28 Although his Honour might have expressed himself better, I do not consider that those comments disclose that he reversed the onus of proof in determining the application. Mr Corrigan accepted that the judge was very experienced in the specialist jurisdiction in the County Court concerning serious injury applications. Not only was the judge very experienced in the practice and disposition of such cases, the counsel who appeared before him were also very experienced. The judge, as I have said, remarked that this application was lodged at a time when the Court was overburdened with such applications. The correctness of that assertion was not challenged before us. In my opinion, against that background, his Honour's remarks merely reflect a statement based on experience that a thirteen month delay in lodging an application does not bespeak unreasonable conduct on the part of the solicitors. His Honour was not disregarding the fact of there being such delay, but he was addressing the question whether it remained unexplained[8] and, if so, whether it constituted negligence for which the plaintiff might have a remedy. Of course, even if this delay was explained it was still relevant as one component of the overall delay[9], and it was taken into account by his Honour, in that way.
29 Ground 2 complained that the judge did not give sufficient weight to his entitlement to refuse an extension of time with respect to one defendant and not another. Although expressed as a ground concerned with the weight given to a relevant consideration, the argument in support of it came close to asserting specific error in the approach taken by the judge, since counsel submitted that: "One would be forgiven for thinking that his Honour considered that the application by the plaintiff must either succeed or fail against both John Holland and Kone".
30 The short answer to that suggestion is that nothing in his reasons indicates that his Honour acted on a misguided understanding that he was obliged to make the same order − whether to grant or refuse an extension of time − with respect to both companies. There are many passages in his Honour's reasons which reflect the contrary understanding. Indeed, Mr Corrigan conceded in his submission that "to some extent" his Honour did differentiate between the two proposed defendants.
31 Likewise, the complaint under ground 3 can be quickly dispatched. It was contended that his Honour failed to appropriately differentiate between John Holland's position and that of Kone. Once again, the answer is found in a number of passages in his Honour's judgment where he highlighted what he called "the particular prejudice" which Kone, alone, suffered.
32 Putting to one side, then, the unsubstantiated complaints of specific error, I turn to the broader complaints that the decision of the judge was so plainly wrong as to manifest error, or else that relevant factors had been given inadequate weight or that weight had been given to irrelevant factors.
33 Adopting statements by members of the Court in Clark v. McGuinness[10], Mr Corrigan submitted that the granting to Ms Popa of an extension of time to commence proceedings would deny a fair trial to Kone. That decision was not handed down when his Honour made his own decision, and there seems not to have been any focus on the concept of a fair trial in submissions to the judge. Mr Corrigan submitted to us that a fair trial would be denied, first, because Kone's amended contribution claim against John Holland (which introduced the discrete claim based on breach of contract), would be met by an unanswerable defence that the claim was statute barred (since the cause of action accrued more than six years before commencement of an action based on breach of contract) and, secondly, because the passage of time was so great that it would impact adversely on the recollection of witnesses and on the preparation of Kone's defence to the plaintiff's action.
34 In my opinion, it would be inappropriate to identify the relevant question as being whether a party would be denied a fair trial. The discretion under s.23A is a wide one and the list of factors set out in paragraphs (a) to (f) in sub-s.(2) is non-exhaustive[11]. As Warren, C.J observed in Clark, applications under s.23A must be determined on their individual facts, the judge's task involving a synthesis of a wide range of considerations, including, but not limited to, those set out in the section itself.
35 The overriding question is whether it is just and reasonable to extend the period for the commencement of the proceeding. Nonetheless, the question whether the granting of the application would deny a fair trial to the defendant was considered by Toohey and Gummow, JJ. in Brisbane South Regional Health Authority v. Taylor[12] to be perhaps the most important of the considerations to be addressed, and in Clark the circumstances of the case meant that reference to denial of a fair trial had particular significance. In the present case however, the concept adds nothing to what would be embraced under the heading of prejudice. In this case it is more helpful to pose the question whether, notwithstanding the prejudice to Kone as found to exist both on account of the limitations defence of John Holland and the impact on the recollection of witnesses and collection of evidence, it is nonetheless just and reasonable to grant an extension of time to bring proceedings against the company. Although not expressed in precisely those terms, the test applied by the judge was consonant with that approach.
36 The first factor which was said to have been undervalued was, again, the John Holland limitations defence. As I have earlier stated, I can see no error in the way the judge evaluated this factor. He was not asked, nor was he bound to conclude, that if the defence was taken to the indemnity claim it must succeed. Indeed, there was some force in the contention of Mr Blanden that counsel for Kone was too readily conceding, on appeal, that the defence by John Holland would be unanswerable. Mr Blanden did not, however, explore the merits of John Holland's proposed defence to the contribution proceeding, although he suggested that, in any event, there might be an alternative remedy against John Holland available to Kone under trade practices legislation by virtue of the apparently misleading and deceptive conduct of John Holland in representing to Kone that insurance coverage had been effected. Such a claim would not be statute barred, Mr Blanden submitted. It is not necessary to address those arguments, however, since, as I have said, the judge gave full weight to the prejudice as then identified by counsel for Kone.
37 The next factor said to have been undervalued related to the impact - assumed and demonstrated - of delay in the preparation of Kone's defence to a claim by the plaintiff. As Mr Corrigan rightly emphasised, by the time of trial more than ten years will have elapsed, and the assessment of the prejudice must be evaluated by reference to the effect of delay as at the likely date of trial[13]. Delay of that order must be assumed to carry the consequence of prejudice to the conduct of a defence, even if the party is unaware of the extent of the prejudice[14]. However, whilst it may be accepted that many of the employees of Kone who were engaged in this project have no memory of any incident such as the plaintiff describes, the judge did not deny that to be so. In my opinion, he gave the factor full weight, although it might have been thought that the affidavit material reflected that Kone has been less than enthusiastic, and determined, in locating missing witnesses, or in conducting investigations generally. For example, the plaintiff's solicitor deposed that Kone had a procedure whereby any such incident, if reported, would have first been recorded in a book at the site and then duplicated in the computer records of the company but no answer has been made by Kone to that specific contention, save for Mr Basile's assertion that Kone had no record of the incident being reported to it. Basile said he could not locate any maintenance reports or correspondence in the job records file, although he would have expected them to exist. Of course, as his Honour found, it was not at all unlikely that no report of the accident had been made by the plaintiff either to Kone or to John Holland, since she swore that she only reported it to RMIT. Thus, no record of a incident report may ever have existed in the files.
38 Whilst other judges may have given greater weight to this suggested disadvantage than did his Honour, I am not persuaded that in his synthesis of the competing factors raised by the parties he fell into error by undervaluing the prejudice suffered by Kane in mounting a defence to the plaintiff's proposed action.
39 Mr Corrigan also submitted (grounds 4, 5 and 6) that his Honour failed to give weight to the unexplained nature of the delay by the plaintiff in first contacting a solicitor. In my opinion, however, his Honour was entitled to conclude, as he did, that the plaintiff was not looking to compensation in that period, but was determined to overcome her injuries and return to work, an approach which his Honour rightly regarded as understandable and commendable.
40 Complaint was made, too, that the failure of the plaintiff's solicitor to earlier join John Holland and Kone was unexplained (ground 8), and that the absence of such explanation was not properly taken into account by the judge, a significant omission, so it was submitted, given the obligation cast on an applicant to serve the originating process on all parties against whom the applicant has a claim: see s.135A(5)[15]. The judge did not expressly discuss that matter, save for observing that it was surprising that only RMIT had been initially served[16]. It may, however, be regarded as having been subsumed in his examination, generally, of delay on the part of the solicitors.
41 Mr Corrigan submitted that much greater weight should have been given to the delay of the plaintiff's solicitors in taking action against Kone, because had Kone been served at the same time RMIT was served, then the failure of John Holland to insure Kone would have been discovered and action (within time) might have been taken. In my opinion, however, that remained a mere possibility. The response of Kone and its advisers, as I have earlier described, following service of the originating motion upon Kone, provides little support for the assertion that had Kone been served at the same time as had RMIT that would have resulted in Kone commencing proceedings within time against John Holland based on breach of contract.
42 This period of delay by the plaintiff's solicitors, and their failure to depose to an explanation for it, was undoubtedly a relevant matter to be addressed by the judge, but it remains merely one of "the incommensurable considerations"[17] that may be addressed in the process of judicial synthesis. In any event, the issue was addressed by the judge and in paragraph [37] of his Honour's reasons he held: "Overall, it seems to me that the plaintiff and her solicitors at all times acted within the bounds of reasonability". In my opinion, this component of the total period of delay was appropriately taken into account by the judge when addressing the overall delay.
43 In the course of argument Mr Corrigan advised the Court that Kone had itself effected insurance and it was thereby indemnified from any damages which were ordered against it in favour of the plaintiff. That was not a matter which was known to the judge and since the discretion, in my opinion, is not re-opened it is unnecessary to consider whether the fact that Kone is insured could have had any relevance to the determination of the application.
44 I conclude, therefore, that none of the grounds of appeal has been made out. Applying the principles relating to discretionary decisions, I am not persuaded that the judge erred in the approach he adopted and in the conclusion he reached on the plaintiff's application. The appeal should be dismissed.