28 The plaintiff's application was heard by the County Court Judge on 30 and 31 August 2004 and her judgment was handed down on 9 November 2004. The plaintiff's application was dismissed and the plaintiff's principal proceeding was also dismissed and, as I have said, both of these orders are the subject of the present appeal.
29 In her judgment, the Judge said that the primary reason given by the plaintiff for failing to commence a common law action for damages before November 2003 was that he was prevented from doing so until the grant of a Certificate of Serious Injury in October 2003. The Judge noted that the plaintiff did not appear to rely "on circumstances commonly raised such as delay and default of the part of his solicitors, lack of knowledge of his rights or of the existence of a time bar or, beyond the legal steps taken on his behalf, on any specific conduct on his part to ensure the timely progress of his claim against the defendant". The Judge said that the main issue raised by the defendant was general and specific prejudice[2] but that it had also relied upon the length of and reasons for the delay on the part of the plaintiff[3] and the extent to which the plaintiff acted promptly and reasonably once he knew of the possibility of a claim against the defendant[4].
30 In dismissing the plaintiff's application the Judge took into account certain matters which, on appeal, were submitted by counsel for the plaintiff to constitute material errors.
31 First, the Judge said that the plaintiff did have an arguable cause of action in the circumstances described by the pleadings and the affidavit material and an arguable basis for asserting that at the relevant time a duty of care was owed by the defendant to the plaintiff. In that regard the Judge noted that the defendant had admitted the plaintiff's allegation that at the time of the incident he was operating the excavator and performing tasks fighting the bushfire in the Ben[d]oc State Forest under the control, direction and supervision of the defendant (being the servants, officers and employees of DCNR). The Judge accepted that, unless the case otherwise appeared to be hopeless, evidence of a cause of action was not a necessary prerequisite to the granting of an application to extend time. Notwithstanding the foregoing, the Judge was critical of other aspects of the statement of claim and concluded with some emphasis that "the plaintiff has still not articulated his cause of action". Her Honour said that she took that matter into account and that for the plaintiff to articulate his cause of action would require an extension of time beyond that presently sought by the plaintiff. I should say at once that, in my opinion, whatever the validity of the Judge's criticism of some aspects of the statement of claim, it was incorrect and a material error to take into account, as the Judge did, that the plaintiff had failed to articulate his cause of action. On the contrary, the plaintiff had, in his statement of claim, clearly articulated a cause of action in negligence against the defendant. Even if some amendment were required to the statement of claim, that did not lead to the necessity for a longer extension of the limitation period than that sought by the plaintiff.
32 Second, the Judge said and took into account that there was material before the Court showing that the plaintiff knew from 1995 of his possible right to recover damages from DCNR and not just from his employer. In support of that finding, the Judge referred to the report from M W Butler & Associates which referred to a comment by the plaintiff suggesting such knowledge and the Judge also inferred that his solicitors had advised the plaintiff of such a right or possible right. In my opinion these findings also constituted material error by the Judge. The report from M W Butler & Associates was inadmissible for the purpose of such a finding (and in any event the relevant passage in the report provided an unsatisfactory foundation for such a finding). Further, there was in my view no basis for inferring that the plaintiff was advised by his solicitors, prior to June 2001, that he had a possible right to claim damages from the defendant (or DCNR). Indeed it is clear that the plaintiff's solicitors had not contemplated such a claim before June 2001.
33 Third, the Judge appears also to have taken into account that "from June 2001 no steps were taken by the plaintiff to extend time for bringing a common law action" and that "the plaintiff was not prevented by any statutory requirement from bringing an application to extend the limitation period" pending the outcome of his application for a Certificate of Serious Injury or his ascertainment of whether the excavator was a registered vehicle. This too was, in my opinion, a material error because the plaintiff had no cause of action at all until he satisfied the "gateways" requirements of either s.135A of the Accident Compensation Act 1985 or s.93 of the Transport Accident Act 1986.[5] Therefore an application to extend the limitation period would have been futile unless and until the appropriate Act was identified and its "gateways" requirements satisfied in one way or another.
34 Before this Court, counsel for the defendant did not seek to maintain that the Judge had not materially erred in these three respects.
35 Counsel for the plaintiff made submissions as to other alleged errors in the Judge's reasons, but it is unnecessary to consider those submissions. Having regard to the material errors above referred to, I am of the view that the Judge did not exercise the Court's discretion according to law and it is open to this Court to re-open the exercise of discretion and to consider the matter for itself. Counsel for the defendant did not contend to the contrary.