Plaintiff v Defendant

1 Almost ten years ago, Mr Marin Bucic, a self-employed brick cleaner, was working on a residential building construction site in Keilor. He says he fell from unguarded scaffolding and was seriously injured. Mr Bucic's campaign for compensation since may be characterised as a long dusty road with multiple detours. There have been two workers' compensation claims, four previous proceedings (in the Magistrates', County and Supreme Courts), and now this proceeding. This proceeding is commenced almost 5 years out of time. This ruling concerns whether Mr Bucic should be given an extension of time pursuant to ss 27K and 27L of the Limitation of Actions Act 1958 ('the LAA').

2 Mr Bucic brings this proceeding against Arnej Pty Ltd on the basis of negligence and seeks damages. He relies upon Part IIA of the Wrongs Act 1958 ('the Wrongs Act').[1] Arnej Pty Ltd is a builder. It hired Mr Bucic as a brick cleaner to work on the site. Arnej Pty Ltd denies the negligence claim and joins C & N Scaffolding Hire Pty Ltd ('C & N'), a contractor it engaged to construct scaffolding at the construction site. C & N denies Arnej Pty Ltd is entitled to contribution or indemnity from it. Both Arnej Pty Ltd and C & N oppose Mr Bucic being given an extension of time.

3 The question of whether Mr Bucic should be given an extension of time requires determination of the following issues.

(a) Did Mr Bucic receive advice on the limitation period prior to its expiry?

(b) Would Arnej Pty Ltd be so prejudiced by the effluxion of time a fair trial could not be held?

4 It is necessary to traverse some of the background, primarily the claims and litigious steps prior to this application. The respective chronologies handed up by counsel for both Mr Bucic and Arnej Pty Ltd indicate that these facts are substantially agreed.

5 Mr Bucic alleges he fell from scaffolding at a building site in Keilor on 30 October 2007 ('the incident').

6 On 6 November 2007, Mr Bucic met with Mr David Denby, solicitor of MW Law. Mr Bucic retained MW Law to act for him in respect to the incident.

7 On 9 November 2007, Mr Bucic lodged a claim for workers' compensation for weekly payments and medical and like expenses, alleging a fractured rib, punctured lung, fractured right arm, back and head injury.

8 On 28 December 2007, a statement from Mr Bucic was taken by Mr Greg Davies of Maurice J Kerrigan & Associates Pty Ltd, a WorkCover investigator.[2]

9 On 3 January 2008, Mr Bucic's workers' compensation claim was terminated by Allianz Australia Workers' Compensation (Victoria) Limited ('Allianz') on the basis he was not a worker or deemed worker under the Accident Compensation Act 1985 ('the ACA') and therefore not entitled to compensation.[3]

10 On 10 January 2008, Maurice J Kerrigan & Associates Pty Ltd provided an investigation report to Allianz.[4]

11 On 17 January 2008, the decision to reject Mr Bucic's claim was referred to the Accident Compensation Conciliation Service ('ACCS').[5]

12 On 28 February 2008, a certificate of outcome was issued by ACCS stating the matter was unresolved and a genuine dispute existed between the parties.[6]

13 On 2 June 2008, Mr Bucic issued proceedings in the Magistrates' Court in relation to the rejection of his workers' compensation claim.[7]

14 On 28 January 2009, the Magistrates' Court proceeding was compromised by agreement between the parties, and dismissed by consent. The terms of settlement indicated the settlement was without prejudice to either parties' rights under ss 98C and 134AB of the ACA.[8]

15 On the same date, a handwritten MW Law file note indicates there was a conference with Mr Gray of counsel, Mr and Mrs Bucic and a representative of MW Law.[9] From the file note it is evident that it is envisaged Mr Bucic will pursue his claim for workers' compensation and make an application under s 98 of the ACA. At the bottom left hand side of the file note, the following words are written: 'Diarize 3 years Wrongs act' [sic].[10] The words are circled, and the word 'Diarize' is underlined. The circled words have a scribble under them which appears to be multiple underlining.

16 On 17 April 2009, Allianz received a claim from Mr Bucic dated 6 April 2009 for impairment benefits for injuries to back, right arm, chest, lungs, and neurological and psychiatric injuries.[11]

17 On 25 August 2009, Allianz referred Mr Bucic to a Medical Panel for assessment.[12]

18 On 5 October 2009, the Medical Panel provided its opinion to Allianz. It was to the effect that Mr Bucic had a 9 per cent whole person impairment resulting from the accepted lower back, right wrist, chest, lungs and psychiatric injuries when assessed in accordance with s 91 of the ACA and the degree of impairment is permanent. Further, Mr Bucic had a 5 per cent psychiatric impairment resulting from accepted psychiatric injury when assessed in accordance with s 91 and the degree of impairment is permanent. For the purposes of ss 134AB(3) and (15) of the ACA, the panel opined that there is a combined whole person impairment of 14 per cent from the accepted physical and psychiatric injuries and the degree of impairment is permanent.[13]

19 By letter dated 19 October 2009, Mr Denby of MW Law confirmed to Mr Bucic that in accordance with his instructions, the firm had accepted the WorkCover offer of $13,310.00 by way of impairment benefit. The letter also noted his instructions to apply for a serious injury certificate.[14]

20 In February 2010, Mr Bucic made a serious injury application. It was subsequently rejected by the Victorian WorkCover Authority.

21 On 28 June 2010, Mr Bucic filed an originating motion in the County Court seeking leave to commence proceedings on the basis that he had a serious injury within the meaning of the ACA ('the serious injury application').[15]

22 On 26 July 2010, Mr Gavan Burns of counsel gave advice that the Wrongs Act is applicable to Mr Bucic as he is a subcontractor, and the applicable limitation date is 30 October 2010.[16] Mr Burns' advice was that the serious injury application was redundant.

23 On 21 September 2010, Mr R Simm, an orthopaedic surgeon, issued a 'certificate of assessment of degree of impairment arising from stabilised injury', pursuant to the Wrongs Act. He assessed the degree of impairment as more than 5 per cent. [17]

24 On 30 October 2010, the limitation period for this proceeding expired.

25 On 20 September 2011, Simon Legal commenced acting for Mr Bucic in his County Court proceeding. Mr Paul Simon is the principal of the firm and had carriage of Mr Bucic's matter. MW Law was previously on the record.

26 On 26 October 2012, Mr Bucic's serious injury application in the County Court was dismissed by consent. Mr Bucic agreed to pay the defendant's costs of the proceeding agreed and fixed at $2,500.[18]

27 On the same date, namely 26 October 2012, Mr Bucic lodged another workers' compensation claim ('the second workers' compensation claim').[19] It described the injury as neck, psychiatric injury, hands and arms, stomach, constipation, sleeplessness from pain and stress. It indicated the neck injury had not been diagnosed until recently. This claim was rejected.

28 On 30 October 2013, Mr Bucic's limitation period pursuant to the ACA expired.

29 In March 2014, after the expiry of time under the ACA, Mr Bucic issued proceedings in the Magistrates' Court concerning the second workers' compensation claim.

30 In September 2014, the Magistrates' Court proceedings against Mr Bucic were dismissed.

31 In November 2014, Mr Bucic issued proceedings in this Court seeking leave to appeal the Magistrates' Court decision out of time.

32 On 16 October 2015, Mr Bucic's application for leave to appeal was dismissed.

33 On 26 October 2015, Mr Bucic issued this proceeding.

34 In November 2016, Mr Bucic made an application in this proceeding seeking an extension of time.

35 On 14 July 2017, Arnold Thomas & Becker commenced acting for Mr Bucic. Simon Legal was previously on the record.

Did Mr Bucic receive advice on the limitation period prior to its expiry?

36 Mr Bucic submits that he was entitled to rely on his legal advisors. He says that at all material times he was not aware of the limitation period.

37 Mr Bucic relies on his affidavit sworn 14 July 2017.[20] His affidavit evidence indicates that he is now 59 years old. Mr Bucic deposes that he:

(a) had eight years of basic education in a small village in Croatia, and left school when he was 13 years old;

(c) has no formal education in English. He can converse in English, but to a limited degree;

(d) is literate in Croatian but not English. He says documents and letters written in English need to be translated or interpreted to him in Croatian, and he relies strongly on his wife for that purpose;

(e) relied on Mr Denby to advise him of his legal rights and the law. There was no interpreter present;

(f) signed documents when asked to do so by Mr Denby, including a retainer. They were not translated; and

(g) would receive letters from time to time from MW Law in English. His wife would read them and explain them to him if she felt they were important.

38 In his affidavit, Mr Bucic deposes that he was transferred from MW Law to Simon Legal, but does not say when.

39 In relation to receiving legal advice on the limitation period of this proceeding, Mr Bucic deposes:

I first became aware of a limitation period for issuing legal proceedings by when this application was made. [sic] I was told by Mr Simon. My wife interpreted for me.

As far as I was aware all matters concerning legal and procedural issues concerning my claim were at all times the responsibility of my legal advisors. If at any time I had been told or was made aware by anybody that there was a limitation period for issuing proceedings in my matter I would have attended to it within time and without delay.[21]

40 Mr Bucic gave oral evidence and was cross-examined. An interpreter was present to translate.

41 Mr Bucic gave evidence that he had never received written time limitation advice from Mr Simon.[22]

42 Mr Bucic could not recall whether he received advice from Mr Gavan Burns of counsel that he should not pursue the serious injury application and should pursue the Wrongs Act claim[23]. He was told from day one (seven or eight years ago, when he gave his lawyer his papers) that if WorkCover did not compensate him then public liability would,[24] and Mr Simon told him he could not lose either way.[25] Mr Bucic was told by Mr Simon from the first day they met, that Mr Simon liked his case because they could not lose.[26]

43 Mr Bucic said he did not make decisions about the direction of his workers' compensation claim.[27] He had not asked Mr Simon anything - in response to a question as to whether he asked Mr Simon if he should pursue the public liability claim. Mr Simon was the one telling him things.[28]

44 Mr Bucic thought that Mr Denby, his former solicitor at MW Law, had only acted for him for 1 to 2 years[29] and had died from cancer, because he was told that when Mr Simon took over his documentation.[30] Prior to that, when it was put to him that Mr Denby acted for him until 26 July 2010, he asked how that could be when they told him he died.[31] He was informed by counsel that Mr Denby actually died in March 2016. Mr Bucic could not remember exactly when Mr Simon took over from MW Law, stating that it is possible that it was earlier than September 2011.[32] He could not recall Ms Erica Horsfield from MW Law, and had no idea in respect of a letter written from her to him.[33]

45 Mr Bucic could not recall a meeting with Mr Ingram of counsel in February 2011.[34] He could not remember attending the County Court in October 2012 and no one told him the parties agreed the application should be dismissed.[35] He did not remember a costs order made against him on that day and never paid any fine.[36] He could not remember a discussion with Mr Connell of counsel on that day.[37]

46 Mr Bucic did not remember whether he had given instructions on the second workers' compensation claim - '[his] doctors gave these kinds of things, not [him]'.[38] He did not remember attending the Supreme Court hearing. He was outside the courtroom and did not know the outcome.[39] He took an interest. Mr Simon always said everything was good.[40] He only found out last month it was unsuccessful and he is still not sure to what extent.[41]

47 Mr Simon is the deponent of multiple affidavits in this proceeding.[42] He also gave oral evidence and was cross-examined. His evidence included the following.

48 Mr Simon began working at MW Law as an employee in 2004 and started his own firm in September 2010.[43] His own legal practice was initially conducted in the offices of MW Law.[44] After Mr Simon began his work practice, Ms Erica Horsfield, a solicitor employed by MW Law, took over the running of personal injury matters for MW Law clients. She asked for his assistance. He generally assisted Ms Horsfield, a solicitor, of MW Law with matters under her carriage.[45] There was no formal arrangement regarding this.[46] At times, the assistance Mr Simon provided was extensive.[47]

49 Ms Horsfield sought Mr Simon's assistance in Mr Bucic's matter in about late November 2010.[48] From around November 2010 he was involved in Mr Bucic's claim.[49] The basis for his belief is that the first time he is referred to is in file notes by Ms Horsfield dated 25 and 30 November 2010.[50] An earlier letter, dated 28 October 2010, has Ms Horsfield's name on it.[51] By the time he became involved in Mr Bucic's claim, the serious injury application had already been commenced by MW Law, on 28 June 2010.[52]

50 Mr Simon's assistance to Ms Horsfield in Mr Bucic's matter included speaking with the solicitor to the defendant in the serious injury application, conferring with Mr and Mrs Bucic about their claim, and conferring with counsel.[53]

51 Mr Simon also read Mr Bucic's file.[54] He believes that soon after he became involved in the matter, likely in late 2010 or early 2011, he was aware or likely to be aware of the advice of Mr Gray and Mr Burns.[55] Mr Simon thinks he was aware of Mr Burns' advice that the Wrongs Act proceeding needed to be brought, but has no direct memory of being aware of it.[56] Mr Simon said, under cross-examination, he was aware of the Wrongs Act claim, probably from November 2010 or earlier, because of Mr Burns' advice.[57] Under cross-examination, Mr Simon said as at November 2010 he had no other advice from counsel than Mr Burns.[58]

52 There is a file note dated 30 November 2010 indicating Mr Simon is to meet with Mr Bucic in Moonee Ponds to sign a form for waiver of fee (presumably relating to the serious injury application).[59] It was put to Mr Simon that he met with Mr Bucic at his home. Mr Simon's evidence was that he could not recall the specific attendance or doing specifically what the note said.[60]

53 Mr Simon deposes that Mr Bucic received advice from counsel regarding his serious injury application on 26 July 2010 but that privilege is not waived in respect of that advice.[61] Given that Mr Burns' written advice is dated that same day, it may be inferred that Mr Simon is referring to advice from Mr Burns.

54 Mr Simon said, under cross-examination, that instructions were received from Mr Bucic not to pursue the Wrongs Act claim and to pursue the serious injury application under the ACA by way of originating motion in the County Court.[62] Mr Ingram and MW Law received those instructions but he was present in the room at the time.[63]

55 As to whether he selected counsel for the serious injury application, Mr Simon could not recall. He gave Ms Horsfield a number of recommendations but as she was on the record, it would have been her that made the final choice.[64]

56 In relation to the serious injury application, Mr Simon conferred with counsel and attended a conference with counsel about the serious injury application. There were no lawyers other than he and Mr Ingram of counsel present.[65] This was prior to him becoming solicitor on the record. Mr Simon did not have the whole file with him and took only some documents to the meeting with counsel,[66] although he could have accessed Mr Bucic's file as it was in the same office.[67]

57 Mr Simon denies he ran the matter and says he assisted on some aspects of it.[68] Under cross-examination, Mr Simon said both he and counsel gave advice to the effect the serious injury application was worth pursuing.[69] He was aware of the advice from Mr Burns that the serious injury application should be abandoned.[70] The serious injury application proceeded after discussion with Ms Horsfield, Mr Ingram and himself.[71] Mr Simon also gave evidence that he discussed the Wrongs Act claim with Mr Ingram.[72]

58 Mr Simon says he gave Mr Bucic advice about the limitation period for a claim to be brought under the Wrongs Act, including advice given by counsel. He was unclear as to when he gave this advice and said there had been ongoing discussions.[73] It might have been on or about 8 February 2011 when there was a conference with Mr Ingram.[74] Mr Ingram advised that the serious injury application should proceed because there was a legitimate argument that Mr Bucic was a 'worker' within the meaning of the ACA.[75] He could not say whether that was the first time Mr Bucic was told about the limitation period given the file was run by Mr Denby and then Ms Horsfield.[76]

59 Mr Simon referred to the advices from different counsel regarding Mr Bucic's claims: Mr Malcolm Gray, Mr Gavan Burns dated 22 July 2010, and Mr Ingram's oral advice on or about 8 February 2011.[77] He thought Mr Gray's advice was given in 2008 or 2009 in relation to the Magistrates' Court proceeding.[78] Mr Simon could not say whether or not a claim under the Wrongs Act was considered as he was not advising at the time, although he subsequently had access to the file.[79] Mr Gray's advice was that a WorkCover claim was the best choice and that claim was made with limited success.[80]

60 At the hearing of the serious injury application in the County Court, Mr Connell of counsel acted for Mr Bucic. He gave oral advice that the serious injury application should not proceed and that a second workers' compensation claim should be made.[81] Also at the hearing, the defendant's counsel stated that Mr Bucic's claim had been accepted in error and he was not a 'worker' under the ACA.[82]

61 Mr Simon conceded that he had no other advice from counsel, except from Mr Burns, that Mr Bucic should do anything but abandon the serious injury application as at November 2010.[83]

62 Mr Simon advised Mr Bucic on all aspects of the possible causes of actions and claims including the possibility of a public liability proceeding or WorkCover proceeding.[84]

63 Mr Simon deposes that he did not receive Mr Bucic's full file until May 2016.[85] He accepts that he had first seen the file in late November 2010 or soon after, and had many documents relating to Mr Bucic so that he was not restricted or prevented from commencing a common law proceeding because he did not have the full file.[86]

64 Mr Simon commenced this proceeding on behalf of Mr Bucic on 26 October 2015. His evidence is that he did not recommend a proceeding be commenced prior to that date as he believed Mr Bucic first had to obtain a serious injury certificate or judicial determination that Mr Bucic's injuries constituted a serious injury.[87] He obtained oral advice from Mr Dealehr of counsel, and the significance of it was that if the ACA did not apply, then Mr Bucic could commence a common law proceeding as of right on the basis of the Wrongs Act. He followed Mr Dealehr's advice in commencing this proceeding.[88]

65 Under re-examination by the plaintiff's counsel, Mr Simon gave evidence that he and counsel made decisions about the type of proceeding which should be issued, and they would advise Mr Bucic about what they were doing and what was to be done.[89] Mr Bucic always acted in accordance with his advice.[90] The instructions to pursue the serious injury application were given on advice.[91]

66 I accept Mr Bucic's evidence. I find that he was not advised of the limitation period prior to its expiry. As discussed below, there is evidence that he attended a conference at which the expiry date was discussed, but no evidence that the meaning of an expiry date, or its consequences, were ever explained to him. I accept his evidence that if he was aware of the limitation period, he would have acted without delay.

67 Mr Bucic's evidence was confused in some aspects, such as the date of Mr Denby's death. There was also much he could not recollect. However, in some aspects Mr Bucic's evidence was clear. He did not receive advice about the limitation period until this application. Mr Bucic's evidence, repeatedly, was to the effect that he had been advised by Mr Simon that he could not lose. His oral evidence was consistent with his affidavit evidence.

68 Mr Bucic's evidence was that he was aware of the potential public indemnity (Wrongs Act) claim but relied on his solicitor, Mr Simon, who had told him he could not lose either way. Mr Bucic only attended school until he was 13 years old. His first language is not English and he is not English literate. He relied upon his wife to translate communications with his solicitor. Mr Bucic understandably placed trust in his solicitors and took their advice. Both Mr Bucic and Mr Simon say consistently that Mr Bucic always took the advice he was given.

69 Save for Mr Simon saying Mr Bucic received advice from counsel on the same date as Mr Burns' advice, there is no evidence that the advice of Mr Burns of counsel was given to Mr Bucic.

70 As to the advice from Mr Gray, there is the MW Law file note of the conference on 28 January 2009. The question is whether the expiry date for the Wrongs Act claim was explained to Mr Bucic at that conference. I do not infer it was explained to him on the basis of the handwritten note to diarise it. I accept that it was discussed. However, there is nothing on the file note to indicate that the meaning of an expiry date and its importance was explained to him. Mr Bucic is a person with limited education and cannot be expected to have understood the consequences of the expiry date without it being explained to him. His evidence is that he was unaware of it.

71 I do not draw an inference from the 28 January 2009 file note that Mr Bucic elected to pursue the s 98 ACA claim at the expense of the Wrongs Act claim. Indeed, the handwritten note concerning the 3 year expiry date being diarised is circled, and underlined suggesting that it is important. A tick next to it may indicate it has been diarised. The inference can be drawn that the Wrongs Act claim had not been ruled out by Mr Bucic's lawyers at that time. And indeed, the subsequent appointment with Mr Simm for injury assessment under the Wrongs Act, which occurs approximately one month prior to the expiry date, is consistent with that.

72 Where there is a conflict between the evidence of Mr Bucic and Mr Simon concerning their communications, I prefer Mr Bucic's evidence to that of Mr Simon. Aspects of Mr Simon's evidence were implausible. They are as follows.

73 Mr Simon gave evidence that Mr Bucic was given advice about the expiry of the limitation period prior to its expiry. Mr Bucic's evidence is that he was not aware of any such advice. Mr Simon could not provide any details as to when or how that advice was given. There is no written evidence of any correspondence to Mr Bucic concerning the limitation period. Given its importance, it is astonishing that any personal injuries solicitor would not provide limitation of actions advice to a client directly in writing. It is particularly important in circumstances where the solicitors were not communicating with Mr Bucic directly but rather via his wife. Indirect communications exacerbate the potential for miscommunication. There is no evidence of any documents being translated into Croatian.

74 The evidence is consistent with Mr Simon being a primary solicitor with carriage of Mr Bucic's file from at least late November 2010. His role was not limited to simply assisting Ms Horsfield. Mr Simon read Mr Bucic's file. He met with Ms Horsfield to discuss the merits of the claim on 25 November 2010, he recommended counsel for Mr Bucic on 30 November 2010, and it was then arranged for him to meet with Mr Bucic to sign a waiver of fee form.[92] On the same date, a file note from Ms Horsfield records Mr Simon's view that it (presumably the serious injury application) is worth pursuing and that if Mr Burns does not want to do it then his preference is Mr Ingram.[93] And so, despite the advice of Mr Burns, the serious injury application continued to be pursued. It appears Mr Simon overrode the advice of Mr Burns. Mr Simon later met with Mr Ingram of counsel and Mr Bucic.

75 Mr Simon's role as a primary solicitor on the file is also consistent with Mr Bucic's file coming over to his firm rather than remaining with MW Law. Further, it is consistent with Mr Bucic's evidence. He has no memory of Ms Horsfield (in comparison, he recalls Mr Denby). Mr Bucic's recollection was that Mr Denby and then Mr Simon were his solicitors.

76 I do not accept Mr Simon's oral evidence that he received instructions from Mr Bucic not to pursue the Wrongs Act claim, and to pursue the serious injury application instead. Mr Simon gave evidence that he could not recall whether Mr Bucic gave instructions about the Wrongs Act claim at the conference with Mr Ingram, or afterwards to Ms Horsfield.[94] By the time of the conference with Mr Ingram, the County Court originating motion for the serious injury application had already been on foot for many months (since June 2010).

77 There is no evidence to corroborate Mr Simon's evidence that Mr Bucic made a deliberate choice as to which path should be taken. And even if there was, Mr Bucic did not make an informed choice as he was unaware of the limitation period concerning the Wrongs Act claim.

Does Mr Bucic have a claim in negligence against Mr Simon?

78 Simon Legal commenced acting for Mr Bucic on 20 September 2011. By that time, the limitation period had already expired on 30 October 2010. However, prior to the expiry of the limitation period, Mr Simon had been advising Mr Bucic. He had done so directly, and although not on the record. Mr Bucic was a client of his former firm, MW Law, with whom Simon Legal initially shared premises. Mr Simon was a primary solicitor with carriage of the file. He read Mr Bucic's file, advised him, recommended which counsel should act on Mr Bucic's behalf, and conferred with counsel on his behalf, prior to his firm acting for Mr Bucic.

79 MW Law is not on the record for this proceeding, and no evidence was given on their behalf. Mr Simon was an employee of MW Law, not a partner. There is no evidence before the Court as to:

(a) whether Ms Horsfield or any solicitor of MW Law verbally advised Mr Bucic of the limitation period, and if so precisely when (I observe that Mr Bucic has no memory at all of Ms Horsfield);

(b) the partner supervision (if any) of Mr Bucic's file while MW Law were his solicitors;

(c) any formal arrangements between MW Law and Mr Simon as to his work on MW Law files after he was no longer an employee; and

(d) any formal agreement or arrangements for transfer of client files, such as Mr Bucic's file, from MW Law to Simon Legal.

80 Whilst Mr Bucic may have a negligence claim, there is insufficient material before this Court to say whether it is against MW Law, or Simon Legal, or both firms. Given that Simon Legal did not commence acting for Mr Bucic until after the expiry of the limitation period, the question is whether or not that firm or MW Law is liable. Simon Legal may be liable on the basis of unknown arrangements with MW Law, or because this proceeding was not commenced in a timely manner after Simon Legal began acting.

81 Mr Bucic has a potential negligence claim concerning the failure to provide him advice about the limitation period, and the failure to bring this proceeding in a timely manner. However, given the above, I cannot conclude whether Mr Bucic has a negligence claim against MW Law, or Simon Legal or both. Even if Mr Bucic does have such a claim, the question of liability and quantum is uncertain, and, as observed by Keogh J in Mackenzie v Positive Concepts Pty Ltd & Anor, 'there are good reasons why the outcome for the plaintiff might be substantially different to the outcome of his common law proceeding'.[95] In those circumstances, and adopting Davies v Nilsen, I am not prepared to conclude the right of action against solicitors is 'sufficiently sound to be a persuasive consideration in refusing leave to issue a proceeding out of time'.[96] In the synthesis of factors to consider as to whether to extend time, the potential claim is therefore of little weight.

82 For completeness, I reject Arnej Pty Ltd's submission that Mr Simon's notification of this proceeding to his professional indemnity insurer, and their subsequent involvement in it, is a type of admission of negligence. To the contrary, it was appropriate for Mr Simon to notify his professional indemnity insurer in circumstances where indemnity costs orders had been made against his firm in respect of the failure to comply with the Court orders concerning the timetable for the hearing of this application.

Will Arnej Pty Ltd be so prejudiced by the effluxion of time that a trial will be unfair?

83 Given the incident occurred almost 10 years ago, and the proceeding is issued almost five years out of time, Arnej Pty Ltd will suffer general prejudice from the effluxion of time. The delay is inordinate.

84 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.[97]

85 The third party, C & N, gave evidence that there were some photographs that were taken of the scaffolding on the site but not retained.[98] I disagree with the submission from Mr Bucic's counsel that destruction of these photos within the limitation period is a factor to be borne into account. Recent High Court authority is to the effect that it is 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.[99]

86 Arnej Pty Ltd submits that the C & N photographs are required to show whether the scaffolding was adequate at the time. I do not agree. There may well be other documentary evidence that indicates whether or not the scaffolding was adequate at the time. There is also evidence that photographs of the site were taken by Mr Bucic's son on the date of the incident.[100] Further, the Maurice J Kerrigan investigation report contains evidence concerning the scaffolding.

87 Arnej Pty Ltd does not otherwise submit that it would suffer any specific prejudice if this proceeding goes to trial. That is unsurprising given Mr Bucic's multiple claims proceeding this application.

88 The onus is on Mr Bucic, as the applicant for the time extension, to 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.[101]

89 I do not consider that Arnej Pty Ltd will be so prejudiced by the effluxion of time that a fair trial cannot be held. There is associated documentation related to Mr Bucic's previous claims for compensation, including his first claim made soon after the incident. Although Arnej Pty Ltd has not identified any witnesses to the incident, it says that Mr Bucic spoke with its two witnesses after the incident and told them what happened.[102] This is consistent with a file note taken by MW Law of a meeting with Mr Bucic on 30 October 2007 which states: 'No eye witnesses but other workers came immediately to aid'.[103] A director of Arnej Pty Ltd can give evidence about the scaffolding itself.[104]

90 The parties agreed that s 27K of the LAA is relevant. Section 27K(2)(b) permits the Court to extend the applicable limitation period if 'it decides that it is just and reasonable to do so...'. Section 27L(1) sets out a non-exclusive list of factors to be taken into account.

(a) the length of and reasons for the delay on the part of the plaintiff

Mr Bucic says that he was unaware of the limitation period in respect of this proceeding. As discussed above, this evidence is accepted.

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

As discussed above, there will be prejudice to the defendant but not such that a fair trial cannot be held.

(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

As discussed above, Mr Bucic obtained legal advice soon after the incident and relied upon it.

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

This factor has also been discussed above. I have also taken into account the possibility of a negligence action against Simon Legal, MW Law, or both firms.

92 I adopt the principles in Davies.[105]

93 The task of the Court is to 'synthesise a number of competing considerations in arriving at a conclusion that takes account of them all, bearing in mind that the [applicant] bears the onus of persuading the court that it is just and reasonable to extend the limitation period'.[106]

94 Synthesising all the relevant factors, it is just and reasonable to extend time in this proceeding.

95 Orders will be made giving Mr Bucic an extension of time. I will hear the parties on costs and the appropriate orders.

[1] Proposed amended statement of claim annexed to orders made on 11 December 2015 giving leave to file and serve it. It has never been filed. It appears to have been served as the defence filed 12 February 2016 is in response to it.

[2] Affidavit of Paul Simon sworn 17 November 2016 ('Exhibit G'), Exhibit 'PGS-2'.

[9] Affidavit of Sarah Jane Letcher sworn 12 May 2017 ('Exhibit E'), Exhibit 'SJL-4'.

[16] Affidavit of Nancy Yonan sworn 1 August 2017 ('Exhibit F'), Exhibit 'NY-2'. The advice is referred to in an email from Mr Gavan Burns to Mr Denby dated 26 July 2010. Ms Yonan deposes that the actual advice is missing. The advice dated 22 July 2010 is later provided as Exhibit 'PS-2' to an affidavit of Mr Simon sworn 2 August 2017 ('Exhibit N').

[20] Affidavit of Marin Bucic sworn 14 July 2017 ('Exhibit P').

[22] Transcript, 4 August 2017, 28:11-13 ('Transcript').

[42] Exhibit G; Affidavits of Paul Simon sworn 25 November 2016 ('Exhibit H'), 22 December 2016 ('Exhibit I'), 15 February 2017 ('Exhibit J'), 7 April 2017 ('Exhibit K'), 21 April 2017 ('Exhibit L'), 4 June 2017 ('Exhibit M'); Exhibit N.

[50] Exhibit N, Exhibit 'PS-1'; Transcript 49:12-28.

[95] [2016] VSC 259 [72]; see also: Tsiadis v Patterson [2001] VSCA 138; (2001) 4 VR 114, 121-122 [27]-[28] (Buchanan JA).

[96] [2015] VSC 584 [103] ('Davies').

[97] Prince Alfred College Inc v ADC [2016] HCA 37; (2016) 258 CLR 134, 167_,_ [105] ('PAC').

[98] Affidavit of James Hand, solicitor, sworn 12 May 2017 ('Exhibit O'), [5].

[99] PAC [2016] HCA 37; (2016) 258 CLR 134, 168 [109].

[101] PAC [2016] HCA 37; (2016) 258 CLR 134, 167 [105].

[105] [2015] VSC 584 [43]-[44].

[106] Tsiadis v Patterson [2001] VSCA 138; (2001) 4 VR 114, 123 [33] (Buchanan JA).