Fox v Northern Grampians Shire Council

(a) her affidavits sworn 4 September 2025 and affirmed 3 November 2025 and exhibits; and

(b) the affidavits in support of her solicitor, Kate Maree Schultz, affirmed 4 September 2025 and 3 November 2025, and exhibits.

1. The application is opposed by the defendant, Northern Grampians Shire Council ("the Council"), which relies upon the affidavits of Kieran O'Brien, solicitor for the defendant, sworn 5 October 2025 and 7 November 2025, and exhibits.
2. Ms Fox was cross-examined briefly in relation to her attendance on her solicitor at the time, Slater & Gordon, between March 2017 until she terminated the retainer in March 2020.
3. It is agreed the limitation period expired on 4 March 2022, and that the period of delay is approximately eight-and-a-half years from the date of the transport accident to the issue of proceedings.
4. Both parties filed written submissions,[1] and I was also assisted by a chronology prepared by Ms Fox.[2]
5. The principal issues in dispute upon the application, having regard to the statutory framework in the Act, are as follows:

(a) whether Ms Fox had adequately explained the reason for the delay in issuing proceedings;

(b) accepting prejudice may be presumed by reason of the delay,[3] whether the Council will suffer specific prejudice if the limitation period were to be extended; and

(c) upon consideration of the relevant factors, whether the Court should exercise its discretion to extend the period on the basis it is just and reasonable to do so.

1. The relevant principles may be summarised as follows:

(a) the onus of satisfying the Court that it is just and reasonable to extend the limitation period rests with Ms Fox;[4]

(b) in determining an application for extension of time, the competing considerations referred to in s27L of the Act are not to be weighed against each other; the Court must endeavour to synthesise the competing considerations in arriving at a conclusion that accounts for them all;[5]

(c) the delay referred to in s23A of the Act is the delay between the accrual of the cause of action and the making of the application for an extension of time;[6]

(d) it is prima facie prejudicial to the defendant to allow the commencement of an action outside the limitation period;[7]

(e) specific prejudice is not necessarily an absolute bar to a plaintiff succeeding on a s23A application. The exercise of the discretion is a synthesis of all the competing considerations of s23A(3), and prejudice is one of a number of competing factors to be taken into account. If the prejudice is such that a fair trial cannot be had, then it may be compelling on the issue of what is just and reasonable in the circumstances;[8]

(f) it is in the public interest that proceedings be issued within limitation periods and that parties, including insurers, be able to arrange their affairs in the knowledge that they have no liabilities beyond a certain period;[9]

(g) it is not essential to the Court, in refusing to exercise its discretion to extend the limitation period, to require there to be specific prejudice to a defendant;[10]

(h) an inordinate delay may be taken as evidence of prejudice;[11]

(i) the Court has a wide discretion to extend time if it is satisfied that it is in the interests of justice to do so.[12]

1. The Court must have regard to all the circumstances of the case, including those set out in ss(3) of s23A. The task does not require the Court to weigh considerations against one another. Rather, the Court must synthesise a number of competing considerations in arriving at a conclusion that takes account of them all, bearing in mind that Ms Fox bears the onus of persuading the Court that it is just and reasonable to extend the limitation period.[13]
2. The Court of Appeal recently reminded the profession of the significance of prescribed limitation periods. In Griffiths v Nillumbik Shire Council,[14] the Court said:

"To put it bluntly, ... a limitation period in a personal injuries claim, or in a proceeding more generally, is not just some easily movable line in the sand. Rather, it is a formidable hurdle which can only be overcome by the applicant satisfying the test laid down by the relevant extension of time provisions."

3. It is not a presumptive entitlement which arises upon satisfaction of the preconditions that enliven the discretion.[15]
4. The evidence establishes the following chronology:
   • 9 September 2015 - Council inspects road. No defects identified.
   • 17 February 2016, and 1 March 2016 - Council received reports from members of the public regarding the condition of the road.
   • 2 March 2016 - Council inspects the road.
   • 5 March 2016 - Transport accident. At the time, Ms Fox was 18 years of age and had just commenced Year 12.
   • 5 March 2016 - Victoria Police attend and complete Traffic Incident Report. The Incident Report has been retained, as have the relevant notes of the investigating officer, Leading Senior Constable Stevens, in the traffic incident system database, and his handwritten patrol notes. Leading Senior Constable Stevens, although retired, recalls attending the scene and is available to give evidence at the trial.
   • 8 March 2016 - Council cuts out corrugations on the road in response to a number of requests for grading/repair commencing 10 December 2014, not in response to the transport accident.
   • 30 June 2016 and 30 July 2016 - Council cuts corrugations out of road again.
   • 3 August 2016 - Road graded.
   • 10 March 2017 - Ms Fox first consults solicitors, Slater and Gordon, by telephone.
   • 14 March 2017 - Slater and Gordon write to Ms Fox confirming her instructions and providing advice, including as to the expiry of the limitation period on 4 March 2022.
   • 21 April 2017 - Ms Fox attends the offices of Slater & Gordon and her solicitor, Tom Burgoyne, discusses the letter of advice, including potential common law liability, and the defences available to the Council under the Road Management Act 2004.
   • 17 November 2017 - The Victoria Police file was provided Slater and Gordon following a freedom of information request.
   • 2 March 2020 - Slater and Gordon ceased to act.
   • 31 March 2020 - Slater and Gordon write to Ms Fox confirming the termination of the retainer and refer to time limits, including for the limitation period.
   • November 2020 - Council first aware of the transport accident.
   • 4 March 2022 - Limitation period expires.
   • April/May 2024 - Subject road paved.
   • 9 August 2024 - Ms Fox consults Arnold Thomas and Becker
   • 30 September 2024 - Council receives freedom of information request from Ms Fox's solicitors
   • 13 November 2024 - Generally Endorsed Writ issued.
   • 13 March 2025 - TAC grants serous injury certificate.
5. In cross-examination, Ms Fox frankly conceded that she received both letters of March 2017 and March 2020. Her evidence in relation to her understanding and awareness of the limitation period in 2017 and 2020, however, differed.
6. Ms Fox said she was advised in April 2017, approximately one year after the transport accident, and then understood, that the limitation period expired in March 2022. She accepted that Mr Burgoyne discussed with her the limitation period during the "in person" consultation in April 2017. Mr Burgoyne's brief note (Annexure "A" to this Ruling) of his 40-minute attendance is part of Exhibit D.
7. This confirmed advice in Slater & Gordon's letter dated 14 March 2017:

"Negligence > > On the basis of your instructions to date, I do not have sufficient information to advise you in relation to your prospects of establishing negligence or fault on the part of another party, save to say that any allegations in negligence would need to be levelled at the relevant Road Authority. I will undertake investigations into the accident circumstances, including:

• obtaining a police report
• making a freedom of information request to the police
• speaking to any witnesses
• undertaking a view of the accident scene
• making a freedom of information request to the local council and/or road authority
• obtaining a preliminary report/comment from an expert witness regarding the accident
• circumstances

I will advise you further with respect to this aspect of your claim once I have undertaken further investigations into the accident circumstances. > > Time Limit > > You have 6 years from the date of your injury to commence a serious injury application/common law claim by lodging an application in the Court. As you were injured on 5 March 2016, the last date you may bring a claim is 4 March 2022. > > In exceptional circumstances it may be possible to seek an extension of time from the Court. If you elect not to pursue a claim but your condition significantly deteriorates in the future, even outside the 6 year period, you should seek further legal advice as to whether some exception to the 6 year rule may then apply to you."

1. While advised of the limitation period in Slater & Gordon 's letter dated 14 March 2017 and again at the time of the consultation in April 2017, the substance of Ms Fox's explanation for the delay in issuing proceedings until November 2024 was that she had forgotten about it; and therefore, at the time of the expiration of the limitation period, she was "unaware" of it.
2. Ms Fox was cross-examined about Slater & Gordon 's letter dated 31 March 2020, which confirmed Ms Fox's instructions she wished to proceed without representation, and closure of the file. It provided general advice in relation to various limitation periods, and marketing of Slater & Gordon's various legal services. Relevantly, it reads:

"A common law claim arising from a transport accident in Victoria must be brought within 6 years of the date of the injury, after which time a person's rights expire."[16]

3. In relation to the letter of March 2020, Ms Fox's evidence was:

"I don't remember reading it but I probably wouldn't have read the whole thing if it was a closing letter."[17]

The length of and reasons for the delay on the part of Ms Fox

1. The delay itself is not inordinate. It is significant, nevertheless, and I have considered carefully the evidence in relation to Ms Fox's explanation for the delay.
2. I accept her evidence that, in the context of clear advice from Slater & Gordon some five years before the expiration of the limitation period, she understood in 2017 that there was a limitation period.
3. The retainer from Slater & Gordon at the time specified it was acting for her in relation to her statutory impairment benefits. The Conditional Legal Costs Agreement dated 30 April 2017 states:

"To do everything needed to progress the claim for impairment benefits in respect of the motor vehicle accidents (sic) that occurred on 5 March 2016 to pre hearing settlement or a one day court hearing. These estimates include incidental work to investigate and advise you on a potential common law claim. If Slater and Gordon offer to represent you in a common law claim we will provide you with a separate agreement."[18] > > (emphasis added.)

4. Slater & Gordon explained that there was a potential claim at common law, subject to defences available under the Road Management Act; and that they would, in due course, give her advice about this. This never eventuated, because Ms Fox terminated the retainer due to her dissatisfaction with response times from her solicitors.
5. Ms Fox's impairment benefits were finalised by her in June 2020.
6. On 9 August 2024, Ms Fox consulted Arnold Thomas & Becker in the context of a dispute concerning her entitlement to medical and like expenses and physiotherapy. Arnold Thomas & Becker advised her that she may have entitlements at common law and, after making investigations, promptly filed a Generally Endorsed Writ. No criticism has been made of Ms Fox or her solicitors in terms of delay in filing a Generally Endorsed Writ to commence her claim for damages in early November 2024 following the August 2024 consultation.
7. Ms Fox appeared a forthright witness. I accept her explanation that she simply did not recall in 2022 the advice she had received in 2017 in relation to the limitation period. The March 2020 advice was general in nature, and I accept she probably did not read it. Nevertheless, this is hardly a satisfactory explanation in the context of the importance of limitation dates.
8. Ms Fox's affidavit affirmed 4 September 2025, states, at paragraph 9:

"I do not recall being made aware of any time limits with respect to a common law claim at this time"[19]

being a reference to when she first consulted Slater & Gordon in 2017.

1. While that statement may not be untrue, on the basis of the concessions made by Ms Fox in cross-examination, I find that she was advised of the limitation date by Slater & Gordon in 2017.
2. I accept Ms Fox's evidence that she probably did not read the whole of the letter dated 31 March 2020.
3. This factor, on balance, tends against the granting of leave.

The extent to which the Plaintiff acted promptly and reasonably once she knew that the act or omission of the Defendant, to which the injury of the Plaintiff was attributable, might be capable at that time of giving rise to an action for damages

1. If Ms Fox's account is accepted - that at the relevant time she did not recall the limitation period expired on 4 March 2022 in accordance with advice she had received in 2017 - it is not in dispute that she acted promptly and reasonably once she instructed her current solicitors, Arnold Thomas & Becker, in August 2024.
2. Immediately upon given advice from Arnold Thomas & Becker that she may have a claim, proceedings were issued promptly. This supports Ms Fox's evidence that had she been "aware" of the limitation period, which I accept she forgot about, she would have acted sooner.[20] I accept that Ms Fox did not deliberately or consciously ignore the limitation period.

The extent to which, having regard to the delay, there is or is likely to be prejudice to the Defendant

1. The application proceeded on the basis that there would be general prejudice.
2. Ms Fox accepts that there will be general prejudice, which is one factor to be synthesised in the exercise of the discretion of the Court under s23A of the Act.
3. It is not necessary for a defendant to show specific prejudice in order for an application to be refused. Nevertheless, there was a deal of evidence concerning potential prejudice.
4. There is an evidentiary onus on the Council to establish the existence of specific prejudice.[21] Should a defendant establish by evidence that it may suffer prejudice by granting the relief of an extension of time, then it falls on the plaintiff to demonstrate that that evidence does not demonstrate prejudice.
5. Council submitted that there was a risk of reconstruction with the passage of time in relation to Leading Senior Constable Stevens' recollection of the transport accident. In an email dated 31 October 2025, Leading Senior Constable Stevens stated:

"I do recall this one after reading the summary. From memory, the road condition was ordinary. It occurred on a bend. The corrugations were quite large and loose gravel on the surface as well. I recall recommending no further police action due to the condition of the road surface. I can't add any more info in regards to that location. I worked this area for 33 years and that's the only job I've done on that road. ... ."[22] > > (sic)

6. The Council's submission in relation to any specific prejudice in this respect must be rejected.
7. It is clear Leading Senior Constable Stevens has some recollection of the accident. The Traffic Incident Report Produced by Victoria Police in response to a Freedom of Information request was tendered,[23] as were Leading Senior Constable Stevens' notes taken at the time.
8. The Incident Report includes the following findings:

"Nil evidence of excessive speed. Road in a bad state of repair. Corrugations 300 to 400 mm wide and 50 mm deep. Loos[e], powdery gravel throughout slight bend. Estimated speed of 60 to 80 kmh in 100 zone. Collision due to road condition. No evidence to suggest driver error. NFPA [no further police action] recommended. Contact to be made with Northern Grampians Shire re report/repairs on Salt Creek Road."[24]

9. Leading Senior Constable Stevens' handwritten notes taken at the time of his attendance at the scene of the accident include:

"COLLISION COMING OF[F] BEND IN ROAD, BAD CORRUGATION (DEEP) + LOOSE GRAVEL COVERING TOP 60-70% OF ROAD."[25]

10. Further, the Council submitted that it has suffered specific prejudice in its defence of the claim because the relevant area of the subject road was paved in 2024. This submission must also be rejected.
11. The Council's Answers to Interrogatories affirmed by Lauren Homden, on 27 October 2025, depose to corrugations being cut out of the road three days after the transport accident in response to reports by members of the public made before the transport accident. Service requests relating to the need for Salt Creek Road to be graded between 10 December 2014 and 21 July 2016; in particular, on 10 December 2014, 17 February 2016, 1 March 2016 and 2 March 2016, were tendered.
12. The evidence shows that, in response to previous complaints about its surface, the road was cut and regraded twice in March 2016, again in June and July 2016, and no doubt on many occasions since. This would be a similar scenario for most unsealed roads in the country.
13. There was no detailed evidence as to why paving the road in 2024 made a material difference had the proceeding been issued within time, in circumstances of the road being recut and graded three days after the incident. Instead, the Council asserted it had "lost the opportunity to examine or investigate the surface of the relevant road at the location of the MVA in the same form as it was at the time of the MVA".[26]
14. Accepting the assessment of prejudice is to be made from the date the cause of action accrued, there was no attempt to specify how the prospects of a fair trial might be materially impacted by the resurfacing of the road in 2024; nor was the nature, scope and likely weight of any evidence that may have been able to be adduced if the road remained unsealed explained.
15. Accordingly, the evidence is not sufficient to demonstrate specific prejudice. This is a factor in favour of the application.
16. The existence of general prejudice is, of course, a factor tending against the grant of leave.

1. One of the circumstances of the case is that during the period of time under consideration when Ms Fox was represented by Slater & Gordon, she was undergoing significant treatment. She was 18 years of age at the time of her initial surgery on 15 March 2016 to the right ankle. Ms Fox had further surgery to the right ankle and knee in January 2018, and again to the right foot in September 2019. This provides context to her evidence she forgot about advice she had received in 2017.
2. An important consideration is that the contemporaneous Traffic Incident Report contains a description of the accident with reference to "severe rutting/corrugations and loose gravel throughout bend", which corroborates her evidence and supports her claim.
3. There are also other documents in relation to inspection of Salt Creek Road available, including inspection lists from 2016 and 2017.
4. Ms Fox sustained severe injuries in potentially compensable circumstances. Although not a statutory consideration, this is nevertheless a relevant consideration. The list in s23A(3) is not exhaustive.[27]
5. Although she was advised in 2017 of the limitation date, Ms Fox did not receive any advice from Slater & Gordon that she had a viable common law claim at any time before she terminated the retainer in March 2020.
6. It is not in dispute that Slater & Gordon raised the issue of a defence under the Road Management Act 2004 to any potential proceeding against a road authority for damages resulting from the performance or non‑performance of a road management function in respect of a public road.
7. The Road Management Act provides that it is a defence if the road authority proves it had taken such care as in all the circumstances was reasonably required to ensure that the relevant part of the public road was not dangerous for traffic. The defence may be established if:

(a) the road authority had a policy which addressed the matter which was a cause of the incident giving rise to the action; and

(b) the road authority complied with the relevant part of the policy.

1. There is no suggestion any relevant Council records are not available.

1. Ultimately, in my opinion, it is just and reasonable in all of the circumstances of the case, for an extension of time to be granted.
2. The delay, although significant, is not inordinate.
3. Ms Fox was injured in a frank incident, the circumstances of which were recorded in the contemporaneous Incident Report and other documents. Witnesses from the time are available to give evidence at the trial.
4. There is no suggestion any medical records are no longer available.
5. As Keogh J said in WCB v Roman Catholic Trusts Corp for the Diocese of Sale (No 2),[28] the defendant is entitled to a fair trial, not a perfect one.
6. In that context, the accident involved a single vehicle, with no eyewitnesses. Records of the incident exist; as do the findings of a Victoria Police investigation into the circumstances of the accident; the officer who conducted it recalls attending the scene, and is available to give evidence, and no substantive specific prejudice has been established.
7. While the Court must guard against allowing a claim to proceed out of time where a fair trial is not possible, the witnesses available and documents and other materials that exist should enable a fair hearing.
8. Upon the necessary synthesis of all the competing considerations, whilst there has been a significant delay in the commencement of the proceeding, an explanation for the delay has been provided. Ms Fox has a sufficiently arguable case, and there is material available to ensure that a fair trial may be conducted.
9. Whilst there is some prejudice, that appears to be principally of a general nature only, as the evidence does not support a finding of any substantial specific prejudice other than perhaps the resurfacing of the road.
10. I find that even if some specific prejudice may have been suffered by the Council in not being able to inspect the road before it was resurfaced - noting the corrugations had in fact been repaired three days after the transport accident - it is not such as to prevent the extension of time.
11. I accept Ms Fox's submission that the degree to which general prejudice is a consideration depends on the facts of the case.
12. Whilst there is little doubt by reason of the effluxion of time that recollections may have faded, and there is the possibility relevant documents may no longer be available, there is a significant body of material recording the circumstances of the incident.
13. In my view, the extent of any actual or potential prejudice is not sufficient to preclude the Court from extending time on the grounds that it is just and reasonable to do so.
14. Ms Fox has discharged her onus of satisfying the Court that there would not be such prejudice as would make the chances of an acceptably fair trial unlikely.
15. I grant the plaintiff's application for extension, and will make orders to the effect that the period of limitation to the cause of action set out in Ms Fox's Statement of Claim against the Council be extended to 13 November 2024.
16. I will hear from the parties as to the form of final orders, and costs.

File Memorandum of Tom Burgoyne dated 21 April 2017

[1] Plaintiff's submissions dated 3 November 2025; Defendant's submissions dated 10 November 2025

[3] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 ("Brisbane South")

[4] Bell v SPC Ltd [1989] VicRp 15; [1989] VR 170 at 174

[5] Tsiadis v Patterson [2001] VSCA 138; (2001) 4 VR 114 ("Tsiadis") at paragraphs [31] and [33]

[6] Koumorou v State of Victoria [1991] VicRp 66; [1991] 2 VR 265 at 271; Repco Corporation Ltd v Scardamaglia [1996] VicRp 2; [1996] 1 VR 7 at 11 and Delai v Western District Health Service & Anor [2009] VSC 151 at paragraph [22]

[8] Transport Accident Commission v Murdoch [2020] VSCA 98 at paragraphs [67]-[73] and [75]-[79]

[9] Brisbane South at 552 per McHugh J

[10] Arisoy v Yoogalu Pty Ltd [2012] VSC 631

[11] Ford Motor Company (Aust) Ltd v Kulic [1988] VicRp 20; [1988] VR 152 at 157

[12] Brisbane South; see also discussion in Clark v McGuinness [2005] VSCA 108 at paragraphs [37]-[42] and [61]-[65]

[14] [2022] VSCA 212 at paragraph [66]

[15] Prince Alfred College Incorporated v ADC [2016] HCA 37; (2016) 258 CLR 134

[16] Plaintiff's Court Book ("PCB") 175

[20] First Fox affidavit, sworn 4 September 2025, paragraph [22]

[21] WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (No 2) [2020] VSC 639

[22] PCB 182-183; Defendant's submissions at pages 14-15

[26] Affidavit of Kieran O'Brien sworn 15 October 2025, at paragraph [35]

[27] Lovejoy v Carp & Ors [1999] VSC 223