DIB by her tutor HABIB DIB v REGTOP

However, I am not persuaded that any such decision by the solicitors can be described as a decision made by the plaintiff in view of her mental condition by 2002.

C. UNJUST TO REFUSE Senior counsel for the plaintiff submitted that there is strong evidence that the plaintiff's schizophrenia was caused by the injury sustained in the motor vehicle accident.

Accordingly it would be manifestly unjust if the defendant, who had caused her schizophrenia, could then rely on her failure to properly prosecute her claim because of that schizophrenia.

The proposition was conceded by the defendant as a matter of law, but the underlying factual matters were not conceded.

I accept the submissions made by counsel for the defendant. Clearly the causation issue is a matter to be determined by the trial Judge. However I accept that, for the purposes of this application, the medical reports tendered in evidence, show a significant divergence of views on the issue of causation. It is common ground that the medical evidence is to the effect that the cause of schizophrenia has not yet been identified. The scientific literature identifies factors which have a relatively high correlation to schizophrenia. The most important are traumatic brain injury, family history and the use of marijuana. All three of these factors apply to the plaintiff.

In addition I also accept that many of those doctors, in arriving at their opinions, have assumed facts which will be strongly in issue at any hearing.

Further, the plaintiff has not shown, for the reasons I have already given, that the failure to prosecute her claim has been caused by her schizophrenia.

I accordingly do not accept this submission by senior counsel for the plaintiff.

D. NO PERSONAL FAULT ON THE PART OF THE PLAINTIFF It was submitted by senior counsel for the plaintiff and conceded by counsel for the defendant that there was no evidence of any personal fault on the part of the plaintiff.

E. LIMITATIONS ON PROFESSIONAL NEGLIGENCE CLAIM Clearly, the plaintiff's loss of an action to claim damages is a significant and relevant consideration. Liability has been admitted by the motor accident insurer and, if the dismissal is rescinded, the matter would proceed as an assessment.

An alternative action has been commenced against the solicitor's professional negligence insurer. I consider that the possibility of the plaintiff having another cause of action is in itself of little weight. [Her Honour then considered the damages the plaintiff might recover in the motor vehicle action as opposed to the professional negligence proceedings.]

….. the professional negligence action, if successful, is unlikely to provide the plaintiff with full compensation for the following reasons - the $10,000 excess which the solicitor is unlikely to pay and the policy limit of $1,500,000.

For these reasons I have not taken into account the plaintiff's professional negligence claim.

F. PRIMA FACIE CASE It is conceded by the defendant that the plaintiff can make out a prima facie case if the medical evidence most favourable to the plaintiff is accepted.

Counsel for the defendant submitted that in the exercise of the discretion it would not be fair to require the defendant to defend the matter in light of its overall prospects and merits.

It was put that on a brief review of the medical evidence the most likely outcome would be based on the view taken by Dr Bell. Dr Bell was qualified by the plaintiff and the doctor who has been provided with the most accurate and full history. His current opinion is that the injury sustained in the motor vehicle accident aggravated the plaintiff's pre-existing schizophrenia. Counsel for the defendant submitted that any such finding would result in a modest award of non-economic loss.

I do not accept this submission for a number of reasons. Firstly I do not consider it appropriate to make any finding as to the likely outcome on the causation issue. Secondly the defendant to the motor accident claim has admitted liability. In those circumstances the plaintiff is otherwise entitled to an assessment of her damages no matter how complex that exercise might be.

I decline to take this issue into account in the exercise of the discretion.

H. PREJUDICE Senior counsel for the plaintiff submitted that there was no evidence of any prejudice to the defendant. He submitted that: · medical records and reports were available; · the plaintiff had been medically examined at the request of the defendant in 1996; · the plaintiff's condition had not changed since 1995. · none of the defendant's doctors had suggested that they had been unable to assess the plaintiff because of the delay; · all of the evidence of the plaintiff's behaviour immediately before the accident was still available.

Accordingly the matter was in the same state as if the deemed dismissal had been rescinded and the matter heard five years ago.

Senior counsel for the plaintiff submitted that in fact the defendant is in a better position than it would have otherwise have been because it now has the opportunity of cross-examining witnesses whose recollection is likely to be impaired because of the delay thus decreasing the plaintiff's chance of showing the causal nexus between her medical condition and the accident.

It is common ground that the issue of any prejudice is relevant. Firstly there is the presumptive prejudice which flows from delay: 'The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods ... The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates." Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, "what has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.' ( Brisbane South Regional Health Authority v Taylor [1996] HCA 25, McHugh J).

Secondly I accept the submission made by counsel for the defendant that, in this case it is likely that there will be actual prejudice to the defendant if the Order is made.

This arises out of the claim for damages for schizophrenia caused by the accident. As I have already said the expert evidence is to the effect that three of the most important factors linked to the onset of that condition are traumatic brain injury, family history and the use of marijuana. The plaintiff has all three. Consequently an accurate history of her mental state and behaviour in the years leading up to the accident will be of great significance in determining whether there is any relationship between the accident and the plaintiff's schizophrenia.

In particular, the reason or reasons for the plaintiff failing the first year of her university course in the months before the accident are likely to be highly relevant to this issue. The evidence from the plaintiff's brother establishes that the records produced are unreliable and will be of no assistance. The fact that her family provided a false excuse to the university is a ground on which the reliability of their evidence in these proceedings can justifiably be questioned.

Counsel for the defendant submitted, and I accept, that as a result of the delay the best witness, the plaintiff, is now unavailable. Between 1998 and 2001 it is likely that she would have been capable of giving evidence although she may have stormed out from time to time. This submission was based on the evidence of Mr Fegent and Mr Capolupo as to their observations of the plaintiff at the time. Currently however she is unco-operative and refused to attend court during the hearing of this application.

Taking all of these matters into account I am not persuaded that the plaintiff has shown that it would be in the interests of justice to extend the six month time limit to bring an application to rescind the deemed dismissal." (emphasis added). 53 Having reached that conclusion, the primary judge said it was not necessary to decide whether the deemed dismissal itself should be rescinded. The papers do not record an order formally dismissing the Motion but that is plainly what her Honour did.

Submission on appeal 54 The appellant's basic submissions can be stated succinctly. First, she complains that the primary judge erred in a manner attracting appellate review of an exercise of discretion by applying a test appropriate to an application to extend a limitation period, rather than one which depended upon determining what the demands of justice required between the parties: see Andresakis & Skouteris t/as Andresakis & Associates v Alexus Holdings Pty Ltd [2006] NSWCA 294 (at [77]). 55 She also complains that the primary judge erred in failing to give sufficient weight to the disability from which she was suffering. She argues that the delay for each period until October 2005 was explained by incompetence on the part of her solicitors and her schizophrenia which factors compounded each other. 56 She drew attention to the primary judge's finding that: " … it is possible that her mental state might have prevented the plaintiff from calling to check on the progress of her claim but I am not persuaded that there is sufficient evidence for me to give this consideration much weight." 57 She submits that in the light of the fact that: "(i) it is clear from the medical evidence the appellant was under a legal disability from at least September 1994; (ii) senior counsel had advised in May 2000 that the solicitor should take urgent action; (iii) notwithstanding that advice, and the fact they had been grossly negligent in the period up to that time, the solicitors took no action over the next ten months to ready the matter; (iv) the appellant was not represented by a tutor at that time; (v) the appellant's brother attempts to speak to her solicitor were countered by a claim of privacy and confidentiality; and (vi) the appellant (consistent with her medical condition) declined to permit her brother to have any involvement in the claim",

the primary judge should have found the overwhelming inference was that it was her schizophrenia which had led her to fail to pursue her solicitors to progress her claim. 58 The appellant also submits that the primary judge erred in substituting her own opinion of the appellant's medical condition for that of Drs Goard and Robertson. She argues that the primary judge's findings in relation to her schizophrenia gave undue weight to apparent lucidity and coherence from time to time and insufficient weight to the uncontested medical evidence that she was incapable of managing her affairs from1994 onwards. 59 Finally, the appellant complains that the primary judge erred because she only considered the prejudice to the opponent if the Motion was allowed, but failed to take into account the prejudice she would suffer if she lost her claim without it being heard on the merits: cf Wilson v Kochate Pty Ltd t/as Caradon Ski Park [2003] NSWCA 25 (at [16]) per Ipp JA. 60 The respondent submits that the primary judge did not err in principle and applied legal principles the appellant's counsel conceded were applicable. 61 He argues that the primary judge was required to consider whether the appellant had provided an explanation for the delay in the proceedings which was both credible and satisfactory and that she had been entitled to conclude that such an explanation had not been provided. 62 The respondent accepts that there was no explanation required for the period up until 1996 when he conceded "the matter ran a fairly ordinary course". As to the period between 1996 and 2001, however, the respondent submits that the fact little appeared to have been done was due to the incompetent manner in which the matter was handled by the appellant's solicitors and that there was no evidence that her psychiatric condition had caused or contributed to their incompetence. 63 Insofar as the period after 2001 was concerned, the respondent again submits that there was no evidence that any shortcomings in presenting the two early applications to restore the matter to the list and to set aside the deemed dismissal could be attributed to the appellant's psychiatric condition, nor that that condition had contributed to the pursuit of the professional negligence proceedings between 2002 and 2005. 64 Insofar as the period 2002-2004 is concerned the respondent, apparently relying upon Itex Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207, submits, in substance, that the appellant chose to pursue alternate relief in the professional negligence proceedings. This submission cannot stand in light of the primary judge's conclusion that the decision to pursue the professional negligence proceedings could not be attributed to the appellant having regard to her mental condition by 2002. 65 The respondent contends that when, apparently in 2004-2005, the appellant's current solicitors decided a further application should be made to revive the motor accident proceedings, there was no suggestion that any inability to obtain instructions from the appellant caused or contributed to the delay in presenting that application. 66 The respondent also submits in respect of the appellant's complaint that the primary judge had failed to give sufficient weight to her schizophrenia, that the appellant had never had a finding against her by the Guardianship Tribunal or the Protective Division of the Supreme Court pursuant to the Protected Estates Act 1983. 67 Finally, the respondent submits that the primary judge was entitled to conclude that he would suffer both presumptive and actual prejudice if the motor vehicle accident proceedings were reinstated. He argues that even though there might be a considerable volume of medical material available, there was a question mark as to its accuracy, a matter of great importance in determining the aetiology of schizophrenia. He submits the primary judge's conclusion as to actual prejudice was correct. I shall return to the detail of this submission.

Consideration 68 The appellant submits the primary judge erred in exercising her discretion in two respects which, if made out, would attract appellate intervention: that she made an error of legal principle and/or failed to take into account, or gave insufficient weight to, her mental disability; see Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274 (at [45]) per Heydon JA (Sheller JA and Studdert AJA agreeing). I turn first to the question of the legal principles to be applied on a Pt 12 r 4C(4) application. 69 The power to extend time within which an application could be made to rescind the dismissal order in DCR Pt 3 r 2, conferred a remedial discretion to extend time with a view to avoid injustice: Design and Survey Neon Pty Ltd v Davies [2004] NSWCA 274; app. Andresakis & Skouteris t/as Andresakis & Associates v Alexus Holdings Pty Ltd (at [54]). 70 The primary judge said that she should apply the same test in determining whether the six months limit for bringing the application to rescind the dismissal should be extended and, secondly, whether the dismissal should be rescinded. In Falconer v Laird [2003] NSWCA 114 (at [74]) Giles JA (with whom Handley and Beazley JJA agreed) observed that: "Extension of time to apply for rescission of the deemed dismissal is not the same question as, and not necessarily governed by the same considerations as, rescission of the deemed dismissal." 71 It is unnecessary to explore the different test which would apply to each exercise. The primary judge approached the issue on the basis, as will appear, of the tests which should have been applied on the substantive rescission application and it is appropriate to consider her decision on that basis. 72 In Falconer v Laird Giles JA also said (at [75]) that "where the discretion conferred by Pt 12 r 4C(4) was not given by content by criteria to be taken into account, the question was what was fair and just." The same conclusion was reached in Andresakis & Skouteris t/as Andresakis & Associates v Alexus Holdings Pty Ltd (at [77]) where, on an application to set aside a Preliminary Dismissal Order pursuant to DCR Pt 1 r 7A(6), the Court concluded the question whether the proceedings should be reinstated turned on "the demands of justice … between the parties". DCR Pt 1 r 7A(6) and Pt 12 r 4C(4) both enabled the Court to set aside either a Preliminary Dismissal Order or a deemed dismissal "as/if it thinks fit". It is, accordingly, appropriate to proceed on the basis that the first test the primary judge identified was correct.

73 The second matter her Honour said "necessarily" had to be taken into account having regard to the "significant delay" since the date of the accident was "whether a fair trial is now possible". The appellant complains that she erred in principle in this respect in applying a test appropriate to a limitation period extension application. 74 In Falconer v Laird (at [70]) Giles JA observed that: "… whether there can be a fair trial of an action is not the same question as whether it is fair and just to grant the application. Whether there can be a fair trial of an action is, of course, a material and perhaps decisive consideration in answering the former question …". 75 The extracts from the primary judge's reasons I have set out demonstrate she took a range of matters into consideration in determining what was "fair and just", of which the question whether a fair trial was possible was only one. While singling out the fair trial issue at the outset gave the appearance of suggesting her Honour treated that factor as determinative, a perusal of the judgment belies that impression. In my view, her Honour did not err as a matter of legal principle. 76 I turn to the appellant's second complaint, that the primary judge failed to take into account, or gave insufficient weight to, her mental disability. 77 Factors such as explanation for the delay in prosecuting the proceedings, the blameworthiness of the appellant and/or her legal representatives, the availability of a secondary cause of action against the appellant's former legal representatives and the prejudice to the parties were all relevant factors in determining how the Pt 12 r 4C(4) discretion might be exercised: see Andresakis & Skouteris t/as Andresakis & Associates v Alexus Holdings Pty Ltd (at [77]). None are determinative, however, for the "exercise of the Court's discretion should not be fettered 'by rigid rules'": see Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 (at 411-412) per Walsh JA; cited with approval by Moffitt P in Stollznow v Calvert [1980] 2 NSWLR 749 (at 751-752), where the learned President also eschewed confining the exercise of a judicial discretion by "judge made rigid formulae". 78 Although her Honour referred to each of these considerations, in my view, her discretion miscarried because she gave no, or insufficient, weight to the appellant's mental disability (and the respondent's concession that no personal blame for the events which had transpired could be attributed to the appellant) and the prejudice to her of losing the rescission application. 79 Further, in my view, her Honour erred in concluding the respondent had established relevant prejudice to it if the application to rescind the deemed dismissal was granted. 80 The matter can be put in perspective, by extracting her Honour's critical findings on the delay issue bearing in mind the uncontradicted expert evidence that the appellant lacked the capacity to manage her affairs "from September 1994 onwards". 81 First, the respondent conceded that the matter was properly conducted until 1996. As to the period 1996 until 2000 her Honour accepted there was an explanation (little was done on the matter by solicitors who were "very junior and relevantly very inexperienced", did not know about the deemed dismissal procedure and believed the matter could be listed at any time), but rejected the submission that the appellant's lack of capacity provided a "primary explanation" for the delay up to 2000 when her solicitors became aware of the seemed dismissal. While her Honour accepted it was possible the appellant's "mental state might have prevented [her] from calling to check on the progress of her claim" she was not satisfied there was "sufficient evidence" to "give this consideration much weight." 82 This was because notwithstanding the expert evidence, her Honour accepted a submission by counsel for the respondent that Dr Robertson and Dr Goard's opinions had to be read with the contemporaneous reports and events. Her Honour relied on the absence of any action on Mr Hovan's part to "do something" as demonstrating he had not developed a concern about the appellant's capacity to give proper instructions. Having regard to the generally indolent manner in which Mr Hovan handled the matter, including assigning its conduct to the junior and very inexperienced solicitors upon whose conduct the primary judge had already remarked, little could be drawn, in my view, from inaction on his part. More significantly, her Honour did not explain why a solicitor's failure to appreciate the appellant's mental capacity outweighed the expert evidence. 83 Her Honour also appears to have regarded the significance of the expert evidence as having diminished weight because during this period (pre-2000): "… the doctors were taking histories from the plaintiff who seemed to be able to describe the accident and provide a chronological if not always completely accurate account of the events leading up to the date of the review."

notwithstanding that she also noted: "This was accompanied by a history of hearing voices and other unusual behaviour which ultimately led to the diagnosis of schizophrenia." 84 In my view these records did not lessen the weight of the expert evidence. Rather they reinforced the proposition that the appellant's behaviour fluctuated wildly and, in particular, that she was divorced from reality in significant respects. 85 The primary judge also relied on the fact that the appellant's brother reported that her condition had deteriorated in the five years prior to the application. In my view that fact provided no cogent reason for not accepting the expert evidence as to the appellant's mental capacity prior to 2000. 86 It is true, as her Honour noted, that during this period the appellant held down at least two apparently short-term jobs from each of which she had been dismissed. To my mind those dismissals support, rather than detract from the picture of a person afflicted by a mental disability. 87 Her Honour noted, but again appeared to give little or no weight to, the fact that by 2000 the appellant was drifting in and out of reality and Dr Goard suggested at that time, that her affairs should be "controlled by someone who is competent and responsible." 88 Although the primary judge accepted that the appellant's disability must have played a role in the delay after 2000 when her solicitor became aware of the deemed dismissal, (noting that Dr Robertson by 2001 described the appellant as having a "gross formal thought disorder") she concluded, again, that she was not persuaded the appellant's condition played "the pivotal role outlined by [her] senior counsel." This was because of the dearth of records in the solicitors' files "suggesting that [the appellant's] condition precluded them from obtaining instructions for most of the period," and the fact that neither Mr Fegent or Mr Capalupo (at least early in the period he was acting for the appellant) took any steps to have a tutor appointed. 89 Again her Honour's conclusions in this respect were inconsistent with the expert evidence and, too, her earlier finding that: "Mr Fegent met with the plaintiff about four times. He described the plaintiff as very difficult to work with and said that she appeared mentally unstable. He had difficulty in obtaining instructions and on several occasions stormed out of his office." 90 To this I would add the fact that in his affidavit Mr Fegent said that while he was handling the appellant's file he was: "… in two minds as to whether she was capable of giving instructions and … considered obtaining a psychiatric report and having someone appointed." 91 Further, at the time Mr Capolupo had conduct of the matter in November 2003, he filed an undertaking from the appellant's brother to act as her tutor in the professional negligence proceedings. 92 The period 2002-2004 during which the professional negligence proceedings were being pursued can be put to one side as the primary judge concluded that, in view of the appellant's mental condition by that time, their pursuit could not be considered a deliberate decision by her not to pursue the motor accident proceedings. Accordingly she must have accepted that from at least 2002 the appellant's mental incapacity meant she was incapable of making a rational decision in relation to the proceedings. 93 Her consideration of the last period of "delay" turns solely, therefore, on what the appellant's current solicitors did once they assumed conduct of the matter. 94 In this respect, her Honour concluded there was no sufficient explanation for the delay between October 2004 and August 2005 when the Motion was filed, "particularly as most of the evidence and affidavits were filed after the Motion". 95 At the time the Motion was filed the appellant's solicitor filed a detailed affidavit describing the appellant's mental disability, the complexity of the matter, the number of different solicitors who had handled it, the steps she had taken undertaken to seek to contact each of those solicitors (with Mr Hovan being particularly difficult to procure an affidavit from as he was by then in gaol) the briefing of senior and junior counsel and their advice to pursue another rescission motion. The primary judge did not refer to any of that evidence. In my view it provided a satisfactory explanation for the passage of time between late 2004 and the filing of the Motion. The appellant's solicitors were effectively "in the dark"; the appellant could not tell them what had happened; they had to re-create the events of the previous twelve years by examining the documents, tracking down relevant witnesses and procuring advice from Counsel. The material to be analysed was voluminous. In my view it could not be said that the time that elapsed between late 2004 when the current solicitors were retained and when the Motion was filed was not satisfactorily explained. 96 As this analysis demonstrates, the primary judge appears to have given no weight to the uncontradicted expert evidence that since September 1994 the appellant had been incapable of managing her affairs. This evidence was compelling, coming as it did from two medical practitioners who had been involved in reviewing the appellant's medical condition since soon after her accident. But even if it was a permissible approach to test the validity of those opinions by reference to contemporary document, those records, too, gave a picture of a person drifting in and out of reality to such an extent that schizophrenia was diagnosed comparatively early in the peace. It may be a matter of debate as to why those medical records did not lead her legal representatives to consider appointing a tutor, but their inaction in this respect does not, in my view, diminish the expert evidence of her inability to manage her affairs throughout the relevant period. 97 Once it was accepted that the appellant's incapacity had subsisted since September 1994, the inference that her incapacity played a substantial role in the manner in which her motor vehicle accident proceedings were conducted was inevitable. It is not to point, as the respondent submits, that no formal order had been made under the Protected Estates Act. As a person incapable of managing her affairs according to expert evidence, her ability to pursue her proceedings with the diligence the law attributes to the reasonable person must have been gravely compromised. 98 The primary judge also erred, in my view, in giving insufficient weight to the actual prejudice to the appellant if the proceedings were not reinstated. The primary judge referred, in passing, to the fact that "the plaintiff's loss of an action to claim damages is a significant and relevant consideration", noted that the professional negligence proceedings were unlikely to provide her with full compensation and, too, that as liability had been admitted, the matter would proceed as an assessment and accepted the appellant was entitled to an assessment of her damages no matter how complex that exercise might be. These matters all told heavily in favour of acceding to the rescission application particularly in circumstances where the respondent acknowledged no personal fault for the delay could be attributed to the appellant. 99 Further the primary judge erred in finding the respondent would suffer prejudice. 100 The first matter of actual prejudice upon which the respondent relied, and which her Honour accepted, depended upon the proposition that determining the aetiology of schizophrenia depended on accurate family histories. The respondent persuaded her Honour that the appellant's family would not give reliable evidence in this respect. This was because of what was said to have been a false explanation the appellant and her mother had given to university authorities in 1993 at the start of her second year of university, when she sought to overturn her exclusion from her course on the basis of family disruption during her first year of studies. The conclusion that the explanation was false depended upon what the respondent submitted was a "confession" by the appellant in 1996 to a Dr Skinner, a doctor qualified by the respondent, that documents provided to the university in 1993 had been false. It also depended on evidence given by the appellant's brother in cross-examination to the effect that, fourteen years after the event, his recollection of family relations (at a time when he was 16) did not accord with the account given by his sister and his mother to the university. Both the "confession" and the brother's evidence were also used to cast doubt on the appellant's mother's credit having regard to her involvement in supporting her daughter's application in 1993. 101 A "confession" to a doctor in 1996 at a time when the appellant was already suffering from a schizophrenia-like psychosis strikes me as inherently unreliable, certainly less reliable than documents she wrote in 1993 at a time when her mental disorder appeared to be in its early stages of development. As to the appellant's brother's account of family life, common experience demonstrates that one member of a family's view of family life, particularly a different gendered member, may differ markedly from another's. As to the submission about the appellant's mother's credibility I agree with the appellant's submission that it was inappropriate to make an adverse finding in that respect when the appellant's mother did not give evidence. I would also note that the appellant was one of several siblings. There was no suggestion that none of her siblings or her father would not give reliable family histories. 102 In my view her Honour erred in concluding that the appellant's family could not give reliable evidence. 103 The next matter of actual prejudice upon which the respondent relied was that by virtue of the delay the appellant herself would most probably be unavailable as a witness. To the extent that is a matter of prejudice, (which I acknowledge it must be) it works both ways. The appellant's inability to give evidence may make it more difficult for her to establish her case. It is not sufficient, however, to outweigh the overwhelming prejudice she will suffer if her matter is not permitted to proceed to a hearing. The primary judge erred in reaching the contrary conclusion. 104 Finally to the extent her Honour's apparent finding of presumptive delay depended on applying McHugh J's judgment in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 that was, in my view, an error. Those statements have particular resonance in applications for an extension of a limitation period where the focus is on whether the time bar should effectively be relaxed, but must be approached cautiously in an application which focuses on what is appropriate to do justice between the parties: see Andresakis & Skouteris t/as Andresakis & Associates v Alexus Holdings Pty Ltd (at [78] - [79]). 105 In my view the primary judge's exercise of her discretion miscarried in a manner warranting appellate intervention. For the reasons I have given the time in which to consider the application to rescind the deemed dismissal should be extended and the deemed dismissal should be rescinded.

Costs of the application in the court below 106 The appellant seeks an order that the respondent pay her costs of the application before the primary judge on the basis that costs should follow the event: UCPR 42.1. 107 The respondent resists that order on two bases. First he argues by analogy with DCR Pt 39A r 32 that where a party applies for an extension of time then, unless the Court otherwise orders, "the party shall, after the conclusion of the proceedings, pay the costs of and occasioned by the application, or any order made on or in consequence of the application". That rule appears to reflect the approach adopted in Holt v Wynter (2000) 49 NSWLR 128 where on an application for extension of a limitation period the Court ordered the successful plaintiff to pay the defendant's costs of the application such order not to be enforced prior to final judgment in the action without the leave of the District Court. DCR Pt 39A r 32 was not reproduced in the Uniform Civil Procedure Rules and, in my view, the prima facie principle that costs should follow the event should apply. 108 However the respondent seeks to attract the Court's discretion to relieve against that prima facie principle because the appellant always needed to seek the court's indulgence to proceed so that he should not be ordered to pay the costs below unless his conduct in resisting the application was "wholly unreasonable". 109 In my view that conclusion is open. The respondent admitted liability in 1993. He tried to settle the matter. He was aware of the appellant's mental condition from at least 1995 when Dr Robertson's report was served on him. In March 1999 an amended Pt 9 r 27 statement was served on his solicitors without demur. Up until then, it appears, they were proceeding on the basis the matter was being readied for hearing. It does not appear to have occurred to those solicitors until March 2000 that the deemed dismissal provisions applied to the action. At its highest, therefore, at that stage there had been a deemed dismissal in place for just over two years in an action in which the plaintiff was suffering from schizophrenia. 110 While the conduct which should be considered to determine the costs outcome is the conduct in connection with the present application, it is of some relevance to note that the respondent has consistently opposed the applications to have the matter reinstated, a matter which as the foregoing discussion reveals, will have contributed to the difficulties of both parties in dealing with the critical issue of the aetiology of the appellant's schizophrenia. 111 The appellant's solicitors filed Dr Robertson's and Dr Goard's opinions of the appellant's mental incapacity on 30 August 2005. From at least that time, if not before, the respondent must have been aware that the delay in the conduct of the matter could not be laid at her feet. The respondent ought not to have opposed the application to reinstate the proceedings. 112 In my view the respondent has not displaced the principle that costs below should follow the event. Orders 113 The appellant sought orders setting aside McLachlan DCJ's orders of 18 July 1996. It is appropriate to accede to that submission to ensure there is no further practical obstacle to the matter being listed for hearing. 114 I propose the following orders:

2. Notice of Appeal to be filed within fourteen days.

Orders of Balla DCJ of 10 February 2006 set aside.

Extend the time for the appellant's application under Pt 12 r 4C(4) of the District Court Rules to seek an order rescinding the deemed dismissal of her action to 3 August 2005.

Pursuant to District Court Rules Pt 12 r 4C(4) rescind the deemed dismissal order of 1 January 1998.

Set aside McLachlan DCJ's orders of 18 July 1996.

Direct that the action be listed for direction in the District Court on a date convenient to that Court and notified to the parties.

Respondent to pay the appellant's costs of the application in the District Court from 30 August 2005.

Respondent to pay the appellant's costs of the appeal and application for leave to appeal and have a certificate under the Suitors' Fund Act 1951 if otherwise qualified. **********

29/01/2007 - File number on cover sheet should be 40036/06 - Paragraph(s) Cover sheet

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