Plaintiff v Defendant

2 The plaintiff brings the present proceeding on behalf of the estate of Mr Van Gerven pursuant to s 29 of the Administration and Probate Act 1958, and on her own behalf pursuant to Part III of the Wrongs Act 1958. In summary, the plaintiff contends that Mr Van Gerven's mesothelioma was caused by his exposure to asbestos in the course of his employment between approximately 1959 and 1960 with NEI Pacific Limited, then known as John Thompson (Australia) Pty Ltd. The plaintiff contends that the asbestos to which Mr Van Gerven was exposed was manufactured and/or supplied by Amaca. The claims pleaded against Amaca are claims in negligence. In March 2012, the plaintiff discontinued proceedings against NEI Pacific. Amaca is now the sole defendant.

3 By its defence, Amaca pleads (amongst other defences) that the plaintiff's cause of action against it is barred "by virtue of the operation of the Limitation of Actions Act 1958 (Vic)".[1] By summons filed 27 August 2009, Amaca sought an order that its limitation defence be tried before the trial of the proceeding pursuant to Rule 47.04 of the Supreme Court (General Civil Procedure) Rules 2005. By summons filed 3 February 2010, the plaintiff sought an order that "The period of limitation applicable to the cause of action relied upon by the plaintiff pursuant to s 29 of the Administration and Probate Act 1958 (Vic) in this proceeding be extended up to and including 12 December 2008 in accordance with s 27K of the Limitation of Actions Act 1958 (Vic)".

4 On 11 February 2010, Williams J heard the trial of the preliminary question of whether the plaintiff's causes of action were statute barred. On 1 June 2010, her Honour delivered reasons upholding Amaca's contentions that the plaintiff's causes of action were statute barred. In her reasons, her Honour concluded that the limitation period in respect of the plaintiff's causes of action commenced "at the latest" on the date of Mr Van Gerven's death, 1 June 1997. No order was made following the delivery of Williams J's reasons in the trial of the preliminary issue. This may have been because the plaintiff's application for an extension of time was (and has remained) on foot.

5 On 29 March 2012, the plaintiff filed an amended summons, seeking the following order:

"The period of limitation applicable to the cause of action relied on by the plaintiff pursuant to s 29 of the Administration and Probate Act 1958 (Vic) in this proceeding be extended up to and including 12 December 2008 in accordance with s 27K of the Limitation of Actions Act 1958 (Vic) and/or in the alternative in accordance with s 23A of the Limitation of Actions Act 1958 (Vic) and s 20(2) of the Wrongs Act 1958."

6 This is the hearing of the plaintiff's application for an extension of time. Notwithstanding the form of the plaintiff's summons, it is clear that, following the judgment of Williams J, the plaintiff, unless she is to suffer judgment against her, requires an extension of time under s 20(2) of the Wrongs Act in relation to her Wrongs Act cause of action, and an extension of time under s 23A[2] of the Limitation of Actions Act in respect of the estate claim. Accordingly, and notwithstanding the lack of any plea in Amaca's defence contending that the plaintiff's Part III claim is barred by the operation of s 20(1) of the Wrongs Act, the plaintiff's application proceeded before me as an application under s 20(2) of the Wrongs Act and an application under s 23A of the Limitation of Actions Act.

7 As was agreed between the parties, s 23A of the Limitation of Actions Act is the section that would permit an extension of time to be given to the plaintiff in respect of the estate claim. Section 23A(2) permits the Court (if it decides that it is just and reasonable so to do) "[to] order that the period within which an action on the cause of action may be brought be extended for such period as [the Court] determines". Section 23A(3) relevantly provides:

"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 extent, if any, to which the defendant had taken 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 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 may have received."

8 Section 20(1) of the Wrongs Act provides for a claim under Part III to be brought within six years after the death of the deceased person. The provisions governing the extension of that time limit are (so far as is relevant to the present proceeding) contained in sub-ss (2) and (3). Sub-sections 20(2) and (3) of the Wrongs Act relevantly provide:

"(2) Where on an application to a court by a person claiming to have a cause of action under this Part, it appears to the court that-

(a) the death of the deceased person was caused by a wrongful act, neglect or default; and

(b) the deceased did not before his death bring an action in respect of the wrongful act neglect or default-

the court subject to subsection (3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for such period as it determines.

(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 deceased or the claimant or each of them (as the case may be);

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

(c) the extent, if any, to which the defendant had taken steps to make available to the deceased or the claimant or each of them (as the case may be) means of ascertaining facts which were or might be relevant to the cause of action of the deceased or the claimant or each of them (as the case may be) against the defendant;

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

(e) the extent to which the deceased or the claimant or each of them (as the case may be) acted promptly and reasonably once he knew in relation to the injury that caused the death that the act or omission to which that injury was attributable might be capable at that time of giving rise to an action for damages;

(f) the steps, if any, taken by the deceased or the claimant or each of them (as the case may be) to obtain medical legal or other expert advice and the nature of any such advice he may have received."

9 One can immediately see that the circumstances to which regard must be had pursuant to s 20(3) of the Wrongs Act largely mirror the circumstances to which regard must be had in s 23A(3) of the Limitation of Actions Act. While s 23A(3) deals with, amongst other issues, certain matters pertaining to the plaintiff, s 20(2) of the Wrongs Act deals with like matters pertaining to the claimant and the deceased.

10 That said, s 20(2) has an additional requirement not expressly found in s 23A. Under s 20(2) of the Wrongs Act, it is required to "appear to the Court that ... the death of the deceased person was caused by a wrongful act, neglect or default". Ashley J[3] identified the issue in Wintle v Stevedoring Industry Finance Committee & Ors[4] in the following terms:

"18. [Defence counsel] submitted, in the context of his first main submission, that guidance to the meaning of the phrase '(where) it appears to the Court' in s 20(2) of the Wrongs Act could be found in authorities pertaining to s 23A of the Limitation of Actions Act in its old form. He contended that for the purposes of satisfying s 20(2) 'it needs to be made to appear that evidence exists which could support the cause of action'. He accepted also that it would be sufficient 'if the plaintiff were, by evidence admissible in this interlocutory hearing, to establish the existence of evidence which, if accepted, would establish the cause of action'. The plaintiff could use hearsay; but 'it has got to be proper hearsay to identify that evidence'.

1. 19. [Defence counsel] submitted that the test which he framed accepted a submission made by [plaintiff's counsel]. It is true that [plaintiff's counsel] did make a submission to that effect. But it was certainly not his submission of first resort. His primary contention was that s 20(2) would be satisfied if the plaintiff established that it was possible, not far-fetched or fanciful, that death was caused by a wrongful act, neglect or default. That would be achieved by demonstrating that the deceased died of a preventable industrial disease as a consequence of exposure to a toxic product in the course of his employment.
2. 20. The language of the old s 23A and of s 20(2) is not identical; but the provisions are pretty similar. Authorities concerning the meaning of the old s 23A are probably a useful guide to the meaning of s 20(2). That meaning is more favourable to CSR than is [plaintiff's counsel's] formulation of the test and what would satisfy it. I will apply the meaning contended for by [defence counsel]."[5]

"33. It is clear that this application is not to be treated as if it was the trial of an action. It would be wrong to analyse the material adduced on the application on the footing that the specified matters could only appear to the Court if the material persuaded the Court, on the balance of probabilities, that the plaintiff had proved those matters. Approaching the matter, as I have said I would do, on the basis of the applicability of the s 23A analogy, it is enough if it appears to the Court that 'evidence exists to support the plaintiff's claim'[7]; or 'that there is evidence to establish the cause of action'[8]; or again 'whether evidence is available which gives the applicant' a reasonable prospect of ... establishing the cause of action'.[9]"[10]

12 In support of her applications for extensions of time under ss 20 and 23A, the plaintiff relied upon three affidavits she swore on 2 February 2010, 15 October 2010 and 29 September 2011. She also relied upon six affidavits of her solicitor, Ms Kathryn Louise Eyles (affirmed 4 February 2010, 14 October 2010, 29 April 2011, 30 August 2011, 31 August 2011 and 29 September 2011).

13 In defence of the applications, Amaca relied upon an affidavit sworn on behalf of NEI Pacific Limited on 30 August 2011 by Mr Peter Douglas Stewart Coats (a solicitor then acting on behalf of NEI Pacific). This affidavit was sworn when NEI Pacific was still a defendant.[11]

14 At the hearing of the application, Ms Eyles was the only deponent cross-examined. Specifically, neither the plaintiff nor Mr Coats was cross-examined. Counsel for the plaintiff dealt with Mr Coats' affidavit by making submissions as to admissibility and weight.

15 In her affidavit of 15 October 2010, the plaintiff deposed as follows:

"2. I was born on 7 August 1943 in New Zealand. I was married to the deceased, Thomas Cornelis van Gerven ('Thomas') on 13 April 1963 in New Zealand.

1. 3. I met Thomas in 1961 when came [sic] to New Zealand. He told me and I believe that he was born on 30 October 1936 in Holland. He told me that he came from Holland to Australia in about 1955 and began working shortly afterwards in Australia as a refractory brick layer. In 1961 he was working for a company called Woodhall and Duckham in Melbourne when he was sent to Masterton, New Zealand to rebuild the new Gas works on a contract between the firm Woodhall and Duckham (Australia) and the Masterton District Council. After finishing the contract on the Masterton gas works, he was offered a job with Amalgamated Brick and Pipe in Wellington. He took up that opportunity. We were engaged shortly before Thomas finished his employment on the Masterton gas works and we married on 13 April 1963 in Masterton.
2. 4. Thomas worked with Amalgamated Brick and Pipe from 1962 to about 1972 as a brick layer. He then had a spinal injury and laminectomy which required him to cease bricklaying work. He then was then [sic] employed by the Wairarapa Dairy Company, Featherston in charge of the manufacture of buttermilk powder. He stopped that work in about 1984. He worked for a couple of years at Hansells Lab doing some painting work and then he moved, in 1986, to Hadlow Preparatory School in Masterton as a groundsman.
3. 5. Thomas had a myocardial infarct in November 1995. In about January 1996 he had a double bypass. In May 1996 he began having frequent episodes of 'flu' like symptoms and later that year he was admitted to Masterton Public Hospital on 22 November 1996 with a diagnosis of pneumonia. He was an inpatient for about a month. He didn't really seem to get much better and there was not much improvement. He was then transferred to Wellington Hospital on 23 December 1996. I was with him at the hospital on nearly a daily basis. They performed a lot of scans and tests on him and on 6 January 1997 Mr Peter Martin, our specialist, told Thomas and myself that he suffered from a disease called mesothelioma which was caused by the asbestos he had worked with in his employment as a brick layer, and which could not be cured. Thomas was discharged from Wellington Hospital on 7 January 1997. He came home but was later treated at the hospice and then at the Masterton Hospital where he died on 1 June 1997.
4. 6. I was told by the doctors that Thomas had developed mesothelioma because of his exposure to asbestos. They asked us to go through and try to work out where he would have been exposed to asbestos. I had many discussions with Thomas about where he worked and where he thought he might have been exposed to asbestos. I did not know Thomas before he came to New Zealand. He told me that when he arrived in Australia he did some work for a company called John Thompson ('Thompson') as a bricklayer in the late 1950's. He said that he could have been exposed to asbestos during his work there. He told me that he did not know of any work mates who he worked with at the time or what type of asbestos product he would have been exposed to."

16 In the same affidavit, the plaintiff then described matters following the death of Mr Van Gerven, and her contact with solicitors before the issuing of the writ in the following terms:

"11. On 1 June 1997 Thomas died. The cause of death as listed in his death certificate is that of mesothelioma. I do not believe that at any time prior to or up to his death that Thomas was aware of the identity of the manufacturer of the asbestos products to which he was exposed in Australia, or that the exposure was as a consequence of the fault of any party. From what he told me, I do not think he clearly recollected the nature and extent of the exposure. He said that he had not been told he had been exposed and had not been warned about it or protected from it and had no reason to call it to mind or consider it for over 36 years.

1. 12. In August 1997 I saw an advert in the local paper from Sydney solicitors regarding asbestos related diseases. On 26 August 1997 I sent a facsimile to the solicitors in New South Wales called McLaughlin & Riordan. This set out my understanding of Thomas's exposure to asbestos. I asked them to provide me with some advice as to whether or not I had a potential claim against any of those employers that Thomas had worked for. ... .
2. 13. In a letter dated 27 August 1997 which I received shortly afterward McLaughlin & Riordan replied to my facsimile. The letter stated 'evidence will need to be called as to the exposure to asbestos dust and fibre in the Australian employment that was causative of his illness and his death. In that regard it would be necessary to identify former workmates who could give evidence of working with your late husband and of the exposure to asbestos dust and fibre'. ... .
3. 14. As I did not know any of his workmates or could not provide any further information which was required by McLaughlin & Riordan I did not do anything further.
4. 15. Around September 2004 I had a conversation with my brother. He had developed an asbestos related condition. He had recently started a claim for damages with Slater & Gordon. He told me that I should make an inquiry with Slater & Gordon to see if I might have any potential claim arising out of Thomas's death as it was caused by asbestos.
5. 16. On 22 September 2004 I emailed Slater & Gordon and I sought advice about whether I had any right to make a claim arising from Thomas's death from mesothelioma which was caused by asbestos. ... .
6. 17. In a letter dated 3 November 2004 from Slater & Gordon which I received shortly afterwards, Slater & Gordon sought further information from me including details of Thomas's past employment, the death certificate and any letters of administration.
7. 18. I replied to Slater & Gordon's queries in a letter dated 12 November 2004 which I sent to their offices. I wrote that I did not have very many details of my husband's work history prior to the time when I met him in 1961. I wrote that I believed that he had worked as a refractory bricklayer for Thompson's in about 1959-1960 and then again with Woodhall and Duckam [sic] in about 1960-1961. I wrote that I believed that he was exposed to asbestos in the course of his employment in Australia but that I didn't know the name of any fellow workmates who he would have worked with at the time and I didn't know the manufacturer of the asbestos products that he was exposed to in the course of his work in Australia.
8. 19. On about 19 November 2004 I was telephoned by Mr Ben Phi, a solicitor from Slater & Gordon. He said to me that he would need to investigate whether any of the companies that Thomas was employed with in Australia had insurance. He said to me that he would take this step first to see whether the claim would be viable.
9. 20. On 21 August 2008 I received a telephone call from Mr Davis Galimberti a solicitor with Slater & Gordon. He said to me that he had just spoken to two workers who were employed with Thompson's at about the same time as Thomas was. He said to me and I believe that one of those workers had a memory of working with Thomas for Thompson's at the Smorgon Meat Works in Brooklyn Road, Brooklyn. That fellow workmate also recalled that the asbestos products that they worked with were manufactured by James Hardie. Mr Galimberti also said to me that the witness had identified another fellow workmate and that Mr Galimberti had also taken a second witness statement from this person. That second person confirmed that the work at Smorgon Meat Works, Brooklyn Road, Brooklyn for Thompson's in the late 1950's involved working with asbestos products manufactured by James Hardie.
10. 21. In that conversation with me on the 21st August 2008 Mr Galimberti advised me that I had a potential claim on behalf of myself and also Thomas's estate against James Hardie the manufacturer of the asbestos products and also John Thompson. This was the first time that I had been told the identity of the manufacturer of the asbestos products to which Thomas had been exposed in the course of his employment with John Thompson. I was informed that the exposure was due to the failure of James Hardie to have warned users of its products of dangers about which it was aware, and due to the negligence of of [sic] Thompsons in ascertaining the asbestos danger to which Thomas was exposed in his employment and in failing to warn him about it, or protect him from it. This was the first time I had any real idea of the circumstances, nature and extent of Thomas' asbestos exposure, and that it was due to the fault or negligence of James Hardie and John Thompson."

17 In her affidavit of 29 September 2011, the plaintiff described in greater detail the events between the diagnosis of mesothelioma on 6 January 1997 and the death of Mr Van Gerven on 1 June 1997. Without setting out the detail of these events, it is, to say the least, not surprising that little was done during this period by either the plaintiff or Mr Van Gerven to ascertain whether or not either of them had a cause of action in relation to Mr Van Gerven's illness. That said, two paragraphs of the plaintiff's affidavit of 29 September 2011 should be noted, namely:

"22. I had not heard of James Hardie until August 2008 when Davis Galimberti advised me of the information that he had obtained from the witness who had worked with Thom, and did (sic) not know I could bring a claim against them until Mr Galimberti's advice that the witness had stated my husband had been exposed to asbestos from their products.

1. 23. James Hardie had never made that information available in any way which I could have seen prior to 2008. I had never heard of James Hardie as a manufacturer of asbestos insulation before August 2008. I had never seen anything in the media where James Hardie advised people that it had been such a manufacturer."[12]

18 The evidence given by the plaintiff's solicitor, Ms Eyles, in her affidavits largely accorded with the evidence given by the plaintiff. From Ms Eyles' affidavits, it is apparent that little was done by the plaintiff's solicitors between 2004 and 2008. In either late 2004 or early 2005, an employee of Slater & Gordon conducted a search of the County Court records of workers compensation claims looking for details of relevant insurers. In May 2008, another employee (Mr Galimberti) wrote to the Dust Diseases Board of New South Wales seeking information. The next relevant step (so far as the plaintiff's solicitors were concerned) is described in Ms Eyles' affidavit of 14 October 2010 in the following terms:

"12. At some date between 2 May 2008 and 21 August 2008, Mr Galimberti searched Slater & Gordon's National Asbestos Register database using the terms "John Thompson" and "Hurll". That search revealed the contact details of an individual who had been employed with Hurll.

1. 13. I believe, based on the notes of a telephone conversation contained on the file that on 21 August 2008 a witness statement of this individual was taken by Mr Galimberti. That witness told Mr Galimberti that he was employed with the Second Defendant [NEI Pacific] in the period from about 1952 to about 1960. While employed by the Second Defendant he positively recalled working with the deceased at a job at Smorgon Meat Works in Brooklyn Road, Brooklyn, Victoria. Further, he positively recalled that asbestos products manufactured, supplied or distributed by the First Defendant [James Hardie/Amaca] were used by the deceased in the course of his work with the Second Defendant.
2. 14. Further, this witness provided the contact details for another employee of the Second Defendant. I believe, based on the notes of a telephone conversation contained on the file that Mr Galimberti took a witness statement from this second individual on 21 August 2008. This second individual told Mr Galimberti that he worked for the Second Defendant in the late 1950's and the 1960's. He said that he worked for the Second Defendant at the Smorgon Meat Works in the late 1950's. He said that he used asbestos products manufactured, supplied or distributed by the First Defendant during his employment with the Second Defendant at the Smorgon Meat Works job.
3. 15. At no time prior to 21 August 2008 had Slater and Gordon received any information or materials that positively identified the First Defendant [Amaca] as having supplied or manufactured materials that the deceased worked with during his employment with the Second Defendant."

19 Ms Eyles was cross-examined on her affidavit of 14 October 2010. She was asked, amongst other things, whether witness statements referred to in paragraphs 13 and 14 of her affidavit were signed or unsigned. It was suggested to her that there was no reason why she could not have supplied an affidavit from the two witnesses referred to in paragraphs 13 and 14 of her affidavit. It was also suggested to her that essentially there are only two manufacturers or distributors of asbestos in Australia. Of note, Ms Eyles was not asked to produce the witness statements referred to in her affidavit; nor was she challenged as to the truth or accuracy of her evidence.

20 In submissions, counsel for Amaca conceded that the evidence in paragraphs 13 and 14 of Ms Eyles' affidavit of 14 October 2010 was admissible, the application before the Court being interlocutory.[13] The attack made by Amaca on these paragraphs concerned the weight to be given to them. It was submitted that they were "of such little weight as to not satisfactorily discharge the burden of the plaintiff".

21 Mr Coats was the solicitor for NEI Pacific. Before the plaintiff discontinued proceedings against NEI Pacific, Mr Coats swore an affidavit on 30 August 2011. Amaca relies upon the following evidence in this affidavit:

(a) There were two "John Thompson companies operating at the time of the deceased's alleged exposure to asbestos, and searches performed in 2009 and 2010 have been unable to locate any documents which would confirm that Mr Van Gerven was employed by either of these companies (in fact, it is asserted that enquiries reveal there are no documents in existence which would confirm Mr Van Gerven's employment).

(b) No person or document has been found (or exists) which confirms or refutes the allegation that Mr Van Gerven was employed by a John Thompson company.

(c) No person or document has been found (or exists) to confirm or refute the nature of the work performed by Mr Van Gerven (if he was employed), and in particular whether, at any stage, he worked with or in the vicinity of asbestos.

(d) Relevant people who could possibly have provided information (a Ms R. Benbow and a Mr A. Lyall) cannot be located "and are, in all probability, deceased".

22 Counsel for the plaintiff objected to Amaca relying upon Mr Coats' affidavit. The first ground of complaint was said to be that the affidavit was not Amaca's affidavit. There is nothing in this complaint.

23 Secondly, it was submitted that Mr Coats' affidavit was irrelevant, the deceased's employment with NEI Pacific not being an issue between the plaintiff and Amaca. While it is true that in its defence Amaca chose specifically to not plead to the allegation in the statement of claim that the deceased was employed by NEI Pacific, that does not make Mr Coats' affidavit irrelevant. Mr Coats' affidavit goes to the issue of whether, on all of the evidence led at trial, the plaintiff will be able to establish that Mr Van Gerven was exposed to asbestos manufactured or supplied by Amaca. That said, the failure of Amaca to plead to the allegation of employment in the statement of claim, and the consequential admission of that fact as provided for by Rule 13.12,[14] takes away some of the force of the prejudice contended for in Mr Coats' affidavit (but remembering that Mr Coats was the solicitor for NEI Pacific, not Amaca).[15]

24 Thirdly, complaint was made that Mr Coats' affidavit does not say when any relevant documents were destroyed. Counsel for the plaintiff submitted that if the documents had been destroyed before 1997, then their destruction has created no relevant prejudice. The argument was that the delay referred to in s 20(3) of the Wrongs Act and s 23A(3) of the Limitation of Actions Act is the delay between the accrual of the cause of action and the making of the application for an extension of time.[16] Prejudice under s 20(3) and s 23A(3) is the prejudice that has come about by reason of the lapse of time involved in that period of delay.[17] It was submitted that whilst Williams J found that the plaintiff's causes of action arose at the latest on 1 June 1997, the causes of action (and more specifically the estate claim cause of action) could not have arisen before 6 January 1997. Therefore, it was submitted that any destruction or loss of documents that occurred before 1997 could not give rise to relevant prejudice. These submissions are not without force. However, in my view, they do not go to admissibility - but rather only to weight.

25 In respect of the weight to be accorded to Mr Coats' affidavit, counsel for the plaintiff submitted that for some considerable time, the only prejudice relied upon by Amaca was of the kind described by the High Court in Brisbane South Regional Health Authority v Taylor.[18] It was asserted that the prejudice referred to in Mr Coats' affidavit was not relied upon by Amaca until the Friday before the hearing of this application. In such circumstances, it was submitted that little, if any, weight should be given to it. However, in my view, if there is relevant prejudice identified in an affidavit then it should be accorded the weight it deserves on the merits, rather than it not being given proper weight because lawyers acting for a party did not consider (or raise) the matter at an earlier point in time.

26 It was submitted on behalf of the plaintiff that she had adduced evidence that "fulfilled the statutory criteria" for the extensions of time she seeks. It was submitted that there was no prejudice to Amaca - presumed or otherwise. Indeed, it was submitted that Amaca was in a better position to respond to the claim than at any time between 1997 and 2008. Counsel for the plaintiff submitted:

"It [Amaca] has a complete documentary record and has discovered further documents in that period. It has funds available to investigate the claim, pay its lawyers and pay any damages which was not the case after it underfunded future liabilities in 2001 and when [Amaca] was cut adrift from further funding from its parent. It has resolved issues about causation in multiple exposure claims so would not need to further test that issue. No witness available in 2003 is said to be unavailable now.

There was no reasonable basis for issuing suit against [Amaca] at any time before the [plaintiff's] solicitors received confirmation from the work colleague of [Mr Van Gerven] that they had used James Hardie millboard at Smorgons. That was in late 2008. When that information was received, the claim was issued. The intervening delay occasioned no prejudice."

27 Additionally, counsel for the plaintiff made submissions that Amaca had made no efforts to inform Mr Van Gerven or the plaintiff of facts or means of ascertaining facts which might have been relevant to the cause of action against it. It was submitted that Amaca had positively sought to deny such information by means of confidentiality clauses in settlements. It was also submitted that the "underfunding" of Amaca would have had the effect of making claims against it "difficult, if not impossible, or futile".

28 It was further submitted that the plaintiff was "more greatly prejudiced than [Amaca] because her husband is dead as a consequence ... of the negligence of [Amaca]".[19] In the circumstances it was submitted that it was just and reasonable to extend time.[20]

29 In summary, Amaca submitted that the plaintiff's application for an extension of time should be refused because:

"(a) It is made over 15 years after the cause of action accrued and over 9 years after it became statute barred;

(b) It relates to events that took place over 50 years ago;

(c) The plaintiff knew the identity of the employer shortly after the time the cause of action accrued and did not sue;

(d) The plaintiff knew the cause of death and that the cause of the injury might be capable of giving rise to a cause of action, within months of death and did nothing until after the time expired, notwithstanding legal advice to do so;

(e) There is significant delay by Slater & Gordon - nothing at all was done between January 2005 and May 2008;

(f) The investigations by Slater & Gordon from November 2004 until May 2008 solely comprised identifying the insurance position of the employer and were not directed to any inquiry of the type or maker of the asbestos;

(g) The whole delay by Slater & Gordon from November 2004 until August 2008 was in order to verify the instruction already given. It was to bolster a case, not to identify if one existed. That inaction ought not now be used to benefit the plaintiff."[21]

30 It was submitted by Amaca that "all of [the above] matters justify the conclusion that it is not just and reasonable to extend time - for it is whether it is just and reasonable which is the ultimate touchstone for the determination of the question under s 23A(2) ... and s 20(2) ...".[22]

31 This submission was then elaborated upon as follows:[23]

"50. The central question for examination upon any s.23A application is whether the applicant has persuaded the Court that it is 'just and reasonable' to extend time, that a fair trial is possible. The position of both parties is to be considered and the effect of the outcome of the application on each of them.

1. 51. It is against this threshold question that the further matters set out in s.23A(3)(a)-(f) are to be considered. These matters, which include delay and prejudice, form part of the matrix of "all the circumstances" of the case to which the Court must have regard - see s.23A(3).
2. 52. The plaintiff was advised by her husband that he could have been exposed to asbestos during his work at Thompson. At that point she had a known employer to sue and a known cause of action. She did not know of the prospects of success, but that is not the relevant test - the test spoken of in s.23A(3)(e) is 'might be capable...of giving rise to an action in damages'. This advice of her husband and the advice of McLaughlin & Riordan fulfils that test. On both occasions she is placed in a position of knowledge that the injury to her husband 'might be capable' of giving rise to an action for damages.
3. 53. She knew that from 27 August 2007 (sic, 27 August 1997) at least, when she received the McLaughlin & Riordan advice and did nothing until after the limitation period expired.
4. 54. The fact that she did not know of the alleged involvement of James Hardie is not to the point, for she did know of the act omission of the second defendant and her cause of action against it is well capable of being said to be of the class that it might be capable of giving rise to an action for damages. As she did not act promptly in pursuing it, she then placed herself in the position of not acting promptly against James Hardie. This default beget the latter.
5. 55. She did not write to Thompson. She made no inquiries of any asbestos manufacturer. She did not write to any public authority or person. She did not instruct McLaughlin to take the matter further by inquiry of Thompson or any asbestos manufacturer. Rather she did nothing.
6. 56. The question of delay is significant in this case.
7. 57. The time to calculate when the delay commences is the date when the cause of action accrues. Hence, the relevant delay commenced at the time when the deceased first knew he had mesothelioma and that it was caused by some person - see s.5(1A) LAA - which date at the latest is June 1997 as found by Justice Williams in this case. Nevertheless, 6 January 1997 is the relevant date for this application.
8. 58. The first period of delay is from August 1997 until September 2004 - about 7 years. The sole explanation is that Mrs Van Gerven was unable to find the evidence required to commence suit, as she was advised she ought by her solicitors.
9. 59. What is startling in this case is that even the person handling the case for her (Mr Davis Galimberti) stated in 2 May 2008 that the Plaintiff would not get an extension of time order from the Court by reason of the fact of the advice tendered by McLaughlin & Riordan.
10. 60. It is submitted that she knew she had a prospect of a cause of action. So much so was advised to her by her then Sydney solicitors. Accordingly, the question of the impact of ignorance of the right to sue does not arise.
11. 61. It has been found that it is relevant to discretion when a person 'buries their head in the sand' even when they do not positively know that a cause of action might exist, when in such circumstances the person unreasonably persisted in ignoring the investigation of circumstances of which she was aware which should have suggested that a cause of action might exist.
12. 62. That is the case here. Mrs Van Gerven was aware that a cause of action 'might be capable' against an employer, and for that matter, a manufacturer, subject to the gathering of better proof. The letter from McLaughlin & Riordan makes it clear that an exposure to asbestos gives rise to a cause of action and that it was for her to take the necessary steps to investigate further. She did nothing and rather she buried her head in the sand instead of taking further steps to investigate the issuing of a claim, by ascertaining further evidence of exposure.
13. 63. The plaintiff never sued the second defendant alone. No application issued either before or after that suit to identify the relevant asbestos supplier - see Order 32.03-32.05 or Order 32.07. No explanation has been given for this.
14. 64. The plaintiff does not depose to enquiries she made of her husband's family in Australia on this issue. The Court must infer there was none.
15. 65. The First Defendant asserts both presumptive prejudice and specific prejudice.
16. 66. It is well established that mere delay, when it has been inordinate may be taken as evidence of prejudice to a defendant, absent any identification of specific prejudice.
17. 67. The rationale for limitation provisions, it is submitted, ought be steadily kept in mind. In Brisbane South Regional Health Authority v Taylor, McHugh, J stated as follows:

'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 State (sic) Supreme Court pointed out in Barker v Wingo, "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. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.'

1. 68. Hence, reliance is placed upon the authority of Brisbane South Regional Health Authority v Taylor as to presumptive prejudice arising from delay - see McHugh J.
2. 69. It is then submitted that it is valuable to remember in the words of McHugh, J in Brisbane South that:

'the discretion to extend should be therefore 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'.

1. 70. As to specific prejudice, the first defendant relies upon the Affidavit of Peter Douglas Stewart Coats sworn 30 August 2011 and filed herein. The second defendant by its solicitor swears that there is no documentation or oral evidence available to the second defendant which confirms the employment of Thomas Van Gerven (Paragraphs 10(e), 11(a), (b) and (c)). Hence such evidence is lost to the First Defendant, notwithstanding that the Second Defendant is no longer a party to the proceedings."

32 The reference to Mr Galimberti's opinion in paragraph 59 of Amaca's outline is a reference to an email from Mr Galimberti sent to a partner at Slater & Gordon on 2 May 2008 expressing a number of opinions, including recommending that no further action be taken because (amongst other reasons) Mr Galimberti's view was that "the claim is statute barred and an extension of time would not be granted by the Court (the wife instructed solicitors to investigate in 1997 and, after receiving advice on the difficulties associated with the case, did not pursue the matter further)".

33 It might be noted that Mr Galimberti's "view" was not necessarily the view of each solicitor at Slater & Gordon who had contact with the plaintiff's file. Specifically, there is no evidence of any such opinion ever being given by Slater & Gordon to the plaintiff when she consulted the firm in 2004. In fairness to Mr Galimberti, it may be that the opinion he expressed was then confined to the plaintiff's prospects of obtaining an extension in respect of a cause of action (or causes of action) against Mr Van Gerven's former employer - rather than in respect of a claim against an as then unidentified manufacturer or supplier of asbestos. In any event, the plaintiff's applications for extensions of time under ss 20(2) and 23A fall to be determined by applying the relevant statutes to the facts of the case - rather than by considering some conclusionary opinion of a solicitor expressed before all of the relevant evidentiary material came into existence. At best Mr Galimberti's "view" might provide some explanation as to why only modest progress was made by Slater & Gordon between late 2004 and the first half of 2008. That said, Mr Galimberti's view is otherwise irrelevant.

34 As was found by Williams J in the trial of the preliminary question,[24] the limitation period applicable to the plaintiff's claims "commenced at the latest at the date of death" of Mr Van Gerven (1 June 1997). While s 20(1) provides that the plaintiff's Part III proceeding must be commenced within six years after the death of Mr Van Gerven, it is likely that, consistently with the findings of Williams J, time began to run, in respect of Mr Van Gerven's claim (the estate claim), on 6 January 1997 when Mr Van Gerven's mesothelioma was diagnosed and Mr Van Gerven was told that his mesothelioma was caused by asbestos he had worked with in his employment as a bricklayer.

35 The time limit in respect of each claim (the Part III claim and the estate claim) is six years. The delay that falls to be considered in this case under s 20(3) of the Wrongs Act is the delay between June 1997 (when Mr Van Gerven died) and December 2008 (when the writ was issued). The delay that falls to be considered in respect of the estate claim is the delay between January 1997 (when the mesothelioma was diagnosed) and December 2008.

36 I turn first to the additional requirement contained in s 20(2)(a) of the Wrongs Act so far as the Part III claim is concerned. While this issue was not the subject of any submission in Amaca's outline of submissions,[25] the issue was dealt with orally by counsel for Amaca as follows:[26]

"Ashley J says at paragraph 50 in Wintle: 'The test is that means, has it been made to appear that there is evidence which if led at trial, could establish a matter of probability, a connection between exposure to James Hardie asbestos and the development of Mr Van Gerven's mesothelioma.

Now, the only evidence of exposure to the products of the first defendant is those two paragraphs. There is a failure to obtain an affidavit from the witness. There is a failure to produce the note of the conversation. There is a failure to produce the witness statement. There is also a failure to produce any exact quote from the witness. In those circumstances it's my submission that that evidence is of no weight, or at least insufficient weight for Your Honour to discharge - to satisfy that the plaintiff's burden has been discharged."

37 Earlier, counsel for Amaca submitted that on the s 20(2)(a) issue, the only question was whether there was exposure to Amaca's product.[27]

38 Having looked at the evidence in this application, I have formed the view that the plaintiff has satisfied s 20(2)(a) by showing that there is evidence to establish the causes of action pleaded.[28] At the hearing of the plaintiff's application, the dispute concerning the s 20(2)(a) issue was limited to whether the plaintiff had shown there was evidence which, if led at trial, could establish a connection between exposure to James Hardie asbestos and the development of Mr Van Gerven's mesothelioma. Contrary to the defendant's submissions, I accept that paragraphs 13 and 14 of Ms Eyles' affidavit[29] show that there is evidence which, if led at trial, could establish that Mr Van Gerven was exposed to James Hardie asbestos. Further, the existence of other evidence necessary to establish the other elements of the plaintiff's causes of action is demonstrated in the affidavits of the plaintiff and Ms Eyles and the exhibits to those affidavits. Having regard to the limited nature of the dispute between the parties on this issue and the conclusion I have just reached, it is not necessary to set this evidence out in detail; nor is it necessary to go to the various authorities to which counsel for the plaintiff referred me[30] for the purpose of showing that evidence exists capable of linking exposure to asbestos to mesothelioma, and showing that such an exposure by Amaca (as a result of it being a manufacturer or supplier) was negligent in the circumstances.[31]

39 I turn now to consider whether, having regard to all the circumstances of the case, including the matters set out in s 20(3) of the Wrongs Act and s 23A(3) of the Limitation of Actions Act, it is just and reasonable to extend the periods of limitation in respect of the Part III claim and the estate claim from 2003 (January or June) to 12 December 2008 (the date upon which the writ was issued). As I have said above, the considerations set out in s 20(3) are almost identical to the considerations set out in s 23A(3): the relevant difference being that s 20(2) directs attention to the conduct and circumstances of both the claimant and the deceased, whereas s 23A(3) directs attention to the conduct and circumstances of the plaintiff.[32]

40 In the present case, it cannot realistically be said that there was any real delay on the part of the deceased. His cause of action accrued in January 1997. He died in June 1997. His circumstances, which are deposed to by the plaintiff, during this period could not reasonably be said to have required him to take any particular action in relation to the commencement of legal proceedings during this period. In substance then, the relevant circumstances required to be taken into account under s 20 of the Wrongs Act in this case are the same as those under s 23A of the Limitation of Actions Act. That said, in considering the s 20 application I do not overlook the various relevant circumstances and issues as they apply to the deceased.

41 The plaintiff bears the onus of establishing that it is just and reasonable to order the extension of the period of limitation applicable to her causes of action. In Tsiadis v Patterson,[33] Buchanan JA[34] said:[35]

"The matters which the Court is required by s23A to take into account cannot all be weighed against each other. For example, prejudice to the respondent in being unable to recover any compensation cannot be measured against prejudice to the appellant in conducting her case. Rather, the Court must synthesize a number of competing considerations in arriving at a conclusion that takes account of them all, bearing in mind that the respondent bears the onus of persuading the Court that it is just and reasonable to extend the limitation period. I agree with Brooking J in Bell v SPC Ltd when he said:

'The question posed by s23A is whether, having regard to all the circumstances of the case, including the circumstances mentioned in para(a) to para(f) of subs(3), it is just and reasonable to extend the period. This requires consideration of the conduct and position of both parties, including the effect of the outcome of the application on each of them. ... It is for the plaintiff to satisfy the Court that it is just and reasonable to extend the period.'"[36]

42 The language in s 20 of the Wrongs Act being relevantly identical to the language in s 23A, the same approach should be taken with respect to an application under s 20.

43 Paragraphs (a) and (b) of ss 20(3) and 23A(3) require the Court to take into account "the length of and reasons for the delay on the part of the [plaintiff/claimant/deceased]" and "the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant". As I have said above, it has been authoritatively stated that the delay referred to in these paragraphs is delay between the accrual of the cause of action and the making of the application for an extension of time.[37]

44 Prejudice is an important consideration in determining applications under ss 20(2) and 23A. The prejudice referred to in both sections need not be caused by the delay complained of, but need only have come about by reason of the lapse of time involved in the period of delay.[38] Both sections require the Court to have regard not only to the established prejudice, but also to consider the extent to which there is likely to be prejudice.[39] Mere delay itself, when inordinate, may be taken as evidence of prejudice.[40]

45 In explaining the rationale for limitation provisions, McHugh J said in Brisbane South Regional Health Authority v Taylor (in a passage relied upon by Amaca in its submissions):[41]

"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, '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. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose."

46 Whilst the Court of Appeal in Tsiadis distinguished Brisbane South Regional Health Authority v Taylor, it did not "either in terms or by implication, distinguish the judicial statements made in that case as to the rationale for the existence of limitation periods and the interaction between statutory time bars and the question of prejudice to a defendant when a court makes an order which effectively overrides them".[42]

47 There is undoubtedly delay in this case between the accrual of the causes of action pleaded by the plaintiff (1997) and the issuing of the writ (December 2008). Notwithstanding the submissions made by the plaintiff, I accept that this delay will have occasioned some prejudice to the defendant. With respect, there is much to be said for the statements in the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor,[43] that "What has been forgotten can rarely be shown" and "So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed".

48 So far as paragraph (c) of s 20(3) and s 23A(3) is concerned, the evidence does not disclose any steps taken by the defendant to make available to the plaintiff or the deceased means of ascertaining facts which were or might be relevant to the plaintiff's causes of action.

49 Neither party made any specific submissions concerning paragraph (d) of s 20(3) and s 23A(3). This is not surprising. Paragraph (d) of both sub-sections has little (if any) relevance to the present applications. It now appears to have been authoritatively accepted that those paragraphs deal with legal (as opposed to physical or mental) disability.[44] No question of legal incapacity arises in this case.

50 I turn now to consider paragraphs (e) and (f) of s 20(3) and s 23A(3). Initially, the plaintiff acted promptly following the death of Mr Van Gerven when she contacted the Sydney solicitors, McLaughlin & Riordan, in August 1997. However, following the 27 August 1997 letter from McLaughlin & Riordan, there was a period of delay until September 2004. The plaintiff explains this delay by saying that she did not know any of Mr Van Gerven's workmates and could not provide the further information required by McLaughlin & Riordan.

51 Following the conversation with her brother in September 2004, the plaintiff again acted promptly - making contact with Slater & Gordon. In response to requests for information from Slater & Gordon, the plaintiff provided such information as she could to Slater & Gordon in November 2004.

52 It must be said that very little was done by Slater & Gordon between November 2004 and May 2008. Such work as was done appears to have been limited to searching County Court records of workers compensation claims looking for details of relevant insurers. This was less than ideal.

53 Having consulted Slater & Gordon in September 2004 and responded to its queries in November 2004, there is no evidence of any further contact between the plaintiff and Slater & Gordon until August 2008. Specifically, the plaintiff does not appear to have chased up her solicitors to enquire how investigations were proceeding. While there are statements in the authorities in individual cases that particular plaintiffs may "exonerate" themselves because, in the circumstances, they were entitled to rely upon the competence of their legal representatives, even in those cases it has been held not to be a complete answer to a period of delay during which a solicitor was consulted to say that matters were in the hands of the solicitors.[45] Delay occurred between November 2004 and August 2008. While the plaintiff might reasonably be expected to have thought that investigations may take some little time, the plaintiff's delay during this period is not explained by simply saying that the solicitors, Slater & Gordon, had been consulted. That said, the present case is not one of a plaintiff making a deliberate decision to allow a limitation period to expire.[46]

54 Central to the plaintiff's applications is the evidence that the identity of the defendant (Amaca) did not become known by the plaintiff until she was told by her solicitor of the existence of two witnesses who could give evidence concerning Mr Van Gerven's exposure to James Hardie products in the course of his employment with NEI Pacific. The affidavit evidence discloses that the plaintiff was given this information by her solicitor shortly after it came to the knowledge of the solicitor. The discovery was made on a date between 2 May 2008 and 21 August 2008, when Mr Galimberti searched Slater & Gordon's National Asbestos Register database.

55 An issue arises as to whether Slater & Gordon could have discovered the existence of the two witnesses referred to in paragraphs 13 and 14 of Ms Eyles' affidavit of 14 October 2010 at an earlier point of time than August 2008. In cross-examination, Ms Eyles said that, while she was uncertain, she believed that the National Asbestos Register database may have been established some time in 2004 or 2005. Of more significance was Ms Eyles' evidence that she believed the witness referred to in paragraph 13 of her affidavit of 14 October 2010 first made contact with Slater & Gordon in or about 2005. However, this line of cross-examination was not pursued as to the nature and extent of this contact and one can only speculate in relation to these matters. That said, it is at least open to conclude that with somewhat more diligence than the material discloses, Slater & Gordon might have learnt of the existence of witnesses who could give evidence of Mr Van Gerven's exposure to James Hardie products at some time slightly before August 2008 (perhaps even as early as some time in 2005).

56 Amaca submitted that in considering the plaintiff's applications, regard should be had to the fact that, shortly after her causes of action accrued, she knew that Mr Van Gerven had died from mesothelioma; that the mesothelioma was caused by exposure to asbestos; and that the exposure to asbestos occurred in the course of Mr Van Gerven's employment with NEI Pacific. It was submitted from that time on, nothing of great moment was done except in an attempt to "bolster" a claim in respect of causes of action, the elements of which were already known.

57 While the matters referred to by Amaca are matters to be taken into account as part of "all of the circumstances of the case", the submission overlooks the fact that the various paragraphs of s 20(3) of the Wrongs Act and s 23A(3) of the Limitation of Actions Act are directed to the cause of action of the plaintiff/claimant/deceased against the defendant, and in respect of which an extension of time is sought. The fact that the plaintiff might not have been able to obtain an extension of time for any claimed cause of action against the employer/NEI Pacific does not mean that upon a proper application of the provisions of s 20 of the Wrongs Act or s 23A(3) of the Limitation of Actions Act the plaintiff must fail in respect of her applications for extensions of time to bring proceedings in relation to the causes of action pleaded against Amaca.

58 A further submission put on behalf of Amaca was that at all relevant times in Australia there were "essentially" two asbestos manufacturers (Amaca being one of these). The suggestion appeared to be that without any evidence of who the supplier or manufacturer of the asbestos to which Mr Van Gerven was exposed was, the plaintiff should simply have issued proceedings either against Amaca or both manufacturers. If that was the submission, I reject it. Putting to one side the appropriateness of any such approach, in my view, it is (at the very least) not unreasonable for a plaintiff to refrain from suing an asbestos manufacturer until he or she has some evidence as to the identity (or identities) of that manufacturer (or manufacturers).

59 Finally, Amaca submits that the plaintiff's applications for extensions of time should be refused because they are made over 15 years after the causes of action accrued and over nine years after they became statute barred; and they relate to events that took place over 50 years ago. There is force in these submissions. However, it must also be noted that there has been much litigation in this Court over the years relating to asbestos exposures considerably more ancient than the one alleged in this case. Experience shows that fair trials of such proceedings (when they are not settled) are a matter of routine. The events alleged in the present case are not particularly old so far as asbestos cases go. The unusual feature of this case is that the plaintiff's claims are nevertheless statute barred.

60 The critical fact in this case is the discovery in August 2008 of the existence of witnesses who can give evidence that the asbestos to which Mr Van Gerven was exposed was manufactured or supplied by James Hardie. Once this fact became known, the proceeding was issued with reasonable diligence. While the interlocutory steps in this proceeding have unfolded at a relatively leisurely pace, no attempt has been made by the defendant to have the trial of this proceeding expedited. On the other hand, I accept that the delays to which I have already referred have occasioned some unspecified prejudice to Amaca. Additionally, I accept that the absence of witnesses and records deposed to by Mr Coats, in relation to the deceased's employment, provides some further, but I think limited, prejudice to Amaca. Further, it must be noted that while Mr Coats has sworn that inquiries commissioned by him have been unable to locate people who could confirm or refute the nature of Mr Van Gerven's work, and whether Mr Van Gerven was exposed to asbestos, demonstrably such people exist in the form of the two witnesses discovered in August 2008.

61 Synthesising all the matters required to be taken into account by s 20 of the Wrongs Act in relation to the Part III claim, and synthesising all of the matters required to be taken into account by s 23A of the Limitation of Actions Act in relation to the estate claim, and in each case, having regard to all of the relevant circumstances of the case,[47] I have formed the view that it is just and reasonable to extend the periods of limitation applicable to the causes of action upon which the plaintiff relies to the date upon which the writ was issued, namely 12 December 2008.[48] In my view, the delay in this case has not prejudiced a fair trial of the plaintiff's claims.

62 There will be an order extending the periods of limitation applicable to the causes of action pleaded in the plaintiff's statement of claim to 12 December 2008. I will hear the parties on the question of costs.

[1] See paragraph 18 of Amaca's defence dated 5 February 2009.

[2] Section 27K has no application in the present proceeding because of the operation of s 27B(2)(d) (and perhaps also because of s 27B(2)(b)).

[4] [2002] VSC 265, [18]-[20].

[6] Ibid, [33]. Footnotes in original.

[7] Cuthill v State Electricity Commission of Victoria [1981] VicRp 85; [1981] VR 908, 913 per Starke J.

[9] See the reasons of McGarvie J in Wintle v Stevedoring Industry Finance Committee, unreported, delivered 5 April 1989.

[10] While Ashley J uses the words "evidence exists to support the plaintiff's claim", and while the version of s 23A(2)(b) that existed before 11 May 1977 contains the words "there is evidence to establish the cause of action", it is to be noted that neither of these phrases (nor any like phrase) appears in s 20(2) of the Wrongs Act. That said, Amaca made no submission that this was a point that distinguished s 20(2) of the Wrongs Act from the "old" s 23A; nor did Amaca suggest that I should not follow Ashley J's decision in Wintle. In any event, I would only not follow Wintle if I were satisfied that it was clearly wrong. No such submission was made during the course of this application, and I am not so satisfied in any event (it is to be noted that the decision in Wintle has stood for almost ten years without anyone doubting its correctness on this issue). See further, Amaca's submissions applying Wintle at T23.27 - T24.8.

[11] The Court Book contained four other affidavits sworn by a solicitor acting for Amaca. However, Amaca did not rely on any of these affidavits in the present application.

[12] See also paragraphs 24 and 27 of the plaintiff's affidavit sworn 29 September 2011.

[14] Supreme Court (General Civil Procedure) Rules 2005.

[15] The express failure to plead to the allegation of employment in this case highlighted the danger that can be associated with taking this course. It is to be remembered that Rule 13.12 operates in respect of any allegation of fact in a pleading, material and immaterial (see Hasse v Eicke (1885) 6 ALT 190).

[16] Koumorou v State of Victoria [1991] VicRp 66; [1991] 2 VR 265 and Repco Corporation Limited v Scardamaglia [1996] VicRp 2; [1996] 1 VR 7.

[17] Lord v Australian Safeway Stores Pty Ltd [1995] VICSC 212; [1996] 1 VR 614, 622-3.

[18] [1996] HCA 25; (1996) 186 CLR 541.

[19] It is, of course, to be noted that s 20(3)(b) and s 23A(3)(b) talk in terms of "prejudice to the defendant" - rather than some balancing between prejudice that might be suffered by a plaintiff and prejudice that might be suffered by a defendant.

[20] Outline of plaintiff's submissions dated 30 March 2012.

[21] See paragraph 48 of Amaca's outline of submissions dated 2 April 2012.

[24] Van Gerven v Amaca Ltd & Anor [2010] VSC 236.

[27] T10.19. See further, T24.22 - T25.15.

[28] Cf the judgment of Ashley J in Wintle v Stevedoring Industry Finance Committee & Ors [2002] VSC 265, [33] extracted at paragraph [11] above.

[30] See, for example, Rolls Royce Industrial Power (Pacific) Limited v James Hardie & Coy Pty Ltd [2001] NSWCA 461; (2001) 53 NSWLR 626 and Hay v Electricity Commission (NSW) [1996] NSWDDT 9; (1996) 14 NSWCCR 162.

[31] See Cuthill v State Electricity Commission of Victoria [1981] VicRp 85; [1981] VR 908, 913 (per Starke J, with whom Anderson J agreed).

[32] But see also the references to "the defendant" in both statutory provisions and, of course, the requirement in each case to have regard to "all the circumstances of the case".

[33] [2001] VSCA 138; (2001) 4 VR 114.

[34] With whom Ormiston and Callaway JJA agreed.

[37] See, for example, Koumorou v State of Victoria [1991] VicRp 66; [1991] 2 VR 265 and Repco Corporation Limited v Scardamaglia [1996] VicRp 2; [1996] 1 VR 7.

[38] Lord v Australian Safeway Stores Pty Ltd [1995] VICSC 212; [1996] 1 VR 614, 622-3.

[39] Tsiadis v Patterson [2001] VSCA 138; (2001) 4 VR 114.

[40] Myer Melbourne Limited v Hammond [1984] VicRp 4; [1984] VR 40, 49; Ford Motor Company (Aust) Limited v Kulic [1988] VicRp 20; [1988] VR 152, 157 and Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541.

[41] [1996] HCA 25; (1996) 186 CLR 541, 551.

[42] Burk v The Commonwealth (No. 2) [2002] VSC 464, [14]. See also GGG v YYY [2011] VSC 429, [189]-[195].

[43] [1996] HCA 25; (1996) 186 CLR 541, 551.

[44] GGG v YYY [2011] VSC 429, [211]. See further, Koumorou v The State of Victoria [1991] VicRp 66; [1991] 2 VR 265, 274.

[45] See, for example, Repco Corporation Limited v Scardamaglia [1996] VicRp 1; [1996] 1 VR 1 and Lord v Australian Safeway Stores Pty Ltd [1995] VICSC 212; [1996] 1 VR 614, 621.

[46] Cf Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207, [98].

[47] For the sake of completeness I should say that those circumstances do not include the assertions made on behalf of the plaintiff that Amaca was now in a better position to respond to the plaintiff's claim; that Amaca had positively sought to deny information or the means of obtaining information to the plaintiff; that Amaca was "under-funded", creating some difficulty for the plaintiff in making her claims; or that there was some relevant prejudice to the plaintiff. These matters were either not made out on the evidence or (to the extent they were made out) not part of the relevant circumstances upon which the plaintiff's applications fall to be decided.

[48] Cf Tsiadis v Patterson [2001] VSCA 138; (2001) 4 VR 114, 124 [34] and GGG v YYY [2011] VSC 429, [219]-[220].