the observations[46] of the President in his discussion of Brisbane South Regional Authority v. Taylor[47]; Tsiadis v. Patterson[48] and Cowie v. State Electricity Commission (Vic.)[49].

81 The appeal should be allowed, the order below set aside and the respondent's application for an extension of time refused.

82 The reasons for judgment prepared by the learned Chief Justice and the learned President, which I have had the advantage of reading in draft, show that this case can be resolved on the facts. In the circumstances their Honours describe, it is no longer possible to have a fair trial.[50] The appeal should therefore be allowed, the order below set aside and the respondent's application for an extension of time pursuant to s.23A of the Limitation of Actions Act 1958 refused.

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 :

"Prejudice to the potential defendant is to be considered together with all the circumstances of the case, although in a particular case it may be very significant if it is so severe as to preclude a fair trial of the applicant's claim".[59]

86 That statement is not inconsistent with the statements of McHugh, J. in Brisbane South. Whilst emphasising the continuing force of the rationales behind limitations legislation McHugh, J. acknowledged that the presumptive prejudice might be insufficient to resist an application for extension of time. As McHugh, J. held[60]:

"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."

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.

[1] Inserted into s.23A of the Limitation of Actions Act 1958 by Act No. 9884, the Limitation of Actions (Personal Injury Claims) Act 1983.

[2] See, for example, Ford Motor Co (Aust) Ltd v Kulic [1988] VicRp 20; [1988] V.R. 152.

[3] For instance, Act No. 52 of 2002 which substituted "three years" for "six years" limitation of actions for personal injuries (s.23A(4)(a)).

[4] [1953] HCA 25; (1953) 94 C.L.R. 621, 627.

[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.