Nguyen v Jajic [2007] ACTSC 12

3. The Parliament, in this jurisdiction, in common with jurisdictions throughout Australia, has enacted by the Limitation Act a law which provides that actions for damages for personal injury must be brought within a prescribed time. The legislation does provide a discretion to extend that time, but the High Court in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 has made it clear that the onus rests on the prospective plaintiff to enliven this discretion. As Dawson J noted (at 544), in agreeing generally with the reasons of McHugh J, the Limitations Act:

... does not confer upon an applicant for an extension of time a presumptive right to an order... 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. The onus of satisfying the court that the discretion should be exercised in favour of an applicant lies on the applicant. To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant. I agree with McHugh J that, once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation.

4. Limitation periods are set by legislatures to provide a degree of certainty to all parties. As McHugh J noted at 552:

The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.

5. I understand Brisbane South Regional Health Authority v Taylor to be authority for the proposition that an applicant for an extension of time bears a positive onus of establishing that it would be just and reasonable to so extend, and that a defendant is entitled to a presumption that the delay in bringing the proceeding has caused a prejudice. A defendant can, of course, choose to bring evidence to establish further actual prejudice, going, for example, to the death of a witness or other difficulties. But a defendant need not bring such material, and the court will start from the presumption that the delay does of itself cause a prejudice. As McHugh J stated (at 551):

The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates". 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] USSC 146; (1972) 407 US 514 at 532 "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."

6. Section 36(2) of the Limitation Act provides that a court may extend the limitation period; if it decides that it is "just and reasonable so to do". Section 36(3) sets out the factors that the legislature says should be taken into account.

(3) In exercising the powers conferred on it by subsection (2), a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following:

(a) the length of and reasons for the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;

(c) the conduct of the defendant after the cause of action accrued to the plaintiff, including the extent (if any) to which the defendant took steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;

(d) the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;

(e) the extent to which the plaintiff acted promptly and reasonably once he or she knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he or she may have received.

8. The learned Magistrate found that there was no explanation for the delay. The notice of appeal asserts that "the learned Magistrate erred in finding that the appellant gave no explanation for the delay in commencing proceedings." It seems to me that this cannot be made out. The only material going to delay was an affidavit by the prospective plaintiff (appellant) and her evidence under oath. In the affidavit the appellant said that she did not understand that she might have a claim until she was so advised by her lawyer in his office in August 2004. While this might be said to explain the delay from May 1999 to August 2004, notwithstanding that she did file a notice of claim in June 1999, it is entirely inadequate to explain the delay from August 2004 to the expiry of the limitation period in May 2005. In cross-examination she conceded that she could have instructed her solicitor to bring a claim from August 2004 (Appeal Book 52).

9. The learned Magistrate was thus entirely correct in stating that there was no explanation for the delay. All practitioners must be assumed to be aware of limitation periods, and in this case there was a period of some eight months in which to lodge an ordinary claim in the Magistrates Court in relation to this accident. The learned Magistrate was, it seems to me, quite correct in regarding this as a significant factor.

10. His Honour also noted that there was no medical evidence in support of the application. This is a relevant criterion, as set out in s 36(3)(f). It can be an important item to address, because an application for an extension of time supported by medical reports and contemporaneous medical notes can go a long way towards answering the presumptive prejudice that a defendant is entitled to be given in such an application. The nature of the plaintiff's claim was, in effect, for soft tissue injuries arising from the accident. The only reference to medical evidence was the name of a treating general practitioner.

11. In her affidavit in support, the appellant stated that about two weeks before the accident she was diagnosed with the onset of lupus (Appeal Book 15). In cross-examination she stated that she still suffered from this condition (Appeal Book 44). In these circumstances, there would clearly be real issues at any trial going to the extent of a pre-existing condition and the impact of the accident. The absence of any medical expert material in support of the application for an extension of time was, it seems to me, a proper matter for the learned Magistrate to take into account.

12. It seems to me that his Honour applied the appropriate test derived from Brisbane South Regional Health Authority v Taylor in exercising the discretion. As McHugh J stated (at 553-554):

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. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.

13. The applicant did not put material before the learned Magistrate going to explain the eight-month failure to lodge a claim, nor was any material before the learned Magistrate by way of medical reports. It seems to me that his Honour did not fall into appellable error in thus determining that the appellant had not satisfied the burden of establishing that the discretion should be exercised in her favour.

14. In the argument before the learned Magistrate, and in written submissions on this appeal, but not in oral submissions by Counsel, it was stressed that the claim was in fact brought only some few months after the expiration of the limitation period. This approach, however, is contrary to principal. The correct approach to determining prejudice and fairness is not to focus on the period from the expiration of the limitation period to the bringing of the claim, but from the accrual of the cause of action to the bringing of the claim. As McHugh J said (at 554-555):

The learned Judges of the Court of Appeal met the prejudice point by holding that the test for prejudice was whether an order extending time would make the defendant any worse off than it would have been if the action been commenced within, but towards the end of, the limitation period. But this analysis, with respect, treats the limitation period as little more than a point of reference. It suggests that all that is ordinarily relevant is the marginal prejudice created by the delay. It downplays, if it does not overlook, the second, third and fourth rationales of limitation periods to which I have referred. It treats the parties, subject to the question of prejudice, as if they were on an equal footing. The analysis 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 a rigid limit.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.