Plaintiff v Defendant

2 For the reasons set out below in this ruling, I will dismiss the plaintiff's application to extend time.

3 On 29 March 2006, about six months before his 18th birthday, a car driven by an unidentified driver hit the plaintiff from the rear as he rode his bicycle on Clyde Road, Berwick. The plaintiff suffered injuries, principally to his right elbow and wrist, and was taken to hospital.

4 Police and ambulance officers attended the accident scene. In contemporaneous ambulance case sheets, clinical notes following the plaintiff's admission to hospital and police 'Traffic Incident System' notes, there is initially no reference to a car being involved in the accident.[1]

5 On 5 April 2006, the plaintiff lodged a claim with the defendant for no-fault benefits in connection with the accident. In his application, the plaintiff described the accident as involving a car but identified the driver of the car as 'not known'.[2] After receiving the plaintiff's application, the defendant conducted an investigation into the circumstances of the accident.

6 On 1 May 2006, a Claims Officer employed by the defendant called Senior Constable Smith of Narre Warren Police station in relation to the accident. A file note of the call reads as follows:

I called SC Smith (who attended accident) to confirm accident circs. SC Smith

advised the police were originally called out to a collision between a car and

a bicycle. When they arrived at the scene the clnts girlfriend and his mum

were there. When details were given to the police by the clnt, his girlfriend,

and his mum, there was no reference to a motor vehicle being involved (pre or

post accident). No vehicle details given at all during police attendance.

Police advised they have details of accident as 'clnt fell off bike'.[3]

7 The police 'Traffic Incident System' notes relating to the accident were updated on 23 May 2006 as follows:

BATAD 1xmale was riding his bicycle south on clyde rd when he lost control of his bicycle when he collided with the back of a Mercedes u/k rego bronze in colour and fell towards the footpath. Ambo's was called and attended, male suffered from a broken left hand was... conveyed to Casey Hospital. The report came first as bike rider fell by himself, last week I was told that he recalls a Bronze coloured Mercedes of U/K rego or Driver nudged the driver and caused him to fall.[4]

8 As part of the defendant's investigation, an assessor engaged by the defendant, Mr Kingsley Watkins, interviewed and obtained statements[5] from the following persons:

(a) the plaintiff;

(b) Ms Sarah Dickinson Walker, the plaintiff's sister and a witness to the accident;

(c) Ms Clare De Kok, the plaintiff's mother, who attended the scene shortly after the accident; and

(d) Ms Katrina Kemper, a witness to the accident.

9 Mr Watkins prepared a document entitled 'Initial Liability Report' dated 24 May 2006 summarising his investigation.[6] The report exhibits photographs of the accident scene and of the plaintiff's bicycle and helmet. Mr Watkins commented that the plaintiff and the witnesses presented as reliable and that two of the witnesses saw the plaintiff being hit by a car that did not remain at the scene. Mr Watkins further commented in his report that he attended the scene of the accident but could not locate any other witnesses.

10 On 25 May 2006, the defendant accepted the plaintiff's transport accident claim.[7]

11 The defendant's solicitor, Mr Tsongas, deposes in his affidavit to various events in respect of the plaintiff's claim in 2006 and 2007. These included the defendant's acceptance of the plaintiff's claim for income benefits in July 2006, the plaintiff's receipt of ongoing medical treatment, the overpayment of employment benefits resulting in their suspension in May 2007 and the defendant's assessment, in mid-2007, that the plaintiff had capacity for full time alternative employment.

12 The plaintiff deposes that, after initial surgeries performed on his wrist and elbow following the accident in 2006 and 2007,[8] he had some restrictions in movement and pain but was not significantly functionally impaired.[9]

Expiry of the limitations period and the commencement of this proceeding

13 On 17 September 2012, six years after the plaintiff attained the age of 18, the limitations period under the LOA Act for any claim for common law damages in relation to the plaintiff's 2006 accident expired.

14 Neither the plaintiff, nor anyone on his behalf, contacted the defendant regarding the accident between 2 July 2007 and 21 August 2019.[10] However, the plaintiff deposes that after many years without significant functional impairment in his right elbow 'the pain began to become worse in around 2019.'[11] On 14 August 2019, he contacted Maurice Blackburn, and had his first appointment with them on 19 August 2019.[12] The plaintiff deposes that this was the first time he obtained legal advice about his accident, and that he sought their advice because his injuries were becoming gradually worse. The plaintiff deposes that he was 'not aware of a six year limitation period until [he] consulted Maurice Blackburn.'[13]

15 After the meeting on 19 August 2019, Maurice Blackburn sent a letter to the defendant stating that they were investigating the plaintiff's claim. The letter sought confirmation that, in the event a limitations defence would be relied upon by the defendant, there would be no allegation of prejudice from the date of the letter until proceedings were issued given that the investigations and process of seeking a serious injury determination was now underway.[14]

16 On 23 August 2019, the defendant responded stating that it would not waive its 'Common Law Time Limits policy' given the request had not been made prior to the expiry of the 6 year limitation period. The letter further stated that the defendant considered any common law claim made by the plaintiff to be statute barred.[15]

17 On 13 September 2019, the defendant wrote to Victoria Police requesting its records related to the accident.[16] On 16 September 2019, Victoria Police informed the defendant that it was unable to provide the requested documents as they had been destroyed.[17] The defendant had, however, retained copies of the Victoria Police records that it obtained from the time of the accident, principally the Incident Report and Traffic Incident System notes.

18 Between September 2019 and June 2023, the plaintiff underwent various joint medical examinations, x-rays, CT scans, further surgery, and received physiotherapy and other medical treatment.[18] He deposes that, in particular, the surgery performed by orthopaedic surgeon, Professor Ek, and his post-surgery recovery delayed his serious injury application.[19]

19 In April 2022, the plaintiff's solicitors obtained a further signed statement from the plaintiff's sister regarding the accident.[20]

20 On 24 August 2022, the plaintiff filed an originating motion in the County Court seeking leave to bring proceedings and to extend the limitation period.[21]

21 On 29 June 2023, the plaintiff lodged a serious injury application with the defendant.[22] On that date, the plaintiff also affirmed his affidavit that is relied upon in this application. On 25 July 2023, the defendant informed the plaintiff that it denied liability, and that any common law claim was statute barred.[23]

22 On 17 August 2023, the defendant granted the plaintiff a serious injury certificate,[24] and the County Court proceeding was dismissed by consent on 25 September 2023.[25] The plaintiff commenced this proceeding on 28 September 2023.

23 In his statement of claim, the plaintiff seeks damages in respect of the injuries suffered in the accident, which he alleges occurred by reason of the negligence of the unidentified driver.

24 In January 2024, the defendant issued a subpoena to Triple Zero Victoria. On 15 February 2024, Triple Zero Victoria produced two chronologies ('call logs')[26] under cover of a letter as follows:

After a thorough and diligent search, two chronologies relating to events in the same vicinity in Berwick on 29 March 2006 at approximately 17:50 hrs have been located and provided in response to the subpoena. Unfortunately, due to the age, 000VIC has been unable to retrieve the audio recordings for those events, and therefore 000VIC cannot confirm if the chronologies relate to the same event or the accident subject of the subpoena.[27]

25 On 2 April 2024, the defendant obtained an Accident Circumstances Report annexing signed statements from Ms Tegan Harris and Ms Ashlee Kemper, who each witnessed the accident.[28] Neither had given statements to the defendant's assessor, Mr Watkins, in May 2006.

The statutory regime to extend time and its application to this case

26 Under s 23A of the LOA Act, the Court may extend the period within which an action may be brought if it is just and reasonable to do so. Section 23A of the LOA Act states, relevantly:

(1) ...

(2) Where an application is made to a court by a person claiming to have a cause of action to which this section applies, 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 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.

27 This statutory discretion to permit an extension of time operates as an exception to the general policy of the law to impose definite time limits for prosecuting civil claims. That policy recognises that '[w]here there is delay the whole quality of justice deteriorates'.[29] It also recognises that:

(a) as time goes by, relevant evidence is lost (even where the parties fail to realise it);

(b) there is unfairness to a defendant in bringing an action long after the events giving rise to it have passed;

(c) legal persons should be able to arrange their affairs and utilise their resources knowing that claims can no longer be pursued against them; and

(d) the public interest requires that disputes be resolved as soon as possible.[30]

The purpose of the discretion to extend time is to ensure a fair trial on the merits of the case.[31]

28 The list of factors in s 23A(3) of the LOA Act is not exhaustive.[32] In reaching a conclusion, the Court is not to weigh the factors against each other, but rather to synthesize the competing considerations to arrive at a conclusion that takes account of all of them.[33]

29 The plaintiff in this proceeding bears the onus of persuading the Court that it is just and reasonable to extend time to allow him to bring an action. The Court of Appeal has warned that the limitations period in a personal injuries claim is not 'some easily movable line in the sand'.[34] Rather, it is a 'formidable hurdle which can only be overcome'[35] by satisfying the Court it is just and reasonable to extend.

The length of and reasons for the delay: s 23A(3)(a)

30 The delay in this case is some 17.5 years between the date of the accident and the date on which the proceeding was issued. The plaintiff concedes this is 'considerable',[36] while the defendant describes it as 'inordinate'.[37]

31 The plaintiff submits that he has given a good and reasonable explanation for the delay,[38] being that:

(a) after the initial surgeries he had some pain and restrictions in movement in his right elbow, but was not significantly functionally impaired;[39]

(b) he had been told by his surgeon, Dr Tham, that he would likely make a very good recovery and have very few problems;[40] and

(c) it was not until 2019, when the pain began to get worse, that he first thought to consult a lawyer.[41]

32 The plaintiff's explanation for the delay is that it was the aggravation of the pain from his elbow injury that led him to seek legal advice in 2019. However, I accept the defendant's submission that this is inconsistent with the plaintiff's stated awareness of other adverse impacts of the injury long before 2019 as described elsewhere in his evidence.[42] The plaintiff says that he was not significantly functionally impaired, not that he had no pain or restrictions. Although his Counsel pointed (without evidence) to his stoicism as a former elite cyclist as the reason he was able to tolerate pain it might reasonably be expected would motivate another person to seek legal advice far earlier,[43] there were other significantly adverse consequences of the accident that cannot be explained in this way. The plaintiff deposes to a reduction in his 'enjoyment of life and capacity to perform daily activities'[44] as a result of his injuries, including:

(a) a period in which he was unable to work, followed by ongoing restrictions on his ability to work as a mechanic due to aggravated pain while engaging in particular activities, and the limitations on his ability to work overtime in 'recent years';[45]

(b) his reduced capacity to spend long periods on his bike, which deprived him of the opportunity to continue with the intensive training regimen as an Australia Institute of Sport elite cyclist, which he believed may have enabled him to compete in the Olympics;[46]

(c) interference with other activities he enjoyed such as swimming and working out at the gym;[47]

(d) interference with his ability to perform domestic tasks, such as pushing a lawnmower on his sizeable block of land;[48]

(e) an adverse impact on his social life, such as the loss of his circle of friends from cycling;[49] and

(f) interference with his sleep due to pain and numbness.[50]

References to adverse impacts on the plaintiff in the aftermath of the accident are also present in the medical reports prepared by Dr Weissman, Mr Miller and Dr Crock in 2020.[51]

33 The evidence that has been given about the immediate and ongoing impact of the accident on the plaintiff's life renders unsatisfactory his explanation, based solely on an increasing level of pain in the elbow, for the 13 year delay in seeking legal advice about the accident. As Counsel for the plaintiff conceded in the hearing: 'the delay is substantial and we accept that there are no really adequate reasons provided for it'.[52] Contrary to the plaintiff's submissions, I find that the plaintiff has not given a reasonable and good explanation for the 17.5 year delay in commencing a proceeding against the defendant.

The actual or likely prejudice to the defendant: s 23A(3)(b)

34 The significance of the defendant's description of the plaintiff's delay as 'inordinate', which I accept given its duration,[53] is in its implications for the prejudice the defendant asserts it suffers if the extension of time is granted. The defendant submits that the inordinate delay affords a basis to infer substantial prejudice,[54] and makes the hurdle, described by the Court of Appeal in Nillumbik Shire Council,[55] considerably higher. Regardless, the defendant submits it has suffered demonstrable specific prejudice, as well as general prejudice adversely affecting its ability to properly defend the proceeding.

35 The plaintiff submits that this case is unusual because the defendant conducted a comprehensive investigation, including by obtaining statements from identified witnesses and photographing the scene shortly after the accident, thereby securing a lot of evidence. Contemporaneous photographs of the accident scene taken by the defendant's investigator, ambulance case sheets, hospital records and Victoria Police incident notes and reports from that time are all available. The plaintiff submits, therefore, that notwithstanding the loss of some evidence, namely the Triple Zero call recordings, any prejudice affecting the defendant by reason of the delay is minimal and would not impede an 'acceptably fair'[56] trial. The plaintiff further submits that the defendant's investigation did not reveal:

(a) the identity of the driver of the vehicle involved in the accident at the time; or

(b) further witnesses (despite canvassing the scene during its investigation),

and so, its inability to now identify the driver or further witnesses cannot be characterised, as it is by the defendant,[57] as specific prejudice caused by the plaintiff's delay.

36 I accept the defendant's submission that the role of the defendant as manager of a no fault transport accident benefits scheme investigating an application for the payment of benefits is very different to the position it now assumes as the nominal defendant in place of an unidentified driver defending a negligence claim. I also accept that the delay has prevented it from pursuing all investigations appropriate to its defence of the litigation that it may have pursued had the proceedings been issued against it within the limitations period. For example, attempts to locate additional witnesses may have been more extensive than seeking to interview persons working in businesses near the accident scene on one occasion outside usual business hours. Likewise, its attempts to identify the driver, including by securing copies of the Triple Zero call recordings prior to their loss or destruction, may have been more extensive with a possible result that the driver could have given evidence and responded to the particulars of negligence alleged in the claim. The defendant has also been deprived of the opportunity to conduct further inquiries with Victoria Police, Ambulance Victoria and other witnesses between June 2007 and 19 August 2019.

37 The defendant identifies the loss of the Triple Zero call recordings and Triple Zero Victoria's stated inability in its letter to the Prothonotary to confirm whether the call logs it supplied under subpoena even relate to the plaintiff's accident,[58] given the effluxion of time and the absence of the recordings, as creating specific prejudice. In particular, the defendant submits that it simply does not know whether any particular information was conveyed on the Triple Zero calls, such as information capable of identifying the driver, the car or the registration plate. There is also a call registered in the call logs from a person named Ms Kay Charman who was not previously identified as a witness. It is by no means certain her call even related to the accident, but whether it was related and whether she was a witness could have been confirmed if the call recordings were available. To say in response that the contents of the call recordings is unlikely to assist the defendant because it is improbable that Triple Zero operators would ask for detailed information such as licence plate numbers or identity of the driver involved in the accident is to engage in unhelpful speculation.

38 The plaintiff also relies on the call logs to show that the plaintiff's sister was mistaken in her belief that she had used the driver's mobile phone to call Triple Zero and to underscore his submission that the defendant would not have been able to identify the driver even if it had access to the call logs at or around the time of the accident. The defendant submits that cannot be accepted because Triple Zero Victoria disclaims the reliability of the call logs produced in the absence of the call recordings. Specifically, it cannot confirm that the call logs even relate to the plaintiff's accident, or if they do, that they are complete. I am satisfied that the loss of the call recordings is an instance of specific prejudice to the defendant.

39 The plaintiff submits that all key witnesses are available to give evidence, including Ms Kemper's daughter, Ashlee, who was a minor at the time she witnessed the accident and has recently given an account.[59] The defendant submits that the deterioration in the quality of the evidence of those witnesses due to the effluxion of time is not cured by their availability to give evidence. In the statements obtained recently from two of the key witnesses, they acknowledged that their memories of the accident are limited or unclear.[60] There are also changes in the detail of the account given by the plaintiff's sister in her two statements.[61] Separately, the defendant points to the plaintiff's own statement recorded in the medical history given to Dr Joshi in July 2024 that 'since it [was a] long time ago and he was about 16 years old, he does not remember the history in detail.'[62] This is consistent with the history given to Mr Miller, who records the following in his report:

He has no recollection of the accident, but he understands that on 29/03/2006 he was the rider of a bicycle...[63]

An actual deterioration in the quality of the evidence is readily identifiable in these statements. However, of additional concern in cases involving such a lengthy delay is the real danger of a loss in quality of evidence, and of prejudice, that is not recognised even by the parties. As was said by Buchanan JA in Tsiadis:

Not only do memories fade; evidence which might have been available may be lost without any knowledge of the loss.[64]

40 The defendant also relies on the loss of opportunity to investigate and monitor the plaintiff's claimed injuries which it says is 'particularly significant in the context of the [p]laintiff's allegations about his prospective Olympic career...'.[65] The plaintiff deposes to the immediate and significantly adverse impact of the accident on his cycling career, especially his Olympic prospects, and on his social and domestic life. Leaving to one side that he appears not to have required medical treatment for his injuries in that period because of his stoicism or lack of pain which could have been monitored, the time that has passed between the plaintiff experiencing these adverse impacts on his life and career immediately following the accident and the commencement of this proceeding, means that the defendant cannot properly investigate the allegations made against it. This too amounts to a loss of evidence and is a specific prejudice to the defendant.

41 In addition to the above instances of specific prejudice, I accept that the defendant suffers general prejudice by virtue of the delay, including the loss of the benefit of the limitations period in the event an extension were granted.[66] Cases involving 'inordinate' delay permit an inference that the prejudice is substantial, even where no particular prejudice can be identified. Here, the delay by the plaintiff is inordinate, and so substantial prejudice may be inferred. Given the actual or likely prejudice, the Court cannot be satisfied that the defendant will receive an acceptably fair trial.

The extent to which the defendant took steps to make available means of ascertaining facts and the duration of any disability of the plaintiff: s 23A(3)(c)-(d)

42 The parties agree that s 23A(3)(c) and (d) of the LOA Act are not relevant in this case.[67] To the extent that the plaintiff was a minor at the time of the accident (a relevant 'disability'[68] for the purposes of s 23A(3)(d)), time began to run on his 18th birthday.[69]

The extent to which the plaintiff acted promptly and reasonably and the steps taken by the plaintiff to obtain medical, legal and other expert advice: s 23A(3)(e)-(f).

43 Subsequent to his initial consultation with Maurice Blackburn in August 2019, I accept that the plaintiff took steps to obtain legal and medical advice, to obtain the serious injury certification and to commence proceedings. However, there is no evidence to suggest the plaintiff took any relevant steps in the over 12 year period between July 2007 and August 2019, during which time the limitations period expired.

44 The plaintiff's case is that he was hit while riding his bicycle by an unidentified driver. He took no step to seek legal advice until 2019. The plaintiff does not give evidence to the effect that he did not know he had a right to bring proceedings against either the unidentified driver or the defendant, only that he did not know about the limitations period. I accept the defendant's submission that it must have been apparent to the plaintiff that he had a cause of action against, at least, the unidentified driver since 2006. I accept that it may have been less clear that he had a cause of action against the defendant. Nevertheless, seeing a solicitor within some years of the accident would have remedied that.

45 The plaintiff had the opportunity to consult lawyers from 2006. His life had been impacted considerably by the accident and yet he chose not to do so until 2019. I accept that the plaintiff has not acted promptly and reasonably for the purposes of s 23A(3)(e).

46 Synthesising all the circumstances of this case, I do not consider it would be just and reasonable to exercise the Court's discretion to extend time under s 23A(2) of the LOA Act as sought by the plaintiff. The plaintiff has not shown good reason to persuade me to exercise the discretion. I am satisfied that the defendant will be substantially prejudiced, by reason of the inordinate delay of over 17 years, and because of the loss of evidence causing specific prejudice. The delay is not adequately explained. Whilst the plaintiff may have a good case for damages, he does not overcome the formidable hurdle to justify an extension of time in this case to allow him to bring an action against the defendant.

47 I will dismiss the application and hear from the parties regarding the orders to be made, including as to costs.

[1] Affidavit of Nick Tsongas sworn on 27 August 2024 ('Tsongas affidavit'), [11], [13], [15].

[5] Tsongas affidavit, Exhibit NT1, 91-107.

[6] Tsongas affidavit [28], Exhibit NT1, 85-120.

[7] Tsongas affidavit [35], Exhibit NT1, 121-122.

[8] A detailed account of the surgeries and medical advice provided to the plaintiff in the aftermath of the accident is given at paragraphs 11 to 22 of the plaintiff's affidavit affirmed on 29 June 2023 for use in the County Court proceeding ('Plaintiff's affidavit'), which affidavit is exhibited as Exhibit TDM7 to the affidavit of his solicitor Katie Minogue of Maurice Blackburn Lawyers affirmed on 4 June 2024 ('Minogue affidavit').

[12] Minogue affidavit [5]; Plaintiff's affidavit [47].

[15] Minogue affidavit [8], Exhibit TDM2; Plaintiff's affidavit [50].

[16] Tsongas affidavit, Exhibit NT1, 170-171.

[17] Tsongas affidavit, Exhibit NT1, 172.

[18] Plaintiff's affidavit [25]-[31].

[20] Tsongas affidavit [72], Exhibit NT1, 208-09.

[21] Minogue affidavit [17], Exhibit TDM6.

[22] Minogue affidavit [22], Exhibit TDM8.

[23] Minogue affidavit [23], Exhibit TDM9.

[24] Minogue affidavit [25]-[26], Exhibit TDM11.

[25] Minogue affidavit [27], Exhibit TDM12.

[26] Tsongas affidavit, Exhibit NT1, 220-24.

[27] The letter dated 15 February 2024 from Triple Zero Victoria to the Prothonotary of the Supreme Court, inclosing documents produced under subpoena dated 24 January 2024, was tendered during the hearing and marked Exhibit P1 ('Exhibit P1').

[28] Tsongas affidavit, Exhibit NT1, 225-37.

[29] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 551 quoting R v Lawrence [1982] AC 510, 517 (Lord Hailsham of St Marylebone LC).

[30] Each of these factors is identified in the frequently cited passage of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 551-53 ('Brisbane South') which was approved in Prince Alfred College Incorporated v ADC [2016] HCA 37; (2016) 258 CLR 134 ('Prince Alfred').

[32] Lovejoy v Carp [1999] VSC 223, [53] ('Lovejoy').

[33] Tsiadis v Patterson [2001] VSCA 138; (2001) 4 VR 114, 123 [33] (Buchanan JA) ('Tsiadis'); Griffiths v Nillumbik Shire Council [2022] VSCA 212, [68(6)] ('Nillumbik Shire Council').

[36] Plaintiff's Submissions filed on 18 September 2024, [6] ('Plaintiff's submissions').

[37] Defendant's Submissions filed on 3 October 2024, [12] ('Defendant's submissions').

[41] Plaintiff's affidavit [24], [47].

[42] Defendant's submissions [14]-[18].

[45] Plaintiff's affidavit [36], [38].

[51] Tsongas affidavit, Exhibit NT1, 177-203.

[53] See, eg, Lovejoy [63]-[66], where O'Bryan J described delays of between 11 and 20 years in that case as 'inordinate' and stated that the 'quality of justice is diminished' as a consequence.

[54] Tavsanli v Phillip Morris (Australia) Ltd (Supreme Court of Victoria, Young CJ, 18 September 1989) 11.

[56] Gordon v Norwegian Capricorn Line (Aust) Pty Ltd [2007] VSC 517, [79].

[57] Tsongas affidavit [82(b)], [82(d)].

[60] Tsongas affidavit, Exhibit NT1, 230-237.

[61] Tsongas affidavit, Exhibit NT1, 99-102, 208-209.

[62] Tsongas affidavit [81], Exhibit NT1, 241.

[63] Tsongas affidavit, Exhibit NT1, 192.

[64] Tsiadis 123 [32] citing Brisbane South at 551 (McHugh J).

[66] Brisbane South 551-54 (McHugh J), 544 (Dawson J agreeing); Nillumbik Shire Council [68].

[69] Plaintiff's submissions [2]; Defendant's submissions [1].