Workers Rehabilitation and Compensation Corporation v Sci Operations Pty Ltd (T/as Smorgon Consolidated Industries) [2001] SAWCT 121 (18 October 2001)

Workers Rehabilitation and Compensation Corporation v SCI Operations Pty Ltd (T/as Smorgon Consolidated Industries) [2001] SAWCT 121

WORKERS REHABILITATION AND COMPENSATION CORPORATION

SCI OPERATIONS PTY LTD (T/as Smorgon Consolidated Industries)

JUDGMENT OF: His Honour President Judge WD Jennings, His Honour Deputy President Judge FK Cawthorne, Her Honour Deputy President Judge HW Parsons

Appeal - Whether single Member erred in exercising discretion to refuse extension of time - Whether single Member adopted appropriate approach as to issues of prejudice and principles such that the exercise of discretion in error - Workers Rehabilitation and Compensation Act 1986.

An extension of time was sought before a single Member for a recovery action six and a half years out of time. The Corporation had a policy of not taking action pursuant to s 54(7)(g) if the worker had commenced his own proceedings. In this matter the worker had commenced but subsequently abandoned proceedings. The Corporation was fully aware of the time limit involved. The single Member was not satisfied that the Corporation had made out grounds for the exercise of discretion to extend time or that the interests of justice required such an exercise in the Corporation's favour and the application to extend time was refused.

The matter comes on appeal before the Full Tribunal as to whether the single Member erred in exercising his discretion to refuse to extend time within which the appellant may bring recovery proceedings and whether the single Member acted upon wrong principle or misunderstood the facts or had regard to irrelevant material or failed to have regard to relevant matters or where the nature of the error is not discoverable from the reasons such that the exercise of discretion was "unreasonably and plainly unjust".

HELD: Jennings PJ and Cawthorne DPJ Majority judgment -

* The Full Tribunal found no error of approach such as would constitute an error of law.

The single Member made an error of principle relating to the correct approach with respect to the issue of prejudice.

The discretion should be exercised afresh following further submissions.

South Australian Police Department v Barber [2001] SAWCT 100

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 139 ALR 1

Santos Limited v Workers Rehabilitation and Compensation Corporation (1998) 199 LSJS 83

Fire and All Risks Insurance Co Ltd v Rousianos and Another (1990) 19 NSWLR 57

House v The King [1936] HCA 40; (1936) 55 CLR 499

Australian Coal and Shale Employees Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621

Baulderstone Pty Ltd and Others v WorkCover Corporation and Another [1995] SASC 5147; (1995) 64 SASR 519

Nominal Defendant v Warren (1997) 193 LSJS 447

Pomeroy v Thwaites Witham Pty Ltd and Krantz [2001] SASC 125; [2001] 79 SASR 489

Limitation of Actions Act 1936

1 I am in general agreement with the reasons published by Deputy President Judge Cawthorne and I agree with him that the appeal should be dismissed. I wish however to add a few words of my own.

2 This appeal concerned the exercise of a discretion by the learned Acting Deputy President. In my view such decisions are only susceptible to review, on an appeal limited to a question of law, if they involve an error of law.

3 In this case the learned Acting Deputy President was clearly aware of and considered the relevant authorities in reaching his conclusion. Our opinion of the reasonableness of the decision, how we would have exercised the discretion or what weight we would have given to the facts involved in this case, are not to the point. As no error of law is apparent, given the very limited powers this Full Tribunal has on appeal, and in this regard I refer generally to the majority decision in South Australia Police Department v Barber [2001] SAWCT 100, his decision is, in my opinion, unassailable.

4 The background to this case and the relevant legislative provision is set out in the judgment of Deputy President Judge Parsons and there is no need for me to repeat same.

5 In terms of the arguments advanced by Mr Crawley of counsel for the appellant I agree for the reasons advanced by Her Honour that the first two are, with respect, without merit.

6 Addressing then Mr Crawley's third submission that the learned Deputy President wrongly applied the interests of justice by failing to give pre-eminence to the issue whether there could be a fair trial or, alternatively, that his lack of clear reasons suggested that his discretion miscarried because, in the light of all the circumstances, his conclusion was unreasonable or plainly unjust.

7 I deal firstly with the submission going to the alleged failure of the learned Deputy President to give pre-eminence to the issue of whether there could be a fair trial.

8 There is little doubt in my view that to borrow the words of Deputy President Judge Parsons prejudice in the sense of something preventing or hindering a defendant in obtaining a fair trial as a result of delay is of

particular importance and will often be decisive in an extension of time case. This proposition as noted by Her Honour flows from the decision in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 139 ALR 1. But of course the focus of that case and Santos Ltd v Workers Rehabilitation and Compensation Corporation (1998) 199 LSJS 83 was very much on the role of prejudice to a defendant in an extension of time case.

9 However there is in my respectful view a converse proposition and that is that the absence of prejudice to a defendant is but one consideration (albeit an important one) in determining whether the interests of justice will best be served by the granting or refusal of an extension of time.

10 To adopt the words of McHugh J in Taylor at 10:-

"In determining what the justice of the case requires, the judge is entitled to look at every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period."

11 In a similar vein in Santos (supra) Doyle CJ (Prior J concurring) had this to say about the case of Taylor:-

"... The exercise of the discretion in the particular case seems to have turned very much upon prejudice to the defendant, flowing from the lapse of time. There appears to be no suggestion in that case that the defendant had been guilty of `... fraud, deception or concealment in respect of the existence of the action': Taylor (supra) at 555 McHugh J. Had any of those factors been present, the judgments might have been expressed differently. Nor, as best I can tell, was the case one in which the plaintiff was clearly culpable, in the sense of knowing that she had a cause of action but failing to take action in respect of it. Once again, if that factor had been present the judgments might have been expressed differently. The facts of each case will differ, and remarks about the exercise of the discretion in a particular case have to be understood with that in mind.

It is a safe conclusion from Taylor that the effect of delay upon the ability of a defendant to fairly defend a case, despite the lapse of time, will always be important. But prejudice to the defendant might not receive the emphasis that it received in Taylor, in a case in which other issues fall for consideration."

12 In the case at bar it seems to me that the learned Deputy President was alive to significant matters going to the question of whether the respondent was prejudiced by the failure of the appellant to commence proceedings within time; see for example sub par 3 and sub par 4 of par 5 (AB 81) and sub par 2 and sub par 3 (noting inter alia the submission of the appellant that there was no evidence of prejudice to the respondent if the application were to be granted) of par 14 (AB 84) of the decision under appeal. It is clear from the learned Deputy President's reasons however that he considered that other issues fell for consideration (to borrow the words of Doyle CJ in Santos (supra)) when considering the ultimate question he was charged with deciding namely what the interests of justice required in the circumstances of the case. Those other issues are canvassed in his decision at AB 86/87 as follows:-

"18 To rely upon the so called `policy' of the Corporation is fraught with danger, as I observed in Kostek. [The policy referred to is the Corporation's policy not to pursue s 54(7)(g) recoveries if a notice under s 54(7)(e) had been issued].

19 S 54(7)(e) and s 54(7)(g) are not mutually exclusive as Mr Rogers appears to believe. The answer to the Corporation's policy ie that it wished to avoid the costs of and fact of multiplicity of actions is

(a) It should have sought relief within the Act by commencing proceedings within time and then seeking a stay. It is to be noted that in this Registry there are no filing fees. They would not be a burden to the Corporation.

(b) If the policy reasons for the Corporation's delay were so onerous - the Corporation should make representations to Parliament through the appropriate Minister to obtain relief for its position. It should not embark upon a course of granting itself a unilateral absolution from the terms of the Act.

(c) The policy of the Corporation leads to it arrogating to itself the luxury of a second chance.

20 There will be cases where the Corporation can pray in aid the assistance of the Tribunal to relieve its being out of time: eg inadvertent administrative inefficiency as in WorkCover Corporation v Ag-fert Australia Pty Ltd and Others JD88/1998 (four months out of time) or an unjust enrichment where the Corporation was in no way to blame (four years out of time) - Kostek (supra).

21 However, this is a case where the Corporation is the sole author of its own misfortune (if it be such) and a misfortune it deliberately courted and to which it subjected itself.

22 Added to that, the delay between September 1997 and when the Corporation knew that the worker's common law claim had been abandoned and the issue of the Statement of Claim in May 1998 is completely unexplained - other than it was occasioned by `waiting for Counsel's advice'.

23 By September 1997 the Corporation was already over six years out of time. Its desire to obtain Counsel's opinion was not invested with any degree of urgency - even though it was aware that its policy had failed. The present application would fail if that was the only delay - because I would not regard `waiting for Counsel's opinion' as satisfactorily explaining a delay of eight months, when on any view the Corporation had already been receiving legal advice on this very issue from its solicitors for over three years.

24 I am not satisfied that the Corporation has made out grounds for the exercise of my discretion to extend time - or that the interests of justice require such an exercise in the Corporation's favour."

13 Moreover, I am not persuaded that the learned Deputy President ignored the fact that there was no evidence of any actual or specific prejudice to the respondent in arriving at his conclusion. As noted earlier he specifically referred to matters going to that issue when canvassing the submissions of the appellant and although he did not mention them in his concluding remarks it is to be inferred that he had that issue in mind; see in this regard Fire and All Risks Insurance Co Ltd v Rousianos and Another (1990) 19 NSWLR 57 per Gleeson CJ as he then was at 71.

14 In all of the circumstances then in my respectful view there is no substance in the argument that the learned Deputy President erred in law in the exercise of his discretion not to extend time in this case. Moreover,

15 it seems to me that the reasons of the learned Deputy President why he refused to extend time were in fact clear and do not demonstrate an error of approach such as would constitute an error of law.

16 For the above reasons I would dismiss the appeal.

16 The issue on this appeal is whether the learned Deputy President ("the learned Member") erred in exercising his discretion to refuse to extend time within which the appellant may bring proceedings for recovery against the respondent pursuant to s 54 of the Workers Rehabilitation and Compensation Act 1986 ("the Act").

17 As this appeal is limited to a question of law the issue is not whether this Appeal Tribunal would have exercised its discretion in the same manner as the learned Member. The question is whether the learned Member acted upon wrong principle or misunderstood the facts, or had regard to irrelevant material, or failed to have regard to relevant matters, or where the nature of the error is not discoverable from the reasons such that the exercise of his discretion was "unreasonably and plainly unjust": House v The King [1936] HCA 40; (1936) 55 CLR 499, Australian Coal and Shale Employees Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621 at 627.

18 The appellant issued proceedings against the respondent on 19 May 1998 seeking recovery of the amount of compensation it has paid or is payable to the injured worker, John Kevin Adams, as a result of a compensable disability which he sustained in the course of his employment with his employer, WD and SN Doser Pty Ltd on 5 October 1988. The respondent was the occupier of premises at which the injured worker was injured and the appellant's statement of claim alleges that the worker was injured as a result of its negligence.

19 S 54(5) of the Act gives the appellant a cause of action in damages against a wrongdoer in such circumstances. It may recover an amount not in excess of the wrongdoer's unsatisfied liability to the injured party. Such an action must be commenced within 3 years after the date of the trauma (s 54(7)(g)(ii)).

20 The appellant issued these proceedings 9 years and 5 months from the date of the trauma and 6 years and 7 months after the expiration of the time limit which expired on 5 October 1991.

21 The appellant sought an extension of time within which to issue the proceedings relying on s 48(1) of the Limitations of Actions Act (1936) (SA) which provides as follows:-

"Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for-

(b) doing any act, or taking any step in an action; or

(c) doing any act or taking any step with a view to instituting action,

a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require."

22 The learned Member received an affidavit of the appellant's solicitor, John McCann Hiatt sworn on 9 August 2000 (Exhibit A1), and an affidavit of the appellant's Recovery Officer, Paul Rogers sworn on 21 August 2000 (Exhibit A2). The respondent placed no affidavit evidence before the Tribunal.

23 The learned Member declined to grant the extension of time. That decision was made against the following uncontested factual background; at all material times the appellant had paid compensation to the injured worker pursuant to the Act. By letter dated 2 March 1989 the appellant forwarded a s 54(7)(e) Notice to the respondent asserting that the circumstances surrounding the injured worker's accident suggested negligence on the respondent's part, and notifying its intention to seek recovery of all monies paid in relation to the incident. Further notices outlining the amount of compensation paid to the injured worker at various stages were sent to the respondent or its insurer over the next nine years.

24 By letter dated 18 January 1989 the solicitors for the injured worker advised the appellant's solicitor that they had been instructed to investigate a claim for damages for negligence against the respondent. Such proceedings were issued in the County Court of Victoria on 10 July 1990.

25 From time to time thereafter the appellant's solicitors corresponded with the injured worker's solicitors as to the progress of that damages claim. The appellant's recovery section was kept informed of the situation and made a decision not to duplicate the proceedings by issuing its own recovery action. Mr Rogers deposed that it was the appellant's policy not to duplicate proceedings. The appellant preferred to await the outcome of the injured worker's proceedings. This approach was confirmed by letter dated 12 April 1994 when the appellant's then Recovery Officer Ms Vasey, wrote to the appellant's solicitors advising that the appellant did not wish to issue its own recovery proceedings, intended to await the outcome of the worker's common law action, but would consider issuing proceedings if the worker decided to withdraw his common law action (AB 33 affidavit of Paul Rogers par 11 and par 12).

26 By letter dated 19 September 1997 the injured worker's solicitors advised the appellant's solicitors that their client did not wish to pursue his action in the Victorian County Court against the respondent. This was confirmed by further letter to the appellant's solicitors dated 1 October 1997. (AB 33 affidavit of Paul Rogers par 15)

27 On 25 September 1997 the appellant's solicitors sought in-house counsel's opinion about the prospect of the appellant proceeding against the respondent, there being a number of legal issues associated with the proceedings generally. That opinion was not received until 7 April 1998 and after seeking instructions and arranging for counsel to settle pleadings, the summons and statement of claim were filed on 19 May 1998. Following attempts to have the summons served on the respondent's solicitors, it was served directly upon the respondent in August 1998.

28 Exhibits A1 and A2 both deposed to the great prejudice which the appellant would suffer if the extension was refused; it having paid over $500000.00 compensation to the injured worker to that date. Both deponents referred to the notice of claim provided to the respondent on 2 March 1989 and to the respondent's longstanding knowledge of the injured worker's condition (AB 19 Affidavit of Hiatt par 21). Mr Hiatt's affidavit deposed to the similarity of issues between these proceedings and the worker's discontinued common law action pointing to a resultant lack of prejudice on the part of the respondent in preparing the matter for trial. The delay was explained by reference to the injured worker's proceedings which Mr Hiatt deposed made it unnecessary for the appellant to issue its own proceedings (AB 19 par 20). That position was put somewhat higher in the affidavit of Mr Rogers in which he deposed that the appellant "was not in a position to issue its own proceedings until such time as Mr Adams withdrew from his action" (AB 34 par 20). The further delay between the worker's withdrawal of his common law action and the eventual issue date was explained by the time necessary to await counsel's opinion and the settling of pleadings.

29 In his reasons for decision the learned Member made findings as to the course of the dealings between the appellant and the respondent and details concerning the injured worker's common law claim. He then made a finding that the appellant's failure to commence proceedings over six and a half years after time expired was a product of its own deliberate decision.

30 The learned Member then directed himself to the appropriate approach in exercising his discretion; that which was expressed by the Chief Justice in Santos Limited v Workers Rehabilitation and Compensation Corporation (1998) 199 LSJS 83 at 87:-

"... the Court is required to consider the justice of granting an extension of time at the time that the decision falls to be made."

31 The learned Member then outlined the respective submissions of counsel. First, he summarised the appellant's submissions; that it was in the interests of justice to extend time because the policy of the Act, expressed through s 54, is that the appellant should be able to recover against tortfeasors to ensure the financial stability of the compensation scheme, that there was no evidence of prejudice to the respondent in the event of the granting of the application, that the respondent was on notice of the claim, that since 1997 the respondent was engaged in litigation with the injured worker over the very facts which give rise to this action, and that the tortfeasor should not escape the financial burden of its negligence which would otherwise fall on the scheme.

32 Then he summarised the respondent's submissions. He did so under certain headings including the length of the delay, the explanation for the delay, the hardship to the appellant if the extension was not granted and the prejudice to the respondent if it was. The respondent submitted that the appellant as a "professional litigator" which had access to legal advice, was aware of the time limit but made a deliberate decision not to issue proceedings and now sought to do so six and a half years after the expiration of the time limit.

33 As to the appellant's reliance on the policy of the Act, Mr Curtain QC counsel for the respondent, submitted that the appellant had ignored its charter. He pointed to the appellant's obligation to the injured worker pursuant to the Act and submitted that if the application was declined the appellant would be in the same position as if there had been no issue of negligence or if the respondent was impecunious.

34 Mr Curtain referred the learned Member to the general statement of McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 139 ALR 1 that "A limitation period ... represent(s) the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, ...".

35 The submission was made that prejudice can be assumed from the length of the delay and that the absence of actual or specific prejudice does not lead to the conclusion of an absence of all prejudice. In particular, the respondent submitted that it was entitled to conduct its commercial affairs on the assumption that there was no further threat of litigation, and that as a result of the delay it had been denied any input as to the quantum of damages; that it was now too late to disentangle competing causal factors of the worker's condition.

36 In declining the extension of time the learned Member specifically indicated that he found the submissions of the respondent's counsel more persuasive than those of the appellant. In deciding that it was not in the interests of justice to allow the extension of time, he also made particular reference to the appellant's reliance on its policy not to issue proceedings when the injured worker had also issued proceedings. He considered the appellant's failure to issue proceedings as deliberate and viewed the additional delay whilst the appellant's solicitors awaited counsel's opinion as unsupportable.

37 On appeal, Mr Crawley, counsel for the appellant, made three main points. Firstly, he submitted that the learned Member had applied wrong principle; that he determined the exercise of his discretion by application of the criteria outlined in Ulowski v Miller (1968) SASR 267. Mr Crawley referred to the comments of the Chief Justice in Santos (supra) at 85 where he specifically stated that the decision of Ulowski v Miller (supra) cannot be regarded as setting the framework within which an application pursuant to s 48(1) of the Limitations of Actions Act is to be determined, and that to the extent there is conflict between Ulowski (supra) and Taylor (supra), the latter must be applied. It was submitted that the learned Member unduly restricted his consideration of the issues and did not place any or sufficient emphasis on the prospects of a fair trial.

38 It is clear from the face of the judgment that the test applied by the learned Member was whether it was in the interests of justice to extend time. The mere mention of the well known criteria in Ulowski (supra) does not, of itself, suggest that he was applying wrong principle. The matters which the learned Member specifically mentioned were relevant to a consideration of the interests of justice because they concerned the factual context in which such an application was made and the consequences to the parties. I will deal later with the issue of whether the learned Member's approach influenced his treatment of the issue of prejudice.

39 There is no merit in Mr Crawley's second submission that the learned Member's primary criticism that the appellant acted deliberately in not issuing proceedings, was not supported by the evidence. Mr Crawley submitted that rather than deliberately allowing the action to go out of time, the evidence establishes that it "was allowed to go out of time by the Corporation without knowing whether the worker had in fact issued his own proceedings or not" (Appeal tr 8). To the contrary, the learned Member's conclusion that the respondent deliberately declined to issue proceedings within the limitation period or as soon thereafter as possible, and that it was acting upon its own policy, was supported by par 20 of Mr Rogers as follows:-

"The Corporation has been fully aware of the action brought by Mr Adams in the Victorian County Court since 1990 and was not in a position to issue its own proceedings until such time as Mr Adams withdrew from his action."

40 Furthermore, Mr Crawley's criticism of the learned Member's conclusions about the length of and explanation for the delay, appears to be based on the appellant's understanding that it was not entitled to seek an extension of time until such time as it could establish a material fact. Mr Crawley argued that the relevant material fact was ascertainment that the worker was not going to proceed with his own claim, and that therefore the Notice of Charge was not going to effect recovery (tr 10). However, no material fact is required as a threshold to an application for an extension of time unless the time limit itself is prescribed by the Limitation of Actions Act (s 48(3)(b). The relevant time limit is prescribed by the Workers Rehabilitation and Compensation Act. See Baulderstone Pty Ltd and Others v WorkCover Corporation and Another [1995] SASC 5147; (1995) 64 SASR 519 at 531 per Lander J. Thus it is not the case that the appellant was unable to apply for an extension of time until the worker withdrew his proceedings.

41 On the evidence before the learned Member it was open to him to find that the appellant's failure to issue proceedings within the limitation period was deliberate, and that the delay was extensive. And of course such culpability, in the sense of knowing about the limitation period and doing nothing about it, is a very relevant matter in the exercise of discretion. (Santos p 84 (supra) and Taylor p 555 (supra))

42 Mr Crawley's third submission was that the learned Member wrongly applied the interests of justice by failing to give pre-eminence to the issue whether there could be a fair trial or, alternatively, that his lack of clear reasons suggested that his discretion miscarried because, in the light of all the circumstances, his conclusion was unreasonable or plainly unjust.

43 I refer to par 16.4 of the learned Member's reasons in which he has summarised the respondent's submissions as to the issue of prejudice. It appears from the acceptance of those submissions that the matters concerning prejudice to which he had specific regard were that the length of the delay gave rise to a presumption of prejudice of the kind referred to in the judgment of McHugh J in Taylor (supra), in that the respondent was entitled to assume that it no longer faced the threat of litigation and that the length of delay prevented the respondent from investigating whether there was a pre-existing cause of the injured worker's condition.

44 In Santos (supra) the Full Supreme Court specifically answered certain questions of law referred to it by the Workers Compensation Tribunal pursuant to s 86A of the Act, concerning the exercise of discretion to extend time for the issue of proceedings pursuant to s 54 of the Act. The stated case contained an appropriate foundation in fact for the determination of the questions of law reserved.

45 Doyle CJ (Prior J concurring) clarified that the discretion to extend time must be exercised according to certain principles of law and that it must also be exercised in light of the subject matter to which it relates, the purpose of the legislative provision, and that it requires the consideration of all of the relevant facts and circumstances.

46 As to the consequences flowing from an error of principle in the approach taken when exercising such a discretion, His Honour said that this:-

"... will usually require an appellate court to set aside the decision made. The court will then exercise the discretion afresh, or remit the case for further consideration. If there is no error of principle or approach an appellate court may interfere with the actual exercise of the discretionary decision only if one of the usual bases for interfering with a discretionary decision is made out: see House v The King [1936] HCA 40; (1936) 55 CLR 499. Restraint is called for in that respect."

47 His Honour then dealt with the applicable principles which he confirmed are to be found in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, rather than the long accepted approach outlined in Ulowski v Miller (1968) SASR 277. The latter case involving considerations relevant to an application to strike out proceedings for want of prosecution was not regarded as setting the framework within which an application under s 48(1) should be considered. His Honour stated that if there is any conflict between the Ulowski approach and the approach set out in Taylor, then Taylor must be applied. This also being the view held by the Full Court in Nominal Defendant v Warren (1997) 193 LSJS 447.

48 His Honour then extracted a number of principles from Taylor not in "an encyclopaedic fashion" but tailored to the factual circumstances of the case stated. The stated principles are directed to questions of proof with particular reference to the issue of prejudice. The following points can be distilled from the judgment of the Chief Justice:-

* The applicant for an extension of time pursuant to s 48(1) bears the onus of satisfying the Court that it is an appropriate case in which to make the order.

* The discretion will be exercised in favour of the applicant when to do so is in the interests of justice.

* The generality of the discretion requires the court to consider all material facts and circumstances.

* In deciding whether to grant an extension of time, prejudice to the defendant resulting from the delay if an extension is granted is always material and in many cases will be decisive.

* Prejudice in the sense of something preventing or hindering the defendant in obtaining a fair trial as a result of delay is of particular importance and would often be decisive. (Taylor supra at 558 (Toohey and Gummow JJ), and 555 (McHugh J))

* Other types of or aspects of prejudice associated with delay should be considered. This is a reference to the public policy considerations referred to in Taylor supra by McHugh J at 553 - 555, with whom Dawson J agreed (554) and with whom Toohey and Gummow JJ did not disagree.

* The relevance of prejudice is contextual; it depends on the other material facts eg the conduct of the defendant. Accordingly, there is danger about generalising from a particular case.

* Some types of prejudice may be presumed to arise as a result of the delay. The starting point is the fact that the time has expired; that Parliament fixed a time for good reason. The reasons behind the fixing of that time are of themselves matters that weigh against the grant of an extension of time, but are not decisive.

* If the defendant relies upon actual or specific prejudice attributable to the delay it will usually be incumbent upon the defendant to adduce evidence of the facts from which that prejudice is said to arise.

* If no evidence of specific or actual prejudice is identified by a defendant, the Court is likely to draw an inference that there is none. Usually it is the defendant who will be best placed, and perhaps the only one, able to identify specific or actual prejudice that flows from delay.

* If evidence is led by the defendant that causes the Court ultimately to conclude that the delay means that a fair trial is likely to be thwarted, or to conclude that there is some other significant prejudice resulting from the delay such as a material change of position, an extension of time is likely to be refused.

* The court is required to consider the justice of granting an extension of time at the time that the decision falls to be made. On the issue of prejudice it is not a question of how much more prejudice the defendant will suffer if an extension is granted than the defendant would have suffered if the action had been commenced shortly before the limitation period expired.

49 Following the consideration of those principles, the learned Chief Justice (Prior J concurring) answered the questions of law stated by the Full Tribunal, and Olsson J, in a separate judgment, agreed with those answers.

Did the plaintiff have the onus of persuading the Tribunal to exercise its discretion to grant the extension of time?

Was there an evidential onus on the defendant to adduce any evidence of prejudice to it and, if so, what was that onus?

Yes. If the defendant wished to reply upon actual or specific prejudice, resulting from the delay that had occurred, it was incumbent upon the defendant to adduce evidence of the facts that would support such a conclusion. If it did not do so, it was open to the court to infer that actual or specific prejudice did not arise. It would not follow that the court should infer that no prejudice at all would be occasioned by the grant of an extension of time. The ultimate onus would remain upon the plaintiff to persuade the court that an extension of time should be granted.

Was the plaintiff required to establish that the defendant would not be prejudiced by the grant of the extension of time?

No. The plaintiff had to satisfy the Tribunal that the justice of the case required that an extension of time be granted. Prejudice to the defendant, especially actual or specific prejudice proved by evidence, was an important matter to be considered. Prejudice in the form of an interference with the defendant's ability to have a fair trial, attributable to the delay, was a matter of particular importance. The Tribunal was required to exercise its discretion taking into account any prejudice to the defendant attributable to the delay. The Tribunal could grant an extension of time even though satisfied that the defendant would be prejudiced. But it could do so only if, considering all the circumstances, the justice of the case so required, notwithstanding the relevant prejudice to the defendant.

Can prejudice to the defendant be presumed by reason of the elapse of the three year limitation period?

Yes. The Tribunal was entitled to infer that the defendant would or might suffer prejudice from the delay if an extension of time were granted. But the Tribunal should identify and assess the particular prejudice that might result. The Tribunal was then required to consider what conclusion should be reached about prejudice on all the material before it. In so doing it should consider the significance of the failure of the defendant to adduce evidence of any actual or specific prejudice, if the defendant so failed. (p 89)

51 Question and Answer 4 are particularly important when considering whether, in the instant matter, the learned Member applied the correct principles and adopted the correct approach. Although, by reference to the respondent's submission, he has correctly noted that the absence of actual or specific prejudice does not lead to the conclusion of an absence of prejudice, he has not considered the significance of the defendant's failure to adduce evidence of any actual or specific prejudice in the light of all the other relevant material. The learned Member did not assess the issue of prejudice in the context that the evidence disclosed that the respondent was the defendant in the injured worker's action for negligence between 1990 and 1997. At least during this period, absent any evidence to the contrary, certain assumptions may have been permissible and relevant as to the level of preparedness of the respondent to defend an action involving the same factual circumstance of injury. Such an assumption was made in the absence of specific evidence in Pomeroy v Thwaites Witham Pty Ltd and Krantz [2001] SASC 125; [2001] 79 SASR 489, in separate judgments of Doyle CJ and Gray J (Nyland J concurring).

52 In that matter the plaintiff sought an extension of time in which to issue proceedings in the District Court more than six years after the alleged tort, but in circumstances where she had earlier issued proceedings in another jurisdiction of which the defendant had notice. On the issue of prejudice in those circumstances Doyle CJ said:-

"The Defendants did not identify any particular prejudice from which they might suffer if time were extended. The Defendants can rely only on the common sense presumption that, if the matter goes to trial, it is likely that memories of relevant events will have become less reliable, and there is a risk that some relevant evidentiary material will have been lost. On the other hand, as Gray J points out, the Defendants have had notice of the Plaintiff's wish to pursue a claim from a very early stage. It is reasonable to assume that the Defendants will have taken steps to secure relevant material, and that the key participants will have had reason to reflect on the relevant events." (496)

53 This is particularly significant as Pomeroy (supra), which was decided after the learned Member's decision, has reiterated the importance of the issue whether the delay has made the chances of a fair trial unlikely (see Gray J with whom Nyland J agreed 508).

54 In this instance not only had the respondent been a party in the injured worker's proceedings, but it had received Notices of Charge over a period of about nine years from 1989. This aspect of the material, although referred to by the learned Member in the recital of facts, was not assessed by him in the context of the issue of prejudice generally, or in the context that the respondent failed to adduce evidence of actual or specific prejudice of a fair trial.

55 It is my conclusion that the learned Member did not deal with the issue of prejudice in the manner stated in Santos (supra). When dealing with this issue of prejudice, and in particular the failure to adduce evidence of actual or special prejudice, in the light of the other relevant material, the learned Member should have given consideration to the respondent's status as a defendant in the injured worker's claim and as the recipient of Notices of Charge between 1990 and 1997. He should have then dealt with the issue of prejudice in the following period between September 1997 when the injured worker withdrew his proceedings, and May 1998 when the appellant issued these proceedings. Those matters should have been considered in the whole context. The learned Member's reasons also make reference to the kind of behaviour on the part of the appellant which Doyle CJ described as culpable in Santos (supra); that is, knowing that it had a cause of action but failing to take action in respect of it. This was a matter which obviously swayed the learned Member. However it did so in the absence of the appropriate approach to the issue of prejudice. In failing to approach the issue of prejudice in the manner described in Santos (supra) the learned Member made an error of principle. It is my conclusion that the discretion should be exercised afresh.

56 Before doing so it is my view that we should hear from the parties as to the appropriate course to be adopted. After reserving judgment, the Pomeroy (supra) decision came to our attention and we gave the parties liberty to present written submissions as to the application of that authority. In the course of the respondent's submission reference was made to a matter of prejudice not previously raised, namely that the respondent was insured by HIH which is now in liquidation. It was submitted in writing that as a result of the liquidation, the respondent will have the primary liability if the extension of time is granted, and that, had this action been issued within the time limit, the respondent would have been indemnified by its insurer. Actual prejudice is therefore now asserted.

57 If the import of this submission is that, after the learned Member handed down his decision, evidence has come into existence which could not have been obtained with reasonable diligence for use at the hearing, then it may be appropriate for the respondent to seek to adduce that evidence on this appeal.

58 The appellant has foreshadowed in writing that it would seek to be heard on such an issue.

59 I would hear further from the parties as to whether this Full Tribunal should exercise the discretion afresh either with or without the reception of fresh evidence or whether the matter should be remitted for further consideration.