There was and indeed can be no complaint about this.
7 Her Honour then went on to list the key points raised by both Mr Scaltrito and the respondent. She then said:
"The critical evidence in this application relates to this last matter, whether Mr Scaltrito's health was such between July 1995 - July 1998 that he could not instruct his legal advisers. In his affidavit Mr Scaltrito says 'as time went by and I was not getting any better, I began to feel depressed … as my symptoms seemed to become chronic, I felt helpless and hopeless about the future' (para 14). There is no precise time given in relation to these matters, but there is evidence that he did not seek medical assistance until late 1997 or early 1998, when he went first to his general practitioner Dr Arthur and then to Dr Parmegiani (para 15). No reports were tendered from Dr Arthur. Mr Scaltrito said Dr Arthur had retired and left his practice in about July 1998. The letter from Dr Parmegiani aside, the only evidence before the Court of Mr Scaltrito's state of health are the clinical notes from the Ramsey Street Medical Centre and the only relevant entries in those notes appear against the dates:
27/8/98: 'Tends to be very irritable. On Aropax 20 - as depressed he can't do usual activities - seeing a psychiatrist (Parmegiani) - down arrow) concentration'.
10/9/98: 'Usual job dispatch clerk NRMA. The (sic) tried to rehab to sales and service for 10/12 - found this quite stressful'.
I am not satisfied on the balance of probabilities that Mr Scaltrito was unable to instruct his solicitors in the conduct of this litigation before July 1998. I am not satisfied on the limited medical evidence available. I find the report of Dr Parmegiani self serving and unsupported by evidence from Mr Scaltrito's treating doctors. Mr Scaltrito has therefore failed to discharge the onus of proof on him to satisfy me that it is fair and just for the time in which he might commence proceedings to be extended."
8 Mr Aldridge SC, who appeared for the appellant with Miss E Welsh, said that her Honour erred in over-emphasising the element of the need to explain the delay and did not fairly balance all the other factors which she needed to consider in order to find whether or not it was fair and just to extend time. Mr Aldridge says her Honour should not only have considered whether the appellant was unable to instruct solicitors, but she should also have considered what now appears to be the appellant's main point, that it was extremely difficult for him to do so.
9 I should note in passing that Mr Hoeben SC, who appeared for the respondent with Mr Austron, put that if that were the case, mere difficulty in obtaining instructions within the limitation period is rarely, if ever a matter which by itself would justify extension of the period. Mr Hoeben also made the point that even if there were difficulties in getting instructions, the material before the Judge showed that these had disappeared by October 1998, or at least by March 1999, and there was no explanation of delay after that.
10 However, Mr Aldridge persisted with his submissions, and indeed, took us through a considerable amount of the material before her Honour to show that this was the case that was being presented.
11 Although her Honour did focus on the factor of delay and the excuse proffered, that is, that there was inability to instruct solicitors or difficulty in communication with legal advisers as a result of depression, she did in fact consider more matters than these. The rehearsal of the proper test and the setting out of the opposing cases makes it difficult to accept that her Honour did not only consider delay, but she also considered the other matters which she listed.
12 Her Honour rejected the view that the appellant, as a result of depression, let the limitation period go by because the solicitors were unable to obtain sufficient instructions.
13 Mr Aldridge realised that the view that the appellant had not satisfied her Honour that his depression brought about the delay, was within her Honour's right to find. However, he says that the finding that because of this matter alone it was not fair and just to extend the time is inappropriate because her Honour did not evaluate the evidence as a whole.
14 On this point Mr Hoeben SC refers to what Ipp JA said in the leading case of Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207, 224 [88] that whilst the justice of each case is to be determined by its own individual circumstances and a failure to satisfactorily explain the delay will not be decisive, "[n]evertheless, the justice of the case may be such that the failure to explain the delay and to prosecute the case with the requisite diligence will result in an extension of time being refused."
15 Mr Aldridge says that her Honour did not evaluate the solicitor, Mr Pomare's evidence, her Honour did not consider the strength of the plaintiff's case and that there was very little evidence of actual prejudice to the defendant. He says her Honour did not evaluate the cross-examination of the plaintiff, and indeed he puts it is really difficult to ascertain just what her Honour did find.
16 With respect, one might have wished that her Honour had delivered a more expansive judgment. However, what she did say gives me the firm impression that she considered the relevant factors which she listed and exercised her judgment properly.
17 Accordingly, I would not be inclined to upset her Honour's judgment.
18 However, there is one other matter to consider. It is clear that no statement of claim has ever been filed by the appellant, even up to today. What happened before her Honour is that a proposed statement of claim was handed up to her, tendered and marked as an exhibit, but no document was ever filed.
19 In Whisprun Pty Ltd v Sams [2002] NSWCA 394, this Court held that it was appropriate for a statement of claim to be filed even before leave was given and if leave was later given under s 151D of the Workers Compensation Act, leave could formally be given to file the document nunc pro tunc. This could have happened, but did not.
20 Mr Hoeben puts that the Workplace Injury Management and Workers Compensation Act 1998, made radical changes to the rights of people in the appellant's situation to obtain common law damages. Essentially, unless a statement of claim was filed before the cut-off date of 27 November 2001, the appellant would be bound by the regime that currently applies, the practical effect of which is that even if this appeal is allowed, the appellant would receive no damages.
21 I am dealing with this point at the end of the judgment because it only surfaced on the evening before the hearing; there was not sufficient time for appellant's counsel to evaluate it so that the appeal was argued with leave to both counsel to supplement their submissions in writing, which they duly did. It was thus more economic to deal with the appeal on its merits and then consider this point, than the other way around.
22 In their supplementary submissions, Mr Hoeben SC and Mr Austron set out in detail the provisions which had the effect of denying common law damages in cases where no statement of claim was filed before 27 November 2001.
23 The submissions made by Mr Aldridge SC and Miss Welsh do not cavil with that analysis. However, they submit that the appellant had a vested right to damages at common law and a right (or at least a privilege) to have his appeal determined according to law.
24 The right to have this appeal considered may well have survived, but that does not assist the appellant as we have dismissed the appeal on its merits.
25 Appellant's counsel pray in aid the decision of the Full Court of the Supreme Court of Western Australia in Toolan v Metropolitan (Perth) Passenger Transport Trust (2001) 25 WAR 1.
26 Whilst, at first sight, Toolan's case might appear to be a decision on comparable legislation, this is not really so. The NSW legislation clearly indicates a contrary intention to the normal rule to the operation of statutes and has retrospective effect in some cases to abrogate rights existing as at 27 November 2001; cf Sydney Ports Corp v Collins [2003] NSWCA 28 [18].
27 Thus, despite the submissions of Mr Aldridge in reply, there seems to be no answer to the point. This Court will simply dismiss an appeal where it would be completely futile to entertain it.
28 Accordingly, whichever way one looks at this matter, the only order that should be made is that the appeal should be dismissed with costs.
29 GROVE J: I have had the opportunity of reading the judgment of Young CJ in Eq in draft form. I wish to advert to two aspects of the appeal.
30 First, the appellant pointed to the reasons of Gamble ADCJ where her Honour stated:
"I find the report of Dr Parmegiani self serving and unsupported by evidence from Mr Scaltrito's treating doctors"