Plaintiff v Defendant

**1 In 1993, the plaintiff was convicted of driving offences in the Magistrates' Court and sentenced to one month of imprisonment. On appeal to the County Court, that sentence was extended to two months.

2 During his imprisonment, the plaintiff was assaulted in the shower at Morwell Prison. He also alleges that he was raped by other prisoners at Pentridge Prison. The plaintiff wishes to pursue a claim for damages against the State of Victoria on the basis of negligence.

3 The State of Victoria operated Pentridge and Morwell Prisons at the time of the plaintiff's imprisonment. The plaintiff says the State of Victoria is liable for loss and damage caused by the negligence of its administrators, prison governors and prison officers.

4 The relevant limitation period for the plaintiff's common law damages claim has long expired: the plaintiff is approximately 22 years out of time to bring this proceeding. By summons filed 29 July 2016, the plaintiff applies for an extension of time in which to bring his claim against the State of Victoria.

5 Some twenty years later, the plaintiff received a pardon in respect of the conviction which had led to the imprisonment.

6 This ruling considers whether or not the Court should grant the time extension under s 27K of the Limitations of Actions Act 1958 (Vic) ('LAA').

7 Unless otherwise indicated, the following factual background is not in dispute between the parties.**

The plaintiff is issued with two infringement notices for exceeding the speed limit and for failing to wear a seat belt. He subsequently lodges objections to the infringements, however the letter of objection is not received and his licence becomes automatically suspended.

The plaintiff is stopped by police while driving and informed his licence was suspended. He is unaware of the licence suspension.

The plaintiff is convicted and sentenced to one month's imprisonment for driving while his licence is suspended. He is also convicted and fined $200 for failing to wear a properly secured seat belt and unlawful use of number plates.

The plaintiff lodges an appeal against the convictions.

On appeal, the plaintiff's sentence is increased to two months' imprisonment.

The plaintiff is incarcerated at Pentridge Prison and Morwell Prison.

The plaintiff claims he was raped while incarcerated at Pentridge Prison. This is not admitted by the defendant.[1]

Reverend Norman Gray, chaplain at Pentridge Prison, is informed by the plaintiff that he has been raped. (This is not admitted by the defendant.)

The plaintiff is physically assaulted in the shower while incarcerated at Morwell Prison. This is not admitted by the defendant.[2] The defendant does admit the assault occurred but the extent of injury and so forth is a matter of contention.[3]

Following his release from prison, the plaintiff consults with his general practitioner who refers him to a psychiatrist for treatment.

The plaintiff lodges an application for crimes compensation, in respect of injuries from rape while at Pentridge Prison, with the Crimes Compensation Tribunal.

The plaintiff reports to police that he was raped while in Pentridge prison.

The plaintiff begins receiving treatment from Dr Graeme Wood, psychiatrist. Dr Wood continues to treat the plaintiff.

Mr Peter Ryan MP writes to Mr Robert Clark MP regarding the plaintiff's conviction, noting that a recent Supreme Court decision meant he would now have a valid defence, and that the plaintiff wished to know what could be done to remedy the position and most particularly to clear his name. This begins a course of correspondence, on and off, with various MPs and Victorian Attorneys-General regarding the plaintiff's attempts to clear his name.

The plaintiff's solicitors, Mahons, open a file and advise the plaintiff in relation to the convictions, imprisonment and occurrences in prison the subject of the present proceeding.

The plaintiff seeks a pardon (petition for mercy).

The Magistrates' Court sets aside the original infringement against the plaintiff for speeding.

Mr Graham Devries of counsel provides three written memoranda of advice to the plaintiff.

The plaintiff's petition for mercy in respect of the criminal conviction for driving while his licence is suspended is refused.

The plaintiff's solicitor, Mr Hanlon, provides advice concerning the plaintiff's six year limitation period applicable to a claim of negligence against the defendant.

The plaintiff receives compensation from the Victims of Crime Compensation Tribunal: $20,000 for pain and suffering, $200 for expenses, plus lawyer's fees. The plaintiff's solicitors, Mahons, cease acting for the plaintiff after compensation is received.

The plaintiff's conviction for driving while suspended is overturned in the County Court.

The plaintiff's solicitors, Mahons, commence acting for him again concerning matters relating to his imprisonment and a potential pardon.

The plaintiff is granted a royal pardon in respect of the convictions on 27 September 1993 for driving while his licence was suspended.

After receiving a letter from the plaintiff enclosing a letter advising of the pardon, his solicitors, Mahons, open a new file. It is in relation to the current proceeding.

The defendant makes an ex gratia payment offer of $15,000 to the plaintiff in exchange for a release. The plaintiff declines the offer.

The defendant makes a second ex gratia payment offer in exchange for a release, this time in the amount of $45,000. The plaintiff declines the offer.

The plaintiff files the writ and statement of claim in this proceeding.

The defendant files a defence pleading the limitations defence.

The defendant writes to the plaintiff requesting a response regarding its reliance upon the limitations defence (and writes again on 9 June 2016).

A medical panel determines the plaintiff has a serious injury.

The plaintiff's solicitors write to the defendant's solicitors inviting them to reconsider their client's reliance on the limitations defence.

The defendant's solicitors confirm their instructions to take the limitations defence and seek further information regarding the plaintiff's reasons as to why he should receive an extension of time.

The plaintiff issues a summons seeking an extension of time to bring this proceeding.

8 For the reasons below, the plaintiff's summons is granted. The time extension will be granted.

**9 The evidence given in respect of this application, and which has all been considered, is as follows:

(a) The affidavit of Reverend Father Norman Gray, sworn 1 April 2016;

(b) the affidavit of Graeme Wood, consultant psychiatrist, affirmed 9 September 2016;

(c) the affidavit of Nigel Strauss, consultant and occupational psychiatrist, affirmed 13 September 2016;

(d) the affidavit of the plaintiff, sworn 8 September 2016;

(e) the affidavit of John Joseph Hanlon, the plaintiff's solicitor, sworn 9 September 2016;

(f) the affidavit of Debra Judith Coombs, the defendant's solicitor, sworn 28 September 2016 ('the first Coombs affidavit');

(g) the affidavit of Roderick John Wise, Deputy Commissioner, Operations of Corrections Victoria, sworn 28 September 2016;

(h) the affidavit of Brendan Francis Money, Assistant Commissioner, Sentence Management Branch of Corrections Victoria, sworn 29 September 2016; and

(i) the affidavit of Debra Judith Coombs, sworn 3 October 2016 ('the second Coombs affidavit').

10 The plaintiff's two medical witnesses noted above, Dr Wood and Dr Strauss, gave oral evidence at the hearing of the application.**

11 The parties made written and oral submissions. It is unnecessary to reiterate them all here. They have all been considered and the relevant submissions are discussed below.

**12 An Associate Justice of the Supreme Court of Victoria has power to hear an application of this type.[5]

13 The parties agreed that s 27D LAA is relevant. It provides:**

Limitation period for personal injury actions - general

(1) An action in respect of a cause of action to which this Part applies shall not be brought after the expiration of whichever of the following periods is the first to expire -

(a) the period of 3 years from the date on which the cause of action is discoverable by the plaintiff;

(b) the period of 12 years from the date of the act or omission alleged to have resulted in the death or personal injury with which the action is concerned.

(2) This section does not apply to a cause of action that is founded on a personal injury to a person who was under a disability at the date of the act or omission alleged to have resulted in the personal injury.

**14 Section 27K(2) permits the Court to extend the applicable limitation period if 'it decides that it is just and reasonable to do so...'.

Matters to be considered in determining applications for extension of limitation period

(1) In exercising the powers conferred on it by section 27K, a court shall have regard to all the circumstances of the case, including (but not limited to) 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 or legal incapacity of the plaintiff arising on or after the date of discoverability;

(e) the time within which the cause of action was discoverable;

(f) the extent to which the plaintiff acted promptly and reasonably once the plaintiff 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;

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

(2) To avoid doubt, the circumstances referred to in subsection (1) include the following -

(a) whether the passage of time has prejudiced a fair trial of the claim; and

(b) the nature and extent of the plaintiff's loss; and

(c) the nature of the defendant's conduct.

(3) In the application of this section to a cause of action that is a survivor action references in subsection (1) to the plaintiff include references to the deceased and the applicant, or any of them, as appropriate in the circumstances.

(4) In the application of this section to a cause of action that arises under Part III of the Wrongs Act 1958, references in subsection (1) to the plaintiff include references to the deceased, the executor or administrator of the deceased, and the beneficiaries, or any of them, as appropriate in the circumstances.

**16 In respect of s 27L(2)(c) LAA, a question arose during the hearing as to whether it is only confined to the defendant's conduct in causing the injury,[6] or more generally - the defendant's conduct post offence also, as part of the synthesis of factors to be considered.

17 In Callan v Healthscope Ltd & Anor[7] the plaintiff (by his litigation guardian) issued proceedings against Healthscope Ltd and Dr Barker, a special obstetrician, for damages for personal injury resulting from the defendant's negligence in relation to his birth. Whilst Williams J ultimately found that the claim was within time, an extension of time would have been granted had the proceeding been statute barred.[8]

18 Considering ss 27L(1)(c) and 27L(2)(c) LAA together, Williams J referred to the plaintiff's submission that Dr Barker's reassurances as to the management of the labour, where he indicated to the plaintiff's parents that it was adequate, obscured the issue as to whether the plaintiff's mother should have proceeded at that point in time with the claim.[9] Williams J accepted that Dr Barker's reassurances after his review of the file, among other considerations, did have the effect of halting an application being made by the parents of the plaintiff as to their son's disability being caused by the management of the labour.[10]

19 Dr Barker's conduct, in making the reassurances as to the management of the labour, was post injury. In the synthesis of factors, Williams J considered that conduct to be one of the 'many good reasons' the plaintiff's parents had for their decision not to proceed with litigation in mid1998.[11]

20 In GGG v YYY, the Court concluded that 'the nature of the defendant's conduct has directly contributed to the delay which has occurred in the plaintiff's injury becoming discoverable and in the institution of this proceeding.'[12] This decision reiterated the validity for time extensions in situations where the full extent of injuries are slow to materialise, and is a more recent authority than Callan.

21 Section 27L(2)(c) LAA must be read in the context of s 27L as a whole, whereas s 27L(1)(c) is to be confined to the nature of the defendant's conduct in making available facts which were or might be relevant to the cause of action of the plaintiff against the defendant. Additionally, it can be read when considering Callan and GGG, that the making available of such facts which may lead to the initiation of an action itself also falls under s 27L(1)(c). Generally speaking, the defendant's other conduct, including post-injury conduct, may be taken into account under s 27L(1) because it is an exclusive, not inclusive set of factors. Section 27L(1) uses the words 'all the circumstances' and s 27(2)(c) defines that to include the nature of the defendant's conduct.

22 A summary of relevant principles concerning applications to extend time under the LAA is set out in Davies v Nilsen,[13] and is adopted in this matter:[14]

(b) A limitation period is imposed by the Legislature for good reasons of public policy and should not be regarded as a mere signpost.

(c) Having said that, since 1973, in this State the Legislature has seen fit to enable a claimant, in a case where it is just and equitable to do so, to apply for an extension of time to bring their claim. The provision, s 23A, is beneficial and provides the court with a wide discretion as to whether an extension of time ought to be granted.

(d) Whilst the primary consideration in a s 23A application is whether it is 'just and reasonable' to extend the period in which to bring the claim, the Legislature has identified six non-exhaustive criteria to be considered by a court in such an application ...

(e) The plaintiff carries the onus of establishing that it is just and reasonable to grant an extension of time.

...

**23 In light of these, 'the court must synthesise 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.'[15]

24 The parties each provided a number of authorities where relevant principles are applied. Ultimately each case will turn on its facts. The Court must have regard to all the circumstances of each particular case.

25 The recent High Court decision of Prince Alfred College Inc v ADC ('PAC')[16] is applicable to this application. PAC concerned an application for a time extension by a man ('ADC') who had been sexually abused while he was a student at a boarding school. He was abused by Dean Bain, who was the housemaster.

26 In 2008, ADC instituted proceedings in the Supreme Court of South Australia against the school, seeking damages ('the 2008 proceedings'). The abuse had occurred in 1962 and he had raised the issues of abuse with the school in 1997. In that year ADC had also commenced civil proceedings against Mr Bain and settled those proceedings. By the time he brought the 2008 proceedings, a number of key witnesses had died. The trial judge refused the extension of time application made under s 48 of the Limitation of Actions Act 1936 (SA). The trial judge dismissed ADC's claims and refused the extension of time application because the effluxion of time was so great that the school would be prejudiced in its attempts to defend its claims.[17] The Full Court of the Supreme Court of South Australia reversed the decision. The Full Court held the school to be vicariously liable and, additionally, that an extension of time should have been granted.[18] The High Court allowed an appeal by the school on the basis that the Full Court erred in allowing the extension of time.

27 In PAC, the plurality referred to two fundamental propositions,[19] drawn from its previous decision of Brisbane South Authority Regional Health Authority v Taylor:[20]**

First, an applicant for an extension of time must prove the facts which enliven the discretion to grant the extension and also show good reason for exercising the discretion in his or her favour. An extension of time is not a presumptive entitlement which arises upon satisfaction of the pre-conditions that enliven the discretion. The onus of persuasion is upon the applicant for an extension of time. The exercise of the discretion to grant an extension of time must take account of the reasons for the limitation regime, and the discretionary nature of the decision to be made must be respected when conducting appellate review of a primary judge's decision. In Brisbane South Regional Health Authority v Taylor, McHugh said:

The enactment of time limitations has been driven by the general perception that [w]here there is delay the whole quality of justice deteriorates.

Secondly, the purpose of the legislative conferral of discretion is to ensure a fair trial on the merits of the case[21].

...

**28 In respect of the second factor above, the High Court ruled that the loss of evidence which would tend against the prospects of a fair trial will usually be fatal to the exercise of the discretion to grant an extension.[22]

29 The parties in this application were agreed that this proposition, however, is not forceful in Victoria as the legislation is different to that of South Australia, which was considered in PAC. Nonetheless, prejudice is a relevant factor in the exercise of the discretion under s 27K LAA. However, there are also other factors to be weighed, and these include the factors listed in s 27L.

30 In PAC, the High Court enunciated the following principles that are also applicable to this application.

31 The absence of witnesses is a forensic disadvantage weighing against the extension of time.[23] Further, this may be of particular relevance in proceedings concerning vicarious liability.**

As the primary judge herself observed, because of the dearth of evidence no conclusion could be drawn about Bain's role, a matter critical to the question of vicarious liability. It could not be assumed that the position in which Bain was placed by his assigned role provided the 'occasion' for the offending. [24]

32 The longer the passage of time, the higher the risk of an unfair trial:

Where a trial is conducted long after the events which gave rise to the dispute, the risk that the trial will be a mere simulacrum of the process of doing justice becomes greater with the passage of time.[25]

**33 It would be incorrect to assess prejudice by comparing the prejudice suffered before the expiry of a limitation period with the prejudice suffered after the expiry of the limitation period.[26]

34 The onus is on the applicant for an extension of time. They must demonstrate that:**

...[a] fair trial may be had now, notwithstanding the passage of time. That onus is not discharged by saying the putative defendant should have been more astute to conserve its own interest by anticipating litigation that did not eventuate until many years after the expiration of the limitation period.[27]

**35 Where an injured party makes a deliberate decision not to commence proceedings, there must be strong reasons to permit proceedings to be brought against a defendant who reasonably considered that the dispute had been laid to rest.[28] The prospective defendant need not be perpetually on notice in such circumstances.

36 Whilst there is a certain allure in following the outcome of a higher authority, that can be superficial. The correct approach, as enunciated in PAC, is to consider what principles are applicable to the facts and circumstances of each particular case. In this case, the outcome in PAC may be distinguished on the following grounds. Firstly, given the LAA applies, and not the South Australian Act, the prejudice which the defendant may suffer is not in itself fatal to the plaintiff's application. Secondly, but for the delay in granting him a pardon, the plaintiff would very likely have brought his application in time. Thirdly, unlike the plaintiff in PAC, there has not been a change of mind. The parties in PAC had reached a financial agreement and the plaintiff had assured the school that he did not intend to sue. The school had made payments to him contemporaneously to that assurance. As such, the school was reasonably entitled to consider the matter resolved. The plaintiff in this application has not changed his mind regarding pursuing common law damages and he has not received any financial payment from the defendant as he refused to sign a deed of release which would require him to relinquish his common law right to damages. The only funds he received were those from the Victims of Crime Compensation Tribunal, having denied ex gratia offers from the defendant previously.**

**37 The plaintiff is approximately 22 years out of time to bring these proceedings.

38 He submits the reason for delay is that he was advised in 1995 to seek an ex gratia payment which was dependent upon the expungement of his conviction. The plaintiff was under the impression that before a pardon was granted he would not be eligible for any form of compensation by way of any common law action. Once the pardon was obtained however, he acted accordingly to initiate proceedings.

39 The plaintiff engaged with local politicians from 1994; first attempting to obtain a pardon in early 1995, shortly after the Magistrates' Court set aside the original infringement for speeding. His petition for mercy was denied in September 1995. In 1996 and 1997 he enlisted the help of a member of parliament, in contacting the Attorney-General at the time, again seeking a pardon. This too was unsuccessful, as was a later attempt to obtain a pardon from the next Attorney-General. After these attempts, the plaintiff thought he could take the common law damages matter no further because he had not successfully obtained a pardon. The plaintiff says this explains his inactivity for a long period beginning in 1997. It was not until December 2010, when a member of parliament with whom he had previous correspondence, became Attorney-General for Victoria, that he tried again to clear his name. The plaintiff subsequently received a pardon in May 2013. He then immediately considered the question of compensation again, having satisfied what he thought to be the prerequisite to doing so.

40 The plaintiff submits that the psychiatric injury he suffered as a result of the assault and rape was an impediment to making a common law claim. He says that the delay between the occurrence of the traumatic sexual assault and commencing a common law proceeding is consistent with his psychiatric condition. His psychiatric condition made it incredibly difficult to talk about the circumstances of the rape, although such difficulties have alleviated with time.

41 The defendant submits the plaintiff does not allege that the reason for his failure to commence a common law proceeding earlier was for psychiatric distress, trauma or fear of having to confront the alleged incidents. The defendant submits the explanations of Dr Wood and Dr Strauss do not accord with the plaintiff's explanation of the delay. Further, the plaintiff was not unable to commence common law proceedings by reason of his psychiatric injury. He chose not to do so, irrespective of whether he was misinformed as to the requirement to be pardoned prior.

42 The defendant submits the plaintiff's statement that he cannot recall receiving any advice regarding any limitation period cannot alone form the basis of a finding that he was not told about the limitation period in the early-mid 1990s. The defendant submits that it is highly likely that in about 1995 the plaintiff was told about the limitation period by his solicitors. Furthermore, Mr Hanlon, his solicitor, deposes that it was highly likely that he had advised the plaintiff of the limitation period.

43 The defendant submits the plaintiff's perception of advice received from Mr Devries of counsel to pursue a pardon and ex gratia payment first, and to do so for several years, was not reasonable. The defendant submits that there is clear evidence there was discussion about giving active consideration to making a common law damages claim and that there was no suggestion in this context that there would have been any reference to needing a pardon before being able to seek such damages.

44 The defendant submits the inference must be made that there was a decision made by the plaintiff to not proceed with the common law claim until he had sought the ex gratia payment. The defendant submits the plaintiff considered various courses of action as early as September 1995, when he made the original petition for mercy. Further, the defendant submits that when the second ex gratia payment was offered in August 2015, and shortly after the common law proceeding was initially discussed at an informal conference and then issued, it was not high enough and the plaintiff reconsidered his course of action as a result.

45 The Court does not consider that the psychiatric injury suffered by the plaintiff solely explains, or accounts for, the delay. It simply cannot be, as one of the tenets of the plaintiff's argument is that the claim was not brought as he was under the impression that he needed to seek a pardon prior to any commencement of action. Nevertheless, the plaintiff's psychiatric injury is a relevant factor to consider in the synthesis of all factors, because the injury evidently made it more difficult for the plaintiff to bring the claim for common law damages. The evidence of Dr Wood given under crossexamination was that the underlying symptom process of the plaintiff was the same over the years, a lack of interest and apathy.[29] The evidence of both Dr Wood and Dr Strauss related to the plaintiff's capacity to focus on events.[30] The evidence is that the plaintiff was obsessed with clearing his name.[31] The Court accepts that in some cases victims of sexual assault cannot bring themselves to institute common law proceedings, however the evidence of Dr Wood does not indicate that this was the sole reason for the plaintiff's delay. Dr Wood deposes that the plaintiff's psychiatric condition made it much harder for him to contemplate common law proceedings.[32] Under cross-examination, Dr Wood agreed that the plaintiff was not unable to bring a claim.[33]

46 Dr Strauss gave an opinion in cross examination that 'over the years this man hasn't been able to confront the trauma.'[34] The evidence of Dr Wood, who has been the plaintiff's treating psychiatrist since 1994, is preferred to the extent there is any inconsistency in the evidence with Dr Strauss. Dr Strauss has examined the plaintiff on just two occasions, in 2013 and 2015. Weighing up the evidence, the conclusion must be drawn that while the plaintiff's psychiatric condition made it more difficult for him to contemplate proceedings for common law damages than pursuing a pardon, it did not prevent him from doing so. Nor can it be argued with force that it was the sole reason preventing him from doing so. That is, the plaintiff's psychiatric condition contributed to the delay, but was not the dominant cause of it.

47 The Court finds that the plaintiff was aware of a limitation period in respect of his common law damages claim. His solicitor gave evidence of this.[35] He also received advice from counsel within the limitation period. Mr Devries of counsel advised him to first pursue the ex gratia claim before common law damages.[36] This is what appears to have been done. Counsel did not advise that this should be done at the expense of the common law damages claim. The plaintiff was aware of the limitation period for the common law damages claim and allowed that to expire whilst he pursued a pardon.

48 In light of the legal advice received from his solicitor, Mr Hanlon, and from Mr Devries of counsel, it was not reasonable for the plaintiff to assume that he needed to obtain the pardon prior to pursuing the common law damages claim. However, the legal advice must be considered alongside the evidence as to the plaintiff's psychiatric condition. The legal advice presented him with one option that was easier for him than the other - the pursuit of an ex gratia claim. The defendant's long delay in causing the plaintiff to receive a pardon contributed to the delay in bringing common law damages in a real way. The plaintiff was obsessed with clearing his name. Had the plaintiff been granted a pardon in 1995, he very likely would have brought his case within time. The chronology of events, being the plaintiff seeking common law damages contemporaneously after finally clearing his name in 2015 is indicative of this.**

49 The plaintiff submits that he has suffered a great psychiatric injury which destroyed his personal and working life. He submits that in terms of the synthesis that is required in determining whether it is just and reasonable to extend time, he has suffered a high level of loss and harm, which he accepts needs to be balanced with the prejudice to the defendant, but which he submits is not substantial at all. The Court accepts the nature and extent of the plaintiff's loss is very significant.

**50 The plaintiff submits that there has been a longstanding refusal by the defendant to acknowledge and remedy the wrongs done to him. He submits the material provided to the defendant in his application for ex gratia payment included material relevant to harm done as a result of the incidents. He submits that there has been an even longer refusal by the defendant to offer the slightest redress - ex gratia payments were derisory. The plaintiff submits it must be the case that the gravity of the matter in terms of its factual nature and the conduct that has occurred is part of what the LAA requires to be considered in terms of the defendant's conduct.

51 The defendant submits that this is not the correct interpretation of 'the nature of the defendant's conduct' within the meaning of s 27L of the LAA. In respect of the nature of the defendant's conduct within the meaning of s 27L of the LAA, the defendant says that what it relates to is the defendant's actual conduct in causing injury. The plaintiff's submission, that the longstanding refusal by the defendant to acknowledge and remedy the wrongs done to the plaintiff is relevant to s 27L(2)(c), is therefore rejected by the defendant.

52 The nature of the defendant's conduct after the injury is relevant. Section 27L lists inclusive factors rather than exclusive factors, as discussed above. The pardon was given after more than 20 years of attempts. The long delay in pardoning the plaintiff served as another tragedy, and is a factor which weighs in support of granting the time extension. However, in the synthesis of factors, it must be weighed with other factors.**

**53 The plaintiff submits that the defendant does not make out a substantial prejudice case against it. He says the defendant had knowledge of the rape and assault suffered by him through the crimes compensation process and his report to police. No information was elicited and reported at the time by the police. This means that there was either no information that could be found at the time, or its servants did not make proper investigation. In those circumstances, the defendant cannot now claim prejudice.

54 The information provided by the plaintiff in his crimes compensation claim was very complete and included full psychiatric evidence. The defendant's affidavits, the plaintiff says, do not show any substantial case of prejudice in relation to the availability of witnesses or documents. The plaintiff further submits that records were stored and maintained indefinitely in an archiving system; other records were discarded after a few weeks. In any event, they were destroyed within the limitation period, which had the application been brought within time, would have failed to be a ground of prejudice for the defence to claim on the basis of its actions.

55 The plaintiff submits it is very significant that the Reverend Father Gray reports that he advised the plaintiff not to report the rape to the prison authorities because 'his life would be in very great danger'.[37] The plaintiff submits the nature of the pleadings are such that the allegations are systemic in nature and should be able to be answered by the defendant. He refers to the affidavit evidence of the two corrections staff.[38]

56 The defendant submits that it was only notified in late 2015 of the plaintiff's intention to seek common law damages.

57 The defendant submits it will suffer significant specific prejudice if this proceeding goes to trial. The particular prejudice concerns the defendant's ability to defend allegations of negligence/breach of duty as a result of the following:

(b) destruction/significant physical changes to the prisons in question; and

(c) inability to identify potential relevant witnesses.

58 The defendant submits that although a report was made to the police which would have enabled them to make investigations, it does not mean the police would have investigated issues that might be relevant to defending a negligence claim. They have no relevant records of this report. The defendant further submits that while records may still exist, they are no longer in searchable form.

59 The defendant submits that the correct consideration of prejudice to the defendant is to consider the prejudice the defendant faces, not the additional or marginal prejudice occasioned by the delay.

60 As discussed above, the parties agree that under the LAA, unlike the South Australian legislation considered in PAC, it cannot be said that the loss of evidence which would tend against the prospects of a fair trial is a fatal deficit in an argument, or decision, where good reason has been shown to exercise discretion to grant an extension. It is a factor to be weighed in the synthesis of factors, like many others.

61 Applying PAC, the Court should not compare the prejudice suffered by a defendant before the expiry of the limitation period with that suffered afterwards. Moreover, the fact that records were destroyed during the limitation period is not necessarily relevant, nor is the fact the State had knowledge of assaults prior to the limitation period expiring.

62 Applying PAC, the plaintiff cannot establish that a fair trial can be had now by simply saying that the defendant should have been more astute to conserve its own interests and position by anticipating litigation, and thus keeping records and contact with potential witnesses. Accordingly, the existence of the police reports and the crime compensation claim does not mean that the defendant was on notice as to the common law damages claim. Further, although the Crimes Compensation Tribunal did order compensation to the plaintiff, it does not mean there would be sufficient evidence to satisfy a jury in a negligence claim that the assaults occurred.

63 The Court accepts that the defendant is likely to suffer prejudice, particularly in relation to the rape allegation,[39] if the matter goes to trial. There is little evidence concerning liability, that is, whether the defendant breached its duty of care to the plaintiff during his imprisonment by its actions or inaction, and if so, whether that gave rise to his injuries. Pentridge Prison no longer exists. There has been some destruction of the building and significant physical changes to both it and Morwell Prison. The identities of the alleged rapists are not known. There is a lack of records and/or documents, and in particular there are no witnesses of the alleged rape. The allegations concerning the location of witnesses and prison officers cannot be tested. There is no evidence as to which prisoners and officers were on site at the time of the alleged rape.[40] However, in respect of the assault at Morwell Prison, there is more evidence. The assault is documented and the assailant identified.[41] Indeed, the defendant accepts that the assault occurred. The issue in dispute is what injuries may have flowed from it.

64 The plaintiff's submission that this case concerns the systems in place at the time, and that there is sufficient evidence for a fair trial to be had on those issues, is accepted. Messrs Money and Wise can give evidence as to general systems that were in place, although it is accepted there is no suggestion either of them can give evidence about what occurred on the day of the alleged rape or the events of that day specifically. Reverend Gray can also give general evidence as to the prison systems at the time and why he was of the view that the plaintiff's life would be in great danger if he reported the alleged rape that he suffered.

65 The Court considered whether or not the incidence of the alleged rape and the assault should be considered separately in assessing these issues. Counsel for the plaintiff submitted that while they are separate torts, it is the psychiatric injuries rather than the physical injuries, which would be significant. He conceded it would be difficult to separate causation.[42] Submissions made by both counsel did not separately address the application of s 27L in respect of each tort. Despite neither party seeking to separate the two incidents, the Court considers it proper that prejudice be assessed separately in relation to each event and has done so.**

**66 The Court must synthesize all relevant factors. While the delay is significant, its primary cause was due to the plaintiff's determined campaign to secure a pardon, and the fact that that outcome was not achieved for a period greater than 20 years. During the campaign, the plaintiff was focused on clearing his name. He himself uses the adjective 'obsessed'.[43] The plaintiff had received legal advice that he needed to bring his claim common law damages within time, but allowed that time to lapse while he fought to clear his name. Nonetheless, he never elected not to pursue common law damages. His psychiatric injury also made it more difficult to bring the common law proceedings.

67 The defendant will be prejudiced because of the absence of witnesses, loss of records, and the effluxion of time. However, the prejudice is not fatal and it is not accepted that a trial will be unfair as a result.

68 A ruling disallowing the application would have a negative and serious impact upon the plaintiff. The plaintiff's circumstances are tragic and compelling. It is significant that s 27K(2) LAA, which permits the Court to extend the applicable limitation period, is not confined to what is reasonable. Rather, time should be extended if the Court considers it 'just and reasonable to do so'. In synthesizing all the relevant factors, the Court concludes that it is just and reasonable to extend time in this situation.

69 The Court will make orders allowing the application. It will hear the parties on costs and the appropriate orders.**

[1] Statement of claim dated 15 February 2015 ('statement of claim') [6]; amended defence dated 22 July 2016 ('amended defence') [6].

[2] Statement of claim [9]; amended defence [9].

[3] Transcript of proceedings, Goodenough v State of Victoria (Supreme Court of Victoria, SCI 2016 00529, Ierodiaconou AsJ, 5 October 2016), 131, 15-17.

[4] The amended defence has not been filed with the Court. However, it has been served and was part of the documents before the Court during the hearing of this ruling.

[5] Goodenough v State of Victoria [2016] VSC 733.

[6] See Edwards v Kennedy [2009] VSC 74 [76]-[79], where the Court looked at the surgery performed on the plaintiff (which was the harm complained of) under s 27L(2)(c) and said the sub-paragraph does not require or indeed justify a view as to the prospects of success of the plaintiff's case of action. Rather, the Court was of the view that the sub-paragraph requires a characterisation of the type of conduct alleged and in respect of which the plaintiff seeks relief. In GGG v YYY [2011] VSC 429 ('GGG v YYY'), in a proceeding involving sexual abuse of a child by his uncle, at [218] the Court considered under s 27L(2)(c) the defendant's conduct in threatening the plaintiff not to tell of the abuse and found such threats contributed to the psychological consequences of the abuse which led to the plaintiff to keep the abuse 'locked up'.

[7] [2008] VSC 88 ('Callan').

[9] Callan [2008] VSC 88, [86]; [93].

[12] [2011] VSC 429, [219].

[13] [2015] VSC 584 ('Davies').

[15] Tsiadis v Patterson [2001] VSCA 138; (2001) 4 VR 114, 123-4.

[16] [2016] HCA 37 ('PAC').

[17] A, DC v Prince Alfred College Incorporated [2015] SASC 12, [229]-[231] cited in PAC at [5].

[18] A, DC v Prince Alfred College Incorporated [2015] SASCFC 161.

[20] [1996] HCA 25; (1996) 186 CLR 541.

[29] Transcript of proceedings, Goodenough v State of Victoria (Supreme Court of Victoria, SCI 2016 00529, Ierodiaconou AsJ, 4 October 2016), 33.

[30] Ibid, 35,46-47.; Affidavit of Graeme Wood affirmed 9 September 2016 [10]; Affidavit of Nigel Strauss affirmed 13 September 2016 [7].

[31] Affidavit of the plaintiff, sworn 8 September 2016 [33], [54]; Transcript, 4 October 2016, 33, 34, 46-47.

[32] Affidavit of Graeme Wood affirmed 9 September 2016 [10].

[35] Affidavit of John Hanlon sworn 9 September 2016 [7].

[36] Memorandum of advice dated 30 July 1995: Exhibit 'CBG-17' to the plaintiff's affidavit sworn 8 September 2016.

[37] Affidavit of Reverend Norman Gray sworn 1 April 2016 [8].

[38] Affidavit of Roderick John Wise sworn on 28 September 2016; Affidavit of Brendan Francis Money sworn on 29 September 2016.

[39] Not in the sense of a criminal trial, but in the sense that evidence of this alleged incident will be led in the claim for common law damages.

[40] Affidavit of Debra Coombs sworn 28 September 2016 [31], [33], [36]; affidavit of Roderick Wise sworn 28 September 2016 [11], [12], [14]-[17]; affidavit of Brendan Money sworn 29 September 2016 [12], [13], [15].

[41] Exhibit 'CBG-6' to the plaintiff's affidavit contains the statement the plaintiff made to prison officials and an investigation report by the Correctional Services Division Prisons Investigation Unit.

[42] Transcript of proceedings, Goodenough v State of Victoria (Supreme Court of Victoria, SCI 2016 00529, Ierodiaconou AsJ, 5 October 2016), 197.

[43] Affidavit of the plaintiff, sworn 8 September 2016 [33], [54]; Transcript, 4 October 2016, pp 33, 34, 46-47.