the explanation does not amount to something which can be categorised as a "sufficient reason," the defendant's application should fail. It must all depend on the circumstances." 33. That case was, of course, a situation where the defendant had not appeared at the time when judgment was given, but the reasoning, in my view, applies, mutatis mutandis, to the reasoning in a case such as this. That, however, leads directly to another point made by Mr Silva about which there is some conflict of judicial opinion. 34. Mr Silva submits that one should take into account as a relevant matter, that the plaintiff has a case in negligence against his own solicitor. In Allen v Sir Alfred McAlpine and Sons Ltd (1968) 1 All ER, the Court of Appeal dealt with three actions in which there had been inordinate and inexcusable delay. In all three actions the court found that the fault lay with the solicitors of the various plaintiffs. Two of the firms of solicitors were insured against negligence. The third firm was neither insured nor, apparently, solvent. 35. The Court of Appeal took the factor of hardship to the plaintiffs into account by dismissing for want of prosecution the actions where the solicitors were insured, but allowing the other action to proceed to trial, on the basis that, otherwise, the plaintiff there would have no remedy and, in the court's view, the defendants were not prejudiced by the delay. 36. That approach did not find favour with subsequent courts of appeal, see, e.g., Paxton v Allsop (1971) 3 All ER 370 per Davies L.J. And in Birkett v James (1977) 2 All ER 801, the majority of the House of Lords held that: " The fact that the plaintiff may have an effective remedy against his solicitors for professional negligence is not a relevant consideration in deciding to dismiss an action for want of prosecution." 37. Diplock L.J., who had been one of the judges of the Court of Appeal in Allen v McAlpine, acknowledged a consensus of judicial opinion in the Court of Appeal against the reasoning on this point in Allen v McAlpine, and at page 809 said: " My Lords, on further consideration of the difficulties which would be involved if the court may take into account the prospects of the plaintiff having an effective remedy against his solicitors, I think that I was wrong in saying that this was a relevant consideration. On the facts of the case to which my mind was then directed, those difficulties were not apparent." 38. Bray C.J., in Ulowski v Miller, had also adverted to the difficulties involved in the decision of McAlpine's case on this point, although he expressed no concluded opinion, saying that he desired to leave the matter open. (1968) SASR at 282. 39. McGarvie J., however, in McKenna v McKenna [1984] VicRp 58; (1984) VR 665 at 679-80 found the judgments in McAlpine's case "most realistic and persuasive". He discounted the reasoning of the majority of the House of Lords in Birkitt v James, in this way: " The majority of the House of Lords relied on two grounds in deciding that the question of remedy the plaintiff would have against his solicitor if the action were dismissed is irrelevant. The first was the difficulty of assessing whether the plaintiff had a remedy against his solicitor. It seems to me, with respect, that the difficulties are not of a daunting magnitude. ... The second ground ... was that it is prejudice to the defendant which is decisive. It follows that the prejudice to a blameless plaintiff whose solicitor would be unable to satisfy a

judgment (as in the second case considered in McAlpine's case), is to be disregarded. It is observed, with respect, that it seems hardly consistent with the principle governing the exercise of discretion, that such real prejudice to one of the parties is to be disregarded." 40. McGarvie J. was therefore of opinion that the question of the plaintiff's remedy against his solicitor would "usually be a relevant consideration," although in accordance with the broad rules of discretion, the weight it has would depend on the circumstances of the case. 41. If it were necessary to determine that matter here, I would agree, with respect, with McGarvie J. to the extent that the plaintiff's remedy against his solicitor may be a relevant consideration in some cases, and particularly in the type of case instanced by His Honour, where the prejudice to a blameless plaintiff whose solicitor would be unable to satisfy a judgment may be a matter to be considered. 42. I would not, however, consider that it would be usually of any great significance. I would, with respect, adopt the approach of Lord Salmon in Birkett v James (1977) 2 All ER at 814-5, where he regards it as an "ancillary consideration" which "may carry little weight but it is not irrelevant". He felt that where other factors were evenly balanced such a consideration "might in some cases, quite properly, just tip the balance in the plaintiff's favour". 43. However, for the present, I must adopt the approach of Bray C.J. in Ulowski v Miller, and leave the matter open, because it does not seem to me that the material before the court establishes conclusively that a solicitor has been guilty of negligence here; or, if negligence has occurred, whether that is the negligence of the Territory or the Victorian solicitor, since the latter has been described as the principal of the former; or whether it is the negligence of both. 44. Whatever may be the position, it seems obvious that the first step in the proceedings, if reliance is placed on the negligence of a solicitor, is that that be sufficiently established; albeit not to the point where the court must make a full-scale investigation of issues which, if they arise, arise in futuro. In this case there is no affidavit sworn by the plaintiff himself, and no evidence placed before me as to whether the plaintiff himself either procrastinated or failed to give adequate instructions or, alternatively, required at all times that the matter proceed and trusted to his solicitors to take all necessary steps. Furthermore, if it be a relevant matter that either solicitor is adequately insured for contingencies such as these, no evidence is placed before me to this effect, although such evidence seems to have been before the court in McAlpine's case. 45. I was urged to take judicial notice of the fact that all Territory solicitors, as a condition of their practising certificate, must be adequately insured in this respect. I would not be prepared to do this and, in any event, one would, in my view, need further evidence as to the present state of the policy, the amount available on any one claim, and a number of other relevant details. 46. Furthermore I would deem it appropriate, as a matter of natural justice, that any solicitor whose conduct is impugned in this way be at least given the opportunity by those so impugning it to file such affidavits as he may wish to explain or justify the delay. I should add, however, that no criticism is intended here of either of the solicitors presently instructing counsel in this case, since this is not a question which would necessarily have exercised their mind at the commencement of these proceedings. 47. It is not suggested in this case that the default of the plaintiff has been intentional and contumelious, (see e.g. Janov v Morris (1981) 3 All ER 780). And accepting that the delay has been inexcusable and inordinate, as I must since no excuse is given, and the delay is 8 years from the issue of the writ, it becomes necessary to examine the question of prejudice to either party and whether the delay has given rise to a substantial risk that it is not possible to have a fair trial. 48. The prejudice to the plaintiff is obvious; the limitation period has expired and if the action is dismissed for want of prosecution, he will not be able to pursue it. He may have an action against his solicitors although, for the reasons I have set out, that is not proven, and in the circumstances of this case I think his primary relief is in the continuance of this action. 49. As to the prejudice to the defendants, in Patsalides v Magoulias (1984) 29 NTR 1, O'Leary J., (as he then was), found that a plaintiff had been guilty of inordinate delay but there was no evidence of prejudice to the defendants and he refused to dismiss the action for want of prosecution. 50. At pages 5 and 6 he said: " It is true that inordinate delay itself may well create difficulties for a defendant who has to call witnesses to give evidence as to events long since past. As Denning M.R. has said, every year that passes prejudices the fair trial. It is also true that by reason of the delay the defendants are being kept at risk in respect of the subject matter of the action for an inordinate length of time (Ulowski v Miller supra at 284). It was clearly within the power of the defendants in the present case to point

to some particular prejudice, if any had existed, that would be suffered by them if the action were allowed to proceed; and in the absence of any such evidence I think I must conclude that they would in fact suffer no such particular prejudice." 51. In this case, however, it is said that the defendant suffers real prejudice because one eyewitness is dead, and the other may be suffering from impaired memory. In many cases, those would be powerful reasons to establish that the defendant would be prejudiced and, further, that there would be a substantial risk that it would not be possible to have a fair trial. As to the latter consideration, see McAlpine's case and Birkitt v James. 52. But I am not convinced that this is so in this case. The statement made by the deceased, Wilson, and signed by him on 30 November 1979, as appears from Exhibit "M" of the affidavit of the defendant's solicitor sworn on 16 May 1989, does not suggest that his evidence would have assisted the defendant. It is brief but to the point: " I leaned across to turn ignition off of utility as the engine was revving fast. I accidentally knocked the gear column selector into gear and vehicle moved ahead, causing the accident." 53. Assuming that his statement would be admissible under the provisions of the Evidence Act, one would think that it might well be evidence of lack of due care in Wilson in the control of the vehicle. But I am presumably asked to assume that Wilson may have changed that evidence had he remained alive, or may have expanded it in a way advantageous to the defendant's case. I consider that illusory and unrealistic. 54. One fact seems at least prima facie established, namely that on the day in question a vehicle in the overall control of the defendant moved forward to a nearby wall and crushed the plaintiff's leg in so doing. That vehicle, at the time, may have been in the immediate control of Pattinson or Wilson, or some other person in the employ of the defendant; but it moved forward with its engine running, and apparently without any person in proper control. It is difficult to think of any evidence of Wilson, other than what appears in his statement, which would explain those circumstances, and certainly difficult to think of any evidence which would explain the circumstances to the advantage of the defendant. 55. Similarly, the evidence of Pattinson, to which I have already referred was, even in 1979, somewhat contradictory, as appears from material in Exhibit "M". According to the solicitor for the defendant, Pattinson has now informed her that no-one was even near the steering wheel of the vehicle at the material time; that at the time the vehicle took off he, Pattinson, was leaning over the back of it and that a "guy named Wilson" was the only other person in the vicinity that he could recall. This is again somewhat inconsistent with his earlier statement given at the time, Exhibit "M", that he, Pattinson, had turned on the engine, that he got out to get his personal belongings, and that Wilson reached across to turn the ignition off and accidentally knocked the gear column into forward position. 56. Alternatively, the later statement lacks some of the detail of the earlier statement. There is certainly nothing in the earlier statement that would assist the defendant, nor can I see that, if it is now to be suggested that Pattinson had nothing to do to cause the car to move or start it, (and I am not sure that this is the correct interpretation of his later statements), that that fact assists the defendant. One would think that he would be unsatisfactory witness for either side but, if anything, his evidence would assist the plaintiff. 57. But, again, the defendant seems to be putting it that had Pattinson not suffered his injury, he might have recalled matters or changed his statement to establish that there was no lack of due care on his or anyone else's part in the control of this vehicle. Alternatively, I suppose, it is put that he may not be able to be called at all because of his present state. In the light of his earlier statement upon which he could be cross-examined, his absence may be more advantageous to the defendant than his presence. 58. In short, I am being asked to accept that two witnesses, whose earlier statements would seem to have made out something of a case for the plaintiff, would, over the years, have so changed their evidence that it would be positively to the defendant's advantage. Now, I do not discount the fact that witnesses can honestly be mistaken in their original views, and honestly change them, and still be accepted as reliable witnesses by a court. There is nothing in human experience to deny such possibilities, but on the probabilities here, it is highly unlikely that there would be such a drastic change in these two witnesses from their original statements; or that such change, if it occurred, would materially assist the defendant's case. I am totally unable to accept, therefore, that the defendant has been prejudiced by the absence of one or both of these witnesses. 59. Two other matters matters were urged as being prejudicial to the defendant if the plaintiff was allowed to proceed. The first is a submission that the defendant would be now unable to join Pattinson and Wilson as third parties, to seek contribution in the event that they were held to be negligent. Mr Bracher, for the plaintiff, has shown that by virtue of the 1984 amendment to the Law Reform (Miscellaneous Provisions) Act, that would not be possible. By s.22A: " Where an employee commits a tort for which his employer is vicariously liable, the employee shall not be liable to indemnify the employer." By s.3 of that amending Act: " This amendment applies to all torts, whether committed before or after the commencement of this Act." 60. The second argument was based on the possibility that the defendant could escape liability by proving that the acts of Pattinson or Wilson, or both, were so insubordinate or improper as to be outside the scope of their employment with the defendant. Quite apart from the fact that the defendant would presumably have to rely on the plaintiff's evidence to establish this, I am unable, on any version of the facts, to accept that any such substantial deviation from their employment occurred. Mere "skylarking" of the nature described by the plaintiff would be far removed from the sort of behaviour necessary to absolve the defendant from vicarious liability. 61. I take into account the fact that on any view this is a very simple case, so far as liability is concerned. It is not a case where a great number of complicated issues of fact must be examined and recalled. It was an event which occurred in a matter of seconds; it was sufficiently dramatic for ordinary human memory to recall at least the basic details, and it is inherently unlikely that persons who witnessed the event at the time would deviate in any dramatic degree from their original accounts. I am unable to see how any deviation from the original statements of the witnesses could assist the defendant. 62. While one cannot be dogmatic as to the result, it does seem that at least a prima facie case of lack of proper control of a motor vehicle was made out. Neither the statements of Pattinson or Wilson, nor any change in their evidence, short of suggesting that the plaintiff in some way caused or contributed to the accident, (which does not seem in any way likely), would in my view alter that position. The defendant is not, in my view, prejudiced by the absence of these two witnesses, nor can it be said in all the circumstances that it is now not possible to have a fair trial of the proceedings. 63. Accepting that the delay has been inordinate and inexcusable, I consider that in all the circumstances the overall justice of the case requires that time be granted to enable the plaintiff's new solicitor to have leave to deliver a statement of claim within six weeks of this day. 64. The application to dismiss the proceedings for want of prosecution will be refused, but on terms that the plaintiff pay the defendant's costs of these proceedings.