Itek Graphix Pty Limited v Elliott

Itek Graphix Pty Limited v Elliott - [2001] NSWCA 442 - NSWCA 2002 case summary — Zoe

COUNSEL : L King SC/R S Sheldon (Appellant) S Norton SC/A Healey (Respondent) SOLICITORS : Leigh Virtue & Associates (Appellant) Brydens Law Office (Respondent) CATCHWORDS : WORKERS COMPENSATION - limitation period - extension of time - scope of discretion - test for reasonableness of delay - conduct of applicant for leave - fully informed decision to allow statutory period to expire - Workers Compensation Act, s 151D(2) - APPEAL - interlocutory appeal capable of disposing of entire case - time when appeal should be heard - PRACTICE AND PROCEDURE - decision to dispense with jury - decision within discretion - District Court Act 1973, s 79A. D Workers Compensation Act 1987 Motor Accidents Act 1988 Law Reform (Miscellaneous Provisions) Act 1946 LEGISLATION CITED : Limitation of Actions Act 1974 (Qld) Limitation Act 1969 (NSW) District Court Act 1973 District Court Rules 1973 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Salido v Nominal Defendant (1993) 32 NSWLR 524 Holt v Wynter (2000) 49 NSWLR 128 Parsons v Doukas [2001] NSWCA 128 Re Commonwealth of Australia; Ex Parte Marks (2000) 75 ALJR 470 Mason v Murray's Charter Coaches & Travel Services Pty Limited (1998) 159 ALR 45 Australian Croatian Cultural and Educational Association "Braca Radici" Blacktown Limited v Benkovic (1999] NSWCA 210 FAI General Insurance Company Limited s v Southern Cross Exploration NL (1988) 165 CLR 286 Secretary of State for Trade and Industry v Davies [1996] 4 All ER 289 Gallo v Dawson (1990) 64 ALJR 458 South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 Nowlan v Marson Transport Pty Limited [2001] NSWCA 346 Malone v New South Wales National Parks and Wildlife Service [2001] NSWCA 345 Ratnam v Cumarasamy [1965] 1 WLR 8 Henricks v Agnew (1997) 26 MVR 277 Bartlett v Bartlett (2000) 170 ALR 25 Nominal Defendant v Manning (2000) 50 NSWLR 139 Girando v Girando (1997) 18 WAR 450 CASES CITED: Hoy v Honan [1997] QCA 250 Reid v Agco Australia Ltd [2000] VSC 363 Pomeroy v Thwaites Witham Pty Ltd 2001) 79 SASR 489 Menzies v Hoechst Australia Limited (1991) Aust Torts Reports 81-122 Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 Clark v Robb (1994) 118 FLR 71 Knight v Smith [1975] Tas SR 83 Sargent v ASL Developments Ltd (1974) 131 CLR 634 Ramton v Cassin (1995) 38 NSWLR 88 Futuris Corporation Ltd v Exicom Ltd [1995) 18 ACSR 413 Wentworth v Wentworth (Unreported, NSWCA, 23 November 1995) Brambles Australia Limited v Hall (Unreported, NSWCA, 8 November 1995) Kessey v Golledge (1999) 30 MVR 95 Queensland v JL Holdings Pty Limited (1997) 189 CLR 146 Tamworth Base Hospital v Durant [2000] NSWCA 209 Clifton Bricks Pty Limited v Gerlach [2000] NSWCA 90 Department of Community Services v Dezsery [2000] NSWCA 196 Baxter v Obacelo Pty Limited (2000) 48 NSWLR 522 Baxter v Obacelo Pty Limited [2001] HCA 66 DECISION : See para 166.

[9]

HELD, allowing the appeal:

While the respondent's delay in bringing her action for damages caused the appellant no prejudice, the respondent failed to act diligently in the prosecution of her claim.
The Court, in exercising its discretion to grant leave under s 151D(2) of the Workers Compensation Act, should apply the test set down by Gleeson CJ in Salido v Nominal Defendant (1993) 32 NSWLR 524, namely "whether, in the circumstances of each individual case, the applicant for leave has demonstrated that it is fair and just that leave should be granted" rather than the test in Holt v Wynter (2000) 49 NSWLR 128.
In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Dawson, McHugh and Kirby JJ were all of the view that, generally, in a limitation statute, broad considerations of justice govern the grant of leave to bring proceedings after the limitation period has expired. These considerations include an examination of the conduct of the applicant for leave and the reasonableness of the explanation for the delay.
To grant leave to sue long after the expiry of a limitation period, when the applicant has made a deliberate decision to allow the statutory period to expire, in the absence of special circumstances explaining satisfactorily the conduct of the applicant, would set at naught the purpose of the legislation.
The trial judge was correct in finding that the appellant suffered no prejudice in consequence of the delay caused by the respondent. The trial judge erred, however, in that he failed to evaluate the respondent's conduct against the rationales for the limitation period contained in s 151D(2) and articulated by McHugh J in Brisbane South Regional Health Authority. He erred in holding that the respondent's conduct was reasonable. Taking all relevant matters into account the limitation period should not be extended.
The majority decision in Ramton v Cassin (1995) 38 NSWLR 88 should not have precluded the appellant from bringing an appeal against the interlocutory decision of the trial judge prior to the substantive hearing. The failure of the appellant to apply for leave to appeal prior to the substantive hearing should not preclude it from succeeding on appeal. Ramton v Cassin should not be followed in the case of appeals against interlocutory orders that are capable of resolving the entire case. ORDERS
Appeal upheld;
Verdict of Graham DCJ and orders made by him in favour of the respondent set aside;
Decision and orders of Patten DCJ to extend time for the bringing of the respondent's claim for common law damages against the appellant set aside;
Application to extend time dismissed with costs;
Respondent's claim in regard to the trial dismissed and judgment granted in favour of the appellant;
No order made in respect of the costs of the trial;
Respondent to pay appellant's costs of the appeal;
Respondent to be granted a certificate under the Suitors Fund Act if she is otherwise entitled thereto.

[12]

Monday, 11 February 2002 ITEK GRAPHIX PTY LIMITED v ANN ELLIOTT Judgment 1 SPIGELMAN CJ: I agree with Ipp AJA. 2 SHELLER JA: I have had the privilege of reading the judgment in draft prepared by Ipp AJA. His Honour has exhaustively reviewed cases dealing with the circumstances in which the Court is called upon to exercise its discretion to extend statutory periods of limitation. As his Honour has demonstrated in some statutes the legislature has specified circumstances that must be taken into account and given due weight. In others such as s151D(2) of the Workers Compensation Act 1987, with which we are here concerned, the legislature does no more than enable the Court to grant leave to a person to commence Court proceedings after the expiry of the limitation period. In broad terms it can be said that a discretion expressed so widely should be exercised in a way which will best serve the justice of the case. 3 The cases have shown that particular circumstances may compel a refusal by the Court to extend time. An example is actual significant prejudice to the defendant brought about by the plaintiff's delay. But it is not correct to conclude that the absence of such prejudice compels an exercise of discretion in favour of the plaintiff. Ordinarily the potential plaintiff is required to demonstrate that circumstances warrant the Court's exercising its discretion to extend the time for commencing proceedings. The applicant bears that positive burden. In Salido v Nominal Defendant (1993) 32 NSWLR 524 at 530 Gleeson CJ said that the proper question for a judge to ask in dealing with an application for leave to proceed is whether it would be fair and just to grant leave. In Parsons v Doukas [2001] NSWCA 128 I said that where a long and unexplained delay had not resulted in significant prejudice to the potential defendant it might be that the discretion would properly be exercised in favour of the potential plaintiff but that the Court was in no sense bound so to exercise its discretion. The question was whether the delay had made the chances of a fair trial unlikely. 4 Ipp AJA has concluded that the appellant suffered no prejudice in consequence of the resultant delay but that the decision initially taken not to proceed at common law and allow the three year period under s151D(2) of the Workers Compensation Act to expire were taken quite deliberately on a fully informed basis. The respondent further delayed for a significant period before changing her mind. I entirely agree that this in itself is a potent circumstance which must be taken into account and will ordinarily weigh heavily against an applicant. If the discretion was to be exercised favourably to the respondent, she was bound to give some explanation both satisfactory and pertinent to a conclusion that justice would be best served by granting her application. I agree with Ipp AJA that this she failed to do. The learned judge who heard the application failed to give due weight to this consideration and erroneously concluded that the respondent's explanation for her conduct was reasonable. In consequence of this error his Honour's discretionary function miscarried and this Court must review it. For the reasons Ipp AJA has given I agree that in the circumstances the time for beginning the proceedings should not be extended. 5 I also agree with what his Honour has said about Ramton v Cassin (1995) 38 NSWLR 88. For these reasons I would uphold the appeal, set aside the verdict in favour of the respondent and the orders made by Graham DCJ, set aside the decision made by Patten DCJ to extend time and the orders made by him. I would dismiss the application to extend time and order the respondent to pay the costs of that application. The respondent's claim against the appellant should be dismissed. I agree with the orders proposed by Ipp AJA on costs. I refrain from expressing any opinion on the other matters raised in the appeal. 6 IPP AJA:

[13]

The grounds of appeal 7 This appeal relates to two actions that were heard together. There are several grounds of appeal, but they fall conveniently under five categories. I shall deal with each category as if it were a single ground of appeal. The circumstantial web that gave rise to the two actions is not without complexity and the five grounds of appeal can best be understood in the context of a brief chronological account of the more important facts. 8 The first action was a claim for damages for personal injuries sustained by the respondent on 24 October 1994 when she fell while descending a flight of stairs at the premises of the appellant, then her employer. The respondent alleged that the fall and her resultant injuries were caused by the appellant's negligence. She brought proceedings in the District Court for recovery of the damages she had sustained, and Graham DCJ upheld her claim. She was awarded a verdict in the sum of $462,511 and obtained judgment in that sum. 9 The second action concerned a claim by the appellant against the respondent for reimbursement of workers compensation benefits amounting to $47,682.80. In regard to this action, Graham DCJ handed down a verdict in favour of the appellant in the sum of $4,000. 10 By virtue of s 151D(2) of the Workers Compensation Act 1987 the respondent was not entitled to commence court proceedings against the appellant, in respect of its negligence relating to her fall, "more than three years after the date on which the injury was received, except with the leave of the Court in which the proceedings are to be taken". That period of three years expired on 24 October 1997. 11 The respondent did not commence such proceedings before 24 October 1997. Eventually, on 16 September 1999, she filed an application under s 151D(2) for leave to commence the proceedings in question. On 7 December 1999, against the opposition of the appellant, Patten DCJ granted leave and his Honour's decision in this respect gives rise to the first ground of appeal. The appellant contends that the judge erred in exercising his discretion in favour of the respondent. 12 On 24 January 2000, the respondent filed a statement of claim in the District Court claiming damages from the appellant caused by her fall on 24 October 1994. The respondent alleged that the fall was caused by the appellant's negligence. 13 On 7 March 2000, the respondent applied for an order, pursuant to s 79A of the District Court Act 1973, that her action against the appellant be tried without a jury. On 29 January 2001, Graham DCJ upheld her application. This decision gives rise to the second ground of appeal. The appellant contends that Graham DCJ wrongly exercised his discretion in favour of the respondent. 14 As I have mentioned, Graham DCJ found that the respondent's fall was caused by the appellant's negligence. The third ground of appeal is that his Honour erred in this respect. 15 Prior to her fall, the respondent had been involved in a motor accident with Mr S. Johnson. She had sustained injuries in the motor accident and had sued Mr Johnson for damages in this regard, alleging that the accident and her injuries were caused by his negligence. 16 On 3 October 1997 the solicitors for the respondent and the solicitors for Mr Johnson agreed on terms of settlement that were made an order of the District Court. One of the terms of settlement provided: "Without admission of liability, judgment for the [respondent] in the sum of $135,000 inclusive of costs for personal injuries".

[19]

The grant of leave under s151D(2): the background circumstances 21 The appellant's business was that of selling various kinds of printing equipment. The respondent, who was born in 1946, had spent much of her working life in the printing industry. From September 1988 to January 1999 the appellant employed the respondent as a sales representative. Her work involved calling on customers and soliciting sales. Her sales territory was large in area and she drove by car to her various customers, taking with her various samples of equipment. 22 In January 1994, the respondent hurt her right knee while laying ceramic tiles at her home. In consequence, in April 1994, an arthroscopy procedure was undertaken on her knee. The operation was a success, and the respondent's work was not interrupted. Although her knee improved markedly, there was evidence of some residual symptoms. 23 On 29 September 1994, in the course of her duties as sales representative, the respondent was involved in a motor vehicle accident when the car she was driving collided with a car driven by Mr Johnson. 24 The respondent injured her neck, right knee and leg in the collision. She continued working but, on 10 October 1994, she informed Mr Tom Hayward, a senior employee of the appellant (referred to by her as "her boss") that she was not able to carry out her duties and would have to go home. She consulted a specialist medical practitioner who advised that she should cease work for a month and have bed rest. He gave her a certificate to that effect. She telephoned Mr Hayward and informed him that she would not be at work for a month. 25 The respondent wished to claim workers compensation while she was unfit for work. She discussed with Mr Hayward her need for compensation. He told her that she would have to fill in workers compensation forms in order to obtain compensation. She explained that she could not come into work because she was not fit enough to drive. He told her that he did not have the time to bring the forms to her and she would have to come into the appellant's premises and complete the forms there. 26 On 24 October 1994, the respondent was driven by a friend to the appellant's premises to complete the claim forms. She had to climb a set of stairs to get to the appellant's reception room. The reception was on the first floor of the building in which the appellant's business was situated. She completed the forms but, while descending the stairs, she fell. She aggravated the injury to her knee and sustained injuries to her back. 27 Her knee deteriorated and she underwent a further arthroscopy on 24 March 1995. Her right patella was removed on 28 July 1995. 28 On 20 September 1995 the respondent commenced proceedings against Mr Johnson for the damages she sustained in the motor accident. In her statement pursuant to Pt 12 r 4A of the District Court Rules, the respondent alleged, firstly, that, in consequence of the motor accident, her right knee had a tendency to give way and this resulted in her fall, and, secondly, that she suffered from disabilities stemming from her fall. Thus, at that stage, she was alleging that Mr Johnson was liable in negligence for the injuries she sustained in the fall, as well as those she sustained in the motor accident. 29 On 21 August 1996 Mr Johnson gave notice of his intention to amend his defence by alleging that the injuries and damage alleged by the respondent in the statement of claim "occurred as a result of a novus actus interveniens" (which was alleged to be the respondent's fall on 24 October 1994). 30 In January 1997 the respondent's claim against Mr Johnson was submitted to arbitration. On 17 February 1997 the arbitrator awarded the respondent the sum of $109,808. The respondent was not content with the award and she applied for a rehearing. 31 On 17 September 1997 the respondent filed amended particulars under Pt 12 r 4A. These particulars omitted the allegation that the knee had given way, thereby causing the fall, and references to disabilities caused by the fall were deleted. By inference, the respondent was accepting the validity of the allegation in the defence that the fall interrupted the chain of causation. She was no longer claiming that Mr Johnson was liable for the damages flowing from the fall. 32 Settlement negotiations had taken place between the solicitors for the respondent and Mr Johnson over a period commencing in about June 1997. On 3 October 1997 they agreed on terms of settlement and these were made an order of the District Court. As mentioned, one of the terms of settlement provided that the respondent would be entitled to judgment against Mr Johnson in the sum of $135,000 inclusive of costs. 33 As mentioned, the three year period in terms of s151D(2) of the Workers Compensation Act 1987 expired on 24 October 1997. Prior to that date, the respondent had a conference with Mr Andrew Lidden, of counsel, and her solicitor, Mr Hagipantelis. At that conference she decided that she would not bring proceedings against the appellant for common law damages caused by the fall and would only pursue her claim for workers compensation. I shall later examine, in greater detail, the factual circumstances surrounding this decision. It is sufficient, at this stage, to note that the respondent decided, deliberately, and after receiving full legal advice from her barrister and solicitor on the issue, to allow the three year limitation period under s 151D(2) to expire. 34 On 6 November 1997, the appellant's workers compensation insurer wrote to the respondent's solicitors and claimed repayment of the compensation payments made by it, which the insurer asserted amounted to $47,361.80. On 8 December 1997, Mr Hagipantelis wrote to the appellant's solicitors on the respondent's behalf contending that all the appellant was entitled to recover in respect of workers compensation payments were payments made "between the motor vehicle accident and the fall on or about 23 October 1994". These payments were substantially less than the amount claimed by the insurer. 35 In December 1997, discussions took place between the appellant and the respondent as to the termination of her employment. On 19 December 1997 the appellant wrote to the respondent and, after referring to a meeting that had taken place that day, stated: "It is mutually agreed that you can no longer fulfil the role of a sales representative; this is based on the physical requirement specifically with the major requirement of the role being to call on customers. With this decision, it was agreed that your employment with [the appellant] will cease on January 30, 1998. …." 36 The respondent, in cross-examination, accepted that, at that meeting, it was mutually agreed that she could not continue working. She accepted that she was not able physically to perform the field work involved in being a sales representative. 37 After receipt of the letter of 19 December 1997, and prior to the termination of her employment on 30 January 1998, the respondent was told by the personnel manager of the appellant that the appellant's workers compensation insurer would pay her workers compensation amounting to 85% of her pay for a period of twelve months and then "a couple of hundred dollars per week". In fact the respondent did not receive any weekly payments of workers compensation. 38 By letter dated 16 April 1998, the appellant's insurer again sought repayment from the respondent of the workers compensation payments it had made. The respondent did not comply with the insurer's demand. 39 On 3 September 1998, the respondent made an application for determination of workers compensation. She claimed weekly payments, payments of medical expenses and a lump sum (under s 66 and s 67 of the Workers Compensation Act). 40 It was not suggested by the appellant that the steps taken by the respondent to claim the compensation in question constituted an election under s 151A of the Workers Compensation Act. 41 On 12 March 1999, the appellant issued a statement of claim in the second action, claiming payment of $47,682 alleged to be workers compensation benefits paid to the respondent. This was presumably a subrogated claim by the appellant's insurer. The statement of claim alleged that, as a result of the settlement of the action instituted against Mr Johnson, the respondent was required to repay to the appellant the compensation benefits in question. 42 On 24 June 1999, at a conference with Mr Lidden and her solicitor, the respondent decided to commence common law proceedings against the appellant, claiming damages arising out of her fall. The basis of this claim was to be that the appellant was negligent in instructing her to call at its offices to complete the workers compensation claim forms. 43 No steps were taken in regard to this decision until 16 September 1999, when the respondent filed an application for an order extending time for the commencement of her action against the appellant for common law damages. Pursuant to this application, as mentioned, Patten DCJ granted leave to the respondent to commence proceedings.

[20]

The grant of leave under s151D(2): the controversial question 44 For reasons that I later give, I consider that the respondent's delay in bringing her action for damages caused the appellant no prejudice whatever. As I have foreshadowed, and as I later expand upon, the respondent failed to act diligently in the prosecution of her claim. In fact, she deliberately allowed the limitation period to expire and delayed applying for leave for nearly two years. 45 These circumstances raise the question as to the approach a court should adopt when exercising its discretion under s 151D(2) of the Workers Compensation Act in a case where the respondent has not suffered prejudice by the delay and the applicant has not diligently pursued his or her claim. 46 The test under s 151D(2) has not been the subject of an authoritative decision by this Court. There have been several cases, however, where views have been expressed concerning the approach that should be adopted when dealing with leave provisions in limitation statutes generally. Many of these cases have involved s 52(4) of the Motor Accidents Act 1988. The discussion that has taken place has usually focused on the various judgments in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. Much of what was said in that case has been regarded as being of general application (although it turned on specific provisions of the Limitation of Actions Act 1974 (Qld)). 47 Both parties made submissions on the basis that the test under s 151D(2) was the same as the test under s 52(4). Despite the number of cases that have dealt with the topic, however, the test to be applied under s 52(4) cannot be regarded as settled. 48 Gleeson CJ, in Salido v Nominal Defendant (1993) 32 NSWLR 524, pointed out (at 530) that the usual purpose of any limitation period is to protect a defendant from the injustice of having to face a stale claim. His Honour noted that Pt 5 of the Motor Accidents Act evinced "a legislative intention to promote prompt settlement of claims and to encourage forensic diligence". The Chief Justice concluded that the proper question for a judge to ask in dealing with an application for leave to proceed is whether it would be fair and just to grant leave. He observed that lack of diligence on the part of a plaintiff or a plaintiff's representative in ascertaining and asserting his or her rights would ordinarily be a material factor, as would the extent of the relevant delay, and the reason for it. Prejudice to the defendant, as a result of the delay, might be of decisive importance. 49 Kirby P said (at 538) that regard should be had to prejudice suffered by the defendant, proved, apparent or inferred, and remarked (at 539) that regard should be had to the acceptability, or otherwise, of the explanation given by the applicant to sue in time. The test was a flexible one and depended on the particular circumstances. No hard and fast rule could be stated. 50 Powell JA (at 541) said that two questions needed to be determined by the Court: "1. whether a sufficient explanation has been given for the failure to commence proceedings in time; and 2. if so, whether, having regard to all the circumstances of the case, it is fair and just to grant, or to refuse, the application". 51 The judgment of the High Court in Brisbane South Regional Health Authority was then delivered and this was followed by the judgment of a five member bench of this Court in Holt v Wynter (2000) 49 NSWLR 128. Ms Norton SC (who, together with Ms Healey, appeared for the respondent) submitted that, in accordance with the decision of the majority in Holt v Wynter, the appropriate question to ask when determining an application to commence proceedings out of time under s 151D(2) of the Workers Compensation Act was that formulated by Toohey and Gummow JJ in Brisbane South Regional Health Authority (at 550), namely: "The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent." 52 Ms Norton submitted, in effect, that, on the basis of that question, Patten DCJ was undoubtedly correct in granting leave as the delay had not made the chances of a fair trial unlikely; the appellant having suffered no real prejudice by the delay. On the basis postulated, I would accept that submission. But the issue is whether the question posed by Toohey and Gummow JJ is appropriate to the grant of leave under s 151D(2). 53 Priestley JA in Holt v Wynter said (at 143): "[A] court considering an application under s 52(4) (when governed by the Act in the form relevant to the present case), must ask whether the applicant has discharged the onus of showing that as between the parties it would be fair and just for the trial to be held, and that the trial would be fair …"

[21]

Although Priestley JA did not deal with the issue, any inquiry into whether it would be "fair and just" for the trial to be held would inevitably encompass an inquiry into the reasonableness of the applicant's conduct in regard to any delay that might have occurred. 54 Sheller JA (with whom Meagher and Handley JJA and Brownie AJA agreed), on the other hand, applied the "real question" stated by Toohey and Gummow JJ. It must be borne in mind, however, that Holt v Wynter did not involve a situation such as the present, where the dilatory conduct of the applicant for leave is at the heart of the argument. The question whether delay had made the chances of a fair trial unlikely was plainly the critical question in the circumstances of Holt v Wynter. Nothing else was material. 55 In my respectful view, Sheller JA's remarks were not intended to be applicable to a case involving a lack of diligence on the part of the applicant for leave. This can be seen from his Honour's reference (at 147) to the statement by Gleeson CJ in Salido (at 532) that the question to be asked was "whether, in the circumstances of each individual case, the applicant for leave has demonstrated that it is fair and just that leave should be granted". Sheller JA observed (at 147) that this question was "directed to a broader context", namely, "such as the situation where there has been long and unexplained delay which has not resulted in significant prejudice to the potential defendant". His Honour did not, in Holt v Wynter, express a view as to whether Brisbane South Regional Health Authority affected the test expressed by Gleeson CJ when such a "broader context" arose. 56 The present is a case where, in fact, a broader context does arise and I do not think that Holt v Wynter affords guidance to the circumstances now under consideration. 57 A difference in approach between members of this Court, as to the correct question to ask when leave is sought to commence proceedings out of time under s 52(4) of the Motor Accidents Act, was manifest in Parsons v Doukas [2001] NSWCA 128. 58 Parsons v Doukas concerned a refusal by the primary judge to grant leave to commence proceedings out of time under s 52(4) on the principal ground that the applicant had not satisfactorily explained the delay. Powell JA gave the leading judgment of the Court. After examining the authorities to which I have referred, his Honour said: "Despite the stress which [counsel for the appellants] … sought to place upon the judgment of Sheller JA in Holt v Wynter (2000) 49 NSWLR 128, I do not read his Honour's Judgment as establishing that upon an application pursuant to the provisions of s 54 of the Act leave to commence proceedings must be granted unless it appears that the granting of such leave would cause substantial prejudice to the proposed defendant".

[22]

In other words, Powell JA was of the view that other factors (including the reasonableness of the applicant's explanation for any delay) would be relevant. Therefore, the primary judge had not erred and the appeal should be dismissed. 59 Sheller JA said: "In my reasons for judgment in Holt v Wynter I concluded, on the basis of the authorities referred to, that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant (page 147, para 119). The authorities also deal with the tests to be applied where there has been long and unexplained delay which has not resulted in significant prejudice to the potential defendant. In that context as I said (147, para 113) it may be that, in the absence of significant prejudice to a potential defendant, there is no reason why the discretion should not be exercised in favour of the applicant. However, the authorities do not in my opinion suggest that the Court is bound to grant leave to commence proceedings in the absence of proof of any significant prejudice to the proposed defendant in doing so, for example in a situation of long and unexplained delay; Holt v Wynter at 147, para 116. The real question remains as Toohey and Gummow JJ pointed out in Brisbane South Regional Health Authority v Taylor …at 550: …'Whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent'". His Honour agreed that the District Court judge had not erred in the exercise of his discretion and agreed that the appeal should be dismissed with costs. Nevertheless, as appears from the passage quoted, he expressed the opinion that the "real question" was that stated by Toohey and Gummow JJ in Brisbane South Regional Health Authority at 550, namely, whether the delay has made the chances of a fair trial unlikely. 60 Davies AJA was of a different opinion on this issue. He said: "Statutory provisions establishing a limitation period must be construed having regard to their own terms. The relevant legislation did not require a full and satisfactory explanation of the delay …. Under this legislation, it would not be appropriate to adopt the words of Toohey and Gummow JJ in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, where their Honours said, at page 550:- 'The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent'. Under the subject legislation, a broad discretion was conferred. Relevant factors included the broad range of factors to which McHugh referred in Brisbane South Regional Health Authority v Taylor , at p551-p556 and, more recently, in Re Commonwealth of Australia; Ex Parte Marks (2000) 75 ALJR 470. The factors included the statutory policy. In this regard, McHugh J said in Brisbane South Regional Health Authority v Taylor , at p553 - p554:- 'A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated … The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question.' In the same case, Dawson J agreed with McHugh J and said, at p554:- 'The section confers a discretion upon a court to extend time and that discretion should only be exercised in favour of an applicant where, in all the circumstances, justice is best served by so doing.'"

[24]

The significance of the particular statute and the broad discretion 63 Section 151D(2) provides: "A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than three years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken". 64 The Workers Compensation Act does not contain any specific criteria to be taken into account by the court when exercising the discretion contained in s 152D(2). There is no list of matters to be considered, such as those set out in s 60E of the Limitation Act 1969. There is also no equivalent to s 52(1) and s 52(4B) of the Motor Accidents Act which govern the exercise of discretion under s 52(4). Section 52(1) sets out the objects of the time limitations in the Motor Accidents Act, including the object of providing that an extension of time will only be granted if, inter alia, the claimant can explain the reasons for the delay in not commencing the proceedings within the stipulated period. Section 52(4B) provides that the leave of the Court must not be granted unless the claimant provides a full and satisfactory explanation to the Court for the delay. Provisions of this kind, that give specific content to the discretion to be exercised under s 52(4), are absent from the Workers Compensation Act. 65 Nevertheless, a broad discretion such as that provided by s 152D(2) is not unconfined and does not entitle the court to act upon whim. As Kirby P said in Salido (at 535) in regard to such a discretion: "The discretion must be exercised according to the terms in which, and to achieve the purposes for which, parliament has provided. It must be exercised in good faith and with due regard to those who may be affected by the exercise". 66 In FAI General Insurance Company Limited v Southern Cross Exploration NL (1988) 165 CLR 268 Wilson J (with whom Brennan, Deane and Dawson JJ agreed) commented on Pt 2 r 3 of the Rules of the Supreme Court of New South Wales which, like s 151D(2), conferred a very wide and apparently unlimited discretion on the Court. The discretion under Pt 2 r 3 was to extend or abridge any time fixed by the Rules (or any judgment or order). Wilson J observed (at 283) that these were remedial provisions that conferred on the Court a broad power to relieve against injustice and the "discretion so conferred is not readily to be limited by judicial fiat". See also in this regard Secretary of State for Trade and Industry v Davies [1996] 4 All ER 289 at 303 per Hobhouse LJ. 67 In Gallo v Dawson (1990) 64 ALJR 458 McHugh J dealt with an application for an extension of time in which to file a notice of appeal against an order dismissing an action. The applicant relied on Order 60 r 6 of the Rules of the High Court which provided that the Court or a Justice might enlarge the time appointed by the Rules for doing an act upon such terms, if any, as the justice of the case might require. Again, this rule conferred a very wide and apparently unlimited discretion. McHugh J said at 459: "The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties …. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time …." McHugh J regarded the explanation provided by the applicant for her delay in seeking an extension of time as being significant. He said: "In the present case, the applicant sought to explain her delay in seeking an extension of time by claiming that her decision to appeal 'depended on the careful assessment of the possibilities of my claim, which needed reference research involving a lot of work and time as it would to a non professional' … Significantly, the applicant did not assert that she had failed to lodge her appeal because she was unaware of the 21-day time limit for lodging a notice of appeal. Indeed, the terms of her affidavit suggest that she had made a conscious decision not to appeal until she had satisfied herself that she could succeed in an appeal. I doubt that I would have considered the applicant's explanation for the delay to be a sufficient reason for enlarging the time for lodging her appeal from the 21 days required by the Rules to the more than 16 months which would be required if this application were to succeed, even if I had thought that the applicant had real prospects of succeeding in her proposed appeal. A case would need to be exceptional before a court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he or she had researched the issues involved …. It would make a mockery of O 70, r 3 if, months after the time for appealing has expired, the unsuccessful party could obtain an extension of time on the ground that he or she had delayed appealing because that person wanted to research the issues involved. Lack of legal knowledge is a misfortune, not a privilege". 68 In Re Commonwealth of Australia; Ex Parte Marks (2000) 75 ALJR 470 McHugh J dealt with a similar application and repeated that an extension of time for seeking relief can only be granted if it is necessary to do justice between the parties. That meant that it was necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. His Honour said (at 474): "Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy, '[t]he rules of court must prima facie be obeyed'". 69 I now turn to the terms of the Workers Compensation Act itself. As Kirby P observed in Salido (at 536) it is essential "to approach the statutory discretion having regard to the context in which it appears and the purposes for which it is provided". 70 Section 151D(2) is part of Pt 5 of the Act. Part 5 deals with common law remedies and contains a series of provisions that restrict the right of a person to claim damages at common law. Section 151A provides that a person to whom compensation is payable under the Act is not entitled to both permanent loss compensation and damages in respect of the injury, but is required to make an election between the two remedies. Section 151B provides that if a person recovers damages in respect of an injury from the employer liable to pay compensation under the Act, then the person ceases to be entitled to any further compensation in respect of the injury concerned. Section 151C provides for a 6 months delay before a person to whom compensation is payable is entitled to commence court proceedings for damages in respect of the injury against the employer concerned. Division 3 of Pt 5 modifies common law damages and regulates court awards generally. It contains restrictions on damages for non-economic loss, economic loss generally and provision for certain home care services. Restrictive provisions are imposed in relation to matters such as mitigation of damages, payment of interest, damages for psychological or psychiatric injury and other matters. 71 The Part as a whole is in effect a scheme whereby the rights of persons claiming common law remedies from employers are limited and strictly controlled. The general tenor of the Part indicates that Parliament, generally speaking, intends that claimants will have to exercise their rights to common law remedies in a closely defined way during the stipulated period (subject to the remedial leave provision contained in s 151D(2)). 72 Nothing in the context of Pt 5 suggests that the discretion to be exercised under s 151D(2) is less confined than the discretion typically afforded to courts when power is conferred upon them to ameliorate time barring provisions. As is apparent from cases that I have cited, where a wide discretion of the kind contained in s151D(2) is conferred, the justice of the case is to be determined by its own individual circumstances on a broad basis and, ordinarily, the conduct of the applicant will be an important factor. The reason for this approach is clearly expressed by McHugh J in Brisbane South Regional Health Authority, to which I now turn.

[25]

Brisbane South Regional Health Authority v Taylor and universal rationales for limitation legislation 73 Much of what was said in Brisbane South Regional Health Authority was predicated on the terms of the particular statute under consideration in that case, namely, the Limitation of Actions Act 1974 (Qld). The applicable provisions were ss 11 and 31. Section 11 governed, generally, the bringing of actions in respect of personal injury. Relevantly, it provided: "Notwithstanding any other Act or law or rule of law, an action for damages for negligence … or breach of duty … in which damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person … shall not be brought after the expiration of 3 years from the date on which the cause of action arose." These general provisions were subject to s 31 which provided: "(1) This section applies to actions for damages for negligence … or breach of duty … where the damages claimed by the plaintiff … consist of or include damages in respect of personal injury to any person … (2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court - (a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and (b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation; the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly." 74 Brisbane South Regional Health Authority came before the High Court from a decision of the Queensland Court of Appeal. The Court of Appeal had reversed a decision by the primary judge refusing leave to commence proceedings out of time on the ground of prejudice. The issues canvassed were the existence, nature and degree of prejudice caused by delay, and the correct approach to these matters. As Kirby J (at 563) explained: "In this case, it is true that the proof of the two conditions in paras (a) and (b) of s 31(2) is comparatively exhaustive and demanding. Once an applicant has proved the facts necessary to establish them, it is difficult to see what more an applicant could do in order to gain the benefit of the extension provided for by the Act." 75 The point to be made is that, in the context of the relevant legislation, once the conditions in paras (a) and (b) of s 31(2) had been satisfied, in practice no complaint could be made about the conduct of the applicant. It was in that context that Toohey and Gummow JJ expressed (at 550) what they described as "the real question". 76 It is relevant to note that, before posing this question, their Honours (at 548) stated: "A material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is possible".

[30]

80 Importantly, in the context of the present case, McHugh J continued (at 554): "The scheme of the Act is that s 11 forbids the bringing of an action for damages for negligence after the expiration of three years from the date on which the cause of action arose unless leave is given under s 31. It follows that an applicant for extension must show that justice will be best served by excepting the particular proceedings from the general prohibition which s 11 imposes … In this context, justice includes all the relevant circumstances relating to the application including the various rationales for the enactment of the limitation period involved. That the applicant had a good cause of action and was unaware of a 'material fact of a decisive character relating to the right of action' [s 31(2)(a) of the Act] does not alter the burden on the applicant to show that the justice of the case favours the grant of an extension of time. Those facts enliven the exercise of the discretion, but they do not compel its exercise in favour of the applicant". and noted: "In determining what the justice of the case requires, the judge is entitled to look at every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period". 81 Any question formulated in such a way that prejudice to the defendant is automatically regarded as the sole or overriding factor becomes subject to the criticism expressed by McHugh J (at 555) in Brisbane, namely: "It downplays, if it does not overlook, the second, third and fourth rationales of limitation periods to which I have referred … [It] gives no weight to the fact that the defendant's potential liability expired at the end of that period and that to extend the period may result in the imposition of a new legal liability on the defendant. Indeed, it seems to indicate that a limitation period is a provisional rather than rigid limit". 82 On the reasoning of McHugh J, the overriding question to be asked is whether the justice of the case requires leave to be given (the onus being on the applicant to prove that the justice of the case requires the discretion to be exercised in his or her favour). 83 Dawson J agreed with the reasons given by McHugh J. His Honour stated (at 544): "The section confers a discretion upon a court to extend time and that discretion should only be exercised in favour of an applicant where, in all the circumstances, justice is best served by so doing." 84 Kirby J pointed out that an applicant might be innocent of fault (because a material fact of a decisive character relating to the right of action was not within his or her means of knowledge until shortly before the application for extension was made) but there were other factors that could be relevant. For example, a proposed defendant "should not be subjected to a trial upon a completely stale claim". The learned judge observed (at 564): "The applicant may well be able to make out the two pre-conditions provided in s 31(2) yet the court may properly refuse the extension either because the proposed defendant affirmatively establishes that irreparable injustice would be done by requiring it to face a belated trial or because, in balancing the material placed before the court, the judge is not convinced that an extension order would be just". 85 Accordingly, Dawson, McHugh and Kirby JJ in Brisbane South Regional Health Authority were all of the view that, generally, in a limitation statute, broad considerations of justice govern the grant of leave to bring proceedings after the limitation period has expired. These considerations include an examination of the conduct of the applicant for leave and the reasonableness of the explanation for the delay. In my opinion, the views expressed by Toohey and Gummow JJ were not inconsistent with this approach. See further in this regard, South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 at [31] and [32].

[32]

The particular significance of a deliberate decision to allow a limitation period to expire 88 I have pointed out that the justice of the case is to be determined by its own individual circumstances. Often, a failure satisfactorily to explain the delay will not be decisive. Ordinarily, the issue of prejudice will be of paramount importance: Nowlan v Marson Transport Pty Limited [2001] NSWCA 346 at [34] - [36]; Malone v New South Wales National Parks and Wildlife Service [2001] NSWCA 345 at [9]. Nevertheless, the justice of the case may be such that the failure to explain the delay and to prosecute the case with the requisite diligence will result in an extension of time being refused. 89 The rule that an applicant, who applies for leave to bring proceedings after a limitation period has expired, must provide a reasonable explanation for the delay (and show that there has not been an absence of diligence on his or her part) forms part of limitation legislation throughout the country and, independently, has long been recognised by the courts. It is hardly necessary to provide authority for this proposition, but, in addition to the authorities to which I have already referred, I would cite the following: Henricks v Agnew (1997) 26 MVR 277, Bartlett v Bartlett (2000) 170 ALR 25, Nominal Defendant v Manning (2000) 50 NSWLR 139, Girando v Girando (1997) 18 WAR 450, Hoy v Honan [1997] QCA 250, Reid v Agco Australia Ltd [2000] VSC 363, Pomeroy v Thwaites Witham Pty Ltd (2001) 79 SASR 489, Menzies v Hoechst Australia Limited (1991) Aust Torts Reports 81-122, Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344, Clark v Robb (1994) 118 FLR 71, Knight v Smith [1975] Tas SR 83. 90 The reason for this requirement is not hard to understand. A limitation provision is an expression of intent by Parliament that persons who wish to sue must do so within the stipulated time unless circumstances exist entitling them to obtain leave. A limitation provision is the general rule and an extension is the exception. In obtaining leave, a party is in effect obtaining an indulgence. To allow parties leave, when they have been careless of their rights and careless of the need to proceed with their disputes within the limitation period, would, ordinarily, be contrary to the justice of the case and would subvert the intent of Parliament. Just as the rules of court must prima facie be obeyed (Ratnam v Cumarasamy [1965] 1 WLR 8 at 12), so must the laws of Parliament. 91 A deliberate decision to allow a statutory limitation period to expire would be a powerful factor against the grant of leave. Where a deliberate decision to allow the period to expire has been made, ordinarily it will be difficult to provide an explanation for that decision sufficiently cogent to warrant the grant of leave. There is ample authority to this effect. I have already referred to Gallo v Dawson. I shall give other examples. 92 In Mason v Murray's Charter Coaches & Travel Services Pty Limited the Full Federal Court of Australia considered the exercise of the discretion conferred by s 151D(2) of the Workers Compensation Act. Sackville J regarded the fact that the appellant had provided no satisfactory explanation for his delay in instituting proceedings as a potent reason against the grant of leave. The delay was exacerbated by the fact that the appellant had the benefit of legal advice at regular intervals throughout the period from some three months after the incident that gave rise to the cause of action until over three years after expiry of the limitation period set by the Act. His Honour pointed out (at 71): "According to the appellant's solicitor, the appellant was advised in late 1990 or early 1991 that he would be best served by pursuing his lump sum entitlement under the Workers Compensation Act , rather than electing to pursue a common law claim in New South Wales." That advice was repeated in 1992 and 1995. In 1997 counsel advised that common law proceedings should be instituted in the Australian Capital Territory. The limitation period prescribed by s 151D(2) expired on 26 March 1994. Sackville J (at 71) regarded the applicant's conduct as: "[A] factor that would militate strongly against the grant of an extension under s 151D(2) of the Workers Compensation Act ".

[33]

Drummond J at 58 agreed with this part of the reasons of Sackville J. 93 In Australian Croatian Cultural and Educational Association "Braca Radici" Blacktown Limited v Benkovic the Court overturned a decision by the primary judge to extend time to permit the respondents to join the appellant as a defendant in proceedings for damages for personal injuries which the respondent alleged were caused by the appellants' negligence. 94 The application for an extension of time was brought 5 ½ years after the accident, the limitation period being 3 years. Counsel for the respondent conceded that the judge below had erred in making allowance only for presumptive prejudice within the 2 ½ year period after the limitation period expired. Counsel accepted that the decision in Brisbane South Regional Health Authority required that regard be had to presumptive prejudice throughout the entire 5 ½ years. It was submitted on behalf of the respondent, however, that there was no presumptive prejudice at all, having regard to the particular circumstances of the case. 95 In upholding the appeal, Cole AJA, who gave the leading judgment of the Court (and with whom Meagher JA agreed), held that there had been prejudice to the appellant. He also regarded the following as significant: "Mr Benkovic with full knowledge of the accident, with full knowledge of his injuries, their severity and likely permanence, with full knowledge of difficult financial circumstances in which he was placed in the 12 months since his personal insurance policy had expired in July 1995, with full knowledge of his diminished or diminishing relationship with the association and its members, and with full knowledge of the provisions of the Limitation Act and the circumstance that if he did not sue the association by 6 July 1996, he would be unable to sue the association, determined that he would not sue the Association and so instructed his solicitor." 96 Mason P expressed doubt as to whether there was an error of principle on the part of the trial judge in regard to prejudice, and went on to say: "However, the impact of delay on the quality of justice is not the only relevant factor (see Brisbane South at 552 per McHugh J). As Cole AJA points out, stale justice harms other interests as well, including the interests of persons in utilising their resources on the basis that claims can no longer be made against them. These were of particular relevance in a case brought against an uninsured voluntary association with a floating membership. It is the omission to have any regard to those interests and a particular error of fact …. that persuade me that the primary judge's discretion miscarried. Exercising the discretion afresh, I am not satisfied that it is 'just and reasonable' to make the order for extension even though the delay has not made a fair trial unlikely (cf Brisbane South at 550). There is no evidence of actual prejudice. Indeed, presumptive prejudice has probably been negated because the appellant was notified of the risk of a claim as early as April 1994, eight months after the accident … I do not think that a fair trial of the issues is likely to be compromised in any way by the respondents' delay. But the Court must be satisfied that it is 'just and reasonable'. The expression is probably a hendiadys. However, the added emphasis conveyed by the word 'reasonable' is critical. As Cole AJA points out, the respondents made a fully informed decision, based upon legal advice, not to bring proceedings against the association within the primary limitation period. The decision was taken because Mr Benkovic did not wish to cause the uninsured association financial difficulties. No conduct of the association contributed to this decision." 97 It is noteworthy that in Secretary of State v Davies Millett LJ (at 300) placed a deliberate decision to disregard a limitation period in the same category as overreaching or taking advantage of the other side (that is, in the context of considering an application for an extension of time). 98 In my opinion, to grant leave to sue long after the expiry of a limitation period, when the applicant has made a deliberate decision to allow the statutory period to expire, in the absence of special circumstances explaining satisfactorily the conduct of the applicant, would set at naught the purpose of the legislation.

[34]

The facts relating to the respondent's decision to allow the limitation period to expire 99 In July 1996, Mr Lidden advised the respondent that her fall was directly related to the motor vehicle accident. Mr Hagipantelis agreed with that advice. At that stage the respondent's action against Mr Johnson was being maintained on the basis that the injuries the respondent received from the fall were caused by the motor vehicle accident. 100 The claim before the arbitrator, resulting in the award of 17 January 1997, was presented on the basis that Mr Johnson was responsible for the damages caused by the injuries resulting from the motor vehicle accident and the fall. After the arbitration hearing, but before the arbitrator had handed down the award, Mr Lidden advised the respondent that the proposition that the fall was unrelated to the motor vehicle accident was "a nonsense". 101 By letter dated 26 February 1997, Mr Hagipantelis informed the respondent of the details of the arbitrator's award and pointed out that she had received workers compensation payments "of almost $45,000". On that basis, he said, "the offer is grossly deficient". In cross-examination, Mr Hagipantelis agreed that the respondent was well aware at the time of the arbitration that she had received workers compensation payments and they would have to be repaid. 102 On 2 April 1997, the respondent attended a conference with Mr Lidden and a solicitor employed by Mr Hagipantelis' firm. The respondent stated at the conference that she might be made redundant and she was told to contact Mr Hagipantelis if that occurred. 103 At this stage, the respondent and her legal advisors were facing a defence by Mr Johnson which had been amended to allege that the fall was a novus actus interveniens and, hence, Mr Johnson was not liable for the damages that were caused thereby. Mr Lidden had advised that this defence was not likely to succeed and he did not change that view. Mr Hagipantelis, however, seemed to regard this defence as having considerable substance. 104 A file note by the respondent's solicitor recorded that, on 6 June 1997, a conference was held between the respondent, Mr Lidden and the solicitor. An offer had been made by Mr Johnson to settle the claim against him for $124,000. According to the file note, Mr Lidden explained to the respondent the implications of Mr Johnson's proposal "and the possibility of further workers compensation proceedings being taken". Mr Lidden expressed the opinion that the further workers compensation proceedings were "speculative" and there were "no guarantees that she would recover substantial funds from the proposed workers compensation claim". Mr Lidden requested the respondent to consider his advice and then come to a decision as to what course she wished to adopt. Mr Lidden was plainly of the view that the respondent should sue the appellant for common law damages and made this clear to the respondent. 105 Another file note from the solicitor of the same date expressed the firm opinion that the respondent would get "very little" for the claim arising out of her fall as the Court could well uphold the defence of novus actus interveniens. The note recorded that the respondent would "get a much better hearing from a Compensation Court judge and should get a very decent lump sum out of that case plus a continuing award particularly as it is possible that she will need to leave work at some stage in the future". The note concluded, "I actually think the client should not reject the offer of $124,000 and should run the workers compensation case separately and take a punt as I think the District Court judges could get this case wrong given the possible intervening accident. At least she would have certainty". 106 Accordingly, there was a difference between Mr Lidden and the solicitors as to what course to adopt. 107 Mr Hagipantelis agreed in cross-examination that he had formed the opinion that the best course for the respondent was to amend the statement of particulars in the claim against Mr Johnson so as to exclude the damages caused by the fall, settle the claim against Mr Johnson at an appropriate sum and proceed with a claim for workers compensation. He gave this advice to the respondent. He explained that the purpose of amending the particulars of claim to exclude reference to the damages caused by the fall was to prevent the appellant (as the respondent's employer) from being able to recover workers compensation paid to the respondent after the fall. The respondent accepted this advice and, on 16 July 1997, instructed Mr Hagipantelis to proceed to settle her claim against Mr Johnson on this basis. 108 A file note of 16 September 1997 recorded that the respondent instructed Mr Hagipantelis to accept an offer of $135,000 in settlement of Mr Johnson's claim and she agreed to his advice that she should pursue her workers compensation claim against the appellant after deleting the reference to the fall from that claim. 109 In summary, at the time of the settlement with Mr Johnson, the respondent had decided not to proceed with a common law claim against the appellant but, rather, to make a claim for workers compensation. This was in accordance with the advice given by Mr Hagipantelis. It was a fully informed decision. 110 At some time in October 1997, after the settlement of the respondent's claim against Mr Johnson and before the expiry of the three year period under s 151D(2) of the Workers Compensation Act relating to her common law claim against the appellant, the respondent had a conference with Mr Lidden and Mr Hagipantelis. As Mr Hagipantelis testified: "There was an urgency surrounding the limitation period of 24 October 1997 so a conference was arranged with the [respondent] and Mr Lidden of counsel". 111 At the conference, Mr Lidden continued to express the view that the respondent should proceed at common law. Mr Hagipantelis agreed in cross-examination that at that conference "there was a lot of discussion about the way in which the case was to proceed". The respondent was advised "about the limitation period". In cross-examination, she agreed that an explanation was given to her as to what "the three year period meant". The respondent was also advised "about the difference between common law and workers compensation". 112 Although the evidence is silent as to this, in view of the opinions previously held by the solicitors it seems that, at that conference, Mr Hagipantelis' views were different to those of Mr Lidden. Whatever the position in that respect, at that conference, according to Mr Hagipantelis, the respondent "gave instructions to proceed with her workers compensation claim". In an affidavit in support of her application for an extension of the 3 year period under s 151D(2), the respondent stated: "Very shortly before the three year period from the date of the fall expired, I had a conference with my counsel, Mr Lidden, and my solicitor, Mr Hagipantelis. At that time I decided to keep my workers compensation rights and not elect to bring common law proceedings arising from the fall. I was still working without any wage loss as set out above". 113 When she was asked in cross-examination why she decided to proceed to claim workers compensation she said: "Because I was, I was still working and I felt that I had to name my boss to go the other way and I was very fond of him. I just didn't want to make a big hassle. I was quite happy to, at that time just to leave it as it was". 114 On 6 November 1997, as I have mentioned, the appellant's insurers wrote to the respondent referring to the settlement of the claim against Mr Johnson and claiming return of workers compensation payments, amounting to $47,361.80. On 8 December 1997, Mr Hagipantelis replied on the respondent's behalf, denying that the respondent was liable for the amount claimed. 115 In December 1997 it was agreed between the appellant and the respondent that her employment would cease on 30 January 1998. Thereafter, the appellant's personnel manager informed the respondent that she would receive weekly compensation but the respondent was not paid such compensation. 116 In cross-examination the respondent accepted that she did not consider bringing the common law claim at the time her employment was terminated. This, however, was inconsistent with her affidavit in which she said: "It was following the termination of my employment in January of 1998 and the fact that I would not receive any further voluntary payments of compensation from the insurer that I again considered any further entitlements to compensation available to me". 117 The application for the determination of the workers compensation proceedings was filed on 3 September 1998, several months after the termination of the respondent's employment. The respondent only decided to bring common law proceedings on 24 June 1999. She had not received compensation payments since January 1998. The suggestion that the failure to receive workers compensation payments triggered the respondent's decision to bring her common law claim cannot be accepted. The period of some 17 months that elapsed, during which compensation was not paid without the respondent taking action, refutes this proposition. 118 In 1998, the solicitors were assembling the evidence for the purposes of the workers compensation claim. Mr Hagipantelis spoke to the respondent on 22 April 1998 concerning the commencement of workers compensation proceedings and spoke to her again on 26 May 1998 in the same connection. A further discussion occurred on 23 June 1998. 119 In an affidavit of 27 July 1999 the respondent stated: "Earlier this year I became aware that the [appellant] was trying to recover from me payments of workers compensation". 120 In cross-examination, however, the respondent agreed that, early in April 1998, she knew that the appellant's workers compensation insurer was seeking repayment of the workers compensation payments made. Moreover, the correspondence indicates that the respondent had been aware since November 1997 that she might have to face such a claim. Therefore, the suggestion that the motivating force behind the respondent's decision to make a common law claim was the threat of a claim for repayment of compensation received can, also, not be accepted. 121 On 3 September 1998 the application for determination of the respondent's claim for workers compensation was issued. 122 In March 1999 the appellant commenced proceedings against the respondent for recovery of $47,682.80 in respect of compensation benefits paid to her. 123 On 24 June 1999 a conference was held between the respondent, Mr Lidden and a solicitor from Mr Hagipantelis' office. During that conference Mr Lidden again recommended that the respondent proceed at common law against the appellant. This time she accepted his advice and gave instructions to so proceed.

[35]

Was there prejudice to the appellant by reason of the delay? 124 At the hearing before Patten DCJ the appellant did not assert that it had suffered any particular prejudice and the judge found that there was "virtually no prejudice" to it. 125 Before this Court the appellant argued that it had been prejudiced by the delay. It was said on the appellant's behalf that the delay had enabled the respondent to settle the claim against Mr Johnson and this "meant that the appellant was confronted with a distinct likelihood that it would be ordered to pay compensation by way of damages which, had the two matters been heard together, would have been laid at the feet of the motor accident tortfeasor [Mr Johnson]". 126 I do not accept this submission. The settlement with Mr Johnson was arrived at on 3 October 1997. The three year period under s 151D(2) expired on 23 October 1997. It was open to the respondent to have sued the appellant between these dates. It was not the delay that resulted in the appellant not being able to conduct his defence to the appellant's claim concurrently with the hearing of her claim against Mr Johnson. That simply resulted from the appellant settling Mr Johnson's claim prior to bringing her common law claim against the appellant, something that she was perfectly entitled to do. 127 In the course of his oral submissions, Mr King submitted that the effect of the settlement meant that the appellant could recover less from Mr Johnson by way of a contribution (on the basis that Mr Johnson was a joint tortfeasor) than it otherwise would have. He submitted that this resulted in prejudice. 128 Again, I do not agree. I repeat that the appellant was entirely within her rights in settling first with Mr Johnson and did so some 20 days prior to the expiry of the s 151D(2) period. Whatever prejudice the respondent might have suffered as a result of the settlement in respect of a possible claim for contribution against Mr Johnson was not caused by the delay. 129 Moreover, as Mr Johnson is not before this Court, it would not be appropriate for this Court to express any opinion as to the merits of a claim by the appellant for a contribution against him. Mr King accepted that it was open to the appellant to have brought a cross-claim against Mr Johnson and have had the cross-claim heard concurrently with the respondent's claim against it. But the appellant did not pursue such a procedure. 130 The matters raised by Mr King were not put to Patten DCJ. In any event, I do not accept that those matters caused the appellant prejudice. Accordingly, I conclude that the appellant suffered no prejudice in consequence of the delay and Patten DCJ's finding in this respect was correct.

[36]

The reasons of Patten DCJ 131 Patten DCJ said that it was common ground that the principles to be applied by him in considering the respondent's application were those set out in Salido. He said that those: "require inter alia the [respondent] to explain her delay, to deal with the question of prejudice to the [appellant], to show that the cause of action is not futile, and to establish that it would be fair and just to grant the leave that she seeks". In my view this statement could not be criticised. It is the application of those principles to the particular circumstances that is challenged by the appellant. 132 Patten DCJ said in this respect: "The service of the statement of claim seems to have triggered a decision by the [respondent] to seek leave to commence proceedings at common law under s 151D of the Workers Compensation Act . The relevant period expired in relation to the stair accident on 24 October 1997. She was not altogether convincing as to her reason for change of heart, that is to seek compensation at common law rather than under the Workers Compensation Act . However, I think it is understandable having regard to the complexity of the situation which arises in cases such as this and the difficulty of assessing her legal position despite the fact that she has throughout received very full advice from both Mr Lidden and her solicitor. The matter is of course further complicated because, on the face of it, her cause of action against the [appellant] is by no means entirely clear, relying as it does upon her telephone conversation with Mr Hayward as constituting a direction that she present herself at work. On the other hand it may well be that Mr Johnson, if the action against him had gone to trial, would have been successful in asserting that the stair accident and the consequences of it should not be attributed to his negligence". 133 Later, the learned judge said: "The applicant's explanation is, I think, a reasonable one. She has received a lot of advice, and as [senior counsel for the appellant then appearing] points out, has, on occasions, made deliberate decisions not to pursue the rights which she presently seeks to agitate. But nonetheless the matter is complicated and I think it is understandable that a person in the position of the [respondent] could vacillate as to which remedy ought to be pursued". 134 The respondent's explanation as to her change of heart was indeed unconvincing. 135 I have pointed out that the respondent's change of mind could not have been brought about by knowledge that the appellant's insurer intended to claim repayment of workers compensation payments previously made, as she was aware of the existence of that intention for almost two years before she made her application for an extension of time. 136 I have also pointed out that the failure by the workers compensation insurer to make workers compensation payments could not have been the cause of the change of mind. No compensation payments had been made from the time the respondent's employment terminated in January 1998, about 17 months before she decided to apply for an extension of time. 137 While the respondent suggested in answers in cross-examination that her reason for not pursuing her common law claim and allowing the three year period to expire was the fact that she was working at the time and had affection for her employer, that carries little weight. 138 The respondent experienced problems with working from the time she returned to work after her fall. She walked with a limp, had difficulty with stairs and in her words "was having significant problems". On 2 April 1997, at a conference with Mr Lidden and a solicitor, the respondent stated that she might be made redundant. The file note of 6 June 1997 records that "it is possible that [the respondent] will need to leave work at some stage in the future". By 3 October 1997, when she settled with Mr Johnson, she must have realised that she might have to cease working soon. 139 Importantly, although the respondent's employment with the appellant terminated on 30 January 1998, she persisted in her decision to pursue her workers compensation claim until 24 June 1999. She only filed her application for an extension of time on 16 September 1999. These delays alone refute the proposition that liking for her employer, or not wanting to lose her job, caused her to decide not to take proceedings at common law. 140 It may be that the true cause of the respondent's change of mind was her dawning realisation that she could obtain far more through a common law claim than she would by way of a claim for compensation. Or at least, an appreciation that Mr Lidden's advice in this respect (which he had given since prior to the settlement of her claim against Mr Johnson) was to be preferred. 141 On the other hand, perhaps it was a change of opinion by the solicitors (who, as I have said, seem to have been of a different view to that of Mr Lidden) that brought about the respondent's instructions to proceed at common law. 142 The fact is that the true cause of the respondent's change of mind remains obscure. This is relevant keeping in mind the onus that she bears to explain her conduct that resulted in allowing the limitation period to expire and in delaying almost two years before seeking leave to sue out of time. 143 While there was some complexity in the respondent's legal position, by the time her claim against Mr Johnson had been settled, she was able to get clear advice from Mr Lidden and her solicitors. She was told that she had to elect between workers compensation and a common law claim against the appellant. She received an explanation as to what this involved during a conference involving much discussion on the topic. True it is that there seems to have been a difference of opinion between Mr Lidden and the solicitors as to whether the fall constituted an event that interrupted the chain of causation flowing from the motor vehicle accident, but the risks involved could readily be understood and were no doubt explained to her. As Patten DCJ found: "She has throughout received very full advice from both Mr Lidden and her solicitor". 144 The fact is that the decision initially taken not to proceed at common law, and the decision to allow the three year period under s 151D(2) of the Workers Compensation Act to expire, were taken quite deliberately on a fully informed basis. 145 The fact that there was some risk in establishing negligence on the part of the appellant was not a significant factor. This was an issue that often arises when a person has to elect between claiming workers compensation and a claim for common law damages. 146 The potential problems in relation to the pursuit of the claim against Mr Johnson were erroneously taken into account. That action had been settled some three weeks before the three year period expired. 147 All in all I do not agree that the respondent's decision to allow the three year period to expire on 23 October 1997 and then to do nothing about bringing common law proceedings until she made her application for an extension of time on 16 September 1999 was "reasonable" conduct on her part. 148 The respondent's decision not to sue before the expiry of the limitation period was not an irrevocable election (in the sense of Sargent v A S L Developments Ltd (1974) 131 CLR 634) but, as I have explained, it was a powerful factor tending against the grant of leave. It was for the respondent to provide a satisfactory explanation for her decision. This she failed to do. 149 Additionally, after the expiry of the limitation period, the respondent persisted in the course she had taken for nearly two years before making the application for an extension of time. No explanation (reasonable or otherwise) for this delay was given. 150 Finally, the respondent, as I have attempted to demonstrate, gave no satisfactory reason for her change of mind. 151 In taking the various decisions that her course of conduct involved, the respondent was not under any duress of any kind and there were no compelling external pressures that she had to face. The respondent was faced with a choice between the advice she received from Mr Lidden and the advice she apparently received from her solicitors. The simple fact is that she chose to claim workers compensation and not common law damages. Some 20 months later she changed her mind and a further two months elapsed before she took steps to implement her decision. Until then she had persisted in taking steps to bring her claim for workers compensation. Patten DCJ did not regard the respondent's decision against this background. 152 In my view, the learned judge erred in that he failed to evaluate the respondent's conduct against the rationales for the limitation period contained in s 151D(2), and in particular, failed to have regard to the public interest in requiring claims to be brought within the statutory period and then to be proceeded with as quickly as possible. He did not attach adequate weight to her deliberate decision to allow the limitation period to expire. He appears not to have applied his mind to the long delay between the expiry of the three year period and the date on which the respondent applied for an extension of time. He erred in holding that the respondent's explanation for her conduct was reasonable. 153 In my opinion, this Court is required to exercise its discretion afresh. In so doing the respondent's conduct and the reasons (or absence of reasons) for the delay must be considered as part of all of the relevant circumstances. Taking all relevant matters into account, including the fact that the trial itself was held and Graham DCJ held the respondent to be successful in her claim, I would not extend time.

[37]

The effect of Ramton v Cassin 154 During the course of argument on appeal, the Court raised with Mr King the consequences that should follow from the failure of the appellant, prior to the trial, to seek leave to appeal against the interlocutory decisions that had been made against it (including the decision to grant an extension of time). Mr King said that the appellant had merely acted in obedience to Ramton v Cassin (1995) 38 NSWLR 88. This was not an issue that was taken up by Ms Norton. Nevertheless, it does require some examination. 155 Ramton v Cassin concerned an application to this Court for leave to appeal from a decision by a District Court judge granting leave to commence proceedings out of time pursuant to s 52(4) of the Motor Accidents Act. When the application came before this Court the reasons of the District Court judge were not available. Kirby P considered that an adjournment should be granted but Meagher and Cole JJA were of a different opinion. Cole JA (with whom Meagher JA agreed) said (at 92 to 93): "The question to my mind, however, is when is the appropriate time that this Court should consider that matter? In my opinion when there are interlocutory matters of this nature the appropriate time for them to be considered by this Court is at the time of any substantive appeal. The President has set forth the practical reasons why that is so. In particular, this Court should not become a regular venue for reviewing interlocutory steps preliminary to or during the course of a trial. It is for those reasons that I think that this application is premature. The claimant has a substantive right if he is dissatisfied with the ultimate decision after trial in this matter to appeal and then to seek the order of the Court granting leave to appeal from the decision of Judge Sidis granting the leave to commence the proceedings pursuant to s 52(4). Thus the appellant is not denied any substantive right, nor is the prospective appellant denied any due process. The only issue is at what time those rights should be exercised and in my opinion it should be after the conclusion of the totality of the proceedings". Kirby P considered that the application should be adjourned to enable the Court to have before it the reasons of the District Court judge. He did not agree with the remarks of Cole JA concerning the appropriate time that the Court should consider an interlocutory appeal. 156 In Futuris Corporation Limited v Exicom Limited (1995) 18 ACSR 413 this Court dealt with an application for leave to appeal from an interlocutory decision. Cole JA said (at 413-14): "It is preferable, in my view, to determine all of the issues in dispute between the parties at the final hearing. After that final hearing, if the parties be so advised, the issues now sought to be raised may be raised upon appeal. In adopting that course, the plaintiffs before this court are not deprived of any rights. It is consistent with the approach of the majority in Ramton v Cassin ….that, save in exceptional circumstances, interlocutory orders of trial judges should stand, and questions of law which a dissatisfied party may wish to raise from such orders be reserved for hearing on the hearing of any appeal after a final hearing." Kirby P agreed saying (at 414): "Although I remain of the view expressed of dissent in Ramton v Cassin , the principles of that decision are now established jurisprudence of the court. They are regularly applied, although not inexorably. They should be applied here". 157 In Wentworth v Wentworth (unreported, NSWCA, delivered 23 November 1995) Clarke JA described the approach in Ramton v Cassin as "a flexible general rule pursuant to which applications for leave to appeal from interlocutory orders should be refused if it is open to the applicant to challenge the interlocutory order in an appeal from the final order". His Honour was of the view that an application for leave to appeal prior to the substantive action would, in the absence of unusual circumstances, "have almost certainly failed". 158 In Brambles Australia Limited v Hall (unreported, NSWCA, 8 November 1995) Clarke JA (with whom Powell JA and Young AJA agreed) made similar observations. 159 In Kessey v Golledge (1999) 30 MVR 95 Rolfe AJA (with whom Sheller and Beazley JJA agreed) pointed out that the effect of Ramton v Cassin was that a final determination as to whether a discretion, concerning the grant of an extension of time for commencement of proceedings, was properly granted, would only be made after the substantive hearing. That is, after the time and costs involved in a trial had been incurred with the possible result that they would be wasted. His Honour proceeded (at 102): "Thus a very real issue is raised, in my opinion, whether a refusal by this court, in the exercise of its discretion, to hear such an application prior to the substantive hearing is an appropriate approach and leads to an efficient expenditure of the court's judicial resources and time and the parties' time and money. In my respectful opinion, this court should decide whether leave under s 52(4) should or should not be granted before the substantive proceedings are heard." His Honour went on to refer to the substantial disadvantages in not hearing an interlocutory appeal. Principally these all related to the fact that, depending on the result of the appeal, the substantive hearing might be otiose. He referred to the decisions in Salido , Brisbane South Regional Health Authority v Taylor and Queensland v JL Holdings Pty Limited (1997) 189 CLR 146 to demonstrate that it was not an inflexible rule that interlocutory decisions would not be dealt with in advance of the substantive hearing. He concluded (at 102): "In my respectful opinion, Ramton v Cassin should no longer be regarded as requiring that appeals in relation [sic - to] limitation points should be decided after the substantive hearing …. Arguably, Ramton v Cassin is now only authority for the proposition that an adjournment should have been granted. Further, strictly speaking the majority decision was obiter dictum , the point in issue being whether an adjournment should be granted. In addition their Honours did not follow the approach applied in Salido , and the decision is at odds with the procedure followed in Brisbane South Regional Health Authority v Taylor ". 160 In Tamworth Base Hospital v Durant [2000] NSWCA 209 Handley JA said: "The inconvenience of the principle endorsed by the majority [in Ramton v Cassin ] is manifest. An erroneous interlocutory order which allows proceedings to be commenced or continued should, if possible, be corrected before trial, not later. Where the proceedings are pending in the District Court or were heard by a Divisional Judge in the Supreme Court, the requirement for leave enables this Court to determine, summarily and without undue delay or expense, whether an interlocutory appeal can be brought." Handley JA proceeded: "The Court has not adopted the practice favoured by the majority in Ramton v Cassin . Leave to appeal is almost invariably sought by defendants who wish to challenge interlocutory orders of this kind and is readily granted in proper cases. The position is quite different where reversal of an interlocutory order would not avoid a first trial, or require a second trial". Handley JA went on to refer to the availability of an estoppel that would prevent an appellant from commencing or prosecuting an appeal. As that had not been argued, he did not deal with the issue further. 161 I agree with the remarks of Rolfe AJA in Kessey v Golledge and Handley JA in Tamworth Base Hospital v Durant insofar as they apply to interlocutory appeals that are capable of disposing of the entire case. 162 In my opinion, the majority decision in Ramton v Cassin should not have precluded the appellant from bringing an appeal against the interlocutory decision of Patten DCJ prior to the substantive hearing. 163 Nevertheless, I have come to the conclusion that the failure of the appellant to apply for leave to appeal prior to the substantive hearing should not preclude it from succeeding on an appeal now. 164 Firstly, the question of an estoppel of the kind referred to by Handley JA in Tamworth Base Hospital v Durant was not pleaded or argued. Despite the Court raising the issue with Mr King, the issue was not taken up on behalf of the respondent. Secondly, the prejudice suffered by the respondent by reason of the appellant's failure to apply for leave to appeal at an earlier stage appears to relate only to the costs of the trial. This can be dealt with in the order for costs. Thirdly, the rule as to when an application should be made for leave to appeal against interlocutory orders remains flexible (save that, in principle, Ramton v Cassin remains applicable to interlocutory appeals that are not capable of resolving the entire case). Fourthly, the views expressed in Kessey v Golledge might not, as yet, have penetrated throughout the profession. 165 Thus, while I think that it would have been appropriate for the appellant to have applied for leave to appeal prior to the substantive hearing, in the particular circumstances of this case its failure to do so does not preclude it from appealing after delivery of the judgment in the main action.

[39]

The decision to dispense with the jury 168 Mr King submitted that Graham DCJ erred in acceding to the respondent's application to dispense with the jury. Section 79A of the District Court Act, which confers the powers to dispense with the jury, provides: "In any action, the Court may order, despite s 77, s 78 and s79, that all or any questions of fact be tried without a jury". 169 Mr King relied on Clifton Bricks Pty Limited v Gerlach [2000] NSWCA 90. In that case this Court set aside a decision dispensing with a jury where the primary judge's main reason for his conclusion was the inconvenience caused by the number of witnesses who would have to be called from different parts of the country. It was held that the number of witnesses in question was not a factor special to the case and the primary judge erred in the decision he made. 170 In Department of Community Services v Dezsery [2000] NSWCA 196 the primary judge dispensed with the jury by reason of the complexity of the issues that had arisen. His Honour had regard to the many questions that the jury would be required to answer and the complications this would bring to their task. The application of the Workers Compensation Act to two accidents created complexity. The fact that the two accidents were only within 6 or 7 months apart made the task more difficult. There was a potential for different verdicts. In dismissing the appeal, Stein JA (with whom Powell and Beazley JJA agreed) said the primary judge was entitled to regard these matters as unusual or special and there had been no error in discretion. 171 In the present case there were similar complexities arising out of the fact that the respondent sustained injuries to her knee in the motor accident and, again, in the fall. In addition, there was the initial injury to the respondent's knee that pre-dated the motor accident. The "double recovery" defence based on s 5(1) of the Law Reform (Miscellaneous Provisions) Act 1946 brought about further complexities. Patten DCJ considered that, in the particular circumstances of the case, issues raised by contributory negligence would be difficult for a jury. The appellant's claim for recovery of the workers compensation payments was an additional complication. 172 I accept that a jury could readily cope with at least some of the perceived difficulties to which Graham DCJ adverted. Taking each category singly, a jury, adequately instructed, should have had no difficulty in coming to a proper conclusion. I accept however that taken as a whole the matter would be one of considerable complexity to a jury. In the circumstances, I consider that his Honour was entitled to exercise the discretion in the way that he did. Having regard to the particular circumstances, there was little difference in his Honour's general approach to that of the primary judge in Department of Community Services v Dezsery. I consider that his Honour properly exercised his discretion under s 79A of the District Court Act and no error has been demonstrated. I would dismiss this ground of appeal.

[40]

The ground of appeal based on s 51 of the Law Reform (Miscellaneous Provisions) Act . 173 This ground was based on the proposition that any damages over and above the amount paid to the respondent by Mr Johnson, pursuant to the settlement of the respondent's claim against him, would constitute a double recovery. 174 Mr King submitted (and it was not disputed) that the injuries suffered by the respondent in consequence of her fall were caused by the negligent driving of Mr Johnson which resulted in the earlier motor car accident. Hence, it was said, the respondent was not entitled to recover further damages from the appellant once she had obtained judgment in her claim against Mr Johnson. 175 Baxter v Obacelo Pty Limited (2000) 48 NSWLR 522 appeared to stand in the way of the appellant's submissions in this respect. Mr King submitted that Baxter was distinguishable, alternatively, was wrongly decided. After the appeal had been argued, the High Court handed down its decision in Baxter v Obacelo Pty Limited [2001] HCA 66 and we have had the benefit of further written submissions from the parties in the light of the reasons of the High Court. 176 Baxter was a case very similar to the present. The only material difference was that the tortfeasors in Baxter were joint and concurrent, whereas the tortfeasors in this case, that is, the appellant and Mr Johnson, were several and concurrent. In Baxter, like the present case, one tortfeasor had entered into a settlement with the plaintiff that was made a judgment of the Court, and the plaintiff had proceeded to sue the other tortfeasor for additional damages. 177 Gleeson CJ and Callinan J said at paras 54 and 55: "If there has been no judicial assessment of damages, then, in the light of current Australian authority on the effect of s 5(1)(a) of the Act, it would be anomalous if the consequences of a settlement with one tortfeasor upon a claim against another tortfeasor should turn upon the difference between a consent judgment and a Tomlin order, or between joint tortfeasors and several concurrent tortfeasors. If it would be unconscientious of the plaintiff to pursue a claim against another tortfeasor, or if the amount received pursuant to the settlement is, or ought to be regarded as, recoupment of the whole of the plaintiff's loss or damage, then action against another tortfeasor, whether in separate proceedings, or, where the other tortfeasor was a party to he original proceedings, by way of continuation of those proceedings, must fail. If, either expressly or by implication, a settlement agreement manifested a common intention of the parties to the agreement that the settlement sum was to be paid and received in full satisfaction of the rights of the plaintiff, against the defendant or anyone else, in relation to the loss or damage incurred, then, for both of those reasons, a further claim would fail. The most obvious way to negative such an intention would be by an express reservation of rights. While the effect of the settlement agreement, in the ordinary case, will be the most significant factor bearing upon either or both of the two possible grounds mentioned, it is not possible to eliminate any other circumstances which, in a given case, could indicate unconscientiousness, or loss of the subject matter of a claim. Bearing in mind the obligation to give credit for the amount already recovered, a defendant who could show that the actual loss or damage incurred by the plaintiff did not exceed the amount already recovered would succeed in any event. Leaving aside questions of onus of proof, to say that there is no such excess is simply to say that the loss has been fully recouped. In the present case, the deed of release, the terms of settlement, and the conduct of the parties to the settlement, clearly showed that it was contemplated that the respondents would pursue their claim against the appellant, and that they were not accepting the sum of $250,000 in full satisfaction of the loss or damage they said they incurred. There is no reason why they should be prevented from continuing with their claim against the appellant." 178 Gummow and Hayne JJ considered that, on the facts of the case, the respondents (who were tortfeasors) and a Mr Whitehead (who was a joint tortfeasor with the respondents) contemplated that the respondents would pursue their claims against the appellant after the settlement had been arrived at. Their Honours stated (at para 75): "There was no acceptance of the sum paid under that settlement as full satisfaction of the loss or damage the respondents claimed they had suffered. That being so, no basis has been shown to render it unconscientious for the respondents to continue the pursuit of their claim against the appellant".

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