Redmond v J C Hutton Pty Ltd [2004] ACTSC 102

Supreme Court of the ACT|2004-10-01|Before: Crispin J

1. This is an application pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) ("the Act") to extend the time otherwise permitted by the Act for an action against the respondent for damages in respect of personal injury said to have been suffered as a consequence of the respondent's negligence or breach of duty.

2. On 16 June 1999 the applicant filed an originating application alleging that he was employed by the respondent as a `slicer' between about June 1981 and June 1983 at the abattoir which it conducted at Oxley in Queensland and that, as a consequence of the respondent's negligence, he became exposed to the Q fever virus and subsequently infected with Q fever.

3. For reasons that remain unexplained, the applicant filed a further pleading entitled "Concurrent Application" on 6 December 1999. This document was not only in substantially similar terms but included an accompanying "Employment Personal Injury Claim" statement which was identical to the similarly entitled statement accompanying the original application and even bore the same date, 16 June 1999.

4. In essence, the applicant contends that the respondent failed to adopt a safe system of work whilst he was employed in the beef export boning room of the abattoir. Q fever is said to be an infectious disease contracted by exposure to parts of infected animals either by direct contact with meat or blood or by the inhalation of aerosol exposed to such substances. The risk of contracting Q fever was well known at the time of the applicant's employment with the respondent and there were means of substantially mitigating the risk by the provision of protective clothing such as masks, glasses and gloves.

5. The applicant gave evidence that in or about May or June 1983 he began to experience symptoms which were initially attributed to a pulled muscle in his back and later to acute hepatitis. Q fever was eventually diagnosed and a claim for workers compensation made on 13 July 1983 was duly accepted. He received regular payments until late 1984. He obtained legal advice at that time but was told that the Q fever had passed and that he had no further rights to workers compensation. However, symptoms of lethargy persisted and his weight continued to increase.

6. He returned to Canberra in February 1986 and obtained employment as a butcher but the symptoms persisted. He sought further legal advice from a family friend in about 1987 but was told that he would be unable to successfully pursue a claim for compensation as there had been no proof as to how he had actually come into contact with Q fever. By August 1991 his weight had increased from a range of 95 to 114.5 kilograms, within which it had fluctuated prior to the contraction of Q fever, to about 140 to 146 kilograms.

7. In about 1996 his accountant referred him to a solicitor who arranged for him to have various medico legal examinations. His solicitor also arranged for copies of clinical notes and other documentation to be obtained from the workers compensation insurer.

8. In a report dated 6 May 1998 addressed to the applicant's solicitors, Dr Peter Stevenson, a consultant physician, stated:

The syndrome of debility and fatigue following acute infectious Q fever is now reasonably well recognised though not uncontroversial. It has been the subject of publication in the Lancet by Dr Barry Marmion in 1996. It is essentially a syndrome of incapacitating fatigue, often requiring prolonged rest, together with muscle aches which tend to follow the acute phase of Q fever. Diagnosis and objective verification are made difficult by the fact that it is not associated with persisting elevation in the serology to Q fever as are the other chronic complications of Q fever, such as Q fever endocarditis.

Moreover, while some experimental work has been done, suggesting that this disorder may represent a chronic abnormality of inflammatory response, so far abnormalities of various inflammatory proteins [sic] not been established or validated as an indication of the condition. In consequence therefore it is necessary to try to distinguish, by imperfect clinical skills, debility arising because of Q fever from depression, fatigue and other adversities, arising following Q fever but not necessarily because of it.

However, overall there is now a reasonable though certainly not uniform, body of opinion supporting the existence of a syndrome of lethargy and debility following Q fever infection. There would appear to be reasonable evidence that Mr Redmond probably suffered from that condition.

9. Dr Stevenson said that he was unaware of any direct evidence linking morbid obesity "as one of the sequelae" of Q fever, though it was possible that there was some indirect linkage, due to a lower level of activity being undertaken as a consequence of the illness.

10. On 1 June 1998 the applicant consulted Professor Andrew Lloyd who subsequently provided a report dated 22 June 1998 noting continuing symptoms of fatigue, night sweats, headaches, sleep disturbance, depression, sleep apnoea and morbid obesity. His weight was then said to be "40 stone". Professor Lloyd expressed the opinion that his illness was consistent with a post Q fever fatigue syndrome, complicated by morbid obesity, obstructive sleep apnoea and possible hypertension. The report stated that:

It is quite possible that the post Q fever fatigue syndrome is no longer the primary cause of the continuing prominent fatigue and instead this should perhaps now be attributed to obstructive sleep apnoea and the burden of the massive morbid obesity. I do believe the post Q fever syndrome is likely to have been a major contributor to the development of the morbid obesity and also to the obstructive sleep apnoea (which is typically worsened by weight gain).

11. During the following year the applicant was seen by Dr Robert Scott, an occupational physician, who in a report dated 17 April 1999 reported that his weight had reached "42 stone", that is, 267 kilograms. Dr Scott said that there was no doubt that he had suffered acute Q fever followed by Q fever hepatitis, followed by chronic Q fever fatigue syndrome, and that these conditions had been inter-related and they had had a very marked negative effect on his life. He added, however:

As stated by Dr Stevenson, and my research of the literature agrees, there is no direct evidence linking morbid obesity as one of the sequelae of Q fever. I also agree that there may be some indirect linkage in terms of reduced activity because of his Chronic Q Fever Fatigue Syndrome. Such weight gain, as he has experienced, is difficult to correlate with this possible indirect linkage.

12. On 28 March 2002, well after the commencement of the proceedings, the applicant consulted Dr Hugh Veness, a consultant psychiatrist, who diagnosed an adjustment disorder with mixed anxiety and depression. Dr Veness suggested that his history was persuasive of a connection between the contraction of Q fever and the development of gross obesity which, he said, was "the foundation of his present problems".

13. The present motion was filed on 13 March 2003.

14. Section 11 of the Act provides that an action for negligence, trespass, nuisance or breach of duty in which damages are sought in respect of personal injury shall not be brought after the expiration of three years from the date on which the cause of action arose.

15. The power to extend that limitation period is provided by s 31(2), which is in the following terms:

Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court -

(a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and

(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.

16. These provisions must be construed in the light of s 30 which provides as follows:

(1) For the purposes of this section and sections 31, 32, 33 and 34 -

(a) the material facts relating to a right of action include the following -

(i) the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;

(ii) the identity of the person against whom the right of action lies;

(iii) the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;

(iv) the nature and extent of the personal injury so caused;

(v) the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;

(b) material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing -

(i) that an action on the right of action would (apart from the effect of the expiration of the period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and

(ii) that the person whose means of knowledge is in question ought in the person's own interests and taking the person's circumstances into account to bring an action on the right of action;

(c) a fact is not within the means of knowledge of a person at a particular time if, but only if -

(i) the person does not know the fact at that time; and

(ii) as far as the fact is able to be found out by the person - the person has taken all reasonable steps to find out the facts before that time.

(2) In this section -

"appropriate advice", in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.

17. Dr O'Hair, who appeared for the applicant, submitted that there was ample evidence to establish the conditions referred to in s 31(2)(a) and (b). Whilst post-infective fatigue syndrome had been known to follow other forms of zoonotic infection for many years, a specific link between Q fever and post-infective fatigue syndrome had not been identified until correspondence in "Lancet" in 1996 and subsequent papers published in 1998 and 2000. The applicant had no real knowledge that his obesity and other relevant symptoms may have been attributable to post Q fever fatigue syndrome until the diagnosis conveyed by Professor Lloyd in his report of 22 June 1998. This evidence provided a causal link between the alleged breaches of duty by the respondent during the course of the applicant's employment and the disabilities from which the applicant subsequently suffered and from which he continues to suffer. This was clearly a material fact of a decisive character relating to the right of action.

18. Dr O'Hair argued that there was clearly sufficient evidence to establish the right of action, apart from a defence founded on the expiration of the period of limitation, and submitted that the action had commenced within the stipulated period of one year after the applicant had become aware of this material fact.

19. Mr Crowe SC, who appeared for the respondent, accepted that the requirement in s 31(2)(b) that there be evidence to establish the right of action, did not mean that a court was required to embark upon a summary trial of the matter and that it was sufficient for an applicant to establish a prima facie or arguable case. For the purposes of the application, the respondent accepted that the evidence was sufficient to establish an arguable case against it.

20. Mr Crowe submitted, however, that the causal link between the alleged negligence and the fatigue and other disabilities suffered by the applicant had been within his means of knowledge prior to the receipt of Dr Lloyd's report of 22 June 1998 and even prior to Dr Stevenson's report of 6 May 1998. The applicant seemed to have concluded well before that time that his symptoms had been attributable to complications related to the Q fever from which he had suffered in 1983 and 1984. Mr Crowe accepted that the applicant's own belief as to the cause of his condition, unsupported by any medical opinion, would not have been a material fact of a sufficiently decisive character. He argued, however, that the opinions of appropriate medical experts were within the applicant's means of knowledge well before May 1998 and that there had been no evidence to establish that one or more could not have been consulted at least shortly after he retained his present solicitors in 1996. Had Dr Stevenson been consulted during 1997 he would almost certainly have provided the same information. Hence, the "material fact" relied upon by the applicant was, within his "means of knowledge" at that time.

21. In any event, the applicant had conceded in cross-examination that he had received Dr Stevenson's report probably at the end of May or in the first week of June 1998. In fact, the applicant said that he had no recollection of when he received the report but agreed that his solicitor would usually have sent something like that out to him within a week or two. Mr Crowe submitted that the information so provided, clearly disclosed the material fact of a decisive character upon which the applicant sought to rely. He also pointed to a concession made by the applicant in cross-examination to the effect that upon becoming aware of the contents of that report he had known that he had had a case worth pursuing.

22. In re-examination the applicant had attempted to explain that, at the time he made the concession, he had understood the word "pursuing" to mean "following on". Mr Crowe sought to dismiss this explanation as a semantic quibble and suggested that his response to the question had been "learned" during the period between the cross-examination and the relevant part of his re-examination. He argued that it was clear from the applicant's answers to questions in cross-examination that he had well known that he had gained "knowledge of a material fact of a decisive character" when he received and read Dr Stevenson's report.

23. Whilst the answer in re-examination did seem somewhat glib, I formed the impression that the applicant had really left the conduct of the proceedings to his solicitors. I think that at the time he received Dr Stevenson's report, he would have had little if any understanding of its potential significance to the proceedings other than that gleaned from the accompanying letter from his solicitors dated 29 May 1998.

You will note that Dr Stevenson is generally supportive of your claim and believes that there is no doubt that you contracted Q fever whilst in the employment of the abattoir in Queensland however the difficulty which legally arises is that it is not the Q fever which is causing your current disability.

On the medical evidence it would appear that it is your morbid obesity which is causing your disability and your inability to undertake employment and accordingly we must establish that the Q fever caused your morbid obesity which is now causing your disability. This is known as the causal chain.

We have this day written to the barrister enclosing a copy of the medical report and we have asked for his specific advice on this issue.

24. Having had the opportunity of observing the applicant in the witness box, I do not accept that he would have formed the view that the facts revealed by Dr Stevenson's report were likely to have been any more decisive than suggested in this letter.

25. Mr Crowe conceded that it had not been unreasonable for the applicant's solicitors to have sought confirmation of Dr Stevenson's opinion from Professor Lloyd but argued that the relevant material fact had already been disclosed. Dr Stevenson was apparently a well-qualified medical specialist whose report conveyed the opinion that there was reasonable evidence that the applicant had probably suffered from a syndrome of lethargy and debility following Q fever infection. To return to the language employed in s 30(1)(b), a reasonable person knowing of the facts disclosed in that report and having taken appropriate advice on those facts would have regarded them as showing that an action on the right of action would (apart from the effect of the expiration of the period of limitation) have had a reasonable prospect of success and of resulting in an award of damages sufficient to justify bringing it.

26. Mr Crowe argued that the evidence did not reveal any basis for an extension of the limitation period beyond the period of one year after the applicant had received Dr Stevenson's report which, he suggested, must have occurred no later than the end of the first week in June 1998. That was, of course, prior to the commencement of the proceedings. Consequently, there was no basis for an extension of time that would enable the present proceedings to be maintained in the face of a limitation defence.

27. In answer to these contentions, Dr O'Hair and later Mr Glover submitted that the opinions expressed in Dr Stevenson's report had not been sufficiently strong, clear or decisive to be of a "decisive character". The letter to the applicant which accompanied the copy of Dr Stevenson's report had fairly reflected the position in which his legal advisers found themselves at that time. Even if Dr Stevenson's opinion could now be seen as having provided some support for the contention that fatigue could be a sequelae of Q fever, it had not provided any reasonable basis for a claim that the applicant's morbid obesity had been attributable to it. Yet on 1 June 1998 he had been found to weigh 40 stone, which is about 254 kilograms, and it was obvious that morbid obesity was his major disability. Furthermore, even if his solicitors had made some error of judgment in interpreting the effect of the evidence then available, that should not preclude the applicant from pursuing an otherwise viable claim.

28. In Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 Davies JA considered the requirement that the material fact be of a "decisive character" and stated, at 440:

If evidence of the fact, that is the medical opinions themselves, were sufficient for this purpose, though there might be a question when that evidence came within the means of knowledge of the appellant, the critical question would usually be when that evidence within the plaintiff's means of knowledge was strong enough, when interpreted in the light of the relevant appropriate advice, to become of a decisive character within the meaning of s 30(b)(i) and (ii). By contrast, if means of knowledge of the fact of the existence of the cause of relationship is, as I think, necessary for this purpose, there can be no doubt that it is of a decisive character, the critical question being when that fact came within the means of knowledge of the appellant. And given that means of knowledge if that fact can never be absolute, that question becomes what degree of means of knowledge is sufficient.

29. His Honour then proceeded to answer that question, stating at 441-442 that such a fact can be said to have come within an applicant's means of knowledge " . . .only when the steady preponderance of opinion or belief of a person who had taken all reasonable steps to ascertain that fact would have been that that was so".

30. Mr Crowe submitted that this criterion fell to be determined by reference to the applicant's knowledge in the context of the objective reasonableness of the steps taken to establish the relevant facts. It was not disputed that the applicant had received a copy of Dr Stevenson's report more than one year prior to the commencement of the proceedings. The real issue was whether a reasonable person, knowing the facts thereby disclosed and having taken appropriate advice concerning them, would have regarded them as showing that an action would have had a reasonable prospect of succeeding and of resulting in an award of damages sufficient to justify bringing it.

31. The reference to "appropriate advice" in s 30(1)(b) clearly refers to advice that the hypothetical "reasonable person" knowing the relevant facts would have taken rather than to advice that was actually received by a particular applicant. Hence, the provision of objectively inaccurate or inappropriate advice may not demonstrate that this aspect of the statutory test has been satisfied. Furthermore, whilst it is true that the report provided only limited support for a link between the applicant's morbid obesity and his Q fever, it may be argued that the later discovery of this link would have been a material fact of a decisive character only if a reasonable person, already aware that the other symptoms described in Dr Stevenson's report were known sequelae of Q fever, would have regarded it as the decisive factor in determining whether it was worth bringing an action against the respondent. However, this possibility was not explored in argument and it is unnecessary to consider the potential implications of a conclusion that a reasonable person might have thought that an action against the respondent would have had a reasonable prospect of resulting in an award of damages sufficient to justify the bringing of the action, even if damages were not ultimately awarded for any disability resulting from the morbid obesity.

32. In any event, the opinion that Q fever could cause a later syndrome involving symptoms of lethargy may not, of itself, have demonstrated that it was a continuing cause of the applicant's fatigue when his weight had risen to 40 stone, that is about 254 kilograms, and a causal relationship between this obesity and the Q fever from which he had apparently recovered some 14 years earlier had not been established. Having carefully considered the opinions expressed in Dr Stevenson's report, I am inclined to accept that the advice given to the applicant in the letter dated 29 May 1998 was reasonable and that a reasonable person, knowing of those opinions, and having taken appropriate advice concerning them, would not have regarded them as having established the material fact of a decisive character now asserted. Such a person would have had to have taken into account the need to be satisfied not only that there were reasonable prospects of an action succeeding but also that there were reasonable prospects of the action resulting in an award of damages sufficient to justify bringing it, despite the serious medical and other factual issues likely to be confronted, including issues as to whether the conduct of a business fell short of acceptable standards prevailing some 15 to 18 years earlier.

33. The subsequent report by Professor Lloyd did reveal a material fact of a decisive nature, namely, the suggested linkage between Q fever and the applicant's morbid obesity and the proceedings were commenced within the period of one year immediately following the receipt of that report. Accordingly, I am satisfied that the conditions required by s 31 of the Act have been established.

34. The crucial question is whether the discretion provided by that section should be exercised in the applicant's favour.

35. Unlike the comparable provision in s 36 of the Limitation Act 1985 (ACT), s 31 of the Act does not contain any statutory criteria for the exercise of the discretion. Nonetheless, as McHugh J observed in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 551, the discretion to extend the time for bringing an action of the relevant kind must be exercised in the context of the rationales for the existence of limitation periods. His Honour pointed out that for nearly 400 years legal policy had led to the imposition of definite time limits for prosecuting civil claims and that this policy had been driven by the perception that the quality of justice which courts are capable of dispensing deteriorates with delay.

36. In some cases, permitting a long delay in an action being brought against a defendant will expose him or her to obvious prejudice because of some identifiable factor such as the death of a crucial witness or the destruction of an important document. In other cases, the prospects of obtaining a fair hearing on the decisive issue may have deteriorated in ways not recognisable even by the parties. Important, perhaps decisive evidence may have disappeared without anybody knowing that it had once existed. Memories fade and the significance of even those facts or circumstances which can be recalled may no longer be appreciated. Hence, as his Honour suggested, 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.

37. McHugh J also pointed to other rationales for the enactment of limitation periods:

it is oppressive . . . to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed . . . people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them . . . [and there is a] public interest [that] requires that disputes be settled as quickly as possible.

38. In the present case, Mr Crowe strongly argued that the very substantial delay in the commencement of proceedings had created a situation in which the respondent would suffer irremediable prejudice if the action were to proceed. In this context it may be appropriate to quote the following passage from the judgment of McHugh J at 555:

To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action. This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent. But the justice of a plaintiff's claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action.

Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice.

39. It should be noted that in Brisbane South Regional Health Authority v Taylor, Dawson J agreed with the reasons for judgment written by McHugh J and that whilst Toohey and Gummow JJ delivered a separate joint judgment they also made it clear that the discretion is not to be exercised by merely balancing the prejudice to an applicant in preventing him or her from litigating the claim against the potential prejudice to the intended defendant. Their Honours said that the real question is whether the delay has made the chances of a fair trial unlikely.

40. The present action was commenced some 18 years after the applicant commenced work at the abattoir and some 15 years after he left the respondent's employ. The cause of action seems to have risen no later than May or June 1983 when the applicant began to experience symptoms later attributed to Q fever. As previously mentioned, s 11 of the Act provides that an action of this nature shall not be brought more than three years after the date on which the cause of action arose. Hence, subject to any extension of time pursuant to s 31 of the Act, any action for damages for negligence or breach of duty said to have caused the personal injury constituted by such illness would have become barred in mid 1986. Accordingly, by the time the first originating application was filed in this court the claim had already been barred for 13 years. Furthermore, it is clear from Brisbane South Regional Health Authority v Taylor that the whole period of delay from the occurrence of the cause of action must be taken into account and not merely that which occurred after the expiration of the limitation period.

41. The evidence reveals that the respondent was subject to a company takeover in about 1983 and, despite the transfusion of new corporate blood, the business did not flourish and was subsequently closed down. The respondent was placed into receivership on 9 April 1991 and deregistered in December 1999. It was necessary for the applicant to apply to have the matter restored to the register in order to pursue the current proceedings.

42. Whilst the proceedings were not initially pursued with the alacrity that might have been expected in the circumstances, an application in March 2003 to have the action dismissed for want of prosecution seems to have galvanised the applicant's solicitors into action. More recently, his solicitors have gone to some lengths to identify and obtain statements from potential witnesses who worked for the respondent at about the relevant time. An expert report detailing the steps that allegedly should have been taken and the perceived failings of the respondent have been obtained as well as plans of the relevant building. Several statements from potential witnesses have been tendered and it is clear that the applicant would be able to adduce substantial evidence in support of his contention that the respondent failed to implement and maintain adequate precautions against the contraction of Q fever.

43. Regrettably, however, a great deal of evidence has been lost in the years that have passed since the cause of action arose and I have been driven to conclude that the respondent would suffer real prejudice if forced to confront an action brought against it for the first time in June 1999. The Workers' Compensation Board of Queensland apparently still has a compensation file but all of the respondent's records have been lost or destroyed. Hence, it no longer has available to it the applicant's personnel file, mechanical plans or manuals concerning air circulation within the abattoir buildings, records relating to the existence or non-existence of other cases of Q fever, or steps taken to minimise the risk of infection. The building has since been demolished and, whilst the applicant's solicitors have submitted that deposited plans of the abattoirs have been obtained, no such plans were tendered in evidence before me and there was no evidence as to their adequacy. Furthermore, Dr Scott, who saw the applicant in April 1999, had been the medical practitioner with direct responsibility for occupational health and safety at the abattoir either immediately before or, more probably, during some part of the applicant's employment by the respondent, and he died in 2003. He had apparently had a special interest in Q fever and it seems likely that if proceedings had been commenced when the relevant events were still reasonably fresh in his mind or when his memory could have been revived by recourse to relevant records, he could have given evidence as to what precautions could have been taken during the relevant period and, perhaps even more importantly, what precautions had actually been taken. Some other witnesses, including Mick Sharpe who was a supervisor of the boning room in which the applicant carried out his duties, have also since died. The memories of many others would inevitably have faded.

44. The potential significance of these problems must be considered in the context of the issues likely to arise at the trial. This is not a case in which the action is founded upon an allegation of a particular act or incident that was reported at the time, nor even one in which there are a few discrete allegations of continuing negligence, such as a failure to inoculate against an identifiable risk of infection. The case pleaded against the respondent raises a wide range of allegations. The most recent statement of particulars runs to 42 paragraphs and contains numerous allegations concerning the details of day-to-day practices and of failures to ensure that particular precautions were not only implemented but regularly maintained.

45. In my opinion the prejudice which the respondent would undoubtedly encounter in seeking to address a plethora of allegations of this nature after so many years and without access to contemporaneous records and other relevant evidence would be both substantial and inescapable.

46. Counsel for the applicant sought to meet these difficulties by arguing that until the case is heard it cannot be determined that the respondent would suffer any real prejudice by having to meet the relevant allegations. The nature and layout of the buildings might be ascertained from the memories of particular witnesses and, perhaps, from plans said to be available from the Brisbane City Council. Dr Scott was not employed at the premises at the time of the applicant's employment or at least not throughout the whole of that period and was in any event, alive and able to give instructions at the time the proceedings were commenced. Whilst personnel files, manuals, records and other documents are no longer available, there is no reason to believe that any such records contained evidence that would have assisted the respondent. Nor is there any reason to believe that the witnesses that are still available would not remember generally what the workplace was like and what system of work was utilised. If there was any possibility that the respondent might encounter substantial prejudice in defending the action, the application should be adjourned and heard together with the action itself as in Cubillo v Commonwealth of Australia [1999] FCA 518 and Carlisle v Filaria Pty Ltd [2002] ACTSC 33.

47. However, this is not a case in which it is necessary to have a more extensive hearing in order to determine the extent of any likely prejudice as in Cubillo or in which there is doubt as to when the relevant cause of action accrued as in Carlisle. Whilst persuasively argued, these submissions substantially overlook the point succinctly expressed by McHugh J in Brisbane South Regional Health Authority v Taylor that a defendant may itself be unaware of the nature and extent of the prejudice suffered by reason of the destruction or loss of potentially crucial records or the unavailability of evidence from witnesses who have died, can no longer be located or can no longer remember the relevant events with accuracy. It is not incumbent upon a defendant to prove the nature and extent to which it has been prejudiced by the delay or to prove that any trial will necessarily be unfair to it. As Toohey and Gummow JJ said at 550, the real question is whether the delay has made the chance of a fair trial unlikely.

48. McHugh J said at 554, it is for the applicant to show that the justice of the case favours the grant of the extension of time. That burden is not discharged by glib statements to the effect that the evidence now forever lost to the respondent might not have assisted it anyway. The fact that there may still be a significant body of evidence available is undoubtedly a potentially important factor but, in my opinion, the respondent would still be exposed to grave risk of unfair prejudice in being required to meet an action of this nature so long after the events, upon which it is founded, allegedly occurred.

49. When, as in this case, the evidence reveals that the delay has made the chances of a fair trial unlikely because potentially crucial evidence is no longer available then that factor militates strongly against the exercise of the discretion in the applicant's favour.

50. The applicant has obviously suffered greatly and is entitled to every sympathy for the plight in which he now finds himself. Regrettably, however, I am unable to find that it would be just to permit him to maintain the action against the respondent so long after the relevant event occurred and in the face of potentially irremediable prejudice to the respondent due to the loss of potentially crucial evidence. I am not satisfied that there could be a fair trial of the action in the circumstances revealed by the evidence before me.

51. Accordingly, the application must be dismissed.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Solicitor for the respondent: Ken Cush & Associates

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