CLAIM BE DEEMED TO CONSTITUTE POINTS OF CLAIM FOR THE PURPOSE OF THE PLAINTIFF'S APPLICATION FOR AN EXTENSION OF TIME PURSUANT TO SECTION 44 OF THE LIMITATION ACT 1981. 2. The second defendant within 14 days file points of defence to the points of claim. 3. THE QUESTION OF WHETHER THE PLAINTIFF IS ENTITLED TO AN EXTENSION OF TIME PURSUANT TO SECTION 44 OF THE LIMITATION ACT 1981 BE TRIED BEFORE THE TRIAL OF THE PROCEEDING PURSUANT TO ORDER 47.04 OF THE RULES. ... 5. AT THE (PRELIMINARY) TRIAL OF THE QUESTION REFERRED TO IN PARAGRAPH 2 OF THIS ORDER THE EVIDENCE BE GIVEN BY AFFIDAVIT PURSUANT TO ORDER 40.03(1)(B) OF THE RULES" (emphasis mine). 3. In compliance with para 5 of this order, the plaintiff filed and relied on 3 affidavits: Mr and Mrs Forbes' affidavits of 19 November 1993, and Ms Martin's affidavit of 23 November 1993. 4. The points of claim set out the facts and grounds upon which the plaintiff seeks an extension of time, viz:- "(a) On or about the 6th day of January 1993 in the offices of Messrs Elston and Gilchrist, Solicitors, the plaintiff ascertained, upon reading the report of Dr Geoffrey Boyce dated 4 December 1990, that Dr Boyce was of the view that his incapacities amounted to '15% of the body as a whole'." (As it turned out, (a) did not have to be considered; see p7). "(b) ... In or about November 1992 the plaintiff ascertained, upon being read the report of Dr David M. Welch dated 2 November 1992 by Mrs Forbes, that Dr Welch was of the opinion that:- (i) he suffered from "post traumatic stress"; (ii) he suffered from "severe depression"; (iii) he suffered from a condition known as "T4 Syndrome", which caused pain and stiffness in the neck; (iv) recovery would be slow; and (v) it is very likely that some degree of neck pain and shoulder pain may be permanent." 5. The second defendant in its points of defence did not admit the points of claim. Substituted service was effected on the first defendant; he did not appear at the preliminary trial. THE BACKGROUND TO THE APPLICATION 6. The plaintiff's claim arose out of a motor vehicle accident which occurred on the Stuart Highway, on 15 October 1986. The plaintiff alleges that he was driving his motor vehicle in a southerly direction along the highway when the first defendant, in the course of his then employment by the Army, drove an Army vehicle into the rear of his vehicle thereby forcing him off the highway and causing him both property damage and personal injuries. 7. Early in 1987 the plaintiff instructed Messrs Loftus and Cameron, solicitors, to pursue on his behalf a common law claim in tort for both his property damage and his personal injuries. Messrs Loftus and Cameron set about pursuing this claim in June 1987; as a consequence the claim for property damages was settled. However, they did not pursue the personal injuries claim with the same vigour; the Writ in these proceedings was not issued until 4 August 1993, nearly 7 years after the accident. Section 12 of the Limitation Act provides that an action in tort is "not maintainable after a limitation period of 3 years from the date on which the cause of action first accrues to the plaintiff". The effect of s12(1) is that the plaintiff ought to have issued his Writ by 15 October 1989; see the Limitation Act s12(1)(b) and Hawkins v Clayton (1988) 164 CLR 539 at 587. 8. On 4 December 1990, over 4 years after the accident and almost 14 months after the statutory limitation period had expired, Messrs Loftus and Cameron first informed the plaintiff that his claim had become statute-barred under s12(1)(b). The conduct of the plaintiff's case was transferred to Messrs Waters James McCormack, solicitors, some 6 months later, in or about June 1991. On 12 August 1992, the plaintiff issued a Writ against his former solicitors Messrs Loftus and Cameron, claiming damages for professional negligence in conducting his claim. A conflict of interest which subsequently arose resulted in the conduct of the plaintiff's case being transferred to his present solicitors, Messrs Elston and Gilchrist, some 4 months later, in December 1992. At that time the plaintiff had still not instituted any Court proceedings against either the first or second defendants. In issuing the Writ herein some 8 months later, on 4 August 1993, claiming damages for personal injuries, the plaintiff applied pursuant to s44(1)(a) and (4) of the Limitation Act, to extend the time within which to institute action from 15 October 1989 to 4 August 1993, a period of some 3 years and 10 months. Seven weeks later, on 22 September, under Rule 47.04 the second defendant sought, inter alia, the preliminary trial of the question whether that application should be granted. THE LAW APPLICABLE TO APPLICATIONS TO EXTEND TIME 9. Section 44 of the Limitation Act provides, as far as relevant:- "(1) Subject to this section, where this ... Act, ... prescribes ... the time for - (a) instituting an action; ... a court may extend the time so prescribed ... to such an extent, and upon such terms, if any, as it thinks fit. ... (3) This section does not - ... (b) empower a court to extend a limitation period prescribed by this Act unless it is satisfied that - (i) facts material to the plaintiff's case were not ascertained by him until some time ... occurring after the expiration of (the limitation) period, and that the action was instituted within 12 months after the ascertainment of those facts by the plaintiff; ... and that in all the circumstances of the case, it is just to grant the extension of time." 10. It will be noted that the Court's discretionary power under s44(1)(a) to extend the 3-year limitation period fixed by s12(1) arises only if it is first "satisfied" that the threshold requirements in s44(3)(b) are met. Those requirements in this case are first that the plaintiff personally ascertained "material facts" after 15 October 1989 and instituted his action within 12 months after he ascertained those facts: see Ward v Walton (1989) 66 NTR 20 at 22-23. (He claims to have ascertained "material facts" in or about November 1992; he instituted this action on 4 August 1993, well within the 12 months commencing November 1992.) Second, he must then satisfy the Court that in all the circumstances of this case, it is just to grant him an extension of time of some 3 years and 10 months (from 15 October 1989 to 4 August 1993). I deal first at pp5-14 with the "material facts" requirement in s44(3)(b)(i) and then with the "just in all the circumstances" requirement at pp14-40. "FACTS MATERIAL TO THE PLAINTIFF'S CASE" 11. Both parties agreed that the meaning of this phrase is now authoritatively defined in Sola Optical Australia Pty Ltd v Mills [1987] HCA 57; (1987) 163 CLR 628 at 636, viz:- "A fact is material to the plaintiff's case if it is both relevant to the issues to be proved ... and is of sufficient importance to be likely to have a bearing on the case." 12. In Sola Optical (supra), the High Court was interpreting s48(3)(b)(i) of the Limitation of Actions Act 1936 (S.A.), which is identical in substance with s44(3)(b)(i) of the Limitation Act: see Braedon v Hynes (1986) NTJ 885 at 892. The definition of "material facts" in Sola Optical (supra) has been applied in this jurisdiction; see Fersch v Power and Water Authority [1990] NTSC 30; (1990) 101 FLR 78 (particularly at 82-83 and 85-87 per Asche CJ) and Berno Bros Pty Ltd v Green's Steel Constructions Pty Ltd [1992] NTSC 28; (1992) 84 NTR 1. The requirement that the facts so ascertained be "material" is to be shown by objective inquiry. "Materiality" does not connote some interaction between the facts in question and the plaintiff's decision to sue. 13. In Fersch v PAWA (supra), Asche CJ said at 82:- "In Lovett v Le Gall ((1975) 10 SASR 479) which was approved by the High Court in the Sola Optical case, Bray CJ at 482 observed that the phrase 'facts material to the plaintiff's case were not ascertained by him' took in THE WHOLE COMPLEX OF EVIDENCE AND ARGUMENT WHICH WILL BE ADVANCED AT THE TRIAL ON HIS BEHALF.'" (emphasis mine) 14. At p83 his Honour noted that Maurice J in Braedon v Hynes (1986) NTJ 883 at 893 had accepted that the ambit of "material facts" was as set out in Lovett v Le Gall (supra), and added:- "IT BECOMES NECESSARY, THEREFORE, TO CONSIDER WHETHER THE APPELLANT HERE 'ASCERTAINED' 'MATERIAL FACTS' WITHIN THE MEANING OF THE SUBSECTION AS INTERPRETED BY THE AUTHORITIES AND, IN PARTICULAR, BY THE HIGH COURT." (emphasis mine) 15. I respectfully adopt this approach to the "material facts" requirement. In doing so, I bear in mind the purpose served by that concept in the Limitation Act (NT): see Sola Optical (supra) at 635-637. I turn next to the plaintiff's submissions on the "material facts" requirement. THE PLAINTIFF'S SUBMISSIONS - "MATERIAL FACTS" 16. Mr Smith of counsel for the plaintiff conceded that point of claim (a) - see p2 - need not be further considered, as Mrs Forbes frankly agreed in cross-examination that she had read the Dr Boyce's report to Mr Forbes "in about December of 1990" (transcript p30) and therefore the 12-month requirement of s44(3)(b)(i) had not been met as regards the facts ascertained from that report. 17. As to point of claim (b) - see p2 - Mr Smith submitted that the following three findings should be made on the evidence, viz:-

1. that in or about November 1992 the plaintiff first learned, from the reading to him by his wife of Dr Welch's report of 2 November 1992, that Dr Welch considered that: (a) he suffered from post-traumatic stress; (b) he suffered from severe depression; (c) he had a condition known as "T4 syndrome" which caused pain and stiffness in his neck; (d) his recovery would be slow; and (e) it was very likely that he had some degree of permanent neck and shoulder pain; 2. that the learning by the plaintiff of the existence and contents of Dr Welch's medical opinion - his learning of the fact that Dr Welch held the opinions set out at 1.(a)-(e) - was a learning of the fact of that medical assessment; and 3. that in or about November 1992, the plaintiff ascertained for the first time the facts set out at 1.(a)-(e) above, from the reading to him of Dr Welch's opinion, and these were "material facts" for the purposes of s44(3)(b)(i).
2. To establish these findings, Mr Smith relied on the affidavits of 19 November of the plaintiff and Mrs Forbes. I turn first to the evidence relied on to establish finding no.1 above (p7).
3. The plaintiff deposed in paras 31 and 32 that:- "31. ... in or about November of 1992 I obtained a copy of the report of Dr David Welch dated 2nd November 1992. ... My wife read the report out loud to me as she does with any correspondence or reports that are received on my behalf. 32. Upon having the report read to me I ascertained for the first time (the contents of the report as set out at 1(a) -(e) above)."
4. I observe that the evidence clearly established that the plaintiff had difficulty in concentrating and in reading, and that it was usual for his wife to read to him any correspondence he received.
5. Mrs Forbes in para 3 of her affidavit of 19 November deposed that:- "3. I recall reading the entire report (of Dr Welch of 2 November 1992) out lout to my husband ... as I always read all medical reports to him and any correspondence he receives from solicitors. Annexed hereto ... is a copy of the said report dated 2nd November 1992 by Dr Welch which I read to my husband in November of 1992."

She had deposed in para 2 to the fact that "I believe that I was given a copy of (that) report ... by Dr David Welch himself ..." To establish finding no.2 (p7), Mr Smith relied on Smith v Land and House Property Corporation (1884) 28 Ch D 7; Bisset v Wilkinson (1927) AC 177; and Sola Optical (supra). 23. In Smith (supra) the question was whether the plaintiff's material misrepresentation that the tenant of the hotel he had sold to the defendant was "a most desirable tenant" was a misrepresentation of fact which had induced the defendant to enter into the contract. It was held that the description was not a mere expression of opinion, but contained an implied assertion that the plaintiff knew of no facts leading to the conclusion that the tenant was not "a most desirable tenant"; in fact he did know of such facts. Bowen LJ said at 15:- "Was there then a misrepresentation of a specific fact? ... I will first deal with the argument that the particulars only contain a statement of opinion about the tenant. It is material to observe that IT IS OFTEN FALLACIOUSLY ASSUMED THAT A STATEMENT OF OPINION CANNOT INVOLVE THE STATEMENT OF A FACT. In a case where the facts are equally well known to both parties, what one of them says to the other is frequently nothing but an expression of opinion. The statement of such opinion is in a sense a statement of a fact, about the condition of the man's own mind, but only of an irrelevant fact, for it is of no consequence what the opinion is. But IF THE FACTS ARE NOT EQUALLY KNOWN TO BOTH SIDES, THEN A STATEMENT OF OPINION BY THE ONE WHO KNOWS THE FACTS BEST INVOLVES VERY OFTEN A STATEMENT OF A MATERIAL FACT, FOR HE IMPLIEDLY STATES THAT HE KNOWS FACTS WHICH JUSTIFY HIS OPINION. (emphasis mine) 24. In Bisset (supra) the defendants/purchasers sought to rescind a contract on the ground that a statement by the plaintiff/vendor as to the sheep-carrying capacity of the land was false. The Privy Council held at 182:- "A representation of fact may be inherent in a statement of opinion and, at any rate, the existence of the opinion in the person stating it is a question of fact." 25. In Sola Optical (supra) the situation was somewhat akin to the situation here. The plaintiff's solicitors failed to institute proceedings to enforce her claim for damages before the limitations period expired. Nine months later she became aware of a 14 month old medical opinion by a surgeon who had examined her several years before, that she then suffered an 80% loss of function of her arm. Three months later her Writ issued seeking, as here, an extension of time. Bollen J granted the extension, holding that her discovery of the medical opinion constituted the ascertainment of a fact material to her case within the meaning of s48(3)(b)(i) of the Limitation of Actions Act 1936 (S.A.). The appellant/employer appealed on the ground, inter alia, that this was incorrect. The High Court rejected this ground, saying at 638:- "It was submitted that ... the Court should have held that the fact found to have been ascertained by the respondent on 20 March 1985 was not a fact material to her case for the reason that Mr. Morgan (the surgeon) in his second report (of 20 January 1984) was only putting a percentage on the disabilities which she had described and demonstrated to him and of which she must necessarily have been aware at the time of his second examination. But THE SECOND REPORT was doing more than that. It WAS EXPRESSING A SPECIALIST MEDICAL OPINION AS TO THE EFFECT OF THE DISABILITIES UPON THE FUNCTIONAL CAPACITY OF THE RESPONDENT'S ARM. The respondent certainly had a knowledge of the physical disabilities that she suffered, but IT WAS MATERIAL TO HER

CASE TO LEARN THAT A MEDICAL ASSESSMENT OF THE EFFECT OF THOSE DISABILITIES UPON HER CAPACITY TO FUNCTION WAS EXPRESSED IN TERMS OF 80 PER CENT LOSS OF FUNCTION. SUCH A FACT WAS MATERIAL TO THE ISSUE OF DAMAGES. Whilst the cogency of the evidence was undoubtedly affected by the fact that the assessment was made in the light of an examination carried out in February 1983 and that it mentioned the possibility of some further improvement, we do not think that the passage of time destroyed its materiality completely. It remained a significant benchmark pointing to a very substantial disability that was still present in 1983

several months after surgery. IN ANY EVENT, THE FACT OF EXISTENCE AND CONTENTS OF MR. MORGAN'S REPORT WAS ALSO CAPABLE OF BEING MATERIAL TO THE RESPONDENT'S CASE IN THE SENSE THAT THE REPORT REPRESENTED AVAILABLE EVIDENCE THAT COULD BE CALLED IN SUPPORT OF HER CASE." (emphasis mine) 26. To establish finding or conclusion no.3 (p7) Mr Smith submitted:- (a) A distinction must be drawn between a plaintiff's knowledge of his symptoms and his knowledge of a medical opinion about those symptoms; Mr Smith relied on the passage (p10) from Sola Optical (supra) at 638. It would follow that the plaintiff's much earlier knowledge of his symptoms, prior to ascertaining Dr Welch's assessment of those symptoms in November 1992, is not fatal to his application under s44(1); indeed, is not relevant to it. (b) Alternatively, Dr Welch's opinion of 2 November 1992 is evidence available to the plaintiff, which could be called in support of his case. Mr Smith relied on that part of the passage (p10) from p638 of Sola Optical (supra) last emphasized. (c) The plaintiff became aware of new information, in the nature of facts material to his case, as a result of Dr Welch's opinion being read out to him in November 1992. Mr Smith submitted that only then did the plaintiff become aware that:- (i) he suffered from severe depression (that is, post traumatic stress), not merely stress and depression; (ii) he suffered from a condition known as "T4 Syndrome"; (iii) his recovery would be slower than he expected; and

(iv) he suffered from a degree of permanent neck and shoulder pain. THE SECOND DEFENDANT'S SUBMISSIONS - "MATERIAL FACTS" 27. Mr Hiley QC, senior counsel for the second defendant, made four submissions. 28. First, the evidence clearly established that the plaintiff was personally aware long before 4 August 1992 (that is, prior to the 12-month period immediately preceding the issue of the Writ on 4 August 1993), that he suffered from the disabilities medically described in (i)-(iv) above. Accordingly, the plaintiff was outside the scope of s44(3)(b)(i), and there was no power to extend time under s44(1) in this case, because of the next submission. 29. Second, that knowledge by the plaintiff of his disabilities - his stress, depression, neck pain, shoulder pain and so on - constituted knowledge of the "facts material to (his) case" on which he relied, in terms of s44(3)(b)(i) of the Limitation Act. That is to say, the "material facts" in this case were the medical symptoms or disabilities themselves, of which the plaintiff had been aware for years, and not the "medical tags" or medical descriptions such as "post traumatic stress" and "T4 Syndrome" given to those symptoms by Dr Welch in his opinion of 2 November 1992. Accordingly, the three findings sought by Mr Smith (pp7-8) could not be made. 30. Third, the evidence did not established when the plaintiff first learned about the facts referred to by Dr Welch in his report of 2 November 1992. 31. Fourth, the Court should not read too literally the passage from p638 of Sola Optical last emphasized at p10; it was obiter, and if read in a strictly literal way a plaintiff could always very easily establish the necessary "material facts" to draw himself within s44(3)(b)(i), a matter which the Legislative Assembly would never have intended. FINDINGS ON THE "MATERIAL FACTS" ISSUE 32. The plaintiff's affidavit of 19 November 1993 clearly establishes that he had been aware of his medical symptoms for years prior to 4 August 1992. Accordingly, to determine whether the plaintiff first ascertained certain material facts in November 1992, it is necessary first to decide whether his pre-existing knowledge of his symptoms amounted to knowledge of the material facts which he claims to have first ascertained in November 1992 and on which he now relies to support his application for an extension of time. 33. To rule on that question entails first addressing two subsidiary questions: is Dr Welch's opinion a "material fact"; and is there a distinction between a medical symptom and the "medical tag" attached to it? As to the first question, I consider that the application of the law stated in the passages set out at pp9 and 10 from Smith (supra), Bisset (supra) and Sola Optical (supra) establishes that Dr Welch's opinion of 2 November 1992 is a "material fact" for the purposes of s44(3)(b)(i). As to the second question, on the basis of Sola Optical (supra) and Fersch v PAWA (supra), I accept the plaintiff's submission that there is a distinction between a plaintiff's knowledge of his symptoms and his knowledge of a medical opinion as to what those symptoms indicate (the so-called "medical tag"). The medical opinion is in the nature of an assessment or diagnosis. 34. It follows that in this case, the plaintiff's years-old knowledge of his symptoms is not fatal to his application for an extension of time. In the terminology of Sola Optical (supra) at 638, the report by Dr Welch "... was expressing a ... medical opinion as to the effect of the disabilities upon the functional capacity ..." of the plaintiff's body. The plaintiff is entitled to rely on the fact that he first ascertained the contents of Dr Welch's opinion in November 1992, to meet the requirement in s44(3)(b)(i) of the Limitation Act that he ascertained material facts within the 12 months before he issued his Writ on 4 August 1993. 35. In the light of the foregoing, and on the evidence, I accept Mr Smith's submissions and make the three findings he seeks at pp 7-8. I also consider that his alternative submission b) at p11 is correct, on the basis of what the High Court said in Sola Optical (supra) at 638, in the words last emphasized on p10. Dr Welch's report of 2 November 1992 was itself "available evidence that could be called in support of (the plaintiff's case)". I reject Mr Hiley's submission that that passage should not be read literally. It is true that by giving those words their ordinary meaning Sola Optical (supra) in practice emasculates very considerably the significance of the "material facts" requirement in s44(3)(b)(i) of the Limitation Act. I share the "unease" about that expressed by Asche CJ in Fersch v PAWA (supra) at 85-87, for the reasons his Honour states. See also to the same general effect the observations of Muirhead AJ in Forster v Vin Keneally and Associates Pty Ltd [1987] NTSC 50; (1987) 48 NTR 51 at 55-56; I share his Honour's concern at the "artificial contrivance" to which Sola Optical opens the door. In Sola Optical (supra) at 637 the High Court considered that "the breadth of the residual discretion vested in the court (under s44(3)(b) of the Limitation Act) provides an ample safeguard against abuse". To that discretionary requirement I now turn. THE DISCRETIONARY REQUIREMENT UNDER S44(3)(B) OF THE LIMITATION ACT 36. Section 44(3)(b) of the Limitation Act provides (pp4,5) that in addition to being satisfied that the "material facts" requirement has been met, the Court must also be satisfied before extending the time that "in all the circumstances of the case, it is just" to do so. In making that discretionary judgment the purpose of s44(3)(b) should be borne in mind; see Sola Optical (supra) at 634-5. So should the inevitability that the very existence of a Statute of Limitations will on occasion lead to injustice; see the observations of Deane J in Hawkins v Clayton (supra) at 589-590. 37. In exercising that judgment, the Court must balance the interests of the plaintiff and the defendant. Delay in trial until many years after the event may carry with it the fading of witnesses' memories and the loss or destruction of relevant records, and a resulting difficulty in ensuring a fair trial. These concerns for both a defendant's and the public interest led to the introduction of the 3-year limit within which to issue a Writ; however, that in turn led to cases of injustice, which in turn resulted in provisions such as s44. The reason for a plaintiff's delay, and the unfairness of denying him the right to seek damages for his injuries, may be compelling. The circumstances may be such that a fair trial can still be had. The discretion in s44(3)(b) is wide; its exercise turns on "all the circumstances of the case". GUIDELINES FOR THE EXERCISE OF THE DISCRETIONARY REQUIREMENT 38. There is little case law in this jurisdiction on the exercise of the discretion in s44(3)(b). Ulowski v Miller (1968) SASR 277 at 280, Lovett v Le Gall (1975) 10 SASR 479 at 494, Napolitano v Coyle (1977) 15 SASR 559 at 571, Braedon v Hynes (supra) at 892-894 and 897-903 and Mundy v Bridge Motors Pty Ltd (1987) 45 SASR 125 at 140-141 provide some guidance in this area. I treat the factors set out in Ulowski (supra), as qualified by later authorities, as guidelines to the exercise of the discretion. There are no guidelines in the Limitation Act as to what is "just" in the circumstances. Guidelines are not exhaustive, nor are they prerequisites to the exercise of jurisdiction; but they are desirable to achieve a measure of consistency in the exercise of a discretion. 39. In Ulowski(supra) Bray CJ said at 280:- "It must be remembered that we are dealing here with a discretion and in my view IT OUGHT NOT TO BE FETTERED BY ANY ABSOLUTE OR INFLEXIBLE RULES. It clearly appears from these cases (to which his Honour had earlier referred) that five paramount matters to be considered are (1) the length of the delay, (2) the explanation for the delay, (3) the hardship to the plaintiff if the action is dismissed and the cause of action left statute-barred, (4) the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay, and (5) the conduct of the defendant in the litigation." (emphasis mine) 40. That case involved an appeal from a refusal to dismiss an action for want of prosecution. Napolitano v Coyle (supra) involved the same issue as here; Bray CJ considered at 571 that the considerations set out in Ulowski (supra) "may be usefully considered here." 41. Mundy v Bridge Motors Pty Ltd (supra) also involved an issue similar to the issue here. Von Doussa J applied at pp140-1 the "five paramount matters" identified in Ulowski (supra); in relation to factor (4) (p16), he said at 141:- "It was upon the question of prejudice (to the defendant) that Mr Steele rested his submissions. No evidence of actual prejudice was led by the defendant. It was not suggested that any witness had died or disappeared in the meantime, or that any evidence had been destroyed. However, IT WAS SAID THAT A GENERAL PREJUDICE SHOULD BE INFERRED FROM THE MERE LENGTH OF THE DELAY. ACCEPTANCE OF THAT SUBMISSION WOULD BE CONTRARY TO THE DECISION OF THE FULL COURT IN ULOWSKI V MILLER (SUPRA) and would be contrary to the probabilities of this particular case." (emphasis mine) 42. In a Note to Lovett v Le Gall (supra), which also involved an issue similar to the issue here, Judge J.M. White (as he then was) whose judgment was approved by the Full Court in Lovett v Le Gall (supra), after citing the list of five "important considerations" in Ulowski (supra), said at 494:- "To the above list might be added (6) the conduct of the plaintiff and (7) the nature, importance and circumstances surrounding the ascertainment of the new material facts." 43. I respectfully agree. To those I would also add (8): the extent to which, having regard to the delay, the evidence is likely to be less cogent than if the action had been brought within the time allowed. These factors of course overlap. Bray CJ said in Lovett v Le Gall (supra) at 485 with particular reference to factor (4) (p16):- "... the exercise of the discretion was not questioned. Many considerations will be relevant to it. PROMINENT AMONGST THEM IS THE QUESTION OF POSSIBLE PREJUDICE. IF THE DEFENDANT HAS SUFFERED NO PREJUDICE, AS WHEN HE WAS WELL AWARE WITHIN THE LIMITATION PERIOD OF THE PLAINTIFF'S CLAIM, or where the excess period of time is small, or WHERE HE CANNOT SHOW THAT HE HAS LOST ANYTHING BY REASON OF THE DELAY, IT MAY WELL BE THAT THE COURT WILL NOT FIND IT DIFFICULT TO COME TO THE CONCLUSION THAT IT IS FAIR AND EQUITABLE IN THE CIRCUMSTANCES TO GRANT THE EXTENSION. Of course, what the learned Judge has called the qualifying factor about the plaintiff's non-ascertainment of the material facts must first be satisfied before any discretion arises at all. ... THERE IS NOW A TENDENCY abroad in many fields of procedural law, the renewal of a time-expired writ, the refusal to strike out an action for want of prosecution, for example, TO RELAX THE RIGIDITY OF TIME LIMITS WHEN THAT CAUSES NO INJUSTICE, PREJUDICE OR HARDSHIP TO OTHER PARTIES. This legislation (s48 of the Limitation of Actions Act 1936-72 (SA)) is another example of that tendency." (emphasis mine) 44. Judge White said in Lovett (supra) at 495-6:- "As for the plaintiff's conduct, I DRAW A DISTINCTION BETWEEN ANY DELAY FOR WHICH THE PLAINTIFF WAS PERSONALLY RESPONSIBLE AND THE DELAY FOR WHICH HER SOLICITOR ALONE WAS RESPONSIBLE. THE FORMER DELAY OPERATES MORE SEVERELY AGAINST THE PLAINTIFF THAN THE LATTER WHEN HARDSHIP IS BEING CONSIDERED: see Ulowski's Case (1968) SASR 277, at pp. 282-283. While the solicitor's knowledge is irrelevant at the qualifying stage, it becomes relevant at the discretion stage. In this case, the plaintiff was not guilty of any delay at all. The plaintiff did everything she reasonably could. Throughout, she kept her solicitor informed. Well within time, she instructed her solicitor to institute the proceedings. Thereafter it was appropriate for her to leave the matter entirely to him. Indeed, it would be unreasonable to require her to check with her solicitor to see that he had done what he had been asked to do. See Anisiena's Case [1974] VicRp 81; (1974) VR 670, at p. 674. .... There is nothing in the length of the delay or the solicitor's conduct, other than this carelessness, which calls for special mention. It goes without saying that there would be great hardship to the plaintiff if the application were dismissed. She has a substantial claim with an undeniable chance of success apart from this statutory defence. It is an open question whether her solicitor's solvency or indemnity insurance are relevant. (Ulowski's Case(1968) SASR 277, at p. 282). In any event it would be hardship for her if I refused her application, forcing her to desist from continuing these proceedings and to commence fresh action against her former solicitor. The delay in service of the summons for another

year was explained satisfactorily. I find that the facts material to her case belatedly discovered by this plaintiff were quite important and clearly qualified her to ask for time to be extended. THE APPLICATION IS NOT BASED UPON TRUMPED UP, FRIVOLOUS OR ARTIFICIALLY MANUFACTURED MATERIAL. THE CIRCUMSTANCES SURROUNDING THE DISCOVERY OF MATERIAL FACTS WITHIN THE LATER RELEVANT TIME ARE NATURAL AND CONVINCING. THERE IS NOTHING UNTOWARD OR SUSPICIOUS ABOUT THEM." (emphasis mine) 45. In Mavra v Logan (1980) 24 SASR 567 the factors to be taken into account on an application to extend time, were considered and discussed. Sangster J said at 580:-

"The hardship to the plaintiff if the time be not extended is obvious. I DECLINE TO OFFSET AGAINST THAT HARDSHIP THE PLAINTIFF'S CHANCES OF RECOVERING FROM PERTL (HIS SOLICITOR) WHAT THE PLAINTIFF WOULD HAVE RECOVERED FROM THE FIRST AND SECOND DEFENDANTS. Bray CJ in Ulowski v. Miller (1968) SASR 277, said that such a stand "could be strongly argued" but that it did not then fall for decision. In my opinion, the point now falls for decision and I so decide. The emphasis in the legislation with which I am concerned, and the decisions of this Court on the exercise of discretions where a solicitor rather than a party was personally at fault, point to my examination of the position of the plaintiff vis-a-vis the first and second defendants only. It would, in my opinion, be unthinkable for me to leave open the possibility that I might reject the plaintiff's present application on the ground that he may recover from Pertl, only to find later that vis-a-vis Pertl some complete answer (not now known to me) is available to Pertl, leaving the plaintiff with no remedy at all. Not one word of prejudice to either defendant was put forward, and I assume that there was none. Indeed I find it incredible that a defendant who not only knows of, but submits to an order on the basis of, a claim founded on the defendant's negligence, and does absolutely nothing to inquire whether the injured party proposes to pursue his claim beyond the sum already paid to that injured party as workmen's compensation, should now seek an exercise of a

discretion favourable to that defendant when the injured party comes to Court and says: "I knew nothing of all this from my previous solicitor - I did what I could, and now that my new solicitor has ascertained for me the true facts I have acted promptly on them"." (emphasis mine) THE PLAINTIFF'S SUBMISSIONS - THE DISCRETIONARY REQUIREMENT 46. Mr Smith's submissions followed the pattern of the "five paramount matters" in Ulowski (supra) set out at p16, and factors (6) and (7) from the Note to Lovett v Le Gall (supra) (p17). THE LENGTH OF THE DELAY 47. Relying on Ulowski (supra) at p281 Mr Smith submitted first that whether the length of the delay is a significant matter or not in a given case, is a question of fact. I accept that. 48. The second submission was that here the length of the delay, approximately four years, was "about average" in terms of what the Court will tolerate when exercising its discretion to extend time in favour of a plaintiff. In support, Mr Smith referred to Mahon v Frankipile (Australia) Pty Ltd (1984) 157 LSJS 52 which involved a time delay of three years in serving a writ, and the extreme case of Niemann v Electronic Industries Ltd [1978] VicRp 44; (1978) VR 431, where the majority held that they were "not prepared to say that 15 years' delay must result in a finding that a fair trial of the action is not possible". In Mahon (supra) White J observed at 55 that "the availability of an alternative claim (by the plaintiff) against his solicitor is quite irrelevant" in factor (3) of hardship to the plaintiff. Olsson J said at 70:- "As the learned Chief Justice said in (Williams v. F.S. Evans and Sons Ltd. (1988) 148 LSJS 354), an appellant who seeks to renew a writ out of time requires the indulgence of the Court to do so and that indulgence requires careful consideration of all relevant aspects of the justice of the case. On the one hand a failure to renew the writ in a situation such as that now before the Court will inevitably mean that the appellant is unable to pursue any remedy against the respondent, and is left with such remedy as he may have against his delinquent solicitor. On the other hand, this prejudice must be balanced against the prejudice likely to be caused to the respondent if the action proceeds after what has been inordinate and inexcusable delay. IN GENERAL, THE COURT MUST BE PERSUADED THAT THERE WILL BE A SUBSTANTIAL RISK THAT A FAIR TRIAL WOULD NOT BE POSSIBLE OR THAT THERE IS SUCH DEMONSTRATED SERIOUS PREJUDICE TO THE RESPONDENT THAT IT WAS UNJUST TO PERMIT THE PROCEEDINGS TO BE REVIVED." (emphasis mine) EXPLANATION OF THE DELAY 49. Bray CJ said in Ulowski (supra) at 282-3:- "I agree that there may be a distinction between delay for which the plaintiff is personally responsible and delay for which his solicitors alone are responsible. THE FORMER WILL OPERATE MORE SEVERELY AGAINST HIM THAN THE LATTER WHEN THE QUESTION OF HIS HARDSHIP IS BEING CONSIDERED. See Allen v. Sir Alfred McAlpine and Sons Ltd. (1968) 1 All ER 543, per Diplock LJ, at pp. 555-556; per Salmon LJ, at p. 561." (emphasis mine) 50. Relying on Ulowski (supra) Mr Smith submitted that where the plaintiff's solicitor is solely responsible for the delay the Court should be more inclined to exercise the discretion in favour of the plaintiff than it would if he were wholly or partly responsible. He submitted that the evidence showed that this was the position here. I accept that. HARDSHIP TO THE PLAINTIFF IF THE ACTION IS STATUTE-BARRED 51. Mr Smith submitted that in assessing the hardship the plaintiff would suffer if granted an extension of time, this Court should not have regard to the fact that he has an alternative remedy - suing his former solicitors - which he is presently pursuing. In support he relied on Williams v F.S. Evans and Sons (1988) 52 SASR 237 and Mahon v Frankipile (Australia) Pty Ltd (supra) at 55. See also Mavra v Logan (supra) at 580 (see p19). 52. Williams (supra) involved an application to renew stale Writs. White J said at 244:- "Finally, Mr Debelle sought to cut away the foundation of the plaintiffs' claims to prejudice if the writs were not to be renewed by pointing to their alternative and "equally valuable" rights to sue their solicitors for negligence. This alternative right was said to be both certain and safe because of the compulsory legal professional insurance scheme. He relied upon the judgment of McGarvie J in McKenna v McKenna (1981) VR 665 at 679 who in turn followed the minority judgment of Lord Salmon in Birkett v James (1978) AC 297 at 329 to the effect that possible claims against solicitors could be taken into account as one of the factors to be weighed in the balance in cases where other factors were evenly balanced. There are two answers to that contention. First, the other factors are not evenly balanced; and second, the weight of authority is to the contrary. THE MAJORITY IN BOTH BIRKETT V JAMES AND IN MCKENNA V MCKENNA (SUPRA) HELD THAT THIS POSSIBLE ALTERNATIVE WAS NOT REALLY A RELEVANT CONSIDERATION IN THE EXERCISE OF THE DISCRETION. FOR THE REASONS THEY GIVE I WOULD AGREE. IN SO FAR AS IT MIGHT IN EXCEPTIONAL CASES BE CONSIDERED RELEVANT, IT SHOULD BE GIVEN VERY LITTLE WEIGHT." (emphasis mine) 53. Bollen J said at 249-251:- "I think that the most important point debated before us was the question whether the respondents' probable sound right of action against their solicitors, coupled with the fact that their solicitors must have professional indemnity insurance, has any effect on the question of renewal. We know from the affidavits filed by the solicitors that it seems that the respondents would have sound grounds for an

action in negligence against the solicitors. Inexcusable delay seems to be capable of proof. Of course, one never knows what might develop in litigation. But at the moment I think we can assume that the respondents would each have a sound right of action against the solicitors. I will assume, too, that the solicitors are the beneficiaries of professional indemnity insurance. ... Mr Debelle submitted that ... the existence of sound claims plus insurers to meet any judgment debt was enough to defeat the claim for renewal. No doubt he allied this matter to others but part of his thesis was that such claims plus sure recovery was sufficient to prevent renewal. Why renew something dead when something equally good or better could avail the respondents? ... (His Honour then considered what was said on this topic in Birkett v James (supra), and continued at p241:-) The majority clearly held that the right to sue the solicitor is not a relevant consideration. Lord Salmon thought it might sometimes carry weight, but not much. Birkett v James (supra) has been much considered. BUT I THINK IT AN AUTHORITY FOR SAYING THAT THE RIGHT TO SUE THE SOLICITOR IS NOT RELEVANT IN THESE AND LIKE CIRCUMSTANCES." (emphasis mine) THE PREJUDICE TO THE SECOND DEFENDANT IF THE ACTION IS ALLOWED TO PROCEED NOTWITHSTANDING THE DELAY 54. Mr Smith submitted that the plaintiff gave the second defendant early notice of his claim. It will be recalled the accident occurred on 15 October 1986. He relied on paras 5-7 of Ms Martin's affidavit of 23 November 1993, viz:- "5. ... Notice of the plaintiff's personal injuries claim was given to the Australian Government Solicitor, Solicitors for the defendant by letter from Messrs. Loftus and Cameron dated 26th June 1987 a copy of which letter is annexed hereto and marked "HAM2". 6. On the file of Loftus and Cameron and annexed hereto and marked with the letters "HAM3" are details of a telephone conversation between Grant Elliott of the Australian Government Solicitor and Mr. Spazzapan of Messrs. Loftus and Cameron dated 6th July 1987 in which the personal injury claim was referred to. 7. Annexed hereto and marked with the letters "HAM4" is a copy of a telephone conversation with Simon Treloar from the Australian Government Solicitors office dated 8th September 1987 in relation to the quantum of the personal injuries claim." 55. Mr Smith submitted that in light of this early notice of claim it was incumbent on the second defendant to adduce evidence of any actual prejudice it had sustained; it was not enough in those circumstances to seek to infer prejudice from the mere fact of delay. As the defendant had not adduced such evidence he submitted that it had not discharged its onus to show prejudice. 56. Mr Smith also submitted that a release form (Exhibit D1) signed by the plaintiff was simply of no significance in this action for personal injuries. In support he relied on the affidavit of Ms Martin, which in my view clearly establishes for present purposes that the release form is directed to the plaintiff's (settled) claim for property damage, and not to his personal injury claim. CONDUCT OF THE PLAINTIFF AND SECOND DEFENDANT IN THE LITIGATION 57. Mr Smith agreed with Mr Hiley that there is no evidence to suggest that any party made a representation which my have induced another party to allow the statutory time limit to expire. THE NATURE OF THE NEW MATERIAL FACTS, THEIR IMPORTANCE, AND THE CIRCUMSTANCES IN WHICH THEY WERE ASCERTAINED BY THE PLAINTIFF 58. Mr Smith submitted that the plaintiff's claim for an extension of time is not based upon "trumped up, frivolous or artificially manufactured material", to use the language of Judge White in the Note to Lovett (supra) (p19); rather, he submitted, the circumstances surrounding the discovery of the material facts relied on (the contents of Dr Welch's opinion of 2 November 1992) were "natural and convincing", not "untoward or suspicious" in the language again of Judge White (see p19). THE SECOND DEFENDANT'S SUBMISSIONS - THE DISCRETIONARY REQUIREMENT 59. Mr Hiley directed his submissions to the 5 factors identified by Bray CJ in Ulowski (supra) (p16), stressing that nos.(3) and (4) were the most important, and nos.(6) and (7).(sic) THE LENGTH OF THE DELAY 60. Mr Hiley submitted that the Writ was issued almost four years out of time; and while the question of what the Court considers a tolerable delay in that regard is one of degree, four years is too long a delay for the Court to tolerate. EXPLANATION OF THE DELAY 61. Mr Hiley conceded that arguably there was no evidence of any personal delay by the plaintiff; and accordingly, perhaps, factor (2) was neutral in its effect. He rightly noted the difficulties encountered by the plaintiff's solicitor Ms Martin, in obtaining the file of Messrs Loftus and Cameron; this contributed to the delay in issuing the Writ. See p34. HARDSHIP TO THE PLAINTIFF IF THE ACTION WERE STATUTE-BARRED 62. Mr Hiley submitted that the plaintiff would likely not suffer any hardship if his action was statute-barred, as he has an alternative remedy which he is presently pursuing - suing his former solicitors Messrs Loftus and Cameron, who had acted for him at least until May 1991. He submitted that in that action, No. 209 of 1992, the plaintiff arguably had a stronger case on the Defence as pleaded, than he had in this action. I note that in their Defence in that action the defendants admit they owed the plaintiff a duty of care when they acted as his solicitors, but deny any breach of that duty; they also raise a limitations defence, which would appear to be very difficult to establish. They also contend that the plaintiff failed to mitigate his loss, by not bringing this action. Mr Hiley submitted that if an extension of time were not granted the plaintiff's case against his former solicitors would be strengthened; and vice versa. This meant, he submitted, that there was little, if any, prejudice to the plaintiff if his application were refused. THE PREJUDICE TO THE SECOND DEFENDANT IF THE ACTION IS ALLOWED TO PROCEED NOTWITHSTANDING THE DELAY 63. Mr Hiley acknowledged that the second defendant had not put positive evidence before the Court to establish that it had suffered or would suffer, any prejudice. He submitted that nevertheless the second defendant would be prejudiced by an extension of time, by the combined effect of 2 matters. First, an inference should be drawn that the second defendant would suffer prejudice from delay resulting from the plaintiff's inability to locate and serve the first defendant. Second, the length of the delay itself was prejudicial to the defendant. 64. Mr Hiley conceded that the evidence demonstrated that the Army was notified promptly after the accident occurred, and thereafter was constantly on notice over the ensuing 7 years of the possibility that the present action would be instituted. 65. He submitted that even if the second defendant could not point to any real prejudice which it was likely to sustain if time were extended, this factor was neutralized in the balance by the fact that the plaintiff was likely to suffer no hardship if time were not extended, for the reasons set out when dealing with factor (3) (pp25-6). CONDUCT OF THE PLAINTIFF AND SECOND DEFENDANT IN THE LITIGATION 66. Mr Hiley submitted that there was nothing in the conduct of either party in the litigation which was relevant. THE NATURE OF THE NEW MATERIAL FACTS, THEIR IMPORTANCE, AND THE CIRCUMSTANCES IN WHICH THEY WERE ASCERTAINED BY THE PLAINTIFF 67. Mr Hiley submitted that the circumstances in which the material facts in Dr Welch's report of 2 November 1992 were ascertained by the plaintiff are relevant to this factor. He had ascertained them when his solicitor Ms Martin went through the file with him. Mr Hiley noted that the eponymous Ms Mills of Sola Optical Australia Pty Ltd v Mills had become aware of her functional loss of her arm in a very similar way as the plaintiff here had learned of his new material facts. Further, the 8 months delay between the discovery of Dr Welch's report by the plaintiff's solicitor Ms Martin in December 1992 and the issue of the Writ in August 1993 is also relevant to this factor. In support, he submitted that the thrust of the authorities is to the effect that while any delay caused by the plaintiff's solicitors is not necessarily to be "sheeted home" to him on this application, nevertheless the plaintiff is to some extent responsible therefor; that is, he is not wholly excused for the delay, merely because it had been caused by his solicitors. 68. Mr Hiley further submitted, in the terminology of Fersch v PAWA (supra), that this was not the "exceptional case" which alone would justify the Court exercising its discretion to extend time in favour of the plaintiff. I note that in Fersch v PAWA (supra) Asche CJ said at 86:- "It must be remembered that the policy of the Limitation Act is twofold: to allow potential defendants to regulate their lives and businesses on the assurance that, after a certain time, they will not be harassed by "old unhappy far off things"; but TO MAKE PROVISION FOR THE EXCEPTIONAL CASE WHERE, BY REASON OF UNFORESEEN OR NEWLY DISCOVERED MATTERS, IT COULD BE UNFAIR TO ENFORCE A TIME LIMITATION ON A PROSPECTIVE PLAINTIFF." (emphasis mine) 69. Mr Hiley submitted that Dr Welch's report had come into existence only on 2 November 1992, and it said nothing new; it was "ascertained" early in 1993 and the plaintiff then relied upon it for the purposes of s44(3)(b)(i). He submitted that those circumstances were relevant to some extent. FINDINGS - DISCRETIONARY REQUIREMENT 70. I now set out my findings on the question whether "in all the circumstances of the case, it is just to grant the extension of time". I approach this question along the same lines it was approached by counsel; that is to say, on the basis indicated by Bray CJ in Ulowski (supra) at 281:- "... the discretion should be exercised as seems best in the interests of justice after considering in relation to the particular case the five matters mentioned above." I turn to those considerations, and nos. (6) and (7). THE LENGTH OF THE DELAY 71. The weight to be given to the length of delay depends on the circumstances of the particular case. Its significance as an element is to be assessed in light of the other four factors set out in Ulowski (supra) (p16): see, for example, the weighing in Mahon v Frankipile (Australia) Pty Ltd (supra) at 56. In Mavra v Logan (supra) at 576-7 Sangster J said:- " Turning to the question of the exercise of the discretion Mr. Dickson and Mr. Firth relied on the length of the delay as weighing most heavily against the plaintiff. IN MY OPINION THIS FACTOR - LIKE ALL OTHERS - IS A "MATTER TO BE CONSIDERED" (to use the words of Bray CJ in Ulowski v. Miller (1968) SASR 277) AND IS NOT NECESSARILY DECISIVE. In considering it I am entitled to say, "Yes-six years, as against the statutory limit of three years, is a long time, BUT WHY HAS THE PLAINTIFF DELAYED AND WHAT EFFECT HAS THE DELAY HAD ON THE DEFENDANTS?" Looked at from the plaintiff's own point of view, he did not delay at all but pursued his remedy as best he could as soon as he could, namely, by instructing a Croatian-speaking solicitor recommended to him, and by persisting with his inquiries from that solicitor until his patience had run out and his resolve had been strengthened by his elderly supporter Bjelopavlic. ... Looked at from the point of view of the defendants Mrs. Logan and Serdaridis, they - or their respective insurers ... well knew (i) that the plaintiff was injured in an accident at the time and place already mentioned involving motor vehicles driven by Mrs. Logan and Serdaridis respectively; (ii) that the plaintiff's injuries were such as to be likely to attract an assessment of at least $16,000; (iii) that there were facts such as to be likely to establish liability for 35% by Mrs Logan and 65% by Serdaridis; (iv) that the plaintiff was alive and living at 1 Gray Terrace, Rosewater. These observations are clear from my perusal of the file in the proceedings ..." (emphasis mine). 72. In Braedon v Hynes (supra) Maurice J said at 902:- "The total delay in this case, (some 6 years and 9 months from accident to Writ, and some 9 months after the then 6 year limitations period had expired) was considerable but from the point of view of the plaintiff it has been satisfactorily explained in a way that shows him personally to be quite blameless, although the same cannot necessarily be said for the solicitors who have accepted instructions from him. This is a powerful reason for extending the time, although IN VIEW OF THE LENGTH OF THE DELAY THE COURT WOULD HAVE TO THINK VERY CAREFULLY ABOUT EXERCISING ITS DISCRETION IN FAVOUR OF THE PLAINTIFF IF THERE WAS ANY SPECIFIC

EVIDENCE OF DETRIMENT TO THE DEFENDANT. Not only is there no such evidence, I think I may safely infer from the fact that it has chosen not to put any evidence to that effect before me, that the defendant will suffer no real prejudice by my extending the time." (emphasis mine) 73. It is accordingly of limited utility to refer to specific cases in which the factor of length of delay has been considered; however, they show that in certain circumstances the Courts have granted relief despite long delays - see, for example, Niemann v Electronic Industries Ltd (supra) (plaintiff's action not struck out 15 years after event, and 9 years after it could have been set down for hearing) and Mahon v Frankipile (Australia) Pty Ltd (supra) (accident in 1982, Writ issued 2 and a half years later, not served for 4 and a half years years; action not struck out). In Reeves v Leyland Motor Corporation of Australia Limited (No.2) (1984) 115 LSJS 62 there had been non-compliance with a Local Court order for over 2 years, but the defendant was allowed in to defend. Lengthy delays of the order of 4 years cannot be viewed as being some kind of tolerable norm; the significance of the length of a particular delay depends on the circumstances of the particular case. In this connection I respectfully adopt observations by Cox J in Reeves (supra) at 65:- "I realize that it is almost necessarily the case that any witness as to what was said or done in 1980, the time when this cause of action arose, will have greater difficulty in recalling the relevant events or conversations the longer the time which elapses before he gives his evidence. However, that is a feature which is common to all these cases, and IT IS ONLY WHERE THE DELAY IS A VERY LONG ONE, OR THERE ARE SOME SPECIAL CIRCUMSTANCES, THAT LAPSE OF TIME SHOULD BE TAKEN OF ITSELF TO ESTABLISH SUCH AN OBVIOUS PREJUDICE THAT THE DELINQUENT PARTY SHOULD BE DENIED THE RIGHT TO PURSUE HIS ACTION - in the present case, that the appellant should be denied the right to defend the claim that is made against him. Indeed, the Victorian case of 1978 (Niemann v Electronic Industries Ltd (supra)) shows that a delay of 15 years from the time when the cause of action arose will not necessarily be fatal." (emphasis mine) 74. I also respectfully adopt what his Honour said in Trattonicolas v Schafer (1983) 106 LSJS 50 at 53:- "I would wish to guard against too ready an assumption of prejudice from a mere lapse of time. It will to some extent be a matter of degree, and each case will have to be decided on its own particular facts." EXPLANATION OF THE DELAY 75. The plaintiff's submission is that it was his original solicitors alone who were responsible for the significant part of the delay. There are four pieces of evidence relevant to this point, to which I now turn. 76. First, the plaintiff in paras 15-25 of his affidavit of 19 November 1993 deposed to the following facts:- "15. ... early 1987 I consulted Messrs. Loftus and Cameron, Solicitors of Darwin. After an hour's interview with Mr Marcus Spazzapan I was informed that I had a good Common Law claim for the injuries sustained by me in the motor vehicle accident on the 15th October 1986 ... . 17. From my discussions with Messrs. Loftus and Cameron and my knowledge of details of discussions my wife had with Messrs. Loftus and Cameron I was under the impression that my solicitor was obtaining the relevant medical information to prosecute my claim. I also know and believe that my wife

telephoned Messrs. Loftus and Cameron on numerous occasions and in particular during 1990 telephoned Mr. Woods (then of that firm) on several occasions which calls were generally not returned. 18. Although I dealt with various solicitors from Messrs. Loftus and Cameron including Marcus Spazzapan, Mr. Percival and Mr. Woods, I did not and have not every (sic) received any advice from any of those 3 solicitors as to the necessity to bring proceedings against the driver of the other vehicle within 3 years from the time of the accident occurring. 19. I was at all times accessible to my solicitors Loftus and Cameron for instructions. Whenever I changed my address or telephone number I informed my solicitors accordingly. 20. The last contact we had with Mr. Woods was a letter we received from him dated 26th October 1990 in which he requested that I make a visit to Dr Boyce for a final report to complete the case and to advise me that he was leaving the firm of Loftus and Cameron and that my matter will be handled in future by Mr. Swaran Ludher. ... At this time I still believed that there was no difficulty in prosecuting my claim and that all that was required was to obtain the necessary medical information. 21. My wife telephoned Mr. Ludher on 4th December 1990 and I verily believe that she was informed that my claim had been time barred. 22. This information that was conveyed to my wife by telephone was subsequently confirmed by way of a letter from Mr. Ludher of 4th December 1990 ... 23. My wife wrote to Messrs. Loftus and Cameron on the 3rd day of May 1991 seeking an explaination (sic) as to why my claim had not been prosecuteded (sic) to the full. ... 24. By letter dated 13th May 1991 Messrs. Loftus and Cameron informed us that they were unable to explain why the action was not filed within the statutory period of 3 years. - - -

25. My wife subsequently telephoned Mr. Ludher on many occassions (sic) to ascertain how the matter was proceeding and I verily believe he informed my wife that he was making numerous enquiries to ascertain what could be done for me in the circumstances."
26. Second, Mrs Forbes in paras 4-8 of her affidavit of 19 November 1993 deposed to the following facts: "4. It was primarily myself that made contact with solicitors on behalf of my husband as he has difficulty hearing on the telephone. Up until 1990 I made no diary records of my conversations with Messrs. Loftus and Cameron but made a conscious decision to call them every month to ascertain how my husband's matter was proceeding.
27. On many occasions I was unable to speak to the solicitor that I was seeking to contact and on many occasions my calls were not returned.
28. I have diary notes which show that I telephoned the offices of Messrs. Loftus and Cameron on 30th March 1990, 4th April 1990, 8th May 1990, 19th June 1990, 3rd July 1990. On each occasion thus (sic) not able to speak to Mr. Woods and on each occasion I requested that he return my call. On

none of those occasions were my calls returned. 7. On 14th August 1990 I made a diary note to the effect that I spoke to Mr. Lindsay Woods who informed me at the time that nothing had happened on the file and would let me know how matters were progressing. 8. It was then subsequent to that time that my husband received a letter from Mr. Woods asking him to go and see Dr Boyce and inform me of the fact that he was leaving the firm of Messrs. Loftus and Cameron. Full details of what happened subsequent thereto is contained in the affidavit of my husband (of 19 November 1993)." 78. Third, Ms Martin deposed in paras 2-5 and 9 of her affidavit of 23 November 1993 to the following facts:- "2. I first interviewed the plaintiff on referral from the Northern Territory Legal Aid Commission in or about December of 1992. I, in the interim, had obtained his file from Mr. Schneider of Messrs. Waters James McCormack who previously handled his file. 3. Upon perusing the file of Messrs. Waters James McCormack I made arrangements to see the plaintiff on 6th January 1993. At the time of the plaintiff's attendance upon me he was provided with a copy of the report of Dr Geoffrey Boyce dated 4th December 1990 which report I read to him paragraph by paragraph 4. Since taking over conduct of the file I have sought the opinion of Counsel in relation to the extension of time matter. I have also sought access to the Loftus and Cameron file so that I could properly advise my client. ... Subsequent to that time I obtained instructions on the advice of Counsel to institute proceedings against Mr. Davies and the Commonwealth.

5. I am able to say that I now have a copy of the Loftus and Cameron file on the plaintiff. Notice of the plaintiff's personal injuries claim was given to the Australian Government Solicitor, Solicitors for the defendant by letter from Messrs. Loftus and Cameron dated 26th June 1987 ... 9. It is my understanding as a result of a letter to the plaintiff from Loftus and Cameron dated 13th May 1991 that the only reason for delay by Messrs. Loftus and Cameron in instituting proceedings prior to the matter becoming statute barred was simply failure to do so. ..."
6. Finally, in cross-examination, Ms Martin testified as follows (transcript pp35-6):- "The other thing is, it seems that your first involvement with the gentleman was in about December 1992, apparently ... in referral from the Legal Aid Commission, but you didn't really sit down and have a good, hard conference with him until early January 1993?---From memory, I think we had to actually wait till aid was approved, transferred to us, and that happened over the Christmas break, and then I saw him in January of 1993. Was there anything to stop you from issuing proceedings on his behalf in January 1993?---I assume you say against Mr Davis and the Commonwealth? Against Mr Davis?---At that time, I don't believe that I'd been through the report. ... I note that it's not actually on the file that I have here. It's possible that that was provided to me at a later stage; I can't be sure. Okay. So I'm just exploring the reasons for the delay between January 1993 and August 1993. Are there any other particular reasons as to why it took until August in order to initiate those proceedings?---Yes, because I wished to inspect the Loftus and Cameron file. We had no access to it. In fact, we had very limited information and I required to see the entire file which I didn't see until June of
7. It was not made available to me."
8. This evidence establishes clearly on the balance of probabilities that the plaintiff lacked ability to control directly the matters which caused the delay, even after he first became aware of the problem of the limitations barrier on 4 December 1990. I reject the second defendant's submission that the plaintiff is to some extent responsible for the delay. It is clear on the evidence before me and for the purposes of this preliminary trial that the plaintiff's former solicitors, Messrs Loftus and Cameron, are wholly responsible for the failure to issue a Writ within the limitation period, and for some 19 months thereafter when they were still acting for the plaintiff.
9. The next question is whether Ulowski (supra) is authority for the proposition for which the plaintiff contends, when the plaintiff's solicitors are solely responsible for delay. As noted earlier, in Ulowski (supra) Bray CJ said at 282-3:- "I agree that there may be a distinction between delay for which the plaintiff is personally responsible and delay for which his solicitors alone are responsible. The former will operate more severely against him than the latter when the question of hardship is being considered".
10. I accept this distinction; I consider that it is relevant for the purposes of this factor. I consider that it follows that if the plaintiff bears no personal responsibility for the delay, or very little, a more favourable view should be taken to exercising the discretion to extend time in his favour, subject to the findings in relation to the other four factors and the general purpose of s44. I bear in mind in that connection what was said in Sola Optical (supra) at 635:- " ... the broad purpose of the Act was ... to eliminate the injustice a prospective plaintiff must suffer by reason of the imposition of a rigid time limit ..." HARDSHIP TO THE PLAINTIFF IF HIS ACTION IS STATUTE-BARRED
11. In Ulowski (supra) Bray CJ said at 283: "I think the loss of the cause of action against the appellant (defendant), whatever its chances of success, will be a hardship to the respondent (plaintiff) ...."
12. See also Mavra v Logan (supra) at 580 (p19). I agree with this proposition and apply it in this case.
13. If the application to extend time is refused the hardship to the plaintiff is considerable in that he will lose the benefit of the possibility of obtaining an award of damages against the second defendant by suing it.
14. Mr Hiley submitted (p25) that the plaintiff was not likely to suffer any hardship, because he was pursuing an arguably stronger alternative remedy in an action for professional negligence against his former solicitors. Mr Smith submitted (p21) that the existence of this alternative remedy was irrelevant or, if relevant, of little weight, when assessing the hardship the plaintiff would suffer. To support this proposition he relied on the following authorities: Ulowski (supra) at 282, Mavra v Logan (supra) at 580 (see p19), Mahon v Frankipile (Australia) Pty Ltd (supra) at 55 and Williams v F.S. Evans and Sons (supra) at 244 and 249-254 (see pp22-23). In Williams v F.S. Evans and Sons (supra) Bollen J reviewed the authorities dealing with this point at 249-254. His Honour said:- "I THINK THAT THE VIEW OF THE MAJORITY IN BIRKETT V JAMES (1978) AC 297 IS CLEAR AUTHORITY THAT THE RIGHT OF AN ALTERNATIVE ACTION IS NOT A RELEVANT CONSIDERATION ... I think that we should follow the view of the majority of Birkett v James. I respectfully think it correct. I do not think that the existence of right of action against solicitors should be at all relevant in considering whether the tardy plaintiff should have his writ renewed. Who can know what will happen to a claim against solicitors? Who can know whether some matter of defence may not emerge in any such litigation? If the right is relevant should insurance play any part in it? ... IF THERE BE NO PREJUDICE ENDURING TO A DEFENDANT BY RENEWAL WHY SHOULD HE BE RELIEVED OF A BURDEN BECAUSE SOME OTHER PERSON MAY BE CAPABLE OF TAKING IT UP? For these reasons I think this Court should hold that the probability that there is an available right of action against their insured solicitors is not relevant." (emphasis mine)
15. White J said at 244 that the "weight of authority" supported the proposition that the existence of the plaintiff's right of action against his own solicitors, could not be weighed in the balance as a factor, because it "was not really a relevant consideration in the exercise of the discretion". His Honour qualified that view slightly in adding:- "In so far as it might in exceptional cases be considered relevant, it should be given little weight".
16. I respectively agree with the approach taken by White and Bollen JJ in Williams (supra), for the reasons they state. Adopting that approach in this case, the second defendant's submission must be rejected. Consequently, I consider that the plaintiff would suffer considerable hardship if his personal injuries claim were statute-barred. PREJUDICE TO THE DEFENDANT IF THE ACTION WERE ALLOWED TO PROCEED NOTWITHSTANDING THE DELAY
17. The second defendant adduced no positive evidence of any prejudice it would suffer if the action were allowed to continue. Mr Hiley conceded that the second defendant - (i) could not point to any real prejudice it was likely to suffer in that event; and (ii) received notice early in 1987 from the plaintiff that he was going to make a claim for personal injuries. I note that it was thus alerted early on to the need to preserve relevant evidence.
18. I consider that on the evidence these facts were clearly established and the concessions were properly made.
19. The authorities establish that a defendant bears an onus to put forward evidence to show that if the action is allowed to proceed he will suffer prejudice in defending it; he may discharge that onus by adducing positive evidence of prejudice, or by seeking to have it inferred. He may not seek to have that prejudice inferred from the mere length of delay, unless the delay is very long or there are some special circumstances. See Ulowski (supra) 283-285; Williams (supra) at 249, per Bollen J; Mahon v Frankipile (Australia) Pty Ltd (supra) at 70-71, per Olsson J; Reeves v Leyland Motor Corporation of Australia Ltd (No.2) (supra) at 64-65; Braedon v Hynes (supra) at 901-903; Mundy v Bridge Motors Pty Ltd (supra) at 141; and Trattonicolas v Schafer (supra) at 52-3.
20. Bearing in mind the lack of positive evidence of prejudice from the second defendant, the fact that I do not consider in the circumstances of this case that I should draw any inference from the established facts that the second defendant will suffer prejudice if the action is allowed to continue and the fact that the second defendant had early notice of the claim, I am not satisfied that it would suffer any real prejudice if the action were allowed to proceed.
21. Mr Smith relied on Williams (supra) at 244 to found a submission that the discretion under s44(3)(b) should not be exercised against the plaintiff, as the evidence was inadequate to satisfy the Court that in this case there is "a ... substantial risk of SERIOUS prejudice to the defendant". I tentatively accept this submission, bearing in mind the purpose of the Limitation Act - see Sola Optical (supra) at 635 - and that factor (4) must be assessed in light of, and not in isolation from, the other factors set out in Ulowski (supra), when determining the appropriate exercise of the Court's discretion; see Ulowski (supra) at 280-281. CONDUCT OF THE PLAINTIFF AND THE SECOND DEFENDANT IN THE LITIGATION
22. The parties agreed that no party made any representation to another party which might have misled that party into allowing the 3 year time limit to expire. THE NATURE OF THE NEW MATERIAL FACTS, THEIR IMPORTANCE, AND THE CIRCUMSTANCES IN WHICH THEY WERE ASCERTAINED BY THE PLAINTIFF
23. Mr Hiley submitted that the circumstances in which the plaintiff ascertained the facts in Dr Welch's report of 2 November 1992 later that month, were "relevant" to factor (5). He did not enlarge on the way in which those circumstances were relevant; it may be he suggests that those circumstances were "untoward or suspicious" in the terminology of the Note to Lovett (supra) at 496 (p19), and that the material facts which were then ascertained were "trumped up, frivolous or artificially manufactured". On the other hand, Mr Smith submitted that those circumstances were "natural and convincing", in the terminology used in the Note to Lovett (supra) at 496. See p19. It is desirable to examine the evidence on this point.
24. The plaintiff deposed to the following facts in paras 31 and 32 of his affidavit of 19 November 1993:- "31. In the meantime (a reference to his having to change solicitors due to a conflict of interests) in or about

November of 1992 I obtained a copy of the report of Dr David Welch dated 2nd November 1992. This report was either obtained by my wife Jill direct from Dr Welch or was sent to me by Mr. Andrew Musgrave from Messrs. Waters James McCormack. My wife read the report out loud to me as she does with any correspondence or reports that are received on my behalf. 32. Upon having the report read to me I ascertained for the first time that (i) I suffered from post-traumatic stress; (ii) I suffered from severe depression; (iii) that I suffered from a condition known as T4 syndrome which caused pain and stiffness in the neck; (iv) that my recovery will be slow and (v) that it was very likely that some degree of neck pain and shoulder pain would be permanent. ..." 97. Mrs Forbes supported this account; see paras 2 and 3 of her affidavit of 19 November 1993. 98. That evidence was not controverted in cross-examination; I accept that the plaintiff first became aware of the contents of Dr Welch's report of 2 November 1992 "in or about November 1992" upon Mrs Forbes' reading the report to him. I find that the circumstances in which the plaintiff became aware of the material facts in that report were "natural and convincing"; there is nothing to suggest that the material facts in the report were "trumped up, frivolous or artificially manufactured". 99. Mr Hiley also submitted that the time delay of some 8-9 months between the plaintiff ascertaining those material facts, in or about November 1992, and the institution of proceedings on 4 August 1993, is a "relevant" factor. He submitted that the plaintiff is to some extent responsible for that delay and is not excused merely because the delay was caused by his current solicitors. I do not accept this. Mr Hiley noted that this delay by a plaintiff's solicitor is not necessarily to be "sheeted home" to the plaintiff: see Ulowski (supra) at 282-283, Braedon v Hynes (supra) at 902 and Mavra v Logan (supra) at 574. I consider that good reasons have been advanced by Ms Martin (see p34) to explain that 8-9 months delay. In the context of this case it is not a delay of any consequence. (His Honour referred to the evidence on the point, and continued:-) CONCLUSION 100. In my opinion, for the reasons which have been earlier stated, an evaluation of the application in light of the 7 factors points to the exercise of the discretion to extend the time limit to enable the proper institution of the proceedings. I see no reason why a fair trial will not be possible; I am not satisfied that the second defendant has demonstrated such serious prejudice that it would be unjust to grant an extension of time. In particular, it did not seek to adduce evidence of any prejudice; that in itself warrants a conclusion that it would suffer no real prejudice if time were extended. It had early notice of the claim, within months of the accident. In these circumstances the proper conclusion is that it is fair and equitable to grant the plaintiff's application, since clearly he would suffer considerable hardship if his application were refused. From the little I have been told he has a substantial claim. It is not a case where the length of delay is such as of itself to establish obvious prejudice to the defendant. 101. The formal order is that for the purposes of the institution of these proceedings No. 131 of 1993 the limitation period prescribed by the Limitation Act is extended until and including 4 August 1993. I will hear the parties on the question of costs.