Ortlipp v Employers Mutual NSW Limited as agent for the Workers Compensation Nominal Insurer

INTRODUCTION 1Patricia Ortlipp was injured on 6 September 1990 and since that time has received workers compensation benefits. On 11 June 2013 she commenced proceedings in negligence for work injury damages against the relevant insurer. In this application she seeks leave to maintain these proceedings pursuant to s 151D of the Workers Compensation Act 1987.

BACKGROUND 2Ms Ortlipp injured her right wrist at work at the Harbord Diggers Club on 6 September 1990. There were renovations occurring at the site at the time. She claimed to be pushing a trolley containing coins when a wheel of the trolley was caught in a gap or hole in an irregular floor, which caused the trolley to tip over onto her. She was off work for a period but returned on light duties in late 1990 until May 1991 when her employment ceased. 3Ms Ortlipp sought legal advice in about late 1991 and brought a workers compensation claim which was resolved in 1994 when she received lump sum compensation benefits. Her treatment included a number of operations on her right wrist. The insurer met the costs of the operations. She also apparently continued to receive weekly benefits. 4In November 2009 Ms Ortlipp sought further legal advice and a claim for further lump sum compensation entitlements was pursued. That claim was finalised in August 2012. 5Ms Ortlipp says she was never advised that she might have a negligence claim against her employer until August 2011 when she received a letter from the common law division of Brydens, her solicitors.

LEGISLATION 6Section 151D(2) provides: "(2) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken." 7Although the provision bars the commencement of court proceedings without leave, commencement of the proceedings is not a nullity (see Maricair v Principal & Councillors of Wesley College (2000) 19 NSWCCR 368; North Broken Hill Ltd v Vockins (1999) 19 NSWCCR 193). The defendant does not submit that this application must fail because it is brought after the proceedings have been commenced.

ISSUES 8The parties exchanged lists of the real issues in the application. Those lists reveal the issues to be: (1)Does an election made by the plaintiff to pursue permanent loss compensation in respect of the injury preclude her from maintaining this claim; and (2)Is it just that the plaintiff be granted an extension of time within which to commence proceedings pursuant to s 151D of the Workers Compensation Act 1987. The second issue raises matters such as the plaintiff's explanation of the delay and the prejudice to the defendant including the loss of a potential cross-claim.

(1) THE ELECTION POINT 9Ms Ortlipp conceded that in 1994 she made an election under s 151A of the Workers Compensation Act 1987, as it then stood. That section provided: "151A. (1) In this section- 'damages' does not include damages to which Part 6 of the Motor Accidents Act 1988 applies; 'permanent loss compensation' means compensation under Division 4 of Part 3 (Compensation for non-economic loss). (2) A person to whom compensation is payable under this Act in respect of an injury is not entitled to both- (a) permanent loss compensation in respect of the injury; and (b) damages in respect of the injury from the employer liable to pay that compensation, but is required to elect whether to claim that permanent loss compensation or those damages. (3) The person makes that election- (a) by commencing proceedings in a court to recover those damages or by accepting payment of those damages (in which case the person ceases to be entitled to permanent loss compensation in respect of the injury); or (b) by accepting payment of that permanent loss compensation (in which case the person ceases to be entitled to recover damages in respect to the injury). (4) An election is irrevocable, except that an election to claim permanent loss compensation may be revoked with the leave of the court given in accordance with this section. (5) If- (a) a person elects to claim permanent loss compensation in respect of an injury; and (b) after the election is made, the injury causes further material deterioration of the person's medical condition that, had it existed at the time of the election, would have entitled the person to additional permanent loss compensation; and (c) at the time of the election, there was no reasonable cause to believe that the further determination would occur, the person may, with the leave of the court and on such terms (if any) as the court thinks fit, revoke the election and commence proceedings in the court for the recovery of damages in respect of the injury. (6) If the election is revoked the permanent loss compensation paid is not required to be repaid, except out of the damages recovered in accordance with s 151B. ..." 10Both parties agreed that this provision continued to govern the claim by reason of transitional provisions to which I was not taken. The same result might result from the protection of accrued rights affected by s 30 of the Interpretation Act 1987. 11Thus, the parties were in agreement that: (a)Ms Ortlipp was required to and did elect to claim permanent loss compensation; (b)that election is irrevocable without leave; (c)no application has been made for revocation of the election; (d)Ms Ortlipp was accordingly not entitled to "commence proceedings" to claim damages in respect of the injury from the employer. 12However, Ms Ortlipp maintains that the insurer is not entitled to raise s 151A because that defence is not pleaded. 13Because of the absence of any application by Ms Ortlipp for leave to revoke her election and the absence of any amended defence raising the election point, the matter was previously adjourned. Consent directions were made including the following: "5. Any motion in respect of leave to file an amended defence, and revocation of an election under s 151A to be filed...and heard with the present motion." 14The insurer filed a motion to amend its defence to raise 151A but Ms Ortlipp made no application for leave to revoke her election. She submitted that such an application would require some months to prepare. This is not a matter that was raised on the earlier occasion when the consent directions were made. 15However, notwithstanding the continuance of the irrevocable election and the application to amend the defence, Ms Ortlipp maintains that the s 151A point cannot be pleaded in the defence to defeat her claim because it was not raised in the pre-filing defence. The insurer conceded that there was no reference to s 151A in its pre-filing defence. 16The argument of Ms Ortlipp relies upon s 318 of the Workplace Injury Management and Workers Compensation Act 1998 ("the WIM Act") which provides: "318 Parties limited to pre-filing statement and defence (1) For the purposes of court proceedings on a claim for work injury damages: (a) the claimant is not entitled to file a statement of claim that is materially different from the proposed statement of claim that formed part of the pre-filing statement served by the claimant, except with leave of the court, and (b) the defendant is not entitled to file a defence that is materially different from any defence served on the claimant in response to the claimant's pre-filing statement within 42 days after service of the pre-filing statement, except with leave of the court, and (c) the defendant is not entitled to file a defence that wholly or partly disputes liability for the claim if the defendant has failed to serve on the claimant a defence to the claim as required by this Division within 42 days after the claimant served the pre-filing statement on the defendant, and (d) a party to the proceedings is not entitled to have any report or other evidence admitted in the proceedings on the party's behalf if the report or other evidence was not disclosed by the party in a pre-filing statement or defence served under this Division, except with leave of the court. (2) The court is not to grant leave under this section unless satisfied that: (a) the material concerned was not reasonably available to the party when the pre-filing statement or defence was served, and (b) the failure to grant leave would substantially prejudice the party's case. (3) The regulations may provide for exceptions to this section." 17This argument of Ms Ortlipp appears to depend on each of the following matters: (a)the present proceedings are irregular but not a nullity; (b)the terms which the court might impose upon Ms Ortlipp on an application to revoke the election under s 151A(5) cannot overcome the defect in the pre-filing defence; (c)section 318 applies to the present proceedings; (d)a defence referring to s 151A is "materially different" from a defence not referring to s 151A; (e)the court is precluded from granting leave to amend the defence because "the material concerned" was "reasonably available" to the defendant.

A. WERE THE PRESENT PROCEEDINGS A NULLITY 18Sections 151A(2), (3) and (5) provide that a plaintiff who has received permanent loss compensation is "not entitled" or "ceases to be entitled" to work injury damages unless the plaintiff obtains "the leave of the court" and revokes the election to claim permanent loss compensation. 19Section 151A does not expressly preclude the commencement of proceedings. But the terms of subs (5) ("revoke the election and commence proceedings") imply that revocation must precede commencement. However, Maricair and North Broken Hill Ltd, cited above in respect of s 151D, suggest that provisions that bar commencement before satisfaction of some precondition do not render a nullity proceedings commenced before the preconditions are satisfied. As Handley JA stated in North Broken Hill: "Provisions of this nature are construed as procedural and for the benefit of the defendant and therefore capable of being waived by the defendant". 20I am not persuaded that the reference to an "election" in s 151A renders this rule inapplicable. The provisions are not materially different from the provisions dealt with in Maricair. Section 151D (unlike s 151A) expressly precludes commencement without the satisfaction of the precondition. Thus, if anything, s 151A would seem more likely to be construed as procedural only. There is no "fundamental miscarriage" that would suggest a nullity (see Brennan v Brennan (1953) 89 CLR 129 at 134). 21For these reasons, I conclude that the precondition of a revocation of an election is able to be satisfied after the commencement of the proceedings so as to remove the procedural irregularity and "regularise" the proceedings. As was the case in North Broken Hill, the defendant is able to waive the need for this requirement. The present proceedings are not a nullity.

B. TERMS OF LEAVE FOR REVOCATION 22The court may impose terms on any leave granted to Ms Ortlipp to revoke her election. Could those terms remedy any failure by the insurer in its defence? Of course if leave is granted, the s 151A defence falls away so there is no utility in preserving some ability in the insurer to plead a defence based on the election. If leave is not granted, no terms can be imposed. 23Accordingly, the ability of the court to impose terms on any grant of leave pursuant to s 151A(5) cannot assist the defendant in the present application.

C. THE APPLICATION OF S 318 TO THE PRESENT PROCEEDINGS 24Both parties relied on the decision of Wilson v State Rail Authority of New South Wales (2010) 78 NSWLR 704; [2010] NSWCA 198, but to establish contrary propositions: that s 318 of the WIM Act did, and did not, apply to the present proceedings. Ms Ortlipp relied also on Attileh v State Rail Authority of New South Wales (2005) 62 NSWLR 439; [2005] NSWCA 64, whereas the insurer submitted that that decision had been overruled. 25In my view, neither party is wholly correct. Attileh was authority for the proposition that some procedures prescribed in the WIM Act applied to injuries suffered prior to 30 June 1987. That is not this case where the injuries were suffered in 1990. 26Wilson, which also dealt with pre-1987 injuries, overruled Attileh at [183]. However, there were obiter remarks by Allsop P in Wilson, agreed to by the other four members of the court, that the reasoning in Attileh was of relevance to injuries received after 4pm on 30 June 1987 (see [183], [185], [187]). For this reason and because of the decisions of Gett v Tabet [2009] NSWCA 76 (which dealt with 1991 injuries) and East West Airlines Ltd v Turner (2010) 78 NSWLR 1; [2010] NSWCA 53 (which dealt with 1992 injuries), decisions referred to in Wilson, it seems that s 318 is a procedural provision applicable to the current proceedings. Certainly, by serving pre-filing statements the parties treated it as applicable although the significance of the parties' actions in this regard may be doubted. 27In my view, s 318 is applicable to the dispute before me.

D. DOES THE INCLUSION OF A REFERENCE TO S 151A RENDER THE AMENDED DEFENCE "MATERIALLY DIFFERENT" FROM THE PRE-FILING DEFENCE 28In the absence of revocation of the election s 151A would be a complete defence to Ms Ortlipp's claim. Although there is no definition of "materially different" in the WIM Act, it seems to me that a defence that does not maintain the s 151A point is materially different to a defence that does maintain it. 29But is the defence obliged to plead s 151A in order to maintain it as a defence. 30Rule 14.14 of the Uniform Civil Procedure Rules 2005 provides: "14.14 General rule as to matters to be pleaded specifically (cf SCR Part 15, rule 13; DCR Part 9, rule 9) (1) In a statement of claim, the plaintiff must plead specifically any matter that, if not pleaded specifically, may take the defendant by surprise. (2) In a defence or subsequent pleading, a party must plead specifically any matter: (a) that, if not pleaded specifically, may take the opposite party by surprise, or (b) that the party alleges makes any claim, defence or other case of the opposite party not maintainable, or (c) that raises matters of fact not arising out of the preceding pleading. (3) Matters which must be pleaded pursuant to subrule (2) include (but are not limited to) fraud, performance, release, statute of limitation, extinction of right or title, voluntary assumption of risk, causation of accident by unknown and undiscoverable mechanical defect and facts showing illegality." 31The defence already pleads a limitation defence under s 151B, which is required by r 14.14(3). 32In my view, the rules also require the election under s 151A to be alleged, first, by reason of the reference in r 14.14(3) to the need for "release" and "extinction of right or title" to be pleaded, and also the reference in 14.14(2)(b) where there is a need to plead a defence that makes the claim of the plaintiff "not maintainable". 33Further, I note that at [14.14.10] in Ritchie's Uniform Civil Procedure NSW there is reference to the need for statutory defences to be specifically pleaded: "Statutory defences or limitations: Any grounds of statutory defence should be specifically pleaded. These include (i) a defence of statutory authority: Coburn v Collins (1887) 35 Ch D 373; Hayward Brothers v Lely & Co (1887) 56 LT 418; (ii) a defence of formal non-compliance with a statutory requirement (such as lack of writing or notice): Clarke v Callow (1876) 46 LJQB 53; Olley v Fisher (1886) 34 Ch D 367; (iii) a specific statutory exclusion or limitation of liability: Sydney South West Area Health Service v MD (2009) 260 ALR 702; [2009] NSWCA 343; BC200909477 at [20]-[24], [51], [61]-[64] (professional standards - reliance on s 5O of the Civil Liability Act 2002); Bellingen Shire Council v Colavon Pty Ltd (2012) 188 LGERA 169; [2012] NSWCA 34; BC201201158 (defence under s 43A of the Civil Liability Act 2002)." 34However, there are two possible answers to this argument. 35First, must Ms Ortlipp raise her election, or leave to revoke it in her statement of claim? Although the rules provide that Ms Ortlipp must plead specifically any matter that takes the defendant by surprise under 14.14(1), there is no matter she would plead. She cannot plead any relevant fact about leave or revocation since she has obtained no revocation of the election. And the rules do not require her to disclose some defect in her case such as an absence of leave, or her prior election. Further, even if Ms Ortlipp had obtained revocation of the election, that would seem to be a condition precedent to a claim that is taken to be implied in the statement of claim under r 14.11. 36A second possible answer is whether the Uniform Civil Procedure Rules 2005 apply at all. Part 19 of the Uniform Civil Procedure Rules 2005 and s 64 and s 65 of the Civil Procedure Act 2005 allow amendments, some as of right and others by leave. In times past it has been said (see Metropolitan Oils Pty Ltd v Beringer (1986) 71 ALR 327, 330 per Toohey J) that, "[t]he liberal use of the liberty to amend pleadings is one of the hallmarks of the modern judicial system" even if ss 56 to 58 of the Civil Procedure Act 2005 diminish the breadth of the spirit of that rule. However, s 318 goes further. It purports to operate as a complete bar on all substantive amendments for such amendments would create a "materially different defence". 37In my view, the specific provisions of s 318 must, if applicable, prevail over the broader power to amend contained in ss 64 and 65 of the Civil Procedure Act 2005 and Part 19 of the rules. That may be a reason why the required content of the pleadings for the purposes of s 318 should not be informed by rules such as r 14.14. 38Even so, it remains difficult to see how a defence which raises s 151A is not "materially different" from one that does not. It also remains difficult to see how s 151A can properly be raised other than by a reference in a defence. It is no answer to suggest that this is simply a matter of law that precludes the claim. Matters of law are capable of being, and are regularly, waived by the failure to raise them in a pleading. Procedural provisions like those referred to by Handley JA in North Broken Hill, quoted above are but one example, limitation provisions are another, see Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39.

E. WAS THE "MATERIAL CONCERNED" "REASONABLY AVAILABLE" 39Ms Ortlipp does not dispute that a failure to grant leave to the defendant to plead the s 151A issue would substantially prejudice the defendant as the s 151A point would provide a complete defence. However, she submits that from November 1994 the insurer has been aware of the s 151A election, as paragraph 7(a) of the proposed amended defence recognises. Thus, the "material concerned" was "reasonably available" under s 318(2). 40This raises the question of what is the "material concerned". The phrase is also not defined. There is no other reference to "material" in the section. Perhaps it is a reference to something in the nature of "any report or other evidence" referred to in s 318(1)(d) of the WIM Act (see also Australian Winch and Haulage Company Pty Ltd v Collins [2013] NSWCA 327 at [136]-[149], especially [149]). 41If I am to be satisfied that the material concerned was not reasonably available, the defendant insurer must identify what the "material concerned" is and that it was not reasonably available. It does not assist the defendant insurer to say that there is no material concerned because if so, that would mean that there was nothing that "was not reasonably available". 42Although the phrase is awkward, in my opinion the material concerned must refer to material suggesting the different defence that the insurer now seeks to maintain. The evidence of that defence is not (or not merely) the existence of s 151A but rather the proof of the facts establishing the election. 43Although the plaintiff has only recently conceded that an election was made, that is because the question never arose. It was plain to the insurer, the relevant party since 1994, that Ms Ortlipp had made a s 151A election since in 1994 the insurer resolved the initial workers compensation claim with Ms Ortlipp. At least, it was not submitted by the insurer that it was unaware of any fact constituting the election much less that some fact or evidence was "not reasonably available". 44Accordingly, subject to one matter below, I accept the plaintiff's argument about the inability, by reason of s 318 of the WIM Act, of the insurer to raise a 151A election point. 45The one final caveat I have is as follows. It may be thought that the circumstances of the election were not reasonably available merely because they happened 18 years prior to the service of the pre-filing defence. This was not an argument advanced by the insurer, at least not in plain terms. Rather, the solicitor says that he did not turn his mind to the former s 151A provision. 46However, I am not convinced such an argument is without merit. The passage of time is relevant to whether I should grant leave to the plaintiff under s 151D (considered below) because delay impacts on whether a fair trial can be held. The passage of time is also relevant to this aspect of the application: whether it is unreasonable for a party to have available at the time of service of a pre-filing defence facts and evidence concerning what happened 18 years earlier, even if upon reminder those facts are almost self-evident. 47Further, in deciding what is "reasonably available" the legislation should be construed in a way that is fair and just if that construction is available (see Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [24], referred to in Deputy Commissioner of Taxation v Zammitt [2014] NSWCA 104 at [67]). 48Adopting a narrow construction of "not reasonably available" seems unfair as s 318 would then operate to prevent amendment and thus bar for all time a party from maintaining causes of action, particulars of negligence and defences that have not been the subject of specific reference. It is certainly a major change from the way litigation practice, pleadings and amendments, in particular, have been practised for decades. However, reasons which will appear, I do not need to decide whether material concerning the election in 1994 under s151A was a matter "reasonably available" to the defendant in 2012.

(2) THE EXTENSION OF TIME 49Ms Ortlipp rightly submits that detailed medical records exist in the hands of the insurer in respect of the injury and its treatment, but there are other issues that arise in the application for the extension of time. 50In relation to a decision to grant leave there is authority for the importance of an adequate explanation for the delay, (see Gleeson CJ in Salido v Nominal Defendant (1993) 32 NSWLR 524 at 530; Holt v Wynter (2000) 49 NSWLR 128 in which a five member bench of the Court of Appeal applied the test propounded by Toohey and Gummow JJ in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 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." 51The latest quoted passage dealt with a different limitation provision. It was adopted by the Court of Appeal in Holt v Wynter to have application to s 151D(2). The principal judgment in Holt v Wynter was delivered by Sheller JA and in Parsons v Doukas (2001) 52 NSWLR 162, Sheller JA reiterated that approach. 52However, in Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104 the Court of Appeal (per Ipp AJA, with whom Spigelman CJ and Sheller JA agreed) determined that those remarks are not intended to be applicable to a case involving a lack of diligence on the part of an applicant for leave (at [55]) nor it seems "where the applicant for leave deliberately decided to allow the limitation period to expire"(at [62]). 53In Itek Graphix the reasonableness of the explanation for the delay was held at [82] to be a relevant consideration to the question whether there should be a grant of leave, although it was recognised at [88] that often a failure satisfactorily to explain the delay will not be decisive. Ordinarily, the issue of prejudice will be of paramount importance. Further at [91], "A deliberate decision to allow a statutory limitation period to expire will be a powerful factor against the grant of leave" and at [98]: "In my opinion, to grant leave to sue long after the expiry of a limitation period, when the applicant has made a deliberate decision to allow the statutory period to expire, in the absence of special circumstances explaining satisfactorily the conduct of the applicant, would set at naught the purpose of the legislation." 54In ASB-Tech Services Pty Ltd v Doeland [2003] NSWCA 167, Hodgson JA at [30]-[33] emphasised the need for the applicant to provide an explanation for the delay including, in an appropriate case, evidence whether by documents or otherwise from the plaintiff's solicitor. At [34] Hodgson JA stated: "the correct approach is to regard the provision of an explanation as a necessary step in the application, and the nature of the explanation as being a matter which has to be taken into account in the ultimate determination of whether it is fair and just to grant the extension. The weaker the explanation, the greater the need to show that there would be little prejudice to a respondent." 55In Saad v J Robins & Sons Pty Ltd [2003] NSWCA 87 Santow JA, with whom Mason P and Hodgson JA agreed, indicated the potential relevance of an injury that worsened over time (see Klimovska v George Weston Foods Limited [2012] NSWDC 246; Afarin v Excelior Pty Ltd [2013] NSWDC 65). 56These principles seem to raise the following issues: (a)whether a fair trial on liability is possible now that 24 years have passed since the injury; (b)whether the plaintiff's delay of 22 years in bringing the proceedings has been adequately explained; and (c)the effect, if any, of s 151A. 57In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, the claim was commenced in something less than 17 years after the incident. Leave was not granted in that case where the recollection of witnesses was central to the liability issue and thus to the likelihood of a fair trial. 58The same concern applies to the present case. There is a period of 23 years between this application for leave being brought and the incident. The witnesses to the incident were identified but were either unable to be found or, perhaps, in one case, had no recollection of the incident, notwithstanding extensive searches being undertaken for all relevant witnesses. 59It is apparent in this case that the condition of the floor and the nature and features of the trolley are relevant to any question of liability. Photographic evidence of these matters is unsurprisingly unavailable. Ms Ortlipp could give evidence of them from her recollection. So also could one John Robertson who gave evidence before me. Mr Robertson worked at the club at the time but left his employment there on less than friendly terms. 60Mr Robertson described the linoleum on the floor as being damaged and broken with holes in it and indicated that the trolley would get stuck in the holes. However, Ms Ortlipp's evidence was not to the effect that the trolley incident occurred when its wheels got stuck in linoleum holes but rather in a gap between the linoleum and the steel grill. 61The nature of this gap, whether it was permanent or temporary and its size relative to the wheels of the trolley are all matters about which the plaintiff alone can give evidence, because the other witnesses cannot be found. 62Ms Ortlipp was briefly cross-examined about the incident. An alternative version of events was not put to her but she gave evidence that the renovation on the site had an effect on her injury and its cause. Mr Robertson said that the renovation had not reached the area of the safe where the incident is alleged to have occurred. The plaintiff sought to have me disregard her evidence on the relevance of the renovation. But this conflict between her evidence and Mr Robertson's underlines the unsurprising frailty of the plaintiff's recollections so long after the event. 63For the purpose of this application I think I must take the plaintiff's evidence to be her best recollection, but I cannot ignore that she is attempting to recall matters that occurred 24 years ago. 64Although the general incident as she recalled it finds some support in early medical reports, the particular questions that arise in a trial on liability are not explored in those reports. If a trial is to be held, the only evidence on the events of the accident will be from the plaintiff and I regard this as a factor against the grant of leave. 65The second matter advanced by the defendant was the failure by the plaintiff to adequately explain the delay. Ms Ortlipp gave evidence as follows: "In 1994 a resolution was achieved for lump sum compensation benefits. My matter was resolved at the Sydney Compensation Court. I was never advised at the time as to my claim at common law nor was I informed that I may have had a claim in negligence as against my employer. I was advised that my worker's compensation file would remain open and that treatment would continue to be paid as long as I required it. ... 26. I was never advised that I may have available to me a claim in negligence as against my employer until August 2011, when I received a letter from the common law division of Brydens." 66There is no corroboration of the assertion of a lack of advice in 1994. Presumably, this is because her solicitor is no longer practising and records are unavailable. Whilst I do not doubt that Ms Ortlipp has no recollection of advice about a negligence claim, she is attempting to recall conversations occurring 24 years ago. It would be unlikely that the details of those conversations would remain accurately stored in her memory. 67Further, there is no express evidence of how the failure to receive advice impacted on her beliefs or on the failure to commence proceedings. The Court is left to infer, effectively on the basis of an assertion that she was not informed about a possible entitlement in 1994, that she was never informed until August 2011 of an available claim in negligence against her employer, and that the absence of advice was the material cause or a material cause in her not commencing proceedings. 68Moreover, a mere failure to receive advice, where there is no evidence about what questions were asked is, in my view, a less weighty factor in her favour than positive advice about the lack of a right or about poor prospects of an entitlement. 69In my view, the general obligation to bring proceedings within a limitation period is not removed merely by consulting a lawyer, without consideration of the circumstances, context and conversations that then occurred. 70Whilst the absence of evidence from former lawyers would not necessarily be fatal to a full and satisfactory explanation of the delay (see Khoury v Linfox Australia Pty Ltd [2006] NSWCA 51at [14], [21], [22]), nevertheless, the passage of time leaves me unconvinced of the reliability of Ms Ortlipp's recollection. 71Moreover, there is no real explanation for the further delay of almost two years from 2009 when Ms Ortlipp first consulted her present lawyers to the time in August 2011 when she said she was first informed of the availability of a negligence claim. A pre-filing statement was not served until more than a further ten months thereafter. 72Although there was some suggestion that Ms Ortlipp's injuries may have worsened over time this was not pressed as a reason for the delay in commencing proceedings. 73In the circumstances, I am of the opinion that the delay has made the chances of a fair trial unlikely because of the unavailability of relevant witnesses and the impact of the passage of time upon the recollection of the plaintiff. I am also not satisfied by the evidence of recollection of Ms Ortlipp about the advice she received in 1994 nor am I satisfied of its impact on her decision not to commence a work injury damages claim at that time. 74In my view, the words of Hodgson JA quoted above are apposite. The evidence of explanation for the delay is weak and the prejudice is significant. 75The defendant also submits that it has lost the ability to maintain a cross-claim against the builder involved in the renovations. 76In my view, the proper approach is to recognise that there was evidence of circumstances suggesting a possible cross-claim. The extent to which the renovation had impacted on the linoleum floor, the gap to the steel grate or the area generally, whether the builder or the club was principally in control of the area and possibly whether there were competing priorities in relation to work to be done (there was a reference in Mr Robertson's evidence about the need for asbestos first to be removed) all raise questions about the liability of the builder which cannot now be explored at a trial. 77Finally, the defendant raised s 151A as a reason why leave should not be granted. Although the failure of the solicitor to refer to s 151A may preclude that defence being relied upon in any proceedings, I do not think it is irrelevant to the question of whether leave to maintain the proceedings should be granted. Had the proceedings been commenced within the limitation period it cannot be assumed that the s 151A point would have been overlooked. Even if it had been overlooked, section 318 of the WIM Act was not enacted until 2002, and thus no pre-filing defence was required and so there is no reason to suppose that a later amendment to raise it would be disallowed. Thus, the delay seems directly to have impacted upon the ability of the defendant now to plead the s 151A defence, which as the plaintiff concedes in the present circumstances would be a complete answer to the claim. 78In my view, the inability to ensure a fair trial of the plaintiff's liability claim, the loss of a potential cross-claim against the builder involved in the renovations, the loss of the s 151A defence and the inevitable adverse impact of the passage of 24 years upon the ability and recollections of witnesses and availability of evidence are each sufficient in themselves to cause me to refuse a grant of leave. The unpersuasiveness of the explanation of delay is a further factor in favour of the refusal of leave.

ORDERS 79Accordingly, the orders of the Court are: (1)The plaintiff's notice of motion is dismissed. (2)The plaintiff to pay the defendant's costs of the notice of motion. (3)In the event that no submissions are received by 4pm on 1 May 2014 opposing dismissal of the proceedings or costs, the proceedings will be dismissed with the plaintiff to pay the defendant's costs of the proceedings. If submissions are received, the matter will be re-listed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 October 2014