In the manner the appellant put her submissions, these grounds of appeal ran together.
15 For the appellant it was submitted that, if there was no prejudice to the respondent and a fair trial could be had, there was no other basis for a conclusion that it was not just and reasonable to grant the extension of time. It was said that Christie DCJ had wrongly found a basis in the mere passage of time, and had wrongly been influenced by the views which he said he had harboured for a long time, views which the submissions described as "views generally about limitations and/or limitation in industrial deafness matters" and as "unsupported by any evidence". So far as the views took account of the long period of time which had elapsed, it was said, while that could be relevant to prejudice it was not relevant in the absence of evidence supporting a prejudicial effect of the passage of time. In the appellant's written submissions it was said that "time of itself is not a relevant determination unless it evidences prejudice which was not the case in this matter", and in her oral submissions it was said that "time by itself does not impact on the just and reasonable test". Particularly was this so, it was said, when by s 51(2) of the Act the thirty year ultimate bar in s 51(1) did not apply to a cause of action in relation to which an extension of time had been granted.
16 The respondent accepted that a determination of whether it was just and reasonable to grant an extension of time will usually require consideration of whether a fair trial may be had, but it submitted that a finding that a fair trial could be had did not dictate that time should be extended, and that it was necessary also to conclude that in all the circumstances it was just and reasonable to extend time. In particular, it was said, even if prejudice from delay (apart from general prejudice) or unlikelihood of a fair trial did not arise in this case, it was still material to justice and reasonableness that Mr McLean had long known of his hearing loss and of a connection between his hearing loss and his work, albeit not a connection satisfying s 60I(1)(a)(iii) of the Act. Further, the respondent could properly be regarded as having ordered its affairs on the basis that it was not exposed to such a very stale claim as that propounded by the appellant.
17 In her written submissions the appellant referred to some cases apparently for the proposition that, when determining whether it was just and reasonable to extend time pursuant to s 60G(2) of the Act, one looked no further than prejudice engendered by delay and unlikelihood of a fair trial.
18 In Brisbane South Regional Health Service v Taylor (1996) 186 CLR 541 at 550 Toohey and Gummow JJ said, in relation to a different provision enabling extension of a limitation period that the real question was whether the delay had made the chances of a fair trail unlikely, and that if it had not there was no reason why the discretion should not be exercised in favour of the applicant for the extension. The relevant provision did not call for a determination of whether an extension of time would be just and reasonable but gave a relevantly unfettered discretion. Their Honours' statement was made in rejecting an approach of weighing the respective prejudices to the parties, and was made in the context of prejudicial effect of delay upon the chances of a fair trial.
19 In Holt v Wynter (2000) 49 NSWLR 128 at 147 Sheller JA, with whose reasons Meagher and Handley JJA and Brownie AJA agreed, said that the effect of the decision of the High Court in Brisbane South Regional Health Service v Taylor was 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. On the facts, the question was whether delay meant that there could not be a fair trial between the parties.
20 In BHP Steel (AIS) Pty Ltd v Lakovski (2000) NSWCA 334 at [9] prejudice engendered by delay and fairness of a trial were said not to be distinctly differing tests. It was asked rhetorically what factor could make a fair trial unlikely except prejudice engendered by delay and how prejudice could become significant unless it rendered a fair trial unlikely. Unlike the two preceding authorities, this was a case under s 60G of the Act.
21 In oral submissions, the appellant rather drew back from the argument in the written submissions founded on these authorities. She acknowledged that regard could be had to other considerations in determining whether it was just and reasonable to extend time.
22 That acknowledgment was in my view correct. Prejudice engendered by delay and unlikelihood of a fair trial will be highly material, and if there is prejudice and unlikelihood of a fair trial that will tell strongly, often conclusively, against the grant of an extension of time. It does not follow that in the absence of prejudice (other than general prejudice) and unlikelihood of a fair trial it will be just and reasonable to grant an extension of time. None of the cases to which the appellant referred stands for that position.
23 A specific test of whether it is just and reasonable to extend time is stated in s 60G(2) of the Act. Other considerations may be material to that determination.
24 Relevantly to the present case, it may be material that, although the applicant for an extension of time was unaware of the connection between the personal injury and the defendant's act or omission, or indeed of another matter in s 60I(1)(a) of the Act, the applicant had such other awareness that it would not be just and reasonable to grant an extension of time: see Drayton Coal Pty Ltd v Drain (CA, 22 August 1995, unreported) in the judgment of Gleeson CJ, with whom Priestley and Meagher JJA agreed -
"It is important to bear in mind, however, that satisfaction of the requirements of s 60 I (a)(iii) is not an end to the matter. One of the considerations which, in a given case, it may be proper to take into account under s 60G(2) is the extent of a plaintiff's awareness at the critical time of acts or omissions which, by reason of their connection with the plaintiff's injury, are to be relied upon as constituting actionable negligence. It may well be that such questions of degree will also have a bearing upon the justice and reasonableness of extending a limitation period. The same applies to the other aspects of s 60 I (1)(a). For example, a plaintiff might be able to establish that he or she was unaware of the full extent of personal injury suffered, but a court might take the view that, at the relevant time, the plaintiff's awareness, although not complete, was so extensive that it would not be just or reasonable to extend the limitation period. Similarly, the state of a plaintiff's awareness of certain acts or omissions connected with the plaintiff's injury may, in a given case, lead a court to conclude that it would not be just or reasonable to permit the plaintiff to have an extension of the limitation period, even though the plaintiff is able to establish that some other act or omission only came to notice at a later time. In other words, s 60G(2) may, depending upon the facts and circumstances of a case, operate as an important qualification upon the practical effect of 60 I ."