The conclusion of the 1 November 1999 report, which was before the primary judge, was that the applicant's back symptoms were causally related to the accident, and that he has "ongoing significant partial work incapacity". That report did not reveal any suggestion by Dr Patrick that in the course of his examination of the applicant on 20 October 1999 he had had undue difficulty in separating the effects of the appellant's lifestyle from the effects of the accident.
17 The respondent contended before this Court that the further evidence should not be received because the appellant ought to have been aware that an issue would arise in relation to the capacity of doctors to diagnose the nature of the plaintiff's injuries and to offer a view as to whether the injuries were attributable to the car accident, or to playing rugby, or to farm work.
18 However, the issue was not so obvious that it went without saying that the respondent would rely on it. The fact that Dr Patrick had offered an opinion in his 1 November 1999 report was some evidence negating the suggestion that diagnosis was impossible or very difficult. Some respondents might have chosen not to take the point that diagnosis was impossible or very difficult.
19 Where the respondent to an application fails to signal a prima facie case of prejudice, either by evidence to be tendered by the respondent, or by an indication that some part of the applicant's evidence will be relied on to raise a prima facie case of prejudice, it will not be possible for the applicant to deal with the point satisfactorily. Here the respondent was able to point to material in the applicant's evidence raising the possibility of prejudice, namely a difficulty of assessing whether the injury was effected only by the accident or also by the applicant's conduct in playing rugby union at a high level and in carrying out farming work after the accident. But that possibility was capable of being rebutted by evidence. The fact that that possibility was not availed of by the applicant in view of the respondent's failure to give prior notice of the point successfully taken creates an injustice justifying reception of the evidence in this Court. That is sufficient to dispose of the respondent's objection to the tender of further evidence. But the importance of the underlying issues perhaps justifies a little more being said.
20 Applications to extend limitation periods or otherwise seek the leave of the court to commence legal proceedings after some delay are common in modern personal injury litigation. That is because the legislation which regulates wide areas of that type of litigation generally requires procedural steps to be taken within periods which, compared with earlier times, are relatively short. The two commonest types of personal injury litigation are litigation arising out of injuries at places of employment and litigation arising out of the use of motor vehicles. The injuries in respect of which intending plaintiffs responsible for some form of disabling delay seek to sue are often extremely serious. Applications seeking the court's sanction to overcome the delay are thus extremely important, for if they fail, the financial position of applicants and their dependent families can be ravaged. Those applications take up a large amount of the District Court's time, and a significant amount of this Court's time.
21 The conduct of the application from which this appeal is brought and the conduct of the application from which the appeal heard at the same time, Malone v NSW National Parks & Wildlife Service, together with the conduct of the two appeals themselves, suggest that a particular attitude to this kind of litigation prevails, even in the 21st century, among the profession and perhaps the bench. The attitude in question reflects the forensic system of an earlier age. It was described in Donaldson v Harris (1973) 4 SASR 299 at 302 by Wells J thus:
"… the old common law … was based, with rigorous logic, upon the system of litigation by antagonists. By virtue of the underlying principles of that system, it was the treasured right of each litigant to store up, in secret, as many unpleasant surprises for his opponent as he could muster, and only reveal them at the last minute at the trial (or contest) in the presence of the judicial umpire: nemo tenetur armare adversarium suum contra se (1628) Co. Litt. 36a. As Wigmore has put it (Evidence, 3rd ed. (1940), vol. VI, page 376) the common law regarded 'the concealment of one's evidential resources and the preservation of the opponent's defenceless ignorance as a fair and irreproachable accompaniment of the game of litigation'."
22 There are several reasons why that approach to the conduct of applications to extend time or to be excused for delay must cease.
23 First, that approach to litigation was common in, and may have been thought by contemporaries to be appropriate to, ages when human relations were different from what they are expected to be now. Modern employers are expected to treat their employees differently from the way in which some hard-faced and grasping cotton miller or iron maker in the time of Richard Cobden might have behaved. The workplace is supposed to be reasonably safe, and it is expected that those with bona fide claims to have been injured will be compensated, if the law permits this, without undue obstructiveness. Similarly, it is expected that the claims for compensation arising from the collisions of motor vehicles which are almost inevitable in modern traffic conditions will be processed cooperatively, without constant hindrances and difficulties being raised.
24 Secondly, the modern expectations just referred to arise partly because even in an age of trade unions closely linked to solicitors who are specialists in personal injury work, there is an imbalance between the power of injured persons and their employers. There is a similar imbalance between injured motorists and those whom they wish to sue. Personal injury plaintiffs as a class lack the liquid resources needed to fund long-drawn out forensic struggles.
25 Thirdly, modern personal injury litigation is generally brought against insured defendants, that is, in substance it is not brought against the defendants themselves but against the insurance companies behind those defendants. Speaking generally, the State has given the relevant insurance companies various advantages at the price of a substantial degree of regulation. Modern litigation depends on an assumption of the probity and solvency - admittedly an assumption which is at present being falsified almost daily - of insurance companies. The sort of desperate and adamantine resistance which might be understandable if engaged in by an uninsured householder who will be ruined by a successful claim is wholly inappropriate if engaged in by an insurance company which is the beneficiary, for example, of a stream of premium income flowing to a small class of companies of which it is a member in consequence of a compulsion on citizens to pay those premiums each time a motor vehicle is registered.
26 Fourthly, the conduct of litigation as if it were a card game in which opponents never see some of each other's cards until the last moment is out of line with modern trends. Those trends were developed because the expense of courts to the public is so great that their use must be made as efficient as is compatible with just conclusions. Civil litigation is too important an activity to be left solely in the hands of those who conduct it.
27 To begin with, if practitioners in personal injury work are accustomed to maintain poker faces, to keep their guards up at all times, and to let opponents who are proceeding in ignorance continue in that course, they should perhaps, as Sir George Jessel used to say, move over to "what is known as the other side of Westminster Hall" to observe what procedures prevail there.
28 Allsop J has valuably expounded the appropriate approach to commercial litigation in the Federal Court in White v Overland [2001] FCA 1333 at [4]:
"However, by way of general principle I would simply like to make perfectly plain my view that in the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that in the propounding of issues for trial the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. Any practice of quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue should be discouraged firmly. Even if something has been said, where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, as a general rule, efficiency, common sense and an appreciation of the costs and resources (both public and private) likely to be wasted by confusion in litigation will mandate that a party through his or her representative ensure that the other is not proceeding on a misconception or that the other does appreciate something that has been said. Litigation is not a game. It is a costly and stressful, though necessary, evil. To paraphrase Roscoe Pound from 'The Causes of Popular Dissatisfaction with the Administration of Justice' (1906) 29 ABA Rep 395, 404-406, the 'sporting theory of justice' and any behavioural manifestation of it should be seen as a survival, or better, a relic, of the days when a lawsuit was a fight between two clans: cf Jackamara v Krakouer (1998) 195 CLR 516 at 526-527 per Gummow and Hayne JJ. Representatives do not owe duties to the other side's client. They owe duties to their own client. But no one's interests are advanced by litigation proceeding on assumptions which are seen or suspected to be false. This is very much the case when an issue, if it is to be propounded, might endanger the instructions of those acting for the other side. In saying this I need make no reference to the well-known responsibility of the Crown and emanations of the Crown to act at all times as model litigants beyond referring to what was said by the Full Court of this Court in Scott v Handley [1999] FCA 404 at [43] ff. I would expect no less than that which I have indicated of bitterly competitive commercial parties in the hardest fought of cases. In the long run, the only consequence of keeping issues hidden or not clearly identifying them is to disrupt the business of the court leading to the waste of valuable public resources and to lead to the incurring of unnecessary costs by the parties, costs which ultimately have to be borne by someone."
29 The same approach operates in commercial and equity litigation in this Court. In that activity it is common for counsel to volunteer to each other what points will be argued and what authorities will be relied on. If one counsel requests that type of information from another, it is usually given. If it is not given, a speedy approach to the court is usually possible in which the difficulty will speedily be remedied. Even as long ago as the time when Mr H H Glass QC and Mr J W Smythe QC had their celebrated conversation about exchanging notes for argument in the course of a murder trial, Mr Smythe may have been right about criminal trials, but Mr Glass was right about equity suits.
30 Indeed, even in personal injury litigation the ambush theory of life has been abandoned in District Court trials as much as in Supreme Court trials. Matters are readied for reasonably expeditious hearing by a series of interlocutory appearances. Detailed particulars must be supplied under, for example, Pt 9 of the District Court Rules. Pleadings are expected to be clear and to be adhered to. Expert reports cannot be relied on unless served well in advance.
31 If the ambush theory of litigation is permitted to survive in the specific area of time-extension proceedings, it will do no party any good, least of all the potential defendants. In the first place, it will have the effect of imposing on all applicants in this type of litigation a duty to file evidence which is adequate to deal with every conceivable point which might be taken against them. This would generate undue expense, would tend to consume court time unnecessarily, and would produce the undesirable result that applications to extend time would become mini-trials of the contemplated action. Even if the first application failed because the applicant had been surprised, it would be possible for a second application to be made: Nominal Defendant v Manning (2000) 50 NSWLR 139. That is an undesirable waste of scarce and valuable judicial time in the District Court, but the court might well hold that the second application is not an abuse of process and should proceed if it was necessitated by the fact that the applicant was ambushed in the course of the first application. Alternatively, an ambushed applicant might decide to do what the present appellant did, and apply to this Court seeking leave to appear and tendering further evidence. Fascinating though the Court finds this type of work, that too is undesirable, since the time of three judges is consumed and not just one, but it may be necessary if justice is to be done to an applicant. It is simpler, cheaper, more efficient and fairer for resort to these manoeuvres to be avoided and for appropriate notice to be given by respondents to applicants before the application to extend time is first heard.
32 If respondents to this kind of proceeding cannot behave in the manner just indicated as desirable, it may be necessary for the relevant authorities, if they think fit, to amend the rules of court or issue some practice direction in a way which will cause this type of controversy to be resolved without undue expense.