Proctor v Grass & Caruso [2025] VCC 1607

1. On 17 September 2012 the plaintiff was riding a horse performing track work for the defendants. She came off the horse (the incident) and says she injured her hips and lower back.
2. In late 2013, she made a claim against the defendants for workers compensation under the Accident Compensation Act 1985 (the AC Act) for injury from the incident. In early 2014 the insurer rejected the claim.
3. In April 2014 she sought legal advice from Shine Lawyers (Shine) about the incident. Shine advised her to issue a Magistrates' Court proceeding challenging the rejection of her workers compensation claim. It also advised her that she may have an action in negligence against her employer or a third party for damages for personal injury, that there was a six-year limitation period to commence a damages proceeding, and that she should commence the damages proceeding by 16 September 2018, though it may be possible to extend the time.
4. The plaintiff retained Shine to act for her from about April 2014 until November 2020. The plaintiff claims she trusted Shine to look after her interests during the retainer.
5. In about October 2014, Shine commenced a proceeding for the plaintiff in the Magistrates' Court that challenged the rejection of her workers compensation claim. That litigation was prolonged with periods of inactivity and a contest about whether the plaintiff was a "worker" for the purpose of the AC Act at the time of the incident and, if so, who employed her. In about May 2019, the Magistrates' Court decided the plaintiff was a worker employed by the defendants at the time of the incident.
6. During the retainer, Shine took steps to bring a damages proceeding such as preparing documents for a serious injury application, a necessary precursor to commencing a damages proceeding if the AC Act applied to that proceeding. But, Shine did not make a serious injury application or commence a damages proceeding for the plaintiff.
7. In November 2020, the plaintiff ceased her retainer with Shine. By this time, the limitation period for a damages proceeding had expired.
8. By December 2020, the plaintiff retained Arnold Dallas McPherson (ADM), her current solicitors. ADM prepared a serious injury application and made it on 17 June 2021. The insurer rejected it.
9. On 18 October 2021, ADM filed on the plaintiff's behalf a proceeding in this Court seeking a determination that she had a serious injury. This Court heard the serious injury proceeding from 19 to 23 June 2023. The hearing was unusual in that it ran for five days. Witnesses gave evidence about how the incident happened.
10. On 14 June 2024, Tsikaris J determined the plaintiff had a serious injury from the incident, and she granted leave to the plaintiff to bring a damages proceeding. In doing so, her Honour made findings of fact about the incident including about the quality of the recollections of witnesses to the incident.
11. On 29 October 2024, the plaintiff commenced the damages proceeding. The defendants filed a defence that claimed that her action was statute-barred. The plaintiff conceded the proceeding was commenced after the expiry of the limitation period, and she now applies to extend the time to commence a proceeding.
12. The sole issue is whether it is just and reasonable to extend time for the plaintiff to bring the action in the damages proceeding. The plaintiff says it is. The defendants say it is not. They claim to have suffered specific and general prejudice from the delay, attribute the cause of delay to Shine and say that the plaintiff has a good action against Shine in negligence and breach of retainer for damages for the loss of the opportunity to pursue the damages proceeding.

1. The plaintiff was a "worker" at the time of the incident so the damages proceeding is governed by s134AB of the AC Act as it is in respect of an injury from employment on 17 September 2012 for which she has an entitlement to compensation under that Act.[1] Her proceeding is as permitted by and in accordance with s134AB of the AC Act.
2. The injury, the subject of the plaintiff's action, is not a disease or disorder. Therefore, s5(1)(a) of the Limitations of Actions Act 1958 (the LA Act) provides the limitation period: six years from the date on which the cause of action accrued.[2] The cause of action accrued when the plaintiff first suffered the alleged injury the subject of the action, which was on 17 September 2012.
3. Section 134ABA of the AC Act can affect the calculation of the limitation period for a s134AB proceeding. That section requires periods relating to the making of a claim for compensation for permanent impairment and for making a serious injury application to be disregarded in calculating the limitation period under the LA Act. That section does not affect the calculation of the limitation period in this case as the plaintiff has not made a claim for compensation for permanent impairment, and she had not made a serious injury application before the operative limitation period had expired.
4. The operative limitation period for the plaintiff's damages proceeding commenced on 17 September 2012 and it expired on 18 September 2018.[3] Because her damages proceeding is in accordance with s134AB of the AC Act, the plaintiff had to make an application for a serious injury application on or before 18 September 2018.
5. There was uncertainty up to May 2019 about whether the plaintiff was a "worker" under the AC Act at the time of the incident. It is useful to note that if the plaintiff had not been a "worker" under the AC Act at the time of the incident, that Act would not have applied to the damages proceeding, so she would not have had to prove she had a "serious injury" before commencing a damages proceeding. Further, the limitation period would have been governed by Division 2 of Part IIA of the LA Act, which provides for a limitation period of the earlier of either twelve years from the incident or three years from the date of discoverability.

1. The plaintiff applies for an extension of time under s23A(2) of the LA Act. That section permits a court to extend the limitation period to bring an action if "it is just and reasonable to do so". This can be done even though the limitation period has expired and the proceeding has already been commenced.[4]
2. Section 23A(3) requires a court in determining whether to extend time to have regard to all the circumstances of the case including but not limited to each of 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; and

(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.

1. The Court of Appeal in Griffiths v Nillumbik Shire Council[5] in considering an application to extend time under s23A of the LA Act set out the established legal principles that apply to such an application:

"(1) The applicant, for an extension of time, bears the onus of establishing that it is just and reasonable to order that the limitation period be extended. It is for the applicant to prove the facts which enliven the discretion to grant the extension and to show good reason for exercising the discretion in his or her favour;

(2) The purpose of a discretion conferred by provisions such as s 23A is to ensure a fair trial on the merits of the case. Loss of evidence, which tends against the prospect of a fair trial, will usually be fatal to an application to extend time;

(3) The relevant delay commences from the time of the accrual of the cause of action;

(4) Relevant prejudice to a defendant is both that which occurs by reason of the delay (such as the demonstrable loss of documents or testimony of a relevant witness) as well as the prima facie prejudice suffered by a defendant who, if not for the application for extension, would have the benefit of the limitation period;

(5) In cases of long delay, there is presumptive prejudice as important, perhaps decisive, evidence may disappear without its existence ever being apprehended;

(6) The circumstances of the case referred to in s 23A(3) require a synthesis of the competing considerations set out in the subsection in reaching a conclusion that takes into account all of them."[6]

1. In Prince Alfred College Incorporated v ADC,[7] the High Court stated that a decision about whether to extend a limitation period must take account of the reasons why limitation periods exist:

"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.".[8]

1. The evidence in the application consisted of the following:

(a) two affidavits of the plaintiff, made 30 April 2025 and 31 July 2025;

(b) three affidavits of Sarah Richardson, one made 6 May 2025 and two on 31 July 2025. Ms Richardson is a solicitor with ADM, the plaintiff's current solicitors; and

(c) two affidavits of Catherine Mortellaro, made 23 June 2025 and 29 July 2025. Ms Mortellaro is a solicitor with IDP Lawyers, the defendants' solicitors.

1. The following specific issues affect how I find facts in this case.

1. The parties tendered affidavits without requiring any deponent to attend for cross-examination and without objection. Although this was the position of the parties, it is still necessary for me to scrutinise the evidence, particularly in assessing weight and the use that can be made of the evidence.
2. The affidavits contain statements of fact about events. An affidavit in an interlocutory application should expressly state whether a statement of fact is based on knowledge, or on information and belief, and if the later, the grounds for the information and belief.[9] In some parts, the affidavits do not do this, or do not do this clearly.
3. In making findings of fact, I have taken the general approach of preferring contemporaneous documents about an event and placing less weight on a deponent's statement about the event, particularly where the statement of fact is based, or appears to be based, solely on the deponent's review of a document rather than her own knowledge.[10] Furthermore, there are parts of the affidavits that are not statements of facts but are better characterised as submissions. I have not had regard to submissions made by affidavit in making findings of fact.

1. The plaintiff did not call anyone from Shine as a witness.
2. The defendants submitted that I should infer, in accordance with the rule in Jones v Dunkel,[11] that the uncalled evidence would not have assisted the plaintiff in considering why Shine did not make a serious injury application on behalf of the plaintiff before the expiry of her limitation period. This was said to be particularly so where the plaintiff submitted that Shine had a strategy of delaying the making of a serious injury application until after the Magistrates' Court had resolved the issue of whether the plaintiff was a worker employed by the defendants.[12]
3. The rule in Jones v Dunkel provides that an unexplained failure by a party to call a person as a witness whom the party may be expected to call on a subject may permit an inference to be drawn that the person's evidence would not have assisted the party's case on that subject. The inference can be considered in deciding whether to accept any evidence on that subject or in deciding whether to draw any inference of fact from the evidence about that subject.[13]
4. Although the defendants did not specify a person who the plaintiff could or should have called, I accept that a legal practitioner who handled the plaintiff's matter while she retained Shine, particularly around the time the limitation period expired, would likely have been able to give evidence, either by affidavit or in person, about why Shine did not make a serious injury application on behalf of the plaintiff before the expiry of the limitation period.
5. Shine is aware of the proceeding. The defendants issued on Shine a subpoena for production of documents, and they produced documents relevant to having acted for the plaintiff, which are heavily redacted pursuant to a claim of client legal privilege.[14] There is no evidence to suggest that a person from Shine would not have been available to give evidence.
6. A precondition to drawing a Jones v Dunkel inference is that the missing witness would be expected to be called by one party rather than another because the missing witness is effectively in a party's camp.[15]
7. On the issue of whether Shine could be characterised as in the plaintiff's camp, the defendants referred me to examples of extension of time applications where a plaintiff had called his or her previous solicitor at the time of the expiry of the limitation period as a witness in support of a submission that it was not unprecedented for a plaintiff in an extension of time application to call his or her previous solicitors.[16] That is so, but there are conversely examples where a plaintiff has not called his or her previous solicitor to give evidence and no Jones v Dunkel inference has been drawn against the plaintiff.[17] More significantly, the defendants did not refer me to any case where a court has drawn a Jones v Dunkel inference against a plaintiff in an extension of time application because he or she has not called a previous solicitor to give evidence.
8. The defendants submitted that the interests of justice dictated that a Jones v Dunkel inference must be drawn.[18] However, the question of whether to draw an inference is between parties; the fact that a third party may (or may not) benefit from an inference not being drawn is not determinative of the question.
9. I do not accept that Shine, or, more accurately, a witness from Shine can be properly characterised as someone who is in the plaintiff's camp. The plaintiff had a solicitor/client relationship with Shine that broke down in about November 2020. She made a complaint to the Victorian Legal Services Commission about the adequacy of Shine' representation of her.[19] There is no evidence to suggest that the relationship has improved since then, and it seems unlikely it has given that the plaintiff may, depending on the outcome of the extension application, seek to sue Shine for professional negligence. There is not a rational basis to assume that Shine would collaborate with the plaintiff in providing an affidavit explaining its conduct, especially if this could or may implicate it in a future action. Further, in the absence of an affidavit and knowing what evidence may be given, the plaintiff was not required to call a person from Shine to give oral evidence.[20]
10. I am not satisfied that a Jones v Dunkel inference should be drawn, and I do not draw one.
11. Further, even if such an inference was drawn, I do not consider it would affect in a material way the fact finding in this case. As will become apparent later in these reasons, I reject the plaintiff's submissions that Shine had a strategy to delay making a serious injury application until after the Magistrates' Court determined whether the plaintiff was a worker employed by the defendants when the incident happened.

1. The following paragraphs are finding of facts.
2. In about August 2012, the plaintiff commenced work as a track rider at Pakenham Racecourse. In this role, she rode for several trainers, including the defendants.
3. On 17 September 2012 the incident happened. The plaintiff was riding a horse for the defendants when she came off. The plaintiff claims the horse bucked, causing her to somersault forward and land heavily on the ground, and that she suffered injury from the incident.[21]
4. The defendants admit that the plaintiff was "dislodged" from a horse while riding for the defendants on 17 September 2012 and that she suffered injury from the incident, but they put in contest the circumstances of how and why she came off the horse and the nature and extent of her injury from the incident.[22]
5. There were three witnesses to the fall: the plaintiff; Mr Dean Grass; and Mr Warren Hunt.
6. The plaintiff claims in the year following the incident she had ongoing pain in her lower back and hips, and she saw a physiotherapist about the pain and had massages for it. She thought the pain would resolve with time.
7. In about August or September 2013, she was referred to an orthopaedic surgeon, Mr Camdon Fary. That led to her having an MRI of her hips. She understands the MRI showed a labrum tear in her right hip and a suspected labrum tear in her left hip.[23]
8. On 25 November 2013, Mr Fary performed an arthroscopy of the plaintiff's right hip, revealing a torn ligament and a torn labrum.
9. In November 2013, the plaintiff submitted a claim for workers compensation under the AC Act. The claim form named the defendants as her employers and claimed that she was injured in the incident by suffering labral tears to her left and right hips.[24]
10. At about the same time, the plaintiff ceased working for the defendants. She claims Mr Fary advised her it was unlikely that she would be able to return to track riding in the future because of her hips.[25]
11. On 7 January 2014, the plaintiff was notified that the insurer rejected her workers compensation claim.[26]
12. In January 2014, the insurer commissioned SECA Group Pty Ltd (SECA) to investigate the plaintiff's workers compensation claim. SECA investigated and prepared a report dated 29 January 2014, which runs for 48 pages.[27] The report listed the claimant as the plaintiff, and the defendants as the employer of the plaintiff. The investigation included interviewing the plaintiff, Mr Grass, and Mr Hunt about the incident, and taking statements from each of them. The statements are included with the report.[28] The report included a section headed "common law potential".
13. The plaintiff appealed the rejection of her workers compensation claim to the Accident Compensation Conciliation Service. A certificate of genuine dispute was issued on 13 March 2014.[29]
14. On 30 April 2014, the plaintiff consulted Shine for legal advice regarding the incident.[30] Shine advised her to issue a Magistrates' Court proceeding challenging the rejection of her workers compensation claim.[31] Shine also provided the plaintiff with legal advice about a damages proceeding, including that there was a time limit of six years to bring a proceeding and that they would proceed on the basis that the time limit was to expire on 16 September 2018.[32]
15. Shine wrote to the plaintiff on 30 April 2014. The letter confirmed her instructions about the fall causing injury to her hips. It informed her about her potential entitlement to workers compensation and that she may be able to bring a common law damages claim, which was separate and in addition to any workers compensation claim. The letter explained the need to show "serious injury" to commence a damages proceeding and the need to prove negligence in that proceeding. The letter stated that after a compensation claim for permanent impairment had concluded that Shine would "discuss with you our advice in respect of your prospects of succeeding in a common law damages claim and then discuss with you whether you wish to make such a claim".[33] The letter stated that her right to bring a common law damages claim expired on 16 September 2018.
16. With the letter she was also provided a document titled "Time Limits and Your Rights in Workcover Claims and Claims for Damages",[34] which relevantly read:

"You have advised us that your injury occurred (or the symptoms commenced on 17/9/2012.

Therefore, it is important for you to remember that you only have until 16/9/2018 to commence a claim. If you or your Solicitor have not lodged a claim before this date, you may never be able to do so.

Special provision apply to enable a claim to be brought outside the six year period in limited circumstances.

This can include circumstances where a defendant is not prejudiced by a late claim and a court considers that it is in the interests of justice to grant an extension.

A court will take into account when a claimant became aware of all relevant information and was themselves responsible for any delay."

1. The plaintiff signed a cost agreement.[35] The costs agreement was not before the Court. I infer from the fact that, as will be shown, Shine took steps to prepare a serious injury application that the plaintiff's retainer with Shine included pursuing a damages proceeding.
2. On 8 October 2014, Shine commenced on behalf of the plaintiff a proceeding in in the Magistrates' Court that named Mr Grass and Ms Phoebe Caruso as defendants and challenged the rejection of her workers compensation claim.[36] Shine informed her about the Magistrates' Court proceeding.[37]
3. On 21 October 2014, Trueman Dawson Lawyers purported to file on behalf of the defendants a defence to the Magistrates' Court proceeding.[38] The defence did not deny that the defendants had employed the plaintiff at the time of the incident,[39] which under the rules of that Court is tantamount to an admission that the defendants had employed the plaintiff.[40]
4. On 22 October 2014, IDP Lawyers purported to file on behalf of the defendants a further defence to the Magistrates' Court proceeding. The defence admitted that the plaintiff was employed by the defendants at all material times, which would have included the incident.[41]
5. In December 2014 and January 2015, Shine prepared a brief to counsel to prepare serious injury paperwork, being an affidavit and statement of claim.[42] It does not appear the brief was sent at that time.
6. On 15 December 2014, Mr Fary performed an arthroscopy of the plaintiff's left hip, which revealed a torn ligament and a torn labrum.[43]
7. On 21 January 2015, a mention was held at the Magistrates' Court, where the Court raised that two defences had been filed. The matter was adjourned. Subsequently, IDP Lawyers filed a notice of change of practitioner, taking over sole conduct of the proceeding for the defendants.[44]
8. On 4 February 2015, the Court granted leave to the defendants to file and serve an amended defence. That amended defence put in issue whether the plaintiff was a "worker" employed by the defendants at the time of the incident. The matter was listed for hearing on 15 May 2015.[45] This hearing was then relisted to 4 June 2015.[46]
9. On 27 May 2015, Shine advised the plaintiff by email that the defendants had alleged she was not a worker under the Act, and requested various documents regarding her employment.[47]
10. On 2 June 2015, the Magistrates' Court ordered that the proceeding against the defendants be struck out with the right of reinstatement. The Court stated that pursuant to s16(4)(b) of the AC Act, Racing Victoria should properly be a defendant, with enquiries to be made regarding the plaintiff's permit or approval to ride track work. The Court said that the plaintiff was either to issue a new proceeding against Racing Victoria or the plaintiff could seek to reinstate the Magistrates' Court proceeding.[48]
11. Between 2015 and 2021, the plaintiff underwent multiple cortisone injections to her hips, five further arthroscopic surgeries to her hips and a lumbar medial branch block for her lower back pain.[49]
12. During 2016, the plaintiff contacted Shine by telephone several times regarding her case. On each occasion she was told a solicitor would call her back, but this never occurred.[50]
13. IDP Lawyers received no correspondence from Shine regarding the plaintiff's case from 4 June 2015 to 25 July 2017.[51]
14. In February 2017 Shine reviewed the plaintiff's matter to determine whether it should progress to making a common law claim.[52]
15. In approximately mid-2017, the plaintiff received a call from a solicitor at Shine, but she was travelling overseas at the time. Upon her return she called the solicitor, who said the plaintiff's previous solicitor had left the firm and the plaintiff's file had become lost during his departure. On this call, the plaintiff raised that the time limit for her damages proceeding would expire next year, to which the solicitor replied that she was aware of the time limit and would ensure a claim was initiated before that date.[53]
16. On about 25 July 2017, IDP Lawyers received copy of a summons from Shine dated 4 July 2017, seeking to reinstate the Magistrates' Court proceeding, and seeking to include Racing Victoria as a defendant. The proceeding was re-listed in the Magistrates' Court.[54]
17. On 2 August 2017, Shine considered how to proceed with the matter if the plaintiff was not a "worker" at the time of the incident.[55] It identified that if the damages proceeding was not subject to the AC Act there would be a limitation period issue. I infer that Shine understood that if the plaintiff's damages proceeding was not subject to the AC Act then Division 2 of Part IIA of the LA Act provided the operative limitation period for the damages proceeding, being the earlier of three years from the date of discoverability or twelve years from the date of the incident, and if this was case the limitation period had likely expired so an extension of time was needed.
18. On 11 September 2017, the Magistrates' Court granted the plaintiff leave to file and serve an amended complaint and statement of claim that included Racing Victoria as a defendant, and granted leave to Mr Grass and Ms Caruso to file an amended defence.[56]
19. On 6 November 2017, the Magistrates' Court held a mention where the Court was informed that the amended complaint and amended statement of claim had not been served on the defendants. Plaintiff's counsel did not have any instructions. The proceeding was adjourned for further mention.[57]
20. At the further mention on 11 December 2017, plaintiff's counsel informed the Court that he was having difficulty contacting the plaintiff, and that the amended complaint had not been served on Racing Victoria as they were having difficulty contacting them. The proceeding was adjourned for further mention.[58]
21. In late-2017 the plaintiff met with Mr Andrew Ingram, barrister. Mr Ingram wrote an undated advice, which states that he conferred with the plaintiff and her mother on 6 December 2017 and that he "explained to the [p]laintiff that the purpose of the conference was to draft Affidavit material in support of a serious injury application pursuant to the provisions of s134AB of [the AC Act] as a prelude to a claim for common law damages".[59] The heavily redacted advice concludes with Mr Ingram stating that he returns the papers to Shine. Mr Ingram via his clerk raised an invoice dated 22 December 2017 for work that included conferring with the plaintiff and drafting an affidavit, statement of claim and advice.[60]
22. Shine's time records for the plaintiff's matter have an entry for 11 December 2017 for "[p]ersual of serious injury documents, drafted by Counsel", and an entry for 19 December 2017 for it to draw a "Form A- Serious Injury Application",[61] which is the administrative form approved by the Victorian WorkCover Authority for making a serious injury application.[62]
23. I infer that in late-2017 Shine retained Mr Ingram to prepare court documents so that the plaintiff could make a serious injury application in respect of injury from the incident, and that Mr Ingram drafted serious injury documents, which he returned to Shine soon after the conference, so that Shine had the serious injury documents by mid-December 2017.
24. On 17 January 2018, the defendants were served with an amended statement of claim in the Magistrates' Court proceeding.[63]
25. On 23 February 2018, the plaintiff conferred with Mr James Plunkett, barrister, and two people from Shine. Mr Plunkett was the barrister who had acted at times for the plaintiff in the Magistrates' Court proceeding. He prepared an advice to Shine dated 26 February 2018. The copy of the advice before the Court was heavily redacted. The advice has a header for the Magistrates' Court proceeding. He states that he had been instructed to advise on how best to proceed with the claim. The plaintiff claims that the purpose of her conference with Mr Plunkett was to prepare a serious injury application.[64] I do not accept that was the purpose of the conference given Mr Plunkett's advice. I infer that the purpose of the conference was for Mr Plunkett to advise about how to proceed with "the claim", which included a damages proceeding.
26. Mr Plunkett advised about the limitation period for a damages proceeding. His initial advice is predicated on the plaintiff not being a "worker", so that Division 2 of Part IIA of the LA Act provided the operative limitation period for the damages proceeding: the earlier of twelve years from the incident or three years from the date of discoverability. He advised that the damages proceeding may be defended on the basis that the limitation period expired on 17 September 2015 (being three years after the incident), advised that the plaintiff could apply to extend time, opined that such an application would be successful, and recommended issuing a generally indorsed writ urgently to mitigate any argument that delay had been caused by the negligence of Shine.[65] He gave further advice that if an application for an extension of time was "unsuccessful, a claim could nevertheless continue to be pursued under the [AC Act] where the limitation period is six years ... and so yet to expire". It is difficult to understand parts of his advice. The plaintiff either was or was not a "worker" so it was not a matter of choosing, as Mr Plunkett seems to suggest, whether the AC Act applied or which limitation period applied.
27. Mr Plunkett raised via his clerk an invoice dated 26 February 2018.[66] The invoice billed for having conferred with the plaintiff and providing advice. He did not bill for preparing serious injury paperwork. Shine's time records for the matter have an entry for conferring with the plaintiff and a barrister on 23 February 2018 and perusing the advice of Counsel on 27 February 2018.[67]
28. I infer that in eary-2018 Shine was uncertain about how to proceed with the plaintiff's matter considering the contest about whether the plaintiff was a "worker" under the AC Act at the time of the incident. It retained Mr Plunkett to advise how best to proceed with claims by the plaintiff including a damages proceeding and that by late February 2018 it had read and received his advice.
29. At the hearing there was a reference to an undated file note by Shine that recorded that the plaintiff had two options: first, to pursue a damages proceeding as if the AC Act did not apply to it; the second, was to run the Magistrates Court proceeding to determine whether the plaintiff was a "worker" and if she was to then to make a serious injury application.[68] Although the file note was undated, I infer it was likely to have been written in about early 2018 as its contents accord with discussions happening at about this time and the advice of Mr Plunkett.
30. As at February 2018 Shine had not commenced a damages proceeding. Mr Plunkett had recommended Shine issue a generally indorsed writ. At about the same time, it is likely someone at Shine had identified an action to take was to check whether a generally indorsed writ had been issued, and if not, make sure one was issued "to protect her".[69] Shine did not issue a generally indorsed writ on behalf of the plaintiff at any stage.
31. On 1 March 2018, there was a further mention of the Magistrates' Court proceeding. Mr Plunkett, appearing for the plaintiff, informed the Court that documents had been served on Racing Victoria, but the plaintiff had received no response. There was no appearance by Racing Victoria. Plaintiff's counsel told the Court that he was unsure if the plaintiff was going to pursue proceedings under the Wrongs Act 1958. The Court informed plaintiff's counsel that the plaintiff needed to decide whether to proceed with judgment in default, or to have the Magistrates' Court proceeding dismissed, and if she had not decided by the next mention, the Court would strike out the matter. The proceeding was adjourned for further mention.[70]
32. On 7 March 2018, Racing Victoria filed and served a defence to the Magistrates' Court.[71]
33. Between February and July 2018, the plaintiff spoke with Shine over the phone several times. The conversations mostly focused on the ongoing Magistrates' Court proceeding. However, she raised concerns about the impending six-year time limit for her damages claim on multiple occasions. Her solicitor assured her that it would be fine, that they were aware of the time limit and an extension could be obtained for the damages proceeding if needed.[72]
34. Several mentions were listed and adjourned in the Magistrates' Court between March and July 2018, with appearances from all parties.[73] The matter was eventually listed for hearing on 19 October 2018.[74]
35. On 18 September 2018, the limitation period expired.[75] When it expired, Shine had not made a serious injury application on the plaintiff's behalf or commenced a damages proceeding.[76]
36. In October 2018, a person from Shine conducted two reviews of the file where it was noted that the limitation period had been recorded as expiring in September 2018.[77]
37. On 19 October 2018 the Magistrates' Court held a hearing. The plaintiff gave evidence about whether she was employed by the defendants or Racing Victoria at the time of the incident.[78]
38. On 22 October 2018, the Magistrates' Court adjourned the proceeding part-heard to a date to be fixed, with a note that the parties were to exchange written submissions.[79] The plaintiff and Racing Victoria served submissions,[80] and the plaintiff and Mr Grass and Ms Caruso prepared agreed facts.[81]
39. On 4 March 2019, the plaintiff emailed Shine asking if the Magistrates' Court had made a decision. On 5 March 2019, Shine replied by email advising that her solicitor was on maternity leave and that they were still awaiting the Court's judgment.[82]
40. On 1 May 2019, Magistrate Guthrie handed down his decision to the effect that the plaintiff was an employee of the defendants and dismissing her claim against Racing Victoria on the basis that it was not her employer.[83] Following several mentions, the proceeding was listed for hearing on 1 October 2019.[84]
41. The plaintiff says in about April 2019, she was contacted by Shine to advise the Magistrates' Court had determined she was a worker employed by Mr Grass and Ms Caruso. However, this was likely in May 2019 given the Court handed down its decision on 1 May 2019.
42. Over the next few months, the plaintiff contacted Shine on several occasions to determine next steps in her case. She was unable to get onto any of the solicitors handling her case. She left messages with the reception requesting a call back but never received one.[85]
43. On 13 August 2019, the plaintiff emailed Shine asking for an update on her case. On 14 August 2019, she received an email from a paralegal stating that a hearing in the Magistrates' Court had been set down for 1 October 2019. On 28 August 2019, she received a further email regarding a prehearing conference on 9 September 2019.[86] At the prehearing conference, the plaintiff asked the solicitor about the time limit for the damages claim, and was advised that they would ask for an extension for the damages claim and that it would not be a problem.[87]
44. On about 30 September 2019, the Magistrates' Court proceeding resolved by way of an out of court settlement.[88]
45. Between November and December 2019, the plaintiff contacted Shine on several occasions seeking an update on her damages claim. She did not reach any solicitors and did not receive a call back.[89]
46. On 15 January 2020, the plaintiff received an invoice from Shine for legal costs for her workers compensation claim. The amount sought was larger than she expected. She contacted Shine and the Victorian Legal Services Board.[90]
47. Between about January and August 2020, the plaintiff claims she contacted Shine on multiple occasions to discuss the invoice but did not receive a call back.[91] However, on 10 February 2020 she spoke with Ms Nicole Ward where she complained about the invoice. During that consultation, there was discussion of the plaintiff's concerns that she was out of time to bring a damages proceeding and Ms Ward said that she would review the file but if Shine had missed the expiry date then it would have to cease to act as it would be conflicted.[92]
48. On 19 August 2020, Shine' legal practice manager emailed the plaintiff apologising for the delay in responding and indicating she was seeking authority to reduce the amount of the invoice.[93]
49. On 9 September 2020, the plaintiff received a revised invoice from Shine. She contacted the legal practice manager regarding their repeated failure to return her calls, and was advised that a new solicitor would be taking over her damages claim.[94]
50. In about October 2020, Shine worked on an affidavit for a serious injury application which it sent to the plaintiff on 14 October 2020.[95] It also advised the plaintiff that she was required to sign a new cost agreement.[96] Following discussion, the plaintiff was told that Shine would not represent her in relation to her damages proceeding unless she signed a new cost agreement.[97]
51. On 8 November 2020, the plaintiff made a complaint to the Victorian Legal Services Commissioner about Shine.[98] Shine prepared a letter in response to the complaint dated 30 August 2021.[99] I find that letter is a draft as it includes comments to a reader asking for further clarification and highlighted parts. The draft letter claims that, "the view was taken that [the plaintiff] would need to resolve the question of who her employer was in order to have any prospect of success in a common law application". The draft letter was refined leading to a letter dated 10 September 2021.[100] Tellingly that letter omitted the claim that Shine had taken the view that the worker issue had to be resolved before considering whether to make a serious injury application.
52. On 10 November 2020, the plaintiff emailed Shine requesting that they cease to represent her or act on her behalf.[101]
53. On 1 December 2020, Shine wrote to the plaintiff.[102] The letter confirmed that Shine no longer acted for her, and stated that "arguably" her limitation period for an action against the defendants expired on 17 September 2018 and advising that an extension of time application could be made.
54. On 1 December 2020, the plaintiff signed a cost agreement and disclosure statement with ADM.
55. On 17 June 2021, Shine wrote to ADM.[103] The letter was mainly about costs, however, it contained an assertion that a properly prepared extension of time application "has no reason not to succeed" and that the plaintiff had a duty to mitigate her claimed loss.
56. On 17 June 2021, a serious injury application was lodged in relation to the plaintiff's damages claim.[104] The defendants rejected the application on 15 October 2021. The defendants provided a copy of their draft defence, which did not plead a limitation defence.[105]
57. On 18 October 2021, the plaintiff filed an Originating Motion for the serious injury application.[106]
58. The plaintiff's serious injury application was heard by Tsikaris J from 19 to 23 June 2023. On 14 June 2024, Tsikaris J handed down her decision in Proctor v Victorian WorkCover Authority.[107] The plaintiff was granted leave to commence a proceeding seeking damages for pain and suffering and loss of earning capacity.[108]
59. On 29 October 2024, ADM filed and served a writ and statement of claim, commencing the damages proceeding.[109] The statement of claim bought an action in negligence against the defendants claiming damages for personal injury. She claims that on 17 September 2012 Mr Grass requested her to ride a two-year-old horse. She refused, but he ordered her to do so, which she did. She says that while riding the horse it bucked repeatedly and pulled its head down causing her to be thrown off the front and suffer injury.
60. On 5 December 2024, the defendants filed their defence. They admitted that on 17 September 2012 the plaintiff was dislodged from a horse that she was riding in track work for the defendants causing her injury but either denied or did not admit the allegations made by the plaintiff. They pleaded that the plaintiff's claim was barred as it had been brought after the six-year limitation period in s5(1) of the LA Act. This led to the plaintiff filing an application for an extension of time.

1. The following analysis needs to be seen in the context of the findings of fact made above.

Section 23A(3)(a): the length of and reasons for the delay on the part of the plaintiff

1. The delay started with the accrual of the cause of action, being when the plaintiff first suffered damage, which was when the incident occurred on 17 September 2012.
2. The plaintiff submitted that the delay ended when she filed the writ, which was 29 October 2024.[110] I reject that submission.
3. The defendants helpfully referred to the Court of Appeal's reasoning in Griffth v Nillumbik Shire Council[111] about when delay ends in a claim where there has been a serious injury application:

"... the appropriate end point for calculating the period of delay in a claim involving a 'serious injury' process ... is the date upon which the respondent to the claim (or its insurer) receives the serious injury application and the material supporting the application (assuming that the documentation sets out in sufficient detail the circumstances of the alleged tortious acts or omissions giving rise to the potential common law claim and where appropriate an account of the injuries and consequences said to flow from the alleged negligence) ..."[112]

1. The defendants submitted, which I accept, that the delay ended when the plaintiff made the serious injury application on 17 June 2021, there being no argument about the adequacy of the material provided with the application.
2. The delay is from 17 September 2012 to 17 June 2021, a period of about eight years and nine months.
3. The plaintiff explained her reason for the delay as follows:

"During the period when Shine was acting for me, I believed and trusted that they were doing everything required to protect my legal interests and advance my cases. I raised my concerns regarding the time limit for bringing the common law claim with my Shine solicitors on many occasions. I was repeatedly told by my solicitors that they were aware of the time limit, would work toward it and/or would simply get an extension if required. I was told not to worry about the time limit. I placed my trust in the Shine solicitors and believed they knew what they were doing and would do everything required by the law to obtain compensation for my injuries in the common law claim.

I understand that the WorkCover claim was lengthy, taking about 7 years to resolve, and that it involved legal points made by the Defendant regarding whether I was a worker for Mr Grass which may have impacted my common law claim. I believe this is also a reason for the common law claim being brought late."[113]

1. The defendants expressly stated that it did not submit that the plaintiff was at fault in any way for the delay.[114] Instead, they submitted that the reason for the delay was because of the negligence of her previous solicitors, Shine.
2. I find that the plaintiff has a good explanation for the delay, and she was not the cause of or complicit in the delay. Within about 19 months of the incident, she consulted Shine, a firm who regularly acted in work injury claims and proceedings. She trusted them to act for her and in her best interests, which was not unreasonable. She was aware of the limitation period. She contacted Shine about making sure that steps were taken before the expiry of the limitation period and she received assurances that they would. She knew that steps were taken before the limitation period expired to prepare a serious injury application: for example, she conferred with Mr Ingram in late-2017 for the purpose of preparing a serious injury application. Later, after the expiry of the limitation period, she was told by Shine that an extension of time could be obtained if needed.
3. I will consider further the question of the cause of the delay in the context of considering the potential for the plaintiff to being a professional negligence action against Shine.

Section 23A(3)(b): the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendants

1. The defendants submitted they have or are likely to have suffered prejudice from the delay in the form of specific and presumptive prejudice.
2. Before considering prejudice, it is important to reflect on why prejudice matters. The majority of the High Court in Prince Alfred College discussed how delay can prejudice the fairness of a trial in a case where there was delay of about 46 years between alleged actionable events that occurred in 1962 and the commencement of a proceeding in 2008, and the plaintiff in 1997 had been aware in 1997 of the potential for a action and had elected not to pursue it at that time:

"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. The onus is on the party claiming an extension of time to show that a fair trial may be had now, notwithstanding that passage of time".[115]

1. The defendants claimed they did not know that the plaintiff wished to bring a damages proceeding until she made the serious injury application eight years and nine months after the incident.[116] Further that they are:

"prejudiced or [are] likely to be prejudiced in defending the Plaintiff's damages claim because the memories of the two direct witnesses to the incident (other than the Plaintiff) [being Mr Grass and Mr Hunt] as to central issues in dispute have faded with the passage of time and a long time has passed since the treating surgeon [being Mr Fary] whose evidence is important on the question of causation has treated the Plaintiff such that the Defendant cannot have an acceptably fair trial."[117]

1. While I accept that the defendants did not know the plaintiff would in fact bring a damages proceeding until she made her serious injury application, they (and/or their insurer) were aware by December 2013,[118] within 15 months of the incident, that she was making a workers compensation claim that put in issue the circumstances of the incident. The notification led to the defendants, or their insurer, engaging an investigator in January 2014 to investigate the circumstances of the incident.[119] The letter to the investigator was not in evidence but I infer that the investigator was also asked to consider the potential for a damages proceeding, given the investigator's report included a section headed "common law potential"[120] and made comments that related to a potential damages proceeding.[121]
2. The fact that the defendants were put on notice about the plaintiff's allegations of injury within 15 months of the incident lessens in my view the extent of prejudice to the defendants.[122] They were provided with the opportunity to investigate the circumstances of the fall, which they did, leading to the comprehensive investigation report including statements taken from the three witnesses to the incident being the plaintiff, Mr Grass and Mr Hunt. Furthermore, they had the opportunity to have the plaintiff medico-legally examined, which happened on 27 December 2013 when Mr Robert White, consultant surgeon, examined the plaintiff and prepared a report of the same day.[123] Mr White's report was provided to the defendants as it was relied on in rejecting her workers compensation claim,[124] and it was later served by the defendants' solicitor on the plaintiff in May 2015 along with two further medical reports that the defendants had obtained.[125]
3. The defendants accepted in closing submissions, rightly in my view, that the statements of Mr Grass and Mr Hunt taken by the investigator went some way to ameliorating prejudice in respect of those witnesses.[126] However, they said that they suffer specific prejudice because Mr Grass and Mr Hunt's recollection of the incident had degraded with time, which would affect the fairness of a trial.
4. The defendants did not put on affidavits from Mr Grass or Mr Hunt about the quality of their recollection of the incident to show that their memories about the circumstances of the incident had faded with time, nor did Ms Mortellaro make a statement of belief based on what Mr Grass and Mr Hunt had told her about the quality of their memories.
5. Instead, they sought to show specific prejudice by referring me to factual findings made by Tsikaris J in the serious injury application about Mr Grass and Mr Hunt's recollections of the incident and some of the materials from the hearing of the serious injury application.[127]
6. In the serious injury application, Mr Grass answered interrogatories on behalf of the defendants and made an affidavit. The answers to interrogatories and the affidavit were not in evidence in this proceeding. At the hearing of the serious injury application, Mr Grass gave oral evidence. The transcript of his evidence was in evidence. In his evidence-in-chief he adopted his affidavit, save for clarifying that Mr Hunt had assisted the plaintiff back onto her horse after the incident rather than him as he had claimed in his affidavit.[128]
7. In cross-examination at the hearing of the serious injury application, Mr Grass was challenged about his recollection of the incident:

Q: Do you recall how, in your own memory now how the plaintiff came off the horse and how she landed? ---

A: I recall how - what happened with the horse. I recall her going down the side of it. I can't exactly tell you exactly how she landed, as in - whether on her side which is common in the way you would fall off in that situation, or she could have landed on her bottom. But to me, I - no, I can't give you an actual - how she landed, but I recall - I recall the fall, I recall the incident, I recall how it happened.

Q: What I want to suggest to you is that her fall indeed was a non event for you, and that you don't remember the details of the fall at all? ---

Q: Why did you say in your statement: "It was a non event fall as far as I was concerned, which is why I don't remember the details."? ---

A: Don't remember the details of the dates and the times. I remember the fall.

Q: No, you're talking about the fall. "It was a non event fall as far as I was concerned, which is why I don't remember the details." You're talking about the fall. And the reason you don't remember the details of the fall was because you thought it was a non event. That's the truth, isn't it? ---

A: No, no, I remember the fall. She came off the side. The horse propped, went one side, went the other side, she went down the side and came off. It was a light fall.[129]

1. Mr Grass was asked whether he had seen the plaintiff land after the fall given that she fell off the horse on the opposite side to where he was positioned, and he said that because he was on a horse he could see how she landed.[130]
2. Mr Grass was questioned about his claim in his statement that he could not remember how the plaintiff landed:

Q: "I can't remember how she landed." What do you mean by that?

A: Well, I can't remember whether she was to land exactly on what part, but when you roll off the side of a horse, you generally fall on your side, so, I've come off the same way myself many times.

Q: So you relied on your experience about how people generally come off horses, rather than how she came off this horse?

A: She come off the side of the horse I saw her come off the side of the horse, and she's landed on her side I can't say whether she landed on her bottom or legs. She landed on the side - on the ground on her side.

Q: So you accept that she could have come off the horse and landed on her bottom?

Q: If someone came off a horse and landed on their bottom, would that be a matter of concern for you?

A: Depending on the fall. A lot of falls are so soft, people hit the deck, jump straight up and away they go again, it's not a - it's not a hard fall.[131]

1. In re-examination, Mr Grass was asked about his ability to recall of the incident:

Q: Can I ask you to explain the things that you are very clear about that happened on that day? ---

A: I'm clear about the fall because I don't - I actually don't have - I've had not many people fall off riding working for me, riding with me, so I am pretty clear about anyone that has fallen off the horses. I remember the horse - what it did, and I remember how she slipped down the side of it.

Q: So when you say you're very clear about the fall can you just go through the detail that you are very clear about, please? ---

A: We were cantering side-by-side around the track, slow because they were just pre-trainers so we were just cantering slow. As we come around where the hut is, another rider came around the outside, the horse that Tarryn was on got a fright, it propped to the right, it propped to the left, and she came out and down the side of it, and landed off the side of the horse.

Q: You were asked a number of questions about what you saw in terms of how Ms Proctor came off the horse. Can I ask you to describe precisely the line of sight that you had to her at the time when this happened? ---

A: So I was right beside her on a horse right beside, so as the horse bounced one way, she got unseated because it went bing-bing. And it was snappy, quick when they do it, and she went over the side of the horse and came down beside its neck and shoulder.[132]

1. In the serious injury application, Mr Hunt made an affidavit about his recollection of the fall. The affidavit was before the Court in this proceeding.[133] In the affidavit, Mr Hunt said that he was working on the day of the incident as a trackwork supervisor and was in a hut about 15 metres from the track of the racecourse. He described the incident as follows:

"I do remember Tarryn falling off one of Dean Grass's horses in around September 2012. This occurred almost directly in front of the hut where I was sitting watching. She and Dean Grass where cantering slowly along the sand track. Tarryn's horse shied at something and she slid off the side and fell on to the track. The horse didn't buck or anything like that. Tarryn didn't go up in the air. She slid off down its side and landed on the track on the opposite side to me. It happened very quickly. I think she landed on her feet. If I had to rate on a scale of one to ten I would rate on the bottom end for seriousness. The track is sand, that is 100 ml deep.

Tarryn got straight back on the horse. I recall giving her a boost. It was a fair while ago and I don't remember the fine details. I do remember that she came off the horse and that it wasn't a hard fall. It didn't require an entry to be made in the Complaints and Incidents Register."[134]

1. Notably Mr Grass' view of the incident was from a distance of at least 15 metres and the plaintiff landed on the side of the horse furthest from him, which means that the horse would have been between him and where the plaintiff landed.
2. Mr Hunt gave oral evidence at the hearing of the serious injury application. The transcript of his evidence was not before the Court.
3. Judge Tsikaris made findings about Mr Grass and Mr Hunt's recollections of the incident to the effect that time had affected their recollections, which was critical to her Honour preferring the evidence of the plaintiff over Mr Grass and Mr Hunt's about how the incident happened.[135]
4. The defendants submitted that while her Honour's findings were not binding on me, they were "instructive" to the issue of the specific prejudice suffered by the defendant from delay.[136] The legal basis for the submission was not articulated.
5. The submission could not be based on issue estoppel. Section 134AB(19A) of the AC Act prevents any issue estoppel from a finding made on an application for leave to bring proceedings in respect of the injury in any proceedings for the recovery of damages brought in accordance with s134AB. This extends to the determination of the limitation application.
6. No party referred me to s91 of the Evidence Act 2008. That section provides:

(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.

1. The serious injury application was a separate proceeding from the damages proceeding.[137] The findings made by Tsikaris J about the quality of Mr Grass and Mr Hunt's recollections of the incident were facts in another proceeding and they cannot now, pursuant to s91(1) of the Evidence Act 2008, be used in the damages proceeding to prove that Mr Grass and Mr Hunt's recollections of the incident have been affected by the passage of time. However, I accept that pursuant to s91(2) I can use the decision in the serious injury application to show that the quality of Mr Grass and Mr Hunt's recollections (and the plaintiff's) is likely to be an issue that arises in the damages proceeding.
2. Although I cannot use Tsikaris J's findings about the quality of Mr Grass and Mr Hunt's recollections of the incident, I can review the part of Mr Grass and Mr Hunt's evidence in the serious injury application tendered in the limitation period application to determine whether either of their memories have or are likely to have faded with the passage of time.
3. Having reviewed the evidence tendered in this application, I consider that Mr Grass and Mr Hunt have a remarkably good recollections of the incident. Each of them in the serious injury application materially described how the plaintiff came off the horse. The only issue with their recollection was the position of the plaintiff's body when she landed, though both agreed that the fall was not serious or was light. It is not apparent to me from the evidence that in fact that each of them had seen the plaintiff land despite their claims to the contrary. It is to be noted that even when interviewed by the investigator within 16 months of the incident they were unclear about the position of the plaintiff's body when she landed.
4. The claimed specific prejudice relating to Mr Fary having not treated the plaintiff for a long time is non-existent. Mr Fary was a treating doctor and his evidence is based on his treatment of the plaintiff. He does not need to have examined the plaintiff. Mr Fary gave evidence in the serious injury application and the transcript of his evidence was in evidence in this application.[138] It shows he has good recollection of relevant events.
5. I accept that the there is or is likely some prejudice to the defendants related to Mr Grass and Mr Hunt not recalling how the plaintiff landed but it is not significant in the context where they are able to give cogent evidence about the circumstances of the incident more generally.
6. Section 23A(3)(b) requires the Court to have regard not only to specific prejudice but also the extent there is likely to be prejudice.[139]
7. The defendants submitted that the period of delay of eight years and nine months was "inordinate or substantial",[140] citing the language of Ford Motor Company (Aust) Ltd v Kulic[141] and Welsh v Adecco & Ors.[142]
8. The defendants referred to McHugh J's comments in Brisbane South Regional Health Authority v Taylor[143] regarding the rationales for the existence of limitation periods:

"The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. ... The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible."[144]

1. Justice McHugh elaborated on the potential effects of a delay:

"Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. ... The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose".[145]

"... once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation."[146]

1. The defendants also submitted that prejudice may occur in circumstances where several of the defendants' witnesses have already accepted that their memories about the circumstances of the incident have faded due to the effluxion of time, whereas the plaintiff has maintained that she has a good recollection of the events.[147]
2. At the hearing, the plaintiff accepted that "there will be general prejudice in relation to the delay".[148]
3. As Buchanan JA opined in Tsiadis v Patterson:

"In my opinion paragraph (b) of s.23A(3) does not limit the Court's attention to prejudice which is present or is likely to occur in the sense that it is more probable than not that it will occur and the word "extent" in the paragraph requires the Court to have regard to the degree to which prejudice is likely to eventuate. ... Of course the influence of potential prejudice will decrease as its likelihood is reduced."[149]

1. I accept that the defendants are likely to be subject to some presumed prejudice because of the period of delay. The extent of the presumed prejudice, though, is limited because, as discussed above, the key witnesses to the incident have generally retained good recollections of the incident.
2. Generally on the issue of prejudice, while I accept there has been some prejudice to the defendants because of the time since the incident, I do not consider that the prejudice is significant. At the trial, there will be competing evidence about how the incident occurred and the plaintiff, Mr Grass and Mr Hunt can each give their version of events. This is the hallmark of a factual contest, and the passage of time has not prevented a fair trial.

Section 23(3)(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 by relevant to the cause of action of the plaintiff against the defendants

1. The plaintiff suggested the conduct of the defendants caused the period of the delay in three ways.
2. The first, was based on the defendants having not raised a limitation defence in the draft defence filed in the serious injury application process, and first raised it when they filed their defence in December 2024.
3. The defendants submitted that the timing of the raising of the limitation defence was not causative of the delay given that the delay period ended with the making of the serious injury application, which was before a draft defence was filed.
4. I agree with the defendants' submission. Further, assuming that the defendants had raised the limitation period defence it is not clear that the Court would have necessarily heard the serious injury application and the extension of time application at the same time.
5. The second, was based on the defendants having put in issue in the Magistrates' Court proceeding whether the plaintiff was a worker employed by the defendants and that the resolution of that issue contributed to delay.
6. I accept that the contest about whether the plaintiff was a worker at the time of the incident partly explains the delay. However, the defendants were entitled to contest the worker issue. The fact that it took over five years to determine the worker issue was largely not the fault of the defendants. There was no suggestion that they concealed or hid material. A review of the conduct of the Magistrates' Court proceeding does not show that the defendants caused substantial delay to the running of that proceeding.
7. The third, was based on the defendants having put causation in issue in the serious injury application, leading in large part to a five-day hearing and about a year between the hearing and the reasons being hand down. The conduct of the serious injury application was after the period of delay had ended. More generally, the defendants were entitled to put in issue the question of causation in the serious injury application and were not responsible for any delay.

Section 23A(3)(d): the duration of any disability of the plaintiff

1. There is no evidence of the plaintiff having any disability relevant to whether time should be extended.

Section 23A(3)(e): whether the plaintiff acted promptly and reasonably once she knew she may have an action against the defendants.

1. I accept that the plaintiff acted promptly and reasonably once she knew she may have an action against the defendants. I refer to my findings in paragraph 122.

Section 23A(3)(f): the steps taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any advice she may have received

1. I have made findings about the legal and medical advice obtained by the plaintiff. I find she acted reasonably in taking steps to obtain medical and legal advice and in responding to that advice.

A potential action against her previous solicitors

1. The plaintiff has a potential action against Shine in negligence and breach of retainer for damages for the loss of the opportunity to pursue the damages proceeding if she is not granted an extension of time.
2. In Tsiadis v Patterson the Court of Appeal held that the potential for a plaintiff to bring an action in negligence against previous solicitors is a relevant consideration, with Buchanan JA stating:

"The weight to be given to the availability of a cause of action against a solicitor will depend upon the circumstances of each case. The liability of a solicitor is not to be equated with that of the original wrongdoer, and accordingly I do not think it is correct to conclude that an applicant with a good prospect of successfully suing his solicitor will suffer no prejudice if his application is refused. The liability of the solicitor will be determined not only by the likelihood of establishing liability on the part of the original wrongdoer, but also by the terms of the solicitor's retainer, the instructions given by the client from time to time and by the manner in which the solicitor's work has been performed. If the plaintiff is successful in an action against the solicitor, the damages to be awarded are not based upon an assessment of the losses, pain and suffering caused by the injury sustained by the plaintiff, but are commensurate with the value of the lost chance to recover damages from the original tortfeasor. Proceedings against the solicitor will be more complex and expensive than proceedings against the original wrongdoer. Usually the likelihood that the applicant will succeed in an action against his or her solicitor cannot be known with any precision when an application under s.23A of the Act is decided. In the present case it appears that Turner was in breach of the obligations which he owed to the respondent, but that view is one based upon hearing only the respondent's version of her engagement of Turner and the events of the succeeding years, for of course no evidence was led or submissions made on behalf of the solicitor. The matters referred to by Smith, J. in Repco Corporation Ltd v. Scardamaglia should not lead to a plaintiff's potential cause of action against a negligent solicitor being completely ignored, but rather affect the weight to be given to the availability of the cause of action."[150]

1. The plaintiff submitted that it is not immediately apparent that Shine acted in a negligent manner by failing to file the plaintiff's serious injury application before the expiry of the limitation period in circumstances where the defendants disputed that the plaintiff was a worker within the meaning of the AC Act and that the defendants were the plaintiff's employer, and proceedings with respect to those issues were still on foot.
2. Shine did take steps to protect the plaintiff's common law rights before the limitation period expired by retaining a barrister in late-2017 to prepare documents for a serious injury application. Yet, by early 2018 without the worker issue there was uncertainty within Shine about how to proceed with a damages proceeding as exemplified by it seeking advice from Mr Plunkett, in which he suggested that Shine proceed on the basis that the AC Act did not apply to the damages proceeding. That advice would have been confusing.
3. There were steps that Shine could have taken to protect the plaintiff's common law rights pending determination of the worker issue. It could have assumed that she was not a worker and issued a damages proceeding as of right without needing to go through the serious injury gateway. It could have assumed that the plaintiff was a worker and made a statutory impairment claim that would have suspended the running of the limitation period or made a serious injury application and held it in abeyance pending determination of the worker issue. With the benefit of hindsight, these were preferable courses to taking no step to protect the plaintiff's common law interests before the expiry of the operative limitation period. Even after the worker issue was resolved in May 2019, Shine did not take steps to prepare a serious injury application.
4. The plaintiff's submission would have had more force if Shine had made a serious injury application for the plaintiff soon after the Magistrates Court resolved the worker issue in May 2019.
5. Looking at the material before the Court, I find that the likely reason Shine did not commence a serious injury application was its inadvertence rather than the product of a strategy.
6. I consider that the plaintiff has reasonable prospects of succeeding in an action against Shine. That finding needs to be tempered. I have made findings about Shine acting for the plaintiff. It is important to appreciate that my findings are based on the material before the Court without having heard from Shine. My findings are not a final determination of whether Shine has any liability to the plaintiff. It would be open for Shine, in any case, if the plaintiff brought an action against it to argue that it acted reasonably in the context of the confusion about whether the plaintiff was a worker at the time of the incident, even though this would seem at best a partial explanation for the delay.
7. Even though I consider that the plaintiff has reasonable prospects of succeeding in a professional negligence action against Shine, the weight to be accorded to this factor is limited by other factors.[151] The action would be for damages for the loss of the opportunity to make and pursue a damages proceeding against the defendants. In the damages proceeding, the plaintiff would have the opportunity to try to obtain the full value of the loss and damages she claims for her injury, but in the professional negligence proceeding she would be limited to damages for the loss of opportunity that must take account of the chance of success and an assessment of what damages she could have received if she had succeeded. There are many factors that go to valuing damages for loss of opportunity.[152] On any view she would only be able to recover at best a fraction of her claimed losses. She would also have to prove two cases, which is likely to be more costly and time consuming.
8. I place limited weight on the plaintiff's potential to bring a profession negligence against Shine.

1. Synthesising all the circumstances of the case, including the specific matters referred to in s23A(3)(a) to (f), I am satisfied that it is just and reasonable to extend the limitation period applicable to the plaintiff's action to 27 June 2021, being when the serious injury application was made.
2. For the avoidance of doubt, if the period of delay ended on 29 October 2024, contrary to my findings in paragraphs 116 to 119, I extend the time to 29 October 2024 for the same reasons.
3. There has been delay largely because of Shine; the plaintiff was not the cause of or complicit in that delay. The plaintiff has a potential cause of action against Shine. The availability of that action is relevant, and supports not granting an extension of time, but is not such a strong factor.
4. I accept granting an extension of time will deprive the defendants of a limitation defence. Also, not granting an extension of time would mean the plaintiff could not pursue her damages proceeding.
5. The delay in this proceeding meant that a serious injury application was made about eight years and nine months after the incident (when it should have been made within six years of the incident). A trial of the action will now not take place until 2026, some thirteen years after the incident.
6. This timeframe is less than ideal, and in many other cases could have caused or would likely have caused prejudice that prevented a fair trial. However, in this case my review of the evidence is that the prejudice the defendants have or have likely suffered do not prevent a fair trial of this proceeding.

[1] Curiously, the serious injury application was determined under the Workplace Injury Rehabilitation and Compensation Act 2013, when by reason of the date of the injury it should have been determined under the Accident Compensation Act 1985. Nothing turns on this.

[2] Pursuant to s40 of the LA Act, the version of the Act before the commencement of s3 of the Limitation of Actions (Amendment) Act 2002, which commenced on 5 November 2002, applies. This is version 72. Save where stated otherwise, a reference in these reasons to the Limitation of Actions Act 1958 is to version 72 of that Act.

[3] In calculating the limitation period, s44(1) of the Interpretation of Legislation Act 1984 requires that where a period is expressed to begin on a particular day that day shall not be included in the period.

[5] [2022] VSCA 212.

[7] [2016] HCA 37; (2016) 258 CLR 134 ("Prince Alfred College").

[9] County Court Civil Procedure Rules 2018, reg 43.03.

[10] Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560, [22].

[11] [1959] HCA 8; (1959) 101 CLR 298 ("Jones v Dunkel").

[12] Transcript of hearing on 1 August 2025 page ("T") 13, line ("L") 1-15; T35, L26 - T36, L17; Plaintiff's outline of submissions dated 31 July 2025, [25] & [37]-[38].

[13] Jones v Dunkel; O'Donnell v Reichard [1975] VicRp 89; (1975) VR 916, 929.

[14] T16, L6 to L12; the subpoena is at the parties' Joint Court Book ("JCB") 426-432; the order of the Court in respect of objections to production are at JCB 434-435.

[15] O'Donnell v Reichard [1975] VicRp 89; (1975) VR 916, 920.

[16] T92, L5 T93, L12; Shone v National Express Group Australia (Swanston Trams) Pty Ltd [2019] VSC 782; Delai v Western District Health Service & Anor [2009] VSC 151; Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 157; Bevilacqua v Giovanni Costa & Sons Pty Ltd [2017] VCC 1474, noting that the solicitors called as a witness were also the instructing solicitors at the application for an extension of time.

[17] See, for example, Tsiadis v Patterson [2001] VSCA 138; (2001) 4 VR 114, [3] ("Tsiadis"); Tomolo v Superior Meat & Poultry Supply (Aust) Pty Ltd [2021] VCC 1081; Welsh v Adecco & Ors [2017] VSC 44.

[18] The defendants referred the Court to Clayton J's observation in Tomolo v Superior Meat & Poultry Supply (Aust) Pty Ltd [2021] VCC 1081, (at [58]) that it would not be in the interest of justice to allow an ex-solicitor of a plaintiff in an extension of time application to avoid a potential claim against them by not putting before a court any evidence about their conduct of the file and the reason for delay. While I sympathise with this observation at a general level, see Ormiston J's comments in Tsiadis at [3] for the contrary view.

[19] Victorian Legal Services Commissioners complaint form dated 11 August 2021, JCB 502-506.

[20] Fabre v Arenales (1992) 27 NSWLR 437, 449-450.

[21] Affidavit of Tarryn Proctor made 30 April 2025 ("Plaintiff's first affidavit"), [7], JCB 7.

[22] Defence dated 5 December 2024, [4] & [6].

[23] Plaintiff's first affidavit, [9], JCB 7.

[24] Ibid, [11], JCB 8; the claim form is exhibit TP-1 to the plaintiff's first affidavit, JCB 18-19.

[25] Plaintiff's first affidavit, [11], JCB 8.

[27] SECA circumstance and investigation report dated 29 January 2014, JCB 551-603, noting that four of the tendered pages are blank.

[29] Plaintiff's first affidavit, [12], JCB 8.

[30] Ibid, [13], JCB 8; Affidavit of Sarah Richardson made 6 May 2025 ("Ms Richardson's first affidavit"), [7(b)], JCB 40.

[31] Plaintiff's first affidavit, [13], JCB 8.

[33] Letter from Shine Lawyers to Tarryn Proctor dated 30 April 2014, JCB 20-27.

[34] Plaintiff's first affidavit, [15], JCB 8.

[36] Plaintiff's statement of claim dated 8 October 2014, JCB 146-148.

[37] Plaintiff's first affidavit, [17], JCB 9.

[38] Affidavit of Catherine Mortellaro made 23 June 2025 ("Ms Mortellaro's first affidavit"), [16], JCB 131.

[39] Notice of defence dated 21 October 2014, [2], JCB 152.

[40] Magistrates' Court General Civil Procedure Rules 2020, reg 13.02(2).

[41] Notice of defence dated 22 October 2014, [1], JCB 149.

[42] Shine Lawyers time records dated 11 October 2018 (entries for 19 December 2014, 12 January 2015 and 13 January 2014), JCB 449.

[43] Plaintiff's first affidavit, [10], JCB 7.

[44] Ms Mortellaro's first affidavit, [17], JCB 131.

[47] Plaintiff's first affidavit, [18], JCB 9; Email from Shine Lawyers to Tarryn Proctor dated 27 May 2015, JCB 28-29.

[48] Ms Mortellaro's first affidavit, [22], JCB 132.

[49] Plaintiff's first affidavit, [10], JCB 7.

[51] Ms Mortellaro's first affidavit, [23], JCB 132.

[52] Shine Lawyers time records dated 11 October 2018 (entry for 8 February 2017), JCB, 471.

[53] Plaintiff's first affidavit, [22], JCB 10.

[54] Ms Mortellaro's first affidavit, [24], JCB 132.

[55] Shine Lawyers time records dated 11 October 2018 (entry for 2 August 2017), JCB 471.

[56] Ms Mortellaro's first affidavit, [25], JCB 132.

[59] Letter of advice of Andrew Ingram (undated), JCB 616-619.

[60] Tax invoice for fees due to Andrew Ingram dated 22 December 2017, JCB 212.

[61] Shine Lawyers time records dated 11 October 2018 (entries for 11 December 2017 and 19 December 2017), JCB 452.

[63] Ms Mortellaro's first affidavit, [28], JCB 133.

[64] Plaintiff's first affidavit, [23], JCB 10.

[65] Letter of advice of James Plunkett dated 26 February 2018, JCB 536-537.

[66] Tax invoice for fees due to James Plunkett dated 26 February 2018, JCB 219.

[67] Shine Lawyers time records dated 11 October 2018 (entries for 23 February 2018 and 27 February 2018), JCB 472.

[68] Shine Lawyers file note (undated), JCB 516-517.

[70] Ms Mortellaro's first affidavit, [31], JCB 134.

[72] Plaintiff's first affidavit, [24], JCB 10.

[73] Ms Mortellaro's first affidavit, [33]-[35], JCB 134-135.

[75] See footnote 3 of these reasons for decision.

[76] Ms Richardson's first affidavit, [11], JCB 41.

[77] File note of Ms Amy Akers of Shine Lawyers dated 12 October 2018, JCB 486; File note of Ms Amy Akers of Shine Lawyers dated 17 October 2018, JCB 487.

[78] Plaintiff's first affidavit, [26], JCB 11.

[79] Ms Mortellaro's first affidavit, [36], JCB 135.

[82] Plaintiff's first affidavit, [27], JCB 11.

[83] Ms Mortellaro's first affidavit, [38], JCB 135.

[85] Plaintiff's first affidavit, [28], JCB 11.

[88] Ms Mortellaro's first affidavit, [41], JCB 136.

[89] Plaintiff's first affidavit, [32], JCB 12.

[92] File note of Ms Nicole Ward of Shine Lawyers dated 10 February 2020, JCB 489-490.

[95] Ibid, [36], JCB 12; File note of Mr Glen Northway of Shine Lawyers dated 8 October 2020, JCB 493; File note of Mr Glen Northway of Shine Lawyers dated 14 October 2020, JCB 494.

[96] Plaintiff's first affidavit, [36], JCB 12.

[98] Victorian Legal Services Commissioners complaint form dated 11 August 2021, JCB 502-508.

[101] Plaintiff's first affidavit, [40], JCB 13.

[102] Letter from Shine Lawyers to Ms Tarryn Proctor dated 1 December 2020, JCB 498-499.

[103] Letter from Shine Lawyers to Arnold Dallas McPherson dated 17 June 2021, JCB 500-501.

[104] Ms Richardson's first affidavit, [15], JCB 41.

[108] Plaintiff's first affidavit, [43], JCB 14.

[110] Plaintiff's outline of submissions dated 31 July 2025, [24].

[111] [2022] VSCA 212.

[113] Plaintiff's first affidavit, [45]-[46], JCB 14.

[115] Prince Alfred College, [105]; see also Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 551 (McHugh J).

[116] Ms Mortellaro's first affidavit, [46], JCB 137.

[119] SECA circumstance and investigation report dated 29 January 2014, JCB 551-603.

[122] See, for example, a similar situation in Whiteford v Ropolo [2009] ACTSC 22.

[123] Report of Mr Roger White dated 27 December 2013, JCB 607-612.

[124] Letter from Allianz Australian on behalf of WorkSafe Victoria to Tarryn Proctor dated 7 January 2014, JCB 172-174.

[125] Letter from IDP Lawyers to Shine Lawyers dated 26 May 2015, JCB 158.

[127] Ms Mortellaro's first affidavit, [49]-[54], JCB 138-140.

[128] Transcript of hearing on 21 June 2023 page ("SIA T") 201, lines ("L") 24-28.

[129] SIA T221, L5-14; SIA T222, L31 - SIA T223, L16.

[132] SIA T227, L20 - SIA T228, L4; SIA T228, L21-29.

[133] Affidavit of Warren Hunt made 28 September 2022, JCB 351-352.

[135] T56, L9 - T57, L19. The relevant finding in respect of Mr Grass is at Proctor v VWA [2024] VCC 844, [169]; and Mr Grass at [171].

[137] Maurice Blackburn Cashman v Brown [2011] HCA 22; (2011) 242 CLR 647; King v Muriniti [2018] NSWCA 98; (2018) 97 NSWLR 991, [14].

[141] [1998] VR 152, 157.

[142] [2017] VSC 44, [13].

[143] (1996) 186 CLR 541.

[144] Ibid, 552-553 (citations omitted).

[150] Tsiadis, [28] (citations omitted).

[151] Ibid; Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2008] VSC 517, [111].

[152] Nikolau v Papasavas, Phillip & Co [1989] HCA 11; (1988) 166 CLR 394, 404.