The applicable principles
14 The discretion conferred on a Court to extend the limitation period under s.22(4) of the Limitation Act is a broad one unfettered by any specific considerations which the legislature has directed be taken into account. However, the discretion is exercised in the context of a policy consideration which is embodied in s.22 of the Act. Limitation on the liabilities of ship owners has a long history going back to the early seventeenth century in Europe. In England the first Act which adopted the notion of the limitation of liability for shipowners was the Responsibility of Shipowners Act , 7 Geo. 2, 15 of 1733, which made it clear by the preamble that the policy of the Act was:
"To promote the increase of the number of ships and vessels and to prevent any discouragement to merchants and others from being interested and concerned therein."
15 The policy considerations favouring shipowners by limitation of liability, both in terms of the quantum of damages and in terms of the limitation period for the commencement of proceedings, have been embodied in legislation in the United Kingdom and in this country for many years. For example, the provisions of s.396 (1) and (4) of the Navigation Act 1912 (Cth) are in much the same terms as the provisions of s.22(2) and (4) of the New South Wales Limitation Act .
16 One starts, therefore, from the position that the applicant for an extension of time under s.22(4)(a) must show good reason in the interests of justice why the policy of the Act should be displaced. Numerous authorities show that what is a good reason depends on the facts of the particular case. However, there are some considerations which will commonly arise. They were discussed by Sheen J in The Albany and The Marie Josaine [1983] 2 Lloyd's Rep 195. There, his Lordship held that the factors to be taken into account included: the degree of blameworthiness on the part of the applicant, for the delay in commencing proceedings, the length of that delay, whether the circumstances which caused the delay were beyond the control of the dilatory party, and whether, if the application were granted, justice would be done between the parties.
17 Those considerations were regarded as relevant and proper to take into account by Sheppard J in Ling v The Owners of the Ship "Longevity" (unrep. Federal Court of Australia, 25.09.1995). I think that those broad factors are relevant to take into account in the circumstances of this case.
Consideration
18 The only reason that the plaintiff has given as an explanation for the delay in prosecuting his proceedings diligently is ignorance on his part that there was any relevant limitation period to be complied with. He attributed his ignorance to the first solicitors' failure to tell him of a limitation period. From the correspondence which has been put into evidence there does seem to be a strong inference that the first solicitors themselves were ignorant of the limitation period in respect of a claim of this type imposed by s 22(2) of the Limitation Act.
19 However, ignorance of the limitation period in this case, in the absence of any additional explanation for the failure of the plaintiff to prosecute his claim diligently, does not explain the plaintiff's inactivity between 14 August 2000 and 20 August 2001, or between 31 August 2001 and 10 July 2002. It does not really explain why the plaintiff delayed between July 2002 and 20 June 2003 in commencing his proceedings. The distinct impression one gets from the very sparse evidence which is available, is that here is a plaintiff who was not particularly anxious to prosecute his rights expeditiously.
20 On the other hand, however, the plaintiff says that no prejudice has been shown by the defendants if the limitation period were to be extended by what is, in effect, only a year. The plaintiff says that the circumstances of the collision and the fact that a personal injury claim was contemplated were made known to the defendants very soon after the collision so that they would have had an opportunity of preparing such evidence as they thought fit to meet the apprehended claim against them.
21 Further, it is said, in October 2000 the first named defendant pleaded guilty to a charge of negligent navigation arising out of the collision. It is highly probable, the plaintiff submits, that in the course of those proceedings the defendants revisited carefully the circumstances in which the collision occurred and that they would now, presumably, still have the benefit of such endeavours to meet the plaintiff's claim against them.
22 Mr A.C. Casselden, for the defendants, submits that it is often not possible for a defendant to indicate what prejudice he or she has suffered by reason of the delay in the commencement of proceedings. He relies upon a passage in the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor & Anor (1996) 186 CLR 541 at 551:
"The enactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates' ( R v Lawrence [1982] AC 510). Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo ((1972) 407 US 514) 'what has been forgotten can rarely be shown' . So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed."
23 This case is a very finely balanced one. One feels a degree of sympathy for any plaintiff who is shut out of a cause of action for personal injury when, if he or she had known the relevant limitation period, he or she might have acted with more diligence. However, as I have said, I do not think that the plaintiff's ignorance, without more, explains the dilatory and desultory fashion in which his claim has been prosecuted.
24 Despite the very capable arguments of Mr J. Young of Counsel who has said everything possible on behalf of the plaintiff, I am not satisfied that the plaintiff's evidence has shown that the plaintiff has no, or little, degree of blameworthiness for the delay in the conduct of the proceedings, that the delay was beyond his control, or that there is sufficient reason why, in the interests of justice to both parties, the limitation period should be extended and the policy embodied in s.22(2) of the Act should be displaced.
25 I must give weight to the circumstance to which McHugh J refers in Brisbane South Regional Health Authority v Taylor . The prejudice caused by delay may well be something about which the defendants cannot presently give evidence. They may not know yet in what respects the delay has occasioned them some prejudice in preparing and prosecuting a defence.
26 For those reasons I think that the Notice of Motion filed on behalf of the plaintiff for an extension of time must be dismissed.