Basile v Pugh
[2024] VSCA 280
•22 November 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2024 0025 |
| ANTONIO BASILE | Applicant |
| v | |
| LESLIE PUGH | Respondent |
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| JUDGES: | MACAULAY JA, GORTON and J FORREST AJJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 October 2024 |
| DATE OF JUDGMENT: | 22 November 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 280 |
| JUDGMENT APPEALED FROM: | [2024] VCC 39 (Judge Purcell) |
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LIMITATION OF ACTIONS – Motor vehicle accident in 1998 – Application for leave to appeal refusal to grant extension of time to commence proceeding to recover damages –Applicant obliged to establish House v The King error – Parties assert different versions of how accident happened – Contemporaneous documents support applicant’s version but their accuracy contested – Independent witness now deceased, other documents now not available – Whether judge erred in deciding ‘acceptably fair trial no longer possible’ – Whether open to judge to conclude that applicant should have acted sooner – Whether judge erred in saying ‘clock didn’t stop ticking’ on filing of originating motion – No realistic prospect of establishing that judge’s discretion miscarried – Application for leave to appeal refused.
Limitation of Actions Act 1958, ss 5, 23A; Transport Accident Act 1986.
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Prince Alfred
College Inc v ADC (2016) 258 CLR 134; Waldron v O’Callaghan [2024] VSCA 196, applied; House v The King (1936) 55 CLR 499; GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; Warren v Coombes (1979) 142 CLR 531; Fox v Percy (2003) 214 CLR 118; Lee v Lee (2019) 266 CLR 129; Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353; Lithgow City Council v Jackson (2011) 244 CLR 352; Willmot v State of Queensland [2024] HCA 42; Moore v Goldhagen [2024] VSCA 25; Hunt v Holcombe [2018] VSCA 248; Griffiths v Nillumbik Shire Council [2022] VSCA 212, referred to.
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| Counsel | |||
| Applicant: | Mr A Clements KC with Mr G Taylor | ||
| Respondent: | Mr J Ruskin KC with Mr D Oldfield | ||
Solicitors | |||
| Applicant: | Arnold Thomas & Becker Pty Ltd | ||
| Respondent: | Transport Accident Commission | ||
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TABLE OF CONTENTS
Introduction
The nature of the proposed appeal to this Court
Background
The reasons of the County Court judge
The alleged errors of law on the part of the County Court judge
The finding that an acceptably fair trial is no longer possible
Was it open to the judge below to conclude that Mr Basile should have acted sooner?
Did the ‘clock stop ticking’ when Mr Basile filed an originating motion in May 2021?
Disposition
MACAULAY JA
GORTON AJA
J FORREST AJA:
Introduction
On 6 November 1998, Mr Antonio Basile, the applicant, was riding a motor bike when he injured his lower left and right legs in a collision with a car driven by Mr Leslie Pugh, the respondent. The police attended and prepared an incident report. The incident report referred to an independent witness, Mr Clyde Simpson. Mr Basile promptly made a claim for no-fault benefits under the Transport Accident Act 1986. That claim was accepted by the Transport Accident Commission (‘TAC’) and he received no-fault benefits in the form of medical expenses in accordance with that legislation in, it seems, at least 1998 and 1999.
Under the Limitation of Actions Act 1958 (the ‘Act’), Mr Basile was required to commence any proceeding for damages against Mr Pugh by 6 November 2004.[1] He did not commence a proceeding until he filed a writ in the County Court of Victoria on 23 November 2022, that is, some 24 years after the collision. Mr Pugh pleaded the expiration of the limitation period in his defence. Mr Basile applied under s 23A(2) of the Act for an extension of time to commence his proceeding in order retrospectively to validate it.
[1]Section 5 of the Limitation of Actions Act 1958 (the ‘Act’) provides that an action founded on tort ‘shall not be brought after the expiration of six years from the date on which the cause of action accrued’. Part IIA of that Act, headed ‘Personal injury actions’, provides, where it applies, a different limitation regime for personal injury actions. However, pt IIA of the Act does not apply because, under s 27B(2)(c), pt IIA does not apply to any action for damages to which pt 6 of the Transport Accident Act 1986 applies. Part 6 of the Transport Accident Act 1986 applies to any claim for damages brought by Mr Basile, because his injuries arose as a result of a transport accident.
Section 23A(2) of the Act provides that a court may ‘if it decides that it is just and reasonable to do so, order that the period within which an action on the cause of action may be brought be extended for such period as it determines’.[2]
[2]Section 23A(4) of the Act provides that a court may extend time notwithstanding that the time limit has expired since the cause of action accrued.
On 13 February 2024, after a hearing at which Mr Basile gave oral evidence and was cross-examined, a judge of the County Court of Victoria dismissed his application and published reasons for so doing.[3] Mr Basile has applied for leave to appeal against that decision. As commonly occurs, the application for leave, and any appeal if leave were to be granted, were heard together. Mr Basile proposes to rely upon three grounds of appeal. They are that the judge ‘erred in law’ in finding that:
(a)‘the state of the evidence is such that … an acceptably fair trial is no longer possible’;
(b)‘viewed objectively, [the applicant] should have acted sooner’; and
(c)‘the proverbial clock continued to tick’ after 7 May 2021 when the applicant filed an originating motion seeking a finding of serious injury by the Court pursuant to s 93(4)(d) of the Transport Accident Act 1986.
[3]Basile v Pugh (Ruling) [2024] VCC 39 (‘Reasons’).
The nature of the proposed appeal to this Court
In hearing the application under s 23A(2) of the Act, the judge was required to form a view on whether it was ‘just and reasonable’ to extend time having regard to ‘all the circumstances of the case’ including but not limited to a number of specified factors.[4]
[4]The Act, s 23A(3).
This Court has decided that, unless or until the High Court determines to the contrary, authority compels a conclusion that a decision on whether it is just and reasonable to extend time involves the exercise of a discretion, and accordingly that a person seeking to have such a decision set aside on appeal must establish specific error or that the decision was plainly wrong, unreasonable or unjust.[5] Both parties accepted that this was the proper test, and we approach this application on that basis.
[5]That is, the applicable standard of appellate review is that set out in House v The King (1936) 55 CLR 499. See also and particularly Waldron v O’Callaghan [2024] VSCA 196, [42]–[44] (Ferguson CJ, Macaulay JA and Tsalamandris AJA). That decision concerned an application under s 27K and not s 23A of the Act. However, both sections empower a judge to extend time if it is just and reasonable to do so and refer to a non-exhaustive list of circumstances that the Court should have regard to.
By challenging, as errors of law, three conclusions used by the judge as considerations in his overall determination not to exercise the discretion to extend time, Mr Basile must be taken to be contending that the judge made specific errors — that is, either that the judge made findings of fact that were not open on the evidence, or applied incorrect legal principles in making those findings.
In that context, however, we note that, among other things, the judge concluded that, having regard to the state of the evidence, ‘an acceptably fair trial is no longer possible’.[6] Mr Basile challenges that conclusion in this appeal. The question whether a proceeding is so unfair that permitting it to go to trial would be ‘irreconcilable with the administration of justice through the operation of the adversarial system’, and thus would be an abuse of process justifying its permanent stay, can have only one legally correct answer.[7] If, by saying that an ‘acceptably fair trial’ was no longer possible, the judge was intending to convey that any trial would be an abuse of process, even if the proceeding was commenced within the limitation period, that conclusion alone would determine the application for an extension of time. Further, the question on appeal would be whether that assessment was correct,[8] not whether it was attended with specific error or was plainly wrong, unreasonable or unjust. But the judge was not determining whether there should be a permanent stay, and we do not interpret his Honour’s statement as if he were purporting to do so.
[6]Reasons, [133].
[7]GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635, 638 [3], 641–2 [15], 642–3 [17] (Kiefel CJ, Gageler and Jagot JJ), 663–4 [95] (Steward J), 678 [161] (Gleeson J); [2023] HCA 32 (‘GLJ’); Willmot v State of Queensland [2024] HCA 42, [17] (Gageler CJ, Gordon, Jagot and Beech-Jones JJ) (‘Willmot’).
[8]See, eg, Warren v Coombes (1979) 142 CLR 531, 552 (Gibbs ACJ, Jacobs and Murphy JJ); [1979] HCA 9; Fox v Percy (2003) 214 CLR 118, 127 [27] (Gleeson CJ, Gummow and Kirby JJ); [2003] HCA 22; Lee v Lee (2019) 266 CLR 129, 148 [55] (Bell, Gageler, Nettle and Edelman JJ); [2019] HCA 28.
The phrase ‘acceptably fair’ was used in submissions when the principle being discussed was that a party is not entitled to a ‘perfect’ trial,[9] and his Honour’s use of that phrase must be seen in that context. His Honour was considering whether an extension should be granted to permit a proceeding to be commenced that was otherwise out of time. That required his Honour to have regard to ‘the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant’.[10] Accordingly, the judge was required to evaluate the extent to which the trial would be unfair, and thus cause prejudice, to Mr Pugh, and then to synthesise that degree of unfairness or prejudice with other relevant factors in order to determine whether it was ‘just and reasonable’ in all the circumstances to extend time.
[9]Holt v Wynter (2009) 49 NSWLR 128, 142 [79] (Priestley JA); [2000] NSWCA 143; Moubarak v Holt (2019) 100 NSWLR 218, 238 [89], 240 [96] (Bell P); [2019] NSWCA 102; WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (No 2) [2020] VSC 639, [94], [204] (Keogh J).
[10]The Act, s 23A(3)(b).
As the High Court pointed out in Prince Alfred College Inc v ADC,[11] ‘the purpose of the discretion [to extend time] is to ensure a fair trial on the merits of the case’, and the ‘loss of evidence which will tend against the prospects of a fair trial will usually be a fatal deficit in an argument that good reason has been shown to exercise the discretion to grant an extension’.[12] Here, the judge was not assessing whether, or concluding that, the unfairness had reached a point at which the proceeding would amount to an abuse of process in the sense described above as in GLJ and Willmot. The judge instead used a comparative phrase to describe the predicted quality of the trial. He used that description to emphasise his view that there was real and significant prejudice to Mr Pugh if the trial were to go ahead, which had to be given real weight when determining whether it was just and reasonable to extend time.
[11](2016) 258 CLR 134; [2016] HCA 37.
[12]Ibid 165 [100] (French CJ, Kiefel, Bell, Keane and Nettle JJ).
Background
As noted above, the accident took place on 6 November 1998. Mr Basile was then 20 years old. He was taken to the Austin Hospital where fractures to his left tibia and fibula were found and operated on including by internal fixation. The metalwork was removed from his left leg about a year after the accident. He was also found to have an open wound over and deformity of the right ankle. That wound communicated with the ankle joint, bare bone was ‘on view’, and there were pieces of detached articular cartilage but no fractures. Mr Basile says that although he continued to have symptoms, he ‘was able to function at work, recreationally and domestically’.
Mr Basile sought legal advice in relation to the damage to his motorcycle, and on 26 February 1999, his then solicitors, Russo Pellicano Carlei, wrote a letter of demand to Mr Pugh. Mr Basile said that the money demanded was paid.
Three years later, in 2001, Mr Basile injured his back at work. He underwent a right L4 hemi-laminectomy. He engaged both Maurice Blackburn Cashman (as they were then) and then Ryan Carlisle Thomas to act for him. On 7 October 2003, Maurice Blackburn Cashman wrote a letter to Mr Basile in respect to a claim for a no-fault impairment benefit. On 5 September 2005, Ryan Carlisle Thomas wrote to him confirming that he had settled his claim for $110,000 for pain and suffering damages only and on terms that his claim for compensation in the form of weekly payments be dismissed. The files of Maurice Blackburn Cashman and Ryan Carlisle Thomas have otherwise both been destroyed, or, at least, cannot be located.
Seventeen years later, in October 2018, Mr Basile saw his general practitioner for problems associated with his right ankle. He was referred to the orthopaedic surgeon Mr Andrei Cornoiu. According to the history taken by Mr Cornoiu in October 2018, Mr Basile had had ‘ongoing problems’ with his right ankle since the accident and ‘increasing levels of pain over the last couple of years’. Mr Cornoiu informed Mr Basile that he had post-traumatic osteoarthritis in his right ankle and that his ‘end point in terms of surgery would be an ankle arthrodesis’ but that he was ‘not at that point yet’. Mr Cornoiu performed an arthroscopy in March 2019 that revealed ‘quite a lot of ankle osteoarthritis’. In December 2019, Mr Basile had a cortisone injection that initially worked ‘amazingly well’. By early February 2021, there had been a deterioration. On 3 February 2021, Mr Cornoiu recorded Mr Basile complaining of issues, presumably pain, that he described as ‘7 8/10 on a daily basis’. By the middle of that year, Mr Basile had decided to undergo an arthrodesis, and that operation was performed in August 2021.
According to Mr William Edwards, an orthopaedic surgeon who assessed Mr Basile at the request of his solicitors, Mr Basile told him in February 2022 that ‘over the ten or fifteen years after the injury the right side became increasingly problematic, most notably with pain’, and that he saw Mr Cornoiu in 2018 because ‘the pain had become unbearable’.
Mr Basile first sought legal advice in relation to the injuries sustained in the accident on 30 April 2021. His current solicitors, Arnold Thomas & Becker, wrote to the TAC on 6 May 2021 advising that they intended to lodge a serious injury application, and on 7 May 2021 they filed an originating motion in which leave was sought to commence proceedings for the recovery of damages. The originating motion also sought an extension of time. It was sent to the TAC on 18 May 2021. It was not accompanied by any affidavit material. The TAC contended that Mr Basile should have made an application to it for its consent to the commencement of proceedings for the recovery of damages before filing his originating motion. On 22 May 2022, Mr Basile made an application to the TAC for its consent to his bringing a proceeding for the recovery of damages. On 16 September 2022, the TAC, satisfied that the injury to Mr Basile’s right ankle was a ‘serious injury’, consented to his bringing a proceeding for the recovery of damages.[13] The originating motion, no longer needed, was dismissed by consent. On 23 November 2022, Mr Basile filed a writ in the County Court of Victoria.
[13]In Victoria, a person is unable to commence a proceeding to recover damages for injury suffered in a transport accident unless they have a ‘serious injury’, which is a defined term. If the TAC is satisfied that the injury is a serious injury, it may issue a certificate consenting to the bringing of proceedings. If the TAC is not satisfied that the injury is a serious injury, the person may apply to the Court for leave to bring the proceedings. The Court must not give leave unless it is satisfied that the injury is a serious injury. See Transport Accident Act 1986, ss 93(1)–(2), (4), (17).
In his defence, Mr Pugh denied negligence and, in the event that he was found to be negligent, alleged contributory negligence. As noted above, Mr Pugh also relied on the expiration of the six-year limitation period, and so Mr Basile filed a summons seeking an extension of time. Mr Basile swore, as an explanation for his delay, that he was not aware of the existence of the six-year limitation period, that he did not believe that the injury to his right ankle was ‘serious’ until 2021, and that he only sought legal advice when he was told that he needed an arthrodesis.
Mr Basile’s summons was heard over two days in October and December 2023. Mr Basile, as well as adopting his affidavits, gave oral evidence and was cross‑examined. His explanation for the delay was challenged. It was suggested that his ankle had been causing him real problems from at least the time he saw Mr Cornoiu in 2018, and his claimed lack of awareness of the limitation period was explored by questions directed at his earlier engagement of Maurice Blackburn Cashman and Ryan Carlisle in respect to his back injury. It was also suggested that he knew and was able, as his past experience indicated, to seek legal advice if he wished to pursue a claim for damages.
The reasons of the County Court judge
The judge set out the circumstances of the accident including the competing versions as to how it took place, the legal principles, and the parties’ contentions. It is not submitted that his Honour erred in his recitation of the facts or the legal principles or the parties’ contentions.
His Honour noted that it was not disputed that, because of the collision: Mr Basile suffered a right ankle injury; that it deteriorated with time; and, by October 2018, it impacted his social and recreational activities requiring him to obtain specialist orthopaedic advice. The advice was that he would eventually require ankle arthrodesis.
His Honour said that although Mr Basile was not a dishonest witness, his oral evidence was ‘vague, lacked clarity and on several important issues was at best confused and at worst, was unreliable’.[14] The judge’s assessment was that Mr Basile had ‘a general belief about various events, including the collision, but very little accurate or reliable recall of events’ and that there was ‘a sense that some of it had been reconstructed based on beliefs that he held, which were not borne out by the objective evidence’.[15] His Honour stated that Mr Basile’s evidence that he was unaware of the concept of a claim for negligence or ‘common law’ and of the six-year limitation period was ‘hard to accept’, but, ultimately, that ‘not much turns on that’ given that Mr Basile accepted that he had the capacity to seek out personal injury lawyers for advice if he wished to do so.[16] His Honour concluded that Mr Basile had not acted reasonably by failing to seek legal advice prior to 2021 and that, ‘viewed objectively, he should have acted sooner’.[17] His Honour accepted that it was relevant that Mr Basile had put the TAC on notice of his claim in early May 2021.[18] His Honour noted that the witness named in the police report, Mr Simpson, died on 31 January 2022 without giving a statement, and that this was before Mr Basile had ‘lined up his ducks’ and given the TAC sufficient material to respond to the proposed common law claim.[19] His Honour considered that the death of Mr Simpson ‘[tended] to a conclusion’ that there was specific prejudice to Mr Pugh.[20]
[14]Reasons, [71]–[72].
[15]Ibid [74], [79].
[16]Ibid [86].
[17]Ibid [88]. See also [137].
[18]Ibid [103], [116].
[19]Ibid [117].
[20]Ibid [119].
The judge then referred to the various factors set out in s 23A of the Act. His Honour described Mr Basile’s delay as ‘inordinate’ and said that he should have sought legal advice at least in October 2018. His Honour said that the death of Mr Simpson, although not determinative, occasioned specific prejudice to Mr Pugh and compromised ‘the ability to conduct a fair trial’.[21] His Honour referred to, as further examples of specific prejudice, the fact that the police report had ‘at least one error in it’ and that the officer who completed the police report had no recollection of the incident, and that Mr Pugh’s then employer, who Mr Basile said paid for the damage to Mr Basile’s motorcycle, was 80 years old, had a poor memory and could not recall who his insurance company was.[22] His Honour noted that the various considerations were ‘not to be weighed against each other, but rather must be synthesised to arrive at a conclusion’.[23] After noting that there were ‘valid points to be made both for and against the decision to extend the limitation period’,[24] his Honour concluded:
Having synthesised all the competing considerations and circumstances, I conclude that the general and specific prejudice is such that a fair trial is unavailable to [Mr Pugh]. I further conclude that the circumstances in favour of granting an extension of time are outweighed by those against. I conclude that it is not just and reasonable to extend the period of limitation.[25]
[21]Ibid [129]–[130].
[22]Ibid [131]. See also [19].
[23]Ibid [146].
[24]Ibid [147].
[25]Ibid [148].
The alleged errors of law on the part of the County Court judge
Before addressing each of the alleged errors of law, it is appropriate to emphasise a principle that is relevant to each of them. When considering whether to extend a statutory period of limitation, the Court is starting with a claim that is prima facie prohibited. The limitation is the general rule and the extension provision is the exception.[26]
[26]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 553 (McHugh J); [1996] HCA 25 (‘Brisbane South’).
Whether or not the consequences an individual may suffer by the existence of the period of limitation amount to such injustice as to warrant an extension of that period to permit the claim to be commenced, must be evaluated by reference to the rationales for the existence of the time limit. Those rationales are described by McHugh J in Brisbane South Regional Health Authority v Taylor, after which his Honour concluded by saying that a limitation period ‘represents the legislature’s judgment that the welfare of society is best preserved by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated’.[27]
The finding that an acceptably fair trial is no longer possible
[27]Ibid.
As noted above, the judge concluded that an ‘acceptably fair trial’ was no longer possible.[28] Also as noted above, the extent to which a trial will be fair is a relevant factor in determining whether it is ‘just and reasonable’ to extend time to permit a trial to go ahead.[29] Mr Basile’s first ground of appeal was that his Honour ‘erred in law’ in making that finding or in drawing that conclusion.
[28]Reasons, [133], [148].
[29]As well as being relevant generally to the question of whether it is just and reasonable to extend time, s 23A(3)(b) of the Act requires consideration to be given to the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant, and a defendant will be prejudiced to the extent that a fair trial is not possible.
One difficulty with Mr Basile’s appeal is that, as we have noted, the judge’s statement was not a finding that the proceeding would be so unfair as to amount to an abuse of process; rather it was a comparative descriptor used to emphasise that there would be real and significant prejudice to Mr Pugh if the trial were to go ahead, which had to be weighed with the other factors in determining whether it was just and reasonable to extend time. So understood, it is difficult to establish that the assessment was a product of appellable error. The argument must ultimately be that his Honour’s assessment of the level of prejudice was plainly wrong, unreasonable or unjust or, in other words, not open.[30] In order to evaluate whether this is so, it is necessary to say something more about the issues that would arise in any trial, and the extent to which evidence on which the parties might rely is, or is not, now available.
[30]A conclusion than an assessment or finding is not open carries with it, implicitly, a finding that some error or principle took place in the forming of that assessment or the making of that finding — see, eg, Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353, 360 (Dixon J); [1949] HCA 26.
The parties both say that the accident took place in the afternoon of 6 November 1998 on Douglas Street in Rosanna, that Mr Basile was on a motorcycle driving in a westerly direction along Douglas Street, and that Mr Pugh was driving a car. Other than that, however, their recollections of the accident are irreconcilable:
(a)Mr Basile asserts that Mr Pugh reversed his car from a driveway into Mr Basile’s path without keeping a proper lookout. Mr Basile says that he was travelling ‘well within the speed limit’, which he believes was 50 km/h at the time, and that he had ‘nowhere to go’ to avoid the collision. In his oral evidence before the County Court judge, he stated that, because there were ‘two cars parked alongside, I couldn’t even manoeuvre around the car’. On Mr Basile’s version of events, Mr Pugh would be found negligent, and Mr Basile would probably not be found to have been contributorily negligent.
(b)Mr Pugh, however, denies that he was reversing out of a driveway. He says that he was driving forwards along Douglas Street in an easterly direction and turning left into a driveway when Mr Basile’s motorcycle came over the top of the hill at speed, braked suddenly, became ‘a bit erratic’ and then skidded into the driver’s side of his vehicle. This version, presumably, would have Mr Basile’s riding on the wrong side of the road at least at the time of the collision. Mr Pugh says that Mr Basile’s motorcycle left substantial skid marks on the road and that he took a photograph of them. On Mr Pugh’s version of events, he would likely be found not to have been negligent or, if he were, then there would likely be significant contributory negligence on the part of Mr Basile.
Some contemporaneous records support Mr Basile’s version of events. The ambulance report states that Mr Basile ‘struck vehicle that backed out onto road into his path’, the police report states that Mr Pugh’s vehicle was ‘reversing out of driveway’ and lists Mr Pugh as the ‘offending driver’,[31] and the hospital report states that Mr Basile’s motorbike ‘struck the rear end of a vehicle which backed out on to the road in his path’ and that the collision ‘took place at about 40KMs/hr’. Also, Mr Basile’s TAC compensation claim records his assertion that ‘a vehicle reversed out in front of me’, and Mr Basile has a copy of a letter of demand from his then lawyers sent in February 1999 to Mr Pugh in which they sought payment for the costs of repairs to Mr Basile’s motorcycle and asserted that Mr Pugh was at fault for the same reasons Mr Basile now relies on.
[31]Confusingly and inexplicably, the police report also suggests that Mr Basile was driving a motorcycle owned by Australia Post. Both parties agreed that this was not correct.
Putting to one side the admissibility of some or all of this material,[32] the sources of the information contained therein (particularly in the police and ambulance reports), and thus their accuracy, is uncertain. The police officer who completed the report has no recollection of the accident or the circumstances in which the report was completed, which is entirely understandable, and Victoria Police have stated that ‘there are no documents available for this matter due to the age of the incident’. Probably, there would have been running sheets or other notes prepared by the officer who attended that have since been destroyed. As noted above, the police report identifies a witness to the accident on the footpath nearby, Mr Simpson. Mr Simpson died on 31 January 2022 due to complications from COVID-19. His wife has since informed the TAC’s solicitor that her husband had told her that the motorcyclist was speeding prior to the collision, although there is nothing to this effect in the police report. It is certainly possible that the information in the police report or the ambulance report came from Mr Simpson, although Mr Basile said in his evidence in the County Court that there were ‘a number of people standing at the scene’, or ‘bystanders’, who may or may not have witnessed the incident.
[32]See Lithgow City Council v Jackson (2011) 244 CLR 352, 362 [18]–[19], 367 [38] (French CJ, Heydon and Bell JJ); [2011] HCA 36; Moore v Goldhagen [2024] VSCA 25 [112]–[113] (Beach, Niall JJA and J Forrest AJA); Evidence Act 2008, ss 69, 135.
The police report also indicates that there were skid marks of approximately 6 m, and is drawn as if the collision might have taken place on the wrong side of the road for Mr Basile. The position of the skid mark is at least consistent with there being some contributory negligence on the part of Mr Basile. The police report indicates that there were two parked vehicles, but does not have them in the immediate area of the collision where they would necessarily prevent Mr Basile from avoiding Mr Pugh’s car.
Other contemporaneous records are no longer available:
(a)Mr Pugh says that he took a photograph at the time of the skid marks made by Mr Basile’s motorcycle that, he says, indicated the speed at which Mr Basile was travelling. It might also indicate where on the road the skids marks were. He says that he no longer has a copy of this photograph;
(b)As noted above, Mr Basile has the February 1999 letter of demand from his then‑lawyers in which he asserted that Mr Pugh was at fault. Mr Basile says that the amount demanded was paid. Mr Basile would, presumably, seek to rely on this letter as a contemporaneous record of his version of events and the payment as an admission. He does not have any other documentation supporting his contention that Mr Pugh’s insurers paid for the damage to his motorcycle. More significantly, Mr Pugh was driving a work car and says he passed the demand to his employer, Mr Robert Tims of Bob’s Warehouse in Preston, and that he has no recollection of what happened after that. Mr Tims’ wife has stated, and there is no reason to doubt, that her husband ‘is in his 80s now’, his memory is ‘not good’, that they have ‘no further information regarding this case’ and that they ‘can’t remember the insurance company’. Accepting Mr Basile’s evidence that he received the repair costs from Mr Pugh, and Mr Pugh’s evidence that he passed the claim on to his employer, Mr Pugh is now unable to lead evidence that might explain why the money was paid, to avoid the payment being treated as an admission. It might well have been, for example, that his employer or its insurer paid the sum as a pragmatic way of avoiding litigation, rather than because they accepted that Mr Pugh was at fault.
(c)In September 1999, the TAC engaged Hardie Kerr & Associates to prepare a circumstances report. The TAC has recovered its original hard copy file. If such a report was ever obtained, it is not on the file and no copy can be located. The TAC made a payment to Hardie Kerr & Associates that was noted as being for ‘two statements’. Mr Basile said in his oral evidence below that he could not recall whether he gave a statement at the time. If such statements were obtained, they are no longer on the file and the TAC no longer has a copy of them. Hardie Kerr & Associates ceased operating in 2011. Mr Kerr has died, and his wife has said that she does not have any of its business records in her possession.
Perhaps the most significant feature is the death of the ‘independent witness’, Mr Simpson. As mentioned, it might be inferred that Mr Simpson was the source of the information contained in the police report and ambulance report. If so, there is now no way that Mr Pugh could challenge, or the Court could assess, the reliability of Mr Simpson’s observations or his credibility in particular on whether, immediately before the collision, Mr Pugh was driving forwards as he says, or backwards as Mr Basile says. Even if that inference is not drawn, the fact remains that Mr Simpson may also have been able to give evidence that supported Mr Pugh’s case about where exactly on the road the collision took place, or how fast Mr Basile was riding in the lead up to the accident (as his wife suggested was the case). That prejudice is not overcome by the fact that his wife could give hearsay evidence that Mr Simpson had said that Mr Basile had been speeding: even assuming that such evidence were admitted (and we doubt that it could survive an attack under s 135 of the Evidence Act2008) it is necessarily less persuasive than if Mr Simpson could give the evidence directly, and it still remains uncertain how fast, he could have said, Mr Basile was travelling or where on the road he was travelling.
In these circumstances, it was open to the judge below to conclude that Mr Pugh would be prejudiced by reason of the delay, to the point of unfairness, in defending any proceeding. Mr Basile will say that, 26 years ago, Mr Pugh reversed out of a driveway without taking proper care and gave him no opportunity to avoid the collision notwithstanding that he was riding well within the speed limit. He will rely on documents, prepared 26 years ago, that support, or largely support, his story. Most appear to recount only Mr Basile’s version of events. Mr Pugh, who denies being responsible for the accident but who accepts he has little recollection now of the details involved, will say that he was not reversing at all and that Mr Basile was driving too quickly and, presumably, on the wrong side of the road. Mr Pugh will not be able to produce the photograph he took of the skid marks or use them to endeavour to prove the speed at which Mr Basile was driving or the location on the road of the area where he was skidding. It seems that no one will be able to call evidence as to where any detritus was found after the accident that might shed light on where on the road the collision took place.
If admitted (either in whole or in part), the Court will have no way of knowing whether the information in the police report and then the ambulance report came from Mr Basile or from Mr Simpson or from anyone else. Mr Simpson did not provide a statement. Mr Pugh will not be able to explore with him whether Mr Basile was speeding in circumstances where there is reason to think that that is what Mr Simpson might have said. Indeed, Mr Pugh will not be able to speak to or cross-examine Mr Simpson at all, and if the information in the police report did come from him, the Court will have no way of assessing his reliability or the correctness of his version of events. He might have been looking carefully, or he might have been distracted: there is simply no way of knowing.
Further, a fair trial should be fair in relation to all significant issues that arise. Even if it could be concluded that an acceptably fair trial could be had in relation to which direction Mr Pugh was driving, it was open to the County Court judge to conclude that an acceptably fair trial could not be had having regard to the issues that would arise in assessing contributory negligence.
At its heart, the reasoning process underlying Mr Basile’s submissions is that there is a persuasive body of contemporaneous evidence that supports his case, therefore an acceptably fair trial is possible. But that does not follow. The presence of contemporaneous documents (not necessarily admissible) supporting his case does not mean here that there is no or only little unfairness: the unfairness arises because those documents exist, whereas others do not, and these surviving documents cannot now be effectively challenged in circumstances where Mr Pugh contends that their contents are erroneous.
Also, more than lip service must be paid to the observation of McHugh J in Brisbane South as to what is described as general prejudice — that is, prejudice that may exist without the parties or anyone else realising that it exists, and what has been forgotten can rarely be shown:
So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now “knowing” that it ever existed ... A verdict may appear well based on the evidence given in the proceedings but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. 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.[33]
[33]Brisbane South (1996) 186 CLR 541, 551 (McHugh J); [1996] HCA 25.
Because of the passing of more than two decades, Mr Pugh is now unable to describe to the Court carefully and accurately the events of that day — where he was going and where he had been and what he was doing, and exactly what he says happened in the accident, and what he observed of Mr Basile’s riding in terms of his speed and movements. Much detail will have been forgotten and all he could do now is speak in generalities. That, as McHugh J observed, is itself a form of prejudice.
Finally, the evaluation of fairness is to be made in the context of an application to extend a period of limitation and the rationales for the existence of that period.[34] As noted above,[35] a claim brought outside of the applicable limitation period is prima facie prohibited, reflecting the legislature’s judgment that the welfare of society is best preserved by causes of action being litigated within the applicable limitation period. That context establishes a framework within which to evaluate the fairness of a trial which will be impoverished by the unavailability of a witness, of documentary and other evidence, and loss of memory, and to weigh the strength or weakness of the tug of justice in favour of extending time. Taking that context into account makes it all the more difficult for Mr Basile to establish that it was not open to the judge to find that the trial would not be ‘acceptably fair’.
[34]A different context exists, and consequently, different considerations apply, when evaluating the potential fairness of a trial of claims that are made long after the events in question but which are prima facie permissible, such as historical child abuse cases enabled by the legislative response to the Royal Commission into Institutional Responses to Child Sexual Abuse; see Willmot [2024] HCA 42, [26]–[30] (Gageler CJ, Gordon, Jagot and Beech-Jones JJ).
[35]See [23]–[24] above.
It follows from the above that, in our view, the County Court judge was well entitled to conclude, using the words in the sense that his Honour did, that an acceptably fair trial is no longer possible in the circumstances of this case. Leave to appeal should accordingly be refused in respect of proposed ground 1.
Was it open to the judge below to conclude that Mr Basile should have acted sooner?
Mr Basile contends that the County Court judge ‘erred in law’ by concluding that ‘viewed objectively, [Mr Basile] should have acted sooner’.[36] The length and reasons for delay are factors that have to be considered when deciding whether it is just and reasonable to extend time.[37] Mr Basile’s argument in this respect focused on his evidence, said not to have been challenged, that he was unaware of the existence of the six-year limitation period until he saw his current solicitors, Arnold Thomas & Becker, on 30 April 2021.
[36]Reasons, [88].
[37]The Act, s 23A(3)(a).
A person’s knowledge or lack of knowledge of a limitation period is an important consideration when assessing the reasonableness of that person’s actions in delaying the bringing of the claim.[38] Mr Basile submitted that his Honour should have, but did not, accept his evidence that he did not know of this limitation period. He further submitted that his Honour should have, but did not, give his lack of knowledge proper consideration before his Honour could properly conclude whether, viewed objectively, Mr Basile should have acted sooner. In other words, in terms of the statute, the judge did not give proper consideration to ‘the length and reasons for the delay’.
[38]Hunt v Holcombe [2018] VSCA 248, [61] (Beach, Kaye and Niall JJA); Griffiths v Nillumbik Shire Council [2022] VSCA 212, [73] (Beach JA, Keogh and J Forrest AJJA).
In our view, this submission proceeds on a false premise. When read fairly, it is apparent that the County Court judge did, in effect, accept that Mr Basile did not (subjectively) know of the six-year limitation period, and did have regard to that fact for the purposes of determining the length and reasons for the delay, and whether Mr Basile should have ‘acted sooner’. The relevant paragraphs of his Honour’s reasons are as follows:[39]
In his oral evidence, the plaintiff maintained that he was unaware what was meant by common law, or negligence, the need for a “serious injury” to bring a claim for the collision (despite the use of the term “serious injury” in his second affidavit in a form that suggested it was used in a legal and not a lay sense), or that there was a six-year limitation period, despite the previous common law claim for his back injury.
Some of that evidence is hard to accept, but ultimately not much turns on that in an overall synthesis of all relevant matters.
During his oral evidence, he accepted that he had the capacity to seek out personal injury lawyers and to instruct them when he chose to do so in 2021 and that there was nothing that stopped him from seeking legal advice at an earlier time. Therefore, in part, a relevant consideration is his failure to seek advice by October 2018, when the objective evidence is that he then had a bad ankle problem that he was aware had been caused by the collision.
In other words, apart from accepting the inevitable need for an ankle arthrodesis in 2021, in the context of the symptoms, advice and treatment that he was having for his ankle, did he act reasonably in doing nothing in that period to seek legal advice? In my opinion, the answer to that question is ‘no’. He was a man not unfamiliar with the ability to claim compensation for injuries caused by another person, even if he did not fully appreciate the nuances of the system for bringing a claim because of a motor vehicle collision. He knew his ankle was related to the accident. He knew it was impacting his life. Viewed objectively, he should have acted sooner. His failure to act has contributed to the deterioration in the quality of the evidence available and the ability for the defendant to have a fair trial.
[39]Reasons, [85]–[88].
Although his Honour described Mr Basile’s evidence that he was not aware of the six‑year limitation period as being ‘hard to accept’, the judge then stated that ‘ultimately not much turns on that’, and then turned to Mr Basile’s capacity to obtain legal advice. It is sufficiently clear, in our view, that his Honour’s reasoning was that even assuming that Mr Basile did not know of the limitation period, he should have acted sooner by seeking legal advice. That is an appropriate path of reasoning.
Limitation periods exist and apply to persons who do not know of them. This is made clear by s 23A(e) of the Act, which contains the following consideration:
… the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
It was not in issue that Mr Basile was aware of the ‘act or omission‘ of Mr Pugh from November 1998. The question then becomes objective — did he subsequently act reasonably and promptly?
Whilst it might be accepted that he acted reasonably in not taking any steps until October 2018, once the condition of his ankle sent him to an orthopaedic surgeon (who diagnosed osteo-arthritic and degenerative changes of the right ankle and advised him of the possible need for an arthrodesis) then it was at least open to conclude that a reasonable person in his position would have taken steps and would have done so promptly. Limitation periods, by their nature, prevent persons who delay from bringing late claims, even good claims, because it is thought to be in the interests of justice generally that proceedings be commenced within the applicable period. The same policy requires that persons should seek legal advice about their ability to bring a proceeding with reasonable promptness. Mr Basile did nothing to pursue his claim until September 2021, when he saw his current solicitors. It was at least open to his Honour to conclude that this was not prompt or reasonable. Whilst it is important to assess Mr Basile’s conduct in the light of what a reasonable person in Mr Basile’s position (not a lawyer or counsel or judge) would do in the prevailing circumstances,[40] we respectfully agree with his Honour’s conclusions that Mr Basile acted neither promptly nor reasonably.
[40]Hunt v Holcombe [2018] VSCA 248, [59] (Beach, Kaye and Niall JJA).
Further, and although it is strictly not necessary for us to decide, we do not agree that Mr Basile’s evidence that he did not know of the limitation period was ‘unchallenged’, in the sense that it had for that reason to be accepted. Mr Basile was asked about a subsequent back injury he suffered in 2001 for which he made a WorkCover claim and saw personal injury solicitors Maurice Blackburn Cashman. It was suggested, and Mr Basile was unable to recall but did not deny, that Maurice Blackburn Cashman had explained what rights he had against his employer including rights at common law. Mr Basile said that he had received ‘a bunch of letters’. Counsel cross-examining called for those letters, but only one was produced. That letter was only one page and related to a medical panel evaluation. Maurice Blackburn Cashman, the judge was informed, no longer had their file and Mr Basile had not retained a copy of the correspondence. It then emerged that Maurice Blackburn Cashman had advised Mr Basile that he did not have a ‘winnable’ case, so he had gone to see Ryan Carlisle Thomas. Ryan Carlisle Thomas, too, had destroyed their file. There was a lengthy cross-examination directed at whether Mr Basile was told about, or was aware of, a right to claim damages at common law. The following exchange then took place between counsel and Mr Basile:
You say there [referring to an affidavit], ‘I did not know you had to start court proceedings arising from a road accident within six years of a motor accident.’ Did you know that there were time limits in relation to your WorkCover claim? To your work injury? --- Work claim injury. I – there may have been explained to me on that. Yeah, possibly.
So it’s possible is it – well you think, do you, that it was explained to you that there was time limits in relation to your back injury for common law? --- Look I can’t recall. I can’t recall.
In our view, Mr Basile’s assertion that he did not know about the existence of time limits for common law actions was disputed, in the sense that Mr Pugh’s counsel explored that issue. The issue was explored by counsel extracting evidence about the experienced solicitors that Mr Basile had seen for advice, asking whether that advice had covered common law actions, and then extracting that it was possible that it had included advice in relation to limitation periods. Further, Mr Pugh submitted to the judge below that Mr Basile’s evidence in relation to advice he received about time limits was ‘vague and unsatisfactory’. Suggesting that Mr Basile had been advised of the limitation period for workplace injuries was sufficient, in our view, to amount to a suggestion that he knew of the existence or possible existence of limitation periods more generally, including for transport accidents. It is difficult to see what more Mr Pugh’s counsel could have done to ‘challenge’ Mr Basile’s evidence in circumstances where the files themselves were not available and the letters of advice that were sent to Mr Basile were not produced.
For these reasons, there is no arguable basis to contend that the judge made the error of law identified in proposed ground 2, and leave to appeal should be refused in respect of that ground.
Did the ‘clock stop ticking’ when Mr Basile filed an originating motion in May 2021?
Again, Mr Basile contends that the judge made an error of law in making this conclusion. On the hearing of the application for leave to appeal, counsel for Mr Basile did not seek to explain the meaning of this proposed ground or advance it beyond what appeared in the written case. Because it was not expressly abandoned, we will deal with it briefly as best as we can.
On 7 May 2021, Mr Basile filed an originating motion by which he sought leave to commence a proceeding for the recovery of damages on the grounds that he had suffered a ‘serious injury’.[41] That proceeding was not determined because, in May 2022, Mr Basile instead applied to the TAC for its consent to his bringing a proceeding, and that consent was provided on 16 September 2022. Mr Basile contends that the judge below ‘erred in law’ by stating that ‘the proverbial clock continued to tick’ after 7 May 2021.
[41]Transport Accident Act 1986, s 93(4)(d).
When the Court is considering prejudice associated with delay for the purpose of assessing whether there can be an acceptably fair trial, it considers the time at which the proposed trial would be heard. As we see it, the judge was not referring to a clock ticking in the sense of time continuing to progress towards the expiration of a limitation period. The limitation period had expired more than 17 years earlier than the time under consideration. It is apparent that the judge was instead merely emphasising, for the purpose of evaluating prejudice, that time continued to pass. It cannot be said that his Honour failed to have regard to the fact that Mr Basile served his notice to the TAC on 7 May 2021 when exercising his discretion, because his Honour stated:
The fact that the plaintiff put the TAC on notice from early May 2021, and flagged his intention to pursue a serious injury/common law claim, is a relevant consideration in the overall synthesis of all relevant matters.[42]
[42]Reasons, [103].
For these reasons, his Honour’s statement that the clock continued to tick after 7 May 2021 was an unremarkable and correct observation and did not amount to an error of law.
Mr Basile, under this ground, also submitted that his Honour should have considered Mr Pugh (or the TAC) responsible for the inability to lead evidence from Mr Simpson, because Mr Simpson died after Mr Basile had served the originating motion on the TAC. However, the 7 May 2021 originating motion was not accompanied by an affidavit or other material, and his Honour stated:
In my view, it is relevant that by the time the plaintiff “lined up his ducks” and gave the TAC sufficient material to respond to his proposed serious injury/common law claim, [the witness] was deceased.[43]
[43]Ibid [117].
It is apparent, then, that the County Court judge turned his mind to whether in the circumstances the TAC should have obtained a statement from Mr Simpson before he died and in that way be held responsible (at least in part) for any inability to call evidence from him. But he did not consider that to be the case. In circumstances where the TAC had little or no involvement with Mr Basile’s claim since 1999; had archived its file; was only told of Mr Basile’s intention to seek damages in May 2021; was not provided with an affidavit from Mr Basile setting out how he said the accident occurred until 17 May 2022; was not provided with a copy of the police report until 17 May 2022; and Mr Simpson died on 31 January 2022 — that was a conclusion well open to his Honour.
In our view, there is no merit to proposed ground 3.
Disposition
We are not satisfied that it is reasonably arguable that the primary judge made a relevant specific error or that his Honour’s conclusions were plainly wrong, unreasonable or unjust. The application for leave to appeal will be dismissed.
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