He noted that Owen J had agreed with Taylor J. His Honour was satisfied that there had been no departure from or qualification of anything said in Hall in subsequent decisions. After further reference to authority he said (at 608):
"A decision by a court in an interlocutory matter on a question of law, or on an issue of fact squarely raised and argued after cross-examination of witnesses would not readily be departed from by the same court differently constituted in a subsequent application. ………But rather different considerations are involved where an applicant for extension of time has left unexplained delay in making the first application. There was no relevant question of law to be decided in the 1993 application, nor had there been cross-examination of any of the applicant's deponents."
117 His Honour then considered what the situation would have been if the applicant had sought to appeal from the decision on the first application rather than to bring a second application. After consideration of the relevant Victorian legislation and rules and referring to the equivalent position in New South Wales, to which I shall shortly make reference, his Honour said (at 610):
"Accordingly, in my view it is by no means established that the additional evidence brought forward by the applicant to support the 1993 application would have been excluded if the applicant had sought leave to appeal from the dismissal of the 1993 application and had tendered this evidence on the appeal. The better view is, I think, that the Court of Appeal could have given leave for such evidence to be adduced, although the discretion to give leave would be exercised with caution."
118 His Honour then expressed the following opinion (at 610-611):
"I do not think it is open to this court to adopt a rule which would preclude, as an abuse of process, the making of a second application for an extension of time simply because the applicant seeks to bring forward additional relevant facts which would not satisfy the "fresh evidence" rule. My reasons are as follows:
1. Hall stands as authority for the proposition that if the first order was interlocutory, rather than final, a second application may be made. Taylor and Owen JJ. expressly said so. Carr does not depart from, indeed accepts, this proposition.
2. The underlying logic of Barwick CJ's dissent (in Hall ), which seems to me unanswerable, is that all relevant facts must have been known or in posse at the time of the making of the first application under s 23A. In his view, no additional facts could satisfy the fresh evidence rule after a first application had been dismissed. Accordingly, the view of Barwick CJ was that a second such application could not be permitted to occur. However his view was not accepted by the court.
3. In Hall , Taylor and Owen JJ. took the position that an unsuccessful applicant for an extension of time to bring proceedings, could make a further application supported by additional relevant facts. Their rejection of the argument propounded by Barwick CJ, leads inevitably to the conclusion that, when Taylor J used the phrase "additional relevant facts", his Honour was referring to facts which did not amount to "fresh evidence". In Carr, Gibbs and Mason JJ accepted, in my view, the position stated by Taylor J and agreed in by Owen J.
4. Hall and Carr both stand for the proposition that what differentiates an interlocutory from a final order, is that the unsuccessful applicant is in a position to make a further application.
5. The proposition that an unsuccessful applicant under s23A can only make a second application on the basis of fraud or additional facts that satisfy the rules relating to "fresh evidence":
(a) treats the order on a first application under s 23A on the same footing as if it were a final decision on the merits, removes the element which the High Court has said established the interlocutory nature of the order and is, I think, therefore inconsistent with Hall and Carr .
(b) not only effectively deprives the applicant of any right to make a second application save on the basis of fraud or additional facts which amount to fresh evidence, but in so doing makes it more difficult for the applicant to bring forward additional facts on the second application than if the applicant had simply appealed the dismissal of the first application, and had sought to adduce that evidence on the appeal with leave of the court."
119 The situation in this State with regard to the adducing of additional evidence on appeal is governed by s 75A subs 7. 8 and 9 of the Supreme Court Act 1970. These provide that in an appeal to the Court,
"(7) The Court may receive further evidence.
(8) Notwithstanding subsection (7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds.
(9) Subsection (8) does not apply to evidence concerning matters occurring after the trial or hearing."
120 As the hearing before George ADCJ was interlocutory only and, consequently, not a hearing on the merits, it would not have been necessary for the respondent to establish "special grounds" for the reception of further evidence explaining delay, had he chosen to appeal. This question was considered by the Court of Appeal in Wickstead v Browne (1992) 30 NSWLR 1 where, in the judgment of Handley and Cripps JJA (at p. 11) the following statement appears:
"In our opinion this Court should receive the further evidence. This is not an appeal following a trial on the merits but an appeal from an interlocutory order for summary dismissal on the ground that the plaintiffs have failed to show any triable issue. The case falls within s 75A (7) of the Supreme Court Act 1970 and there is no requirement for the party tendering the further evidence to establish special grounds as is the case pursuant to s 75A (8) where the appeal is from a judgment after a trial or hearing on the merits: see Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR 430 at 436-437."
121 In my opinion the reasoning of Charles JA in paragraph 5 (b) of the passage cited above may be applied in the present case because the statutory provisions referred to produce the same result as the equivalent Victorian legislation considered by his Honour.
122 With respect, I have found the reasoning of Charles JA more persuasive than that of the majority. His Honour reached the following conclusions, with which I respectfully agree and which I adopt for present purposes (at 611):
"For these reasons I conclude that it is not possible for this court to adopt a rule which would preclude an unsuccessful applicant for interlocutory orders from repeating the application, on the ground of abuse of process, simply because the applicant sought to rely on additional relevant facts which did not amount to fresh evidence. Some other factor must, in my view, be present before an abuse of process is established, although, since the respondent is being faced a second time with an application for extension of time to bring proceedings, the potential for the second application to amount to an abuse is readily apparent."
123 In the present case, although the failure of the respondent's legal advisers to produce the evidence explaining delay in the first application must necessarily be severely criticised, I, for my part, do not regard the making of the second application, with the inclusion of that material, as constituting, relevantly, an abuse of the Court's process. The exercise by the primary judge of a discretion to admit and consider this evidence was not flawed. It was not necessary, for its admission, that it be established that it was, despite due diligence, unavailable for the first hearing. The fact that the appellant was subjected to a second application and hearing because of default in relation to the first hearing was, of course, a matter to be taken into account in the exercise of his Honour's discretion. The weight to be attributed to that fact was a matter for his Honour. It is, in my view, sufficiently apparent from the passage already cited, that it was taken into account in circumstances where his Honour attributed little significance to it. He considered that the appellant's interests could be protected by an appropriate cost order. In my opinion no miscarriage of discretion has been shown in his Honour adopting this course.
124 I should add that, in my opinion, no additional factor was demonstrated in the present case which could cause the second application to be an abuse of process. It was not simply a repetition of the previously failed application. It was, quite clearly, a genuine endeavour to repair the deficiencies in the first application. It was not a case of "hawking" the application from judge to judge in a search for a successful outcome. It may be noted, of course, that it was only a second application. A third application following upon two previous failures might well enter the area of abuse of process.
125 The next attack made by counsel for the Nominal Defendant was to the effect that Williams DCJ had, in reaching his decision, failed to apply principles enunciated by the High Court of Australia in Brisbane South Regional Health Authority v Taylor (1996-1997) 186 CLR 541 and subsequent decisions of this Court applying it. It was also submitted that his Honour had erred in failing to apply the principles enunciated by this Court in Salido v Nominal Defendant (1993) 32 NSWLR 524. It is convenient to refer to the latter decision first.
126 In Salido a District Court judge had refused to grant leave to the appellant to commence proceedings out of time. In doing so he had expressed the view "that leave of the Court should not be given lightly and that claimants must show something truly special or extraordinary before leave should be given." This construction of the section was rejected. Gleeson CJ (at 532) said that "the proposition that an applicant 'must show something truly special or extraordinary' adds a gloss to the statute which alters its meaning and effect." He further said "I see no reason to characterise the circumstances that might, in a given case, justify leave under s 52(4) as necessarily extraordinary or truly special. The question is what is fair and just." His Honour further said:
"It is true that the exercise of the discretion is to be approached on the basis that the onus is on the applicant to show why it is fair and just that in his or her case there should be a dispensation from a general rule established by the statute. Nevertheless, the statute recognises that there may be cases where it is fair and just to grant such a dispensation, and the applicant should not be required to bear some additional forensic burden of indeterminate nature and unquantified weight.
To take up the words of Glass JA in McGee v Yeomans , it is not possible by judicial decision to establish in advance categories of case in which it would be fair and just to grant leave to commence proceedings out of time under s 52(4). However the following guidelines may be of assistance in obtaining consistency of decision-making:
1. Section 52(4) confers a discretion which is to be exercised judicially, in a manner that furthers the
purposes of the statutory context in which it appears. The immediate purpose, as with any limitation period, is to protect defendants against the injustice of stale claims; the statute is also aimed at promoting forensic diligence.
2. Bearing in mind those statutory purposes, the question is whether, in the circumstances of each individual case, the applicant for leave has demonstrated that it is fair and just that leave should be granted.
3. The diligence, or lack of diligence, shown by a plaintiff or a plaintiff's representatives, in ascertaining and asserting his or her rights will ordinarily be a material factor, as will the extent of the relevant delay, and the reason for it.
4. The nature and extent of any forensic disadvantage to a defendant resulting from a plaintiff's delay will also be material. The effect, if any, of the delay upon the defendant's ability to defend an action is a matter to be taken into account, and may in some cases be of decisive importance.
5. Leave under s 52(4) may be refused if it would be plainly futile to grant it, and in that connection an applicant's willingness and ability to give a full and satisfactory explanation of any delays in reporting to police, notifying claims and commencing proceedings will be material."
127 Kirby P, in discussing the effect of the section said (at 536):
"Thus, in effect, the maximum period within which the claim must be made is of the order of three years and six months. This is a period considerably shorter than that which formerly existed by successive limitation statutes applicable in this State to actions of an analogous kind. To this extent, s 52(4) is a clearly deliberate provision of the legislature which cuts down valuable rights which formerly existed. However, at the same time as the period for the commencement of proceedings has been reduced, a very large discretion has been conferred by which to permit proceedings to be taken outside that time. No express statutory guidance is given, by the terms of s 52(4), as to how the discretion is to be conferred. It is simply left to the court to decide whether "leave" should be granted or not."
128 Taylor's case involved a consideration by the High Court of s 31(2) of the Limitation of Actions Act 1974 (Q), which was quite different in its terms from s 52(4) of the Act. However, the principles relating to an application for extension of time enunciated in the judgments have been applied to other limitation sections. They were applied to s 52(4) of the Act in Henricks v Agnew (1997) 26 MVR 277 where they were considered in conjunction with the statements in Salido. After referring to the formulation in Salido Cole JA, with whom the other members of the Court agreed, made the following observations (at 284):
"In Brisbane South Regional Health Authority v Taylor , Toohey and Gummow JJ enunciated a not dissimilar test. Their Honours said, dealing with a different statutory provision:
It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant. Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission of Victoria in passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd :
"It is for the respondent to place in evidence sufficient facts to lead the court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.""
Later their Honours said at ALJR 869; ALR 6:
"Once an applicant satisfies paras (a) and (b), the Court has a discretion to extend the time for the bringing of an action. A material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is possible. Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application. It is no sufficient answer to a claim of prejudice to say that, in any event, the defendant might have suffered some prejudice if the application had not begun proceedings until just before the limitation period had expired."
In discussing prejudice, their Honours said at ALJR 869-70; ALR 6-7:
"In this regard we have difficulty with the notion of weighing prejudice to an applicant against prejudice to the respondent. In one obvious sense the prejudice to the present respondent is absolute if her application is refused. She can never litigate her claim. But that cannot be enough itself to warrant an extension of time; in truth there would be no discretion to be exercised. For that reason we do not accept the respondent's argument that the District Court fell into error in failing to balance the prejudice to the appellant against the prejudice against the respondent. It may be appropriate to temper that approach and to say that because the respondent has satisfied para (b) of subs(2), there is therefore evidence to establish her right of action. Even then, a weighing process is not called for. The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion would not be exercised in favour of the respondent.
McHugh J, with whom Dawson J agreed adopted, in some respects, a slightly different approach. His Honour said at ALJR 872; ALR 9-10:
In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced". [25] [ Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 635]. But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. 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."
129 Cole JA noted that a previous legislative requirement that an applicant give "a full and satisfactory explanation of the delay" had been repealed. He said, however, (at 285):
"Nonetheless the applicant bore the onus of establishing that it was fair and just that a discretion be exercised in his favour to extend the time for bringing an action having retard to the background reasons for limitation periods as noted by McHugh J, the ultimate test being whether the applicant had satisfied the court that, notwithstanding the delay, and its effects, a just and fair trial could still be held."
130 In Sydney City Council v Zegarac (1998) 43 NSWLR 195, a case involving the provisions of s 60E (1)(b) of the Limitation Act 1969, Mason P considered the judgments in Taylor's case and their relevance to the section under consideration. The section was concerned with prejudice to a defendant in losing evidence which would have been available had the applicant not delayed in bringing the proceedings. He said (at 197):
"Persuasive dicta in Brisbane South indicate that it is for the party opposing the application to adduce evidence of facts suggesting particular prejudice if the discretion were exercised in the applicant's favour: see (at 547), per Toohey J and Gummow J citing Cowie v State Electricity Commission (Vic) [1964] VR 788 at 793 and Campbell v United Pacific Transport Pty Ltd [1966] Qd R 465 at 474; see also Kirby J (at 566-567). Failure to adduce such evidence may draw the unfavourable inference that specific prejudice is absent, due to the fact that it is very much in that party's camp to know of the existence, impact and "extent" of such prejudice.
However, McHugh J's judgment in Brisbane South (at 551) correctly reminds that time may "sometimes, perhaps more often than we realise" cause the deterioration in quality of evidence that is not recognisable even by the parties. The capacity of a key witness to give a credible account and to defend it under cross-examination may be undermined by the lapse of time, especially if he or she did not make a contemporaneous written statement. While a tribunal of fact should be able to assess the disadvantage, this too can be difficult; and it may not be fair to the defendant to be put at peril of losing such a case when it has been commenced out of time."
131 After making reference to a portion of the judgment of Dawson J in Taylor's case Mason P made the following observations (at 198-199):
It could therefore be seen that Dawson J and McHugh J appear to indicate that it is mandatory that an applicant negate "significant prejudice" before the discretion could be exercised in his or her favour.
What is "significant" will depend on the particular case and the "extent" and impact of the delay. But two things should be said about any test of "significant prejudice" before it is imported into s 60E. First, it is not at all clear that Toohey J and Gummow J suggest any such brightline test in their joint judgment. They joined with Dawson J and McHugh J to decide that the Queensland Court of Appeal erred. But, on the matter presently at hand, it is possible to detect possible points of difference between the joint judgment and the judgments of Dawson J and McHugh J. The joint judgment relevantly expressed itself in the following terms (at 550):
"The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent."
I perceive that there may be a distinction between the notion of "significant prejudice" and the notion of delay that makes "the chances of a fair trial unlikely. What further suggests that there is a distinction of importance between the two sets of judgments is the fact that Toohey J and Gummow J were in no doubt that the lapse of time had definitely caused "some prejudice" to the appellant in Brisbane South , if only because of the extent to which the missing witness (Dr Chang) would have to rely on his notes in view of the lapse of time involved: see at 550. The concluding paragraphs of the joint judgment (at 550) also contain an express acknowledgment that different conclusions were open on the question of prejudice to the judge at first instance in Brisbane South, and that it was not open for an appellate court to substitute its own discretion even were it of different view to that of the trial judge. Now obviously these remarks are to be read in the context of the case before the High Court. Nevertheless they represent a clear indication that mere proof of actual prejudice will not dictate the rejection of an application to extend time. I do no more than note this possible gulf between the obiter views of the justices in Brisbane South: it would be presumptuous for me to go further in an attempt to exegete the dicta in a very recent High Court decision."
132 Later his Honour said (at 199):
"Evidence of actual or significant prejudice may lead to refusal of the application, depending on the particular circumstances of the case. In weighing prejudice, its impact upon a fair trial is the primary focus, as Toohey J and Gummow J emphasise in Brisbane South ."
133 In my view, having regard to Salido and Taylor, a primary judge has a wide discretion under s 52(4) of the Act. He or she must determine on the material adduced by both sides whether it is "fair and just" that time for bringing the proceedings be extended. Obviously, a major consideration is whether the passage of time has prejudiced the potential defendant and whether such prejudice can reasonably be seen as likely to prevent a fair trial. Delay itself, especially a lengthy delay, can raise the presumption of prejudice, for the reasons stated by McHugh J in Taylor. However, the absence of proof of specific prejudice may obviously incline a judge to the view that presumptive prejudice on its own is not sufficient in the circumstances to establish the likelihood of unfairness in the ultimate hearing. Also, although there is no legislative requirement to provide a full and satisfactory explanation of delay, such an explanation or its absence must play a role in determining where the justice of the case lies.
134 The appellant asserts that the primary judge erred in the exercise of his discretion, having regard to the principles referred to above. It cannot be said that his Honour failed to advert to the principles when reaching his decision. Indeed, he makes specific reference to the cases and to relevant passages from the judgments. The appellant's argument really, as I see it, amounts to a contention that his Honour's decision was so patently wrong as to point to the existence of undisclosed error. It is put, in effect, that the prejudice to the appellant, occasioned by the extensive delay in bringing the application, was so obvious and overwhelming that his Honour could reasonably have reached only one decision, namely that there was no likelihood of a fair trial.
135 His Honour rejected this proposition. I do not consider that in so doing he exceeded the reasonable bounds of his discretion. The respondent now, as in 1990, bears the onus of establishing negligence on the part of the driver of an unidentified vehicle. He gave evidence before George ADCJ as to his recollection of events leading up to the accident. He was cross-examined about these matters and the appellant has the benefit of the answers that he gave. This cross-examination was, apparently, directed to the issue of "futility". It did not succeed in establishing this basis for rejection of the application but, quite clearly, the appellant was able to use the occasion to further the case on liability. Moreover, there has been no suggestion that the witness referred to before is no longer available. Although the witness' recollection may not now be as vivid as it was in 1990, the statement that he made shortly after the accident is still available to refresh his memory or to be used as primary evidence. Moreover, no evidence was put before his Honour on behalf of the appellant to suggest that the witness, a relatively young man, has, at this stage, a significantly diminished recollection of the accident. In my view, it was reasonably open to his Honour to find that there was no significant prejudice to the appellant in relation to liability. There was, consequently no miscarriage of his discretion in this regard.
136 It was next submitted on behalf of the appellant that there was "irremediable prejudice" in relation to the issue of damages. Because the Nominal Defendant and/or his insurer had heard nothing from the respondent since the Nominal Defendant's letter denying liability in June 1990, no medical examinations of the respondent had been undertaken on their behalf. The respondent's claim was potentially a very high one, it being asserted that he had, as a result of the accident, suffered significant brain damage with serious adverse consequences to his enjoyment of life and employability. The nature of his injuries and their consequences were set out in the claim form forwarded on his behalf in 1990. The potential of the claim was, therefore, made known to the appellant at an early date. It could have organised medical examinations at that point of time if it had chosen to do so. However, it denied liability specifically on the basis of the witness statement it had obtained and, presumably, waited to see whether any proceedings would eventuate.
137 In fact, as appears from the evidence, the respondent and his solicitors pursued a Workers' Compensation claim, which involved another insurer. That insurer undertook extensive medical examinations relating to the plaintiff's head injury and its consequences. It was not suggested that this evidence would not be available to the Nominal Defendant and its insurer. Although the Workers' Compensation insurer would seek to recover the amount ultimately paid to the respondent from the Nominal Defendant's insurer, there was nothing to suggest to his Honour or to this Court that the reports obtained by the Workers' Compensation insurer would do other than conscientiously and professionally define the injuries and their effects present and future. No evidence was placed before his Honour to suggest the contrary. In these circumstances it was, in my opinion, open to his Honour to find that, despite the lengthy period of delay, no significant prejudice had accrued to the appellant in respect of the issue of damages. In my view, no miscarriage of discretion has been demonstrated in this regard.
138 The next issue posed for his Honour's determination was whether the extension of time should be refused because no satisfactory explanation had been given for the extensive delay in bringing the application. As has already been indicated, there was no statutory requirement to explain delay. Nevertheless, as appears from Salido, delay and its explanation are factors to be taken into account. In this regard, it would appear that the ultimate question is whether the delay, explained or not, has diminished the likelihood of a fair trial.
139 His Honour had before him the additional material filed in the second application. He also had the transcript of the oral evidence given in the first application. He expressed the view that "clearly from the affidavit material before me the possibility exists that the plaintiff's firm of solicitors have not been diligent in their prosecution of his motor accident claim." He expressed the view that "if any blame attaches in regard to the delay between 1990 and 1996 the plaintiff is blameless and the responsibility lies with the plaintiff's solicitors and that is a material matter which I can take into account."
140 Counsel for the Nominal Defendant has submitted that this finding of blamelessness on the part of the respondent is clearly wrong and amounts to a miscarriage of discretion. This submission is founded on the letter and telephone conversation between the respondent's solicitors and the respondent in 1990, to which reference has already been made. The letter spoke of a necessity to commence proceedings by 30 June 1990. The evidence of the telephone conversation comes from a file note made by the solicitor then acting for the respondent which indicates that the respondent was to decide whether he wished to proceed with his motor vehicle claim. It does not appear that the respondent was cross-examined about this telephone conversation when giving evidence before George ADCJ. It is a question, in all the circumstances, what significance can reasonably be attributed to it. The respondent has suffered the effects of his closed head injury since the time of the accident. This has affected his memory and concentration. These effects would have been present in June 1990. It was well open to his Honour to find that at all times the respondent attributed blame for the accident to the driver of the unidentified motor vehicle. There was also evidence in the affidavits of the respondent and in his oral testimony before George ADCJ that he wanted to take proceedings to recover damages, as he was well aware of the serious effects that the accident had produced. It was clearly open to his Honour to find that at all times the respondent relied upon his solicitors to prosecute his common law claim. It was his contention that he had been told that his Workers' Compensation proceedings should be finalised before the motor vehicle claim was brought and that he was, at all relevant times, unaware of the existence of any time limit in that regard. In my opinion, on the reading of the whole of the material placed before his Honour, it was quite open for his Honour to find that the plaintiff was "blameless". In this regard, no relevant miscarriage of discretion has been demonstrated.
141 There is no doubt that there have been extensive periods of delay in this matter. Appropriate steps were taken shortly after the accident by way of investigations, advertisement, and the serving of notice of claim on the Motor Accidents Authority. These steps resulted in a denial of liability by the insurer on 21 February 1990. At that point of time, pursuant to the legislation, proceedings could have been commenced against the Nominal Defendant. However, nothing further was done by the respondent's solicitors until 5 July 1996 when an unnecessary second notice of claim was served on the Motor Accidents Authority resulting in a further denial of liability by the insurer. Thereafter a further period elapsed before the first notice of motion for extension of time was filed on 24 July 1997, resulting in the rejection of the application by George ADCJ on 15 September 1997. The next notice of motion, the commencing point of these present proceedings, was filed on 28 September 1998. It is the contention of counsel for the Nominal Defendant that no satisfactory explanation for the delay was provided in the evidence before the primary judge. Consequently, when finding, as he did, that such an explanation had been given, he was so plainly wrong as to lead to the necessary conclusion that his exercise of discretion had miscarried.
142 His Honour did not undertake any analysis of the facts relating to the individual periods of delay. However, his observations as to lack of diligence on the part of the respondent's solicitors are clearly supported by the material that was before him. Mr Gorrie indicated, that he commenced to act for the plaintiff in May 1995. Before that the respondent had been represented consecutively by two solicitors who had left the firm. Mr Gorrie's evidence indicates that an approach was made to each of them to obtain information bearing upon the delay in commencing proceedings. One had no recollection. The other had left the firm in acrimonious circumstances and was uncooperative. It is clear that one or both of these solicitors had been acting for the respondent in Workers' Compensation proceedings relating to a right knee injury suffered in his employment. An extensive chronology of the steps taken in these proceedings was provided as an annexure to an affidavit of Mr Gorrie. These proceedings were finally disposed of in November 1996. It appears that proceedings for Workers' Compensation in respect of the subject accident were commenced on 3 March 1994. It appears to have been accepted that, the same insurer being involved, these proceedings were joined with the previous proceedings and were also finally disposed of in 1996. Mr Gorrie acted in these proceedings. The respondent's evidence establishes that he was in fairly regular contact with the solicitors who were acting for him and had conversations with them, not only in respect of the Workers' Compensation proceedings but also his motor vehicle claim. He thought that all proceedings were going ahead. He said "I was originally told we had to finish the Workers' Compensation before you did the motor vehicle accident, otherwise it created a lot of work which doubled up or something." He further said that in relation to the motor vehicle accident proceedings he relied upon his solicitor's advice "in terms of what to do and when to bring proceedings." He said he "asked a number of times how long it is going to take" and was told "it was proceeding on schedule." He remembered talking to the solicitor "about the third party somewhere near when the Workers' Compensation was getting close" and recalling that "he reaffirmed that we needed to know what the Workers' Compensation outcome was first."
143 The strong impression gained from the reading of the whole of the material is that the solicitors who acted for the respondent, including, in the later stages, Mr Gorrie, concentrated upon his Workers' Compensation proceedings and neglected to advance the proceedings against the Nominal Defendant. His enquiries about progress of that action were brushed aside. Even after Mr Gorrie commenced to act for the respondent, there was clearly no adequate focus upon the third party proceedings. The preparation of the application to extend time was conducted at a fairly leisurely pace. The respondent had moved to Queensland and, as indicated by a chronology placed before his Honour, there was some delay in obtaining the return of affidavits from him. Mr Gorrie agreed that about three months of the relevant period of delay could be attributed to the respondent's slow return of affidavits but that the rest of the period of delay was attributable to himself and to counsel. The deficiencies in the first application were similarly attributable to the legal advisers.
144 His Honour also had before him considerable and significant evidence of the effect of the head injuries upon the respondent's organisational capacities. The respondent was, to a large extent, focusing his diminished capacities upon retaining his job and, when that was lost to him, obtaining other work within his diminished ability. He was also occupied for some time in caring for his wife who was in ill health.
145 His Honour had before him material which established that during the periods of delay, the respondent was relying upon his solicitors, who clearly let him down. He bore no personal responsibility for the delay.
146 His Honour did not accept that, in the circumstances of the case, the sins of the solicitors should be visited upon the respondent. In circumstances where no significant prejudice to the Nominal Defendant had been established this would be unfair to him. He would be debarred from bringing his action based on the negligence of the unidentified driver and would have, in substitution, a right of action against his solicitors for professional negligence. In this regard his Honour made the following observations:
"For the reasons stated in Forbes v Davies & Anor (1994) Aust. Torts Reports 81-279 at pg. 61404 and 61405, if the plaintiff has a relevant action against his instructing solicitors in regard to this matter, in my view the weight that should be attached to it should be minimal and the matter ought proceed in accordance with the normal way such matters are considered and assessed."
147 In the case cited in this passage reference is made to decided cases in which it has been held that an applicant for extension of a limitation period should not be "bound" by negligent delays on the part of the solicitor. In my view, there can be no hard and fast rule that a solicitor's mistakes will necessarily act as a bar to his client obtaining an extension of time, particularly where the Court hearing the relevant application has been provided with a discretion as wide as that accorded by s 52(4) of the Act. Salido does not establish such a rule. Moreover, it by no means follows that an action brought by the respondent against his solicitors would necessarily succeed or be productive of an award of damages of the size that might be obtained in the claim against the Nominal Defendant, should it succeed.
148 I am not prepared to hold that his Honour was in error, in the passage cited above.
149 The appellant's final submission is that his Honour fell into appellable error when he excluded from the respondent's permitted claim the heads of damage already referred to. I am not persuaded that this is so. It would always have been open to the respondent to abandon these aspects of his claim for damage without, thereby, destroying his cause of action. It may be noted that there has been no cross-appeal in respect of this part of his Honour's decision.
150 In my view, the appellant's attacks upon his Honour's decision have failed. Accordingly, the appeal should be dismissed with costs.
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