Coal & Allied Operations Pty Ltd t/as Hunter Valley Operations (Howick Mine) v Stringer

NEW SOUTH WALES COURT OF APPEAL

CITATION: Coal & Allied Operations Pty Ltd t/as Hunter Valley Operations (Howick Mine) v Stringer [2003] NSWCA 271

FILE NUMBER(S):
40275/03

HEARING DATE(S): 26/09/2003

JUDGMENT DATE: 08/10/2003

PARTIES:
Coal & Allied Operations Pty Ltd t/as Hunter Valley Operations (Howick Mine)
Stringer

JUDGMENT OF: Hodgson JA Ipp JA Foster AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 520/02

LOWER COURT JUDICIAL OFFICER: Sidis DCJ

COUNSEL:
Mr G. McNally - Applicant
Mr R. Tregenza/J. Baxter - Respondent

SOLICITORS:
Colin Biggers & Paisley - Applicant
Bale Boshev - Respondent

CATCHWORDS:
Extension of time for bringing of action.

LEGISLATION CITED:
s 60E(1(c)-(g) Limitation Act 1969
Workers' Compensation Act 1987

DECISION:
Application for leave be dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA40275/03
DC    520/02
HODGSON JA
  IPP JA
  FOSTER AJA

WEDNESDAY, 8 OCTOBER 2003

COAL & ALLIED OPERATIONS PTY LTD t/as HUNTER VALLEY OPERATIONS (HOWICK MINE) v SHANNON JOSEPH STRINGER

Judgment

HODGSON JA: I agree with the orders proposed by Foster AJA and his reasons. I would add a few comments of my own.
The question to be determined in cases such as this is whether an applicant has shown that it is “just and reasonable” to grant the extension of time (Limitation Act 1969 s.60C), having regard to criteria set out in s.60E of that Act.
It is generally a necessary step, in showing that it is just and reasonable to grant an extension, for the applicant to give an explanation as to why the proceedings were not commenced within time; and it is generally necessary that the court assess that explanation as satisfactory in all the circumstances. However, this is but one of a number of factors to be taken into account by the court in deciding the essential question before it, namely whether it is just and reasonable to grant the extension.
Itek Graphix Pty. Ltd. v. Elliott (2002) 54 NSWLR 207 shows that a deliberate and informed decision to allow a limitation period to expire is a powerful and sometimes decisive consideration against the grant of an extension of time; and even if there is no prejudice to the prospective defendant, this may be enough to prevent an applicant showing that it is just and reasonable to grant an extension, particularly if the decision was made for tactical reasons. In my opinion also, carelessness of an applicant in allowing a limitation period to expire may be a strong and sometimes decisive consideration against the grant of an extension.
However, these can be matters of degree: some decisions are more deliberate and better informed than others, and there are degrees of carelessness. Sometimes, factors favouring the granting of an extension may be sufficient, even where there has been a decision to let a limitation period expire or some carelessness, to justify a conclusion that it is just and reasonable to grant the extension. Where the effective decision or carelessness was that of an applicant’s solicitor, rather than the applicant personally, this will not prevent these matters weighing against the grant of an extension; but it will in my opinion mean they have less weight than if the effective decision or carelessness was that of the applicant personally.
As stated by Foster AJA, the explanation given by the applicant in this case (the opponent before this Court) was less complete than it could have been. The opponent’s original solicitor Mr. Hart gave evidence, but did not give his account as to how Priority Legal Services came to take over the opponent’s case. The opponent did not specify when and in what context he was told that common law proceedings had “no chance”. However, this is not a case like ASB-Tech Services Pty. Ltd. v. Doeland [2003] NSWCA 167, where the court was left without an explanation of why proceedings were not commenced; and particularly in circumstances where these shortcomings were not relied on before the primary judge, in my opinion the opponent did sufficiently explain to the court why proceedings were not commenced within the limitation period. In my opinion, it is clear enough that no decision was taken prior to the involvement of Priority Legal Services as to what proceedings to take, and common law proceedings were not commenced during their involvement because of their advice that such proceedings had no chance.
Ipp JA has expressed the view that “it is not open, on the evidence, to infer that the explanation is that the opponent was told at some time before 7 August 2001 that he had no chance of succeeding in his claim against the claimant”. If that point had been taken below, and if the opponent had not then sought leave to lead evidence as to the time he was told he had no chance, I would have agreed with Ipp JA. However, that point was not taken below, and in my opinion, conformably with Sutton v. Gundowda Pty. Ltd. (1950) 51 CLR 418, it cannot be taken now.
Ipp JA also says that the decision to allow the limitation period was not taken less deliberately because of conflicting legal advice, because the opponent was not a person of high intellect (as submitted by his counsel) or because he had difficulty in coping with all the doctors and lawyers he saw. These matters are said not to be relevant to “this issue”, although they might be relevant to whether it was just and reasonable to grant leave. In my opinion, there is strictly only one issue in cases such as this, namely the “just and reasonable” issue; and while the deliberateness or otherwise of the decision is an important factor (and could loosely be called an issue, as indeed the primary judge called it at one point), it is not strictly an issue in the case.
Ipp JA says that Sidis DCJ was in error in holding that conflicting legal advice was the reason for the delay on the part of the opponent, that the opponent’s decision to allow the limitation period to expire was not a deliberate and informed one, and that the opponent gave a satisfactory explanation for the delay.
I do not read the judgment as containing findings to that effect. Certainly, the primary judge held that the opponent had conflicting legal advice, and that the case was distinguishable from Itek, where an applicant made a deliberate decision with the guidance of her legal advisers and, fully aware of what was happening, tried to take full advantage of both avenues of redress that might be open. In my opinion, the primary judge was correct on these matters. She did not explicitly reach a final conclusion on whether conflicting legal advice was the only reason for delay, or whether the opponent’s decision could be characterised with the phrase “deliberate and informed”, or whether the explanation could be characterised as “satisfactory”. I do not think she had to express final conclusions in those terms: what she had to do was to decide whether it was just and reasonable to grant an extension of time, and to adequately expose her reasons for doing so. In my opinion, she did this.
It may well have been open to the primary judge to refuse an extension of time, because of the circumstances in which no action was taken before expiry of the limitation period. But in my opinion it was also open to her to take the contrary view, and there is no error in the way in which she addressed the question such as would justify appellate intervention.
IPP JA: I have had the benefit of reading the reasons to be published of Hodgson JA and Foster AJA.
The claimant submitted that Sidis DCJ erred in holding that:
(a)Conflicting legal advice was the reason for the delay on the part of the opponent.
(b)The choice made by the opponent to allow the limitation period to expire was not a deliberate and informed one.
(c)The opponent had given a satisfactory explanation for the delay.
The relevant facts are not complex.
As Foster AJA points out, the opponent consulted Mr Hart of the “first solicitors” on 30 March 1999 when Mr Hart advised him that he had a cause of action in negligence against the claimant. Mr Hart also then told the opponent that he would have to commence any action against the claimant by 7 August 2001, otherwise his claim would be time barred.
In May 1999 the opponent changed solicitors to the firm described as “Priority Legal Services”. At some time which, the opponent does not reveal, Priority Legal Services told him that he had “no chance” of succeeding in a common law claim against the claimant. He accepted that advice.
Later, the opponent fell out with Priority Legal Services and, on 14 June 2002, decided to go back to the first solicitors, who, in the person of Mr Hart, commenced to act for him again. Mr Hart advised the opponent to commence proceedings against the claimant; hence the application for an extension of time which came before Sidis DCJ.
The onus was on the opponent to provide an explanation for his failure to commence proceedings before the expiry of the limitation period. In my view, it is not open, on the evidence, to infer that the explanation is that the opponent was told at some time before 7 August 2001 that he had no chance of succeeding in his claim against the claimant. The simple fact is that the opponent mentioned other relevant dates in his evidence but omitted to specify the date on which he was given this piece of crucial information. In my view, it is not possible to infer, on a balance of probabilities, that the opponent received this pessimistic advice before the expiry of the limitation period.
If, contrary to my view, it is open on the evidence to infer that this advice was received before the expiry of the limitation period, the compelling inference is that the opponent relied on that advice, not that he was confused by it. Indeed, if the advice was received after the expiry of the limitation period, the inference is that the opponent allowed the limitation period to pass (at least until the advice was given), careless of his own rights.
Whatever the position may be as to the date when the opponent received the advice, there can be no doubt that he took a deliberate decision to allow the limitation period to expire. No one but he took that decision, and it was taken by him in a fully informed state. He knew of his right to sue the claimant and he knew what consequences would follow if he did not take action by 7 August 2001.
The fact that the opponent changed his solicitors and got different advice as to the prospects of success from the different solicitors is not material to the quality of deliberateness involved. I can see no difference between that situation and the case where a potential plaintiff takes the advice of his solicitor to allow a limitation period to expire on the ground that his claim is hopeless and then, at a later date, when his solicitor forms a different opinion, he attempts to commence proceedings out of time. In both instances there has been a deliberate decision to allow the limitation period to expire. The fact that a potential plaintiff decides to allow a limitation period to expire because he receives legal advice may bear on whether it is just and reasonable to grant leave to sue out of time, but it has nothing to do with the deliberate nature of the decision.
The opponent’s decision to allow the limitation period to expire was also not taken less deliberately because he was not a person of high intellect (as was submitted by his counsel) or because he had difficulty in coping with all the doctors and lawyers he was required to see (again, as was submitted by his counsel). These matters are not relevant to this issue (although they may be relevant to whether it is just and reasonable to grant leave).
In the present case, Sidis DCJ held that conflicting legal advice was the reason for the delay on the part of the opponent. She said that the opponent “appears not to have been well served by the legal profession, in that he has received conflicting advice”.
The evidence does not establish that any “conflict,” as such, caused the opponent not to take action prior to the expiry of the limitation period.
Moreover, there is nothing in the evidence to prove that the opponent was not well served by the legal profession. The opponent provided very little evidence of the conduct of the claimant that, on his case, warrants bringing an action against it for negligence. There is a considerable body of evidence that goes to the injuries suffered by the claimant but the evidence as to liability is sparse indeed. There is nothing to show that the advice given by Priority Legal Services was wrong, let alone negligent. Whether new facts have been discovered explaining the views of Mr Hart is simply not revealed, nor is there evidence to explain why Mr Hart was of a different view to Priority Legal Services.
Thus, as in Russo v Aiello [2003] HCA 53, we are “not concerned with the possible significance of incompetent or inadequate legal advice, or lack of awareness of the time limits on making a claim” (per Gleeson CJ at [6].
The opponent failed to specify when he was told that he had no chance of success in a claim against the claimant, and whether he was given that advice before or after the expiry of the limitation period. He failed to give a direct and detailed explanation for the delay in commencing proceedings. He failed to give any explanation for the different views of Mr Hart and Priority Legal Services and failed to provide adequate evidence of his case against the claimant.
I would, therefore, uphold the claimant’s submission that Sidis DCJ erred in holding that conflicting legal advice was the reason for the opponent’s delay, that the opponent’s decision to allow the limitation period to expire was not a deliberate and informed one and that the opponent gave a satisfactory explanation for the delay.
It is then necessary to exercise afresh discretion as to whether leave should be granted to commence proceedings out of time.
Section 60E(1) of the Limitation Act 1969 relevantly provides:
(1)          In exercising the powers conferred on it by section 60C or 60D, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following:
(a)          the length of and reasons for the delay,
(b)the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available,
(c)the time at which the injury became known to the plaintiff,
(d)the time at which the nature and extent of the injury became known to the plaintiff,
(e)the time at which the plaintiff became aware of a connection between the injury and the defendant’s act or omission,
(f)           … ,
(g)the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received,
(h)          the extent of the plaintiff’s injury or loss”.
The matters referred to in s 60E(1) that favour the grant of leave are the following:
(a)The delay in commencing proceedings was some six to seven months – not a severe delay.
(b) The claimant is not prejudiced by the delay.
(c)The extent of the opponent’s loss may be described as potentially serious.
(d) The opponent took medical advice at an early stage.
There are certain other matters to which I should refer at this stage.
(a)I have expressed the view that it is not open to infer that the opponent was told before the expiry of the limitation period that he would have no chance of success in suing the claimant. If I am wrong in this, then the fact that, prior to the expiry of the limitation period, the opponent was told by his lawyer, in effect, that he should not sue the claimant is a factor supporting the grant of leave (not because the quality of deliberateness is affected, but because reliance on the solicitor may demonstrate that there was no lack of diligence on his part).
(b)Any support that might be derived (on the basis set out in (a)) from the fact that the opponent acted on legal advice, is diminished by the omission on the part of the opponent to give any explanation for the differing views of those solicitors who acted for him.
(c)The fact that the opponent might not have been a person of high intellect or sophistication is of limited relevance (that is, to the extent that that fact, if it be one, is used to explain his reliance on legal advice). A layman, irrespective of his degree of education and sophistication, will usually follow the professional advice of the lawyer retained by him. Moreover, the effect of legal advice will be rendered more cogent if the court is allowed to understand the basis for the giving of it (not something done in this case).
The matters referred to in s 60E(1) that militate against the grant of leave are the following:
(a)The opponent decided deliberately, on the basis of legal advice (not shown to be wrong), to allow the limitation period to expire.
(b)The opponent has failed to give a full and satisfactory explanation for the delay.
(c)The opponent knew more than two years before the expiry of the limitation period of the nature and extent of the injury.
(d)The opponent knew more than two years before the expiry of the limitation period of a connection between the injury and a possible negligent act or omission on the part of the claimant.
In my judgment in Itek Graphix Pty Limited v Elliott (2002) 54 NSWLR 207 (with which Spigelman CJ and Sheller JA agreed) I said at 224 to 225:
“[T]he general question that has to be asked is what is fair and just (per Gleeson CJ in Salido v Nominal Defendant (1993) 32 NSWLR 524 at 532). Or what does the justice of the case require (per McHugh J in Brisbane South Regional Health Authority vTaylor (1996) 186 CLR 541 at 554). In answering such a question, the justice of the case must be evaluated by reference to the rationales of the limitation period that has barred the action, including the four rationales to which McHugh referred.
…
I have pointed out that the justice of the case is to be determined by its own individual circumstances. Often, a failure satisfactorily to explain the delay will not be decisive. Ordinarily, the issue of prejudice will be of paramount importance … Nevertheless, the justice of the case may be such that the failure to explain the delay and to prosecute the case with the requisite diligence will result in an extension of time being refused.
The rule that an applicant, who applies for leave to bring proceedings after a limitation has expired, must provide a reasonable explanation for the delay (and show that there has not been an absence of diligence on his or her part) forms part of limitation legislation throughout the country and, independently, has long been recognised by the courts …
The reason for this requirement is not hard to understand. A limitation provision is an expression of intent by Parliament that persons who wish to sue must do so within the stipulated time unless circumstances exist entitling them to obtain leave. A limitation provision is the general rule and an extension is the exception. In obtaining leave, a party is in effect obtaining an indulgence. To allow parties leave, when they have been careless of their rights and careless of the need to proceed with their disputes within the limitation period, would, ordinarily, be contrary to the justice of the case and would subvert the intent of Parliament. …
A deliberate decision to allow a statutory limitation period to expire would be a powerful factor against the grant of leave. Where a deliberate decision to allow the period to expire has been made, ordinarily it will be difficult to provide an explanation for that decision sufficiently cogent to warrant the grant of leave. There is ample authority to this effect. I have already referred to Gallo vDawson (1990) 93 ALR 479. I shall give other examples…”.

I accept that acting on legal advice in letting a limitation period expire may be a significant factor in granting leave to commence proceedings out of time. But that would require, at least, evidence that the advice was misguided, or proof that new evidence has been discovered, or (subject to all relevant facts being disclosed) perhaps that the applicant for leave acted with due diligence and is not personally to blame for the delay (the significance of such a factor arising, it may be, by reason of s 60E(1)(g)). But the opponent did not approach the matter on this basis and the evidentiary foundation for it was not established.
Generally speaking (in the light of the rationales of limitation statutes as explained by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 554), where a party has made a deliberate and informed decision on legal advice to allow a limitation period to expire, broad considerations of justice do not require time to be extended simply because the lawyer changes his mind or a new lawyer gives different advice – even when no actual prejudice has been proved. In my view, ordinarily, something more must be shown to warrant a grant of leave.
Here we have a case where, in reality, the only explanation for the delay is that the opponent has gone to a new lawyer after the limitation period has expired and this lawyer has told him that, notwithstanding the advice given by his previous lawyer, he should commence proceedings out of time. There is nothing to suggest that the opponent’s case is less hopeless than the view expressed by his previous lawyer. There is nothing to suggest that proceeding with the action will not cause irrecoverable costs to be incurred and the time of the claimant and the courts to be wasted. The opponent has not been frank with the court in his explanations. These matters cause me to conclude that it would be unjust to grant leave.
I would uphold the appeal with costs, set aside the decision of Sidis DCJ and refuse the opponent leave to commence proceedings against the opponent out of time.
FOSTER AJA: This is an application for leave to appeal and, if granted, to appeal from the decision of Sidis DCJ, given on 7 February 2003, extending the time for bringing action by the opponent, Shannon Joseph Stringer (“Mr Stringer”) against the claimant, Coal and Allied Operations Pty Limited t/as Hunter Valley Operations (Howick Mine) (“Howick”). The opponent has sought to claim damages from the claimant as a result of an accident suffered by him on premises occupied by the claimant. Mr Stringer was employed to work in those premises by another company. His accident, however, was allegedly occasioned by his slipping and twisting his back as a result of the muddy and slippery surface of his workplace in the claimant’s premises. No issue was raised before her Honour, nor in this application, as to the viability of the action he seeks to bring against Howick, as occupier of the premises.
The accident occurred on 7 August 1998. The application to extend time for the bringing of the action was brought in June 2002, the relevant limitation period having expired on 7 August 2001. There was no claim made in the proceedings before her Honour, nor in this application, that the claimant, Howick had suffered any actual prejudice as a result of the expiry of the limitation period. Nor could any significant presumptive prejudice be pointed to, the application having been brought within ten months of the expiry of the limitation period. Her Honour noted, in this regard, that “there is no actual prejudice to the defendant and there is no suggestion on the part of the defendant that it would not be able to secure a fair hearing of the issues between it and the applicant.”
The opponent, who was twenty-seven years old at the time of the accident, received severe back injuries which, apparently, have had a significantly disabling effect upon him and greatly impaired his enjoyment of life. He claims to have suffered a total loss of his ability to work. His claim is, quite obviously, a large one.
His affidavit evidence, read before her Honour, indicates a limited educational history and a fairly patchy work history up till the time of his accident. He changed his job many times after leaving High School in Year 11. Although her Honour, in her judgment, does not refer to the opponent’s post accident history, it is apparent, from the unchallenged evidence in his affidavit and that of his mother, which were before her Honour, that Mr Stringer has had a very difficult medical and personal history since the accident. He has been hospitalised on a large number of occasions because of problems resulting from his back injury and he has suffered from significant depression at times.
He consulted solicitors (“the first solicitors”) on 30 March 1999, at which time he was advised that he had a cause of action in negligence against both Howick, as occupier of the premises in which he suffered his accident, and also against the company that employed him. It was also made known to him that he would have to commence any action he brought by 7 August 2001.
However, in May 1999, for reasons which are somewhat obscure on the evidence before her Honour but which, obviously, she found reflected no fault on his part, he was induced to change solicitors to a firm described as “Priority Legal Services”. He was advised by a solicitor in that firm, that he had “no chance” of winning a claim in negligence against the present claimant, Howick. The evidence does not make it clear when he received this advice, but it would appear that he signed an authority for the commencement of proceedings to obtain on his behalf Workers Compensation payments, which was brought by July 1999. It is regrettable that this matter was not dealt with precisely in his affidavit but there would be no difficulty in inferring that he would have received the advice against the commencement of Common Law proceedings before proceedings were commenced to obtain relevant payments under the Workers Compensation Act. These included proceedings to obtain lump sum payments of compensation under s 66 and s 69 of that Act.
A chronology, compiled from the correspondence between himself and Priority Legal Services, which was before the learned primary judge, shows that arrangements were made, on a fairly regular basis, for medical examinations to be conducted in relation to the Workers Compensation proceedings. It also indicates the occurrence of the following events. On 1 December 1999 the opponent moved to Queensland in order to be with his parents. The affidavit of his mother, based upon her personal observations of her son, indicates that at that time and thereafter he was in a poor physical, mental and emotional condition and, so far as any action in respect of his injuries was concerned, was following the direction of Priority Legal Services. On 18 September 2000 he was advised that they were making an application for a Conciliation Conference on his behalf which, he was advised, on 16 October, was to be held in Newcastle on 21 November. On 15 November, however, he was advised that the relevant Conciliator was not prepared to undertake conciliation as Mr Stringer’s medical condition had not stabilised.
The evidence before her Honour further indicated that, after attendance for a further medical examination, the opponent authorised his solicitors to make offers totalling $71,300.00 to settle his s 66 and s 67 claims under the Workers Compensation Act. The limitation period had expired on 7 August 2001 without comment from the solicitors, which was understandable, no doubt, in view of the fact that they had advised him that he had no case at common law. An Application for Determination in the Workers Compensation Commission was filed on his behalf on 18 December 2001. Thereafter he was advised, on 14 January 2002, that it was anticipated that a hearing of his claim could take place in eight to ten months’ time. In that context, he received an offer, through his solicitors, for a settlement of his claim for $17,675.00, which he was advised to reject. In April 2002 further medical examinations were arranged which, apparently, led to his solicitors indicating to the Workers Compensation insurer that they were not then in a position to put a settlement proposal, it being necessary that there be a further consultation with an orthopaedic surgeon in June.
Mr Stringer deposes that, on 14 June 2002, he decided to make contact with the first solicitors, who then commenced to act for him again. He received advice, from Mr Hart of the first solicitors, to make the application, which came before her Honour.
Mr Stringer was cross-examined upon his affidavit. He affirmed that when he saw Mr Hart on 30 March 1999, he was aware that his injuries were incurred as a result of his accident and that they were occasioned by problems associated with the condition of his workplace. He agreed that he had been advised that he had a cause of action against both his employer and Howick and that any action had to be brought before 7 August 2001.
He agreed that on or about 23 May 1999, about six or seven weeks after seeing Mr Hart, he was visited by Mr Ryan, of Priority Legal Services, at his home in Branxton. He had never met Mr Ryan before and that he “came out of the blue”. Mr Ryan told him that he had seen Mr Hart and that he was to take over the opponent’s case. At his request, Mr Stringer signed an authority document to that effect. He did not make contact with Mr Hart in relation to this change of solicitors to Mr Ryan’s organisation. He agreed that this change was a matter he decided for himself but that in the year 2002 he became dissatisfied with Priority Legal Services and decided that he would again make contact with Mr Hart.
Her Honour, in what appears to be an ex tempore judgment following immediately upon the taking of evidence and the hearing of addresses, referred to the fact that the application was brought under s 60C of the Limitations Act 1969 and that there was no issue of actual prejudice to the claimant in respect of the delay. She noted that the period of delay was “relatively short”. She had regard to the criteria set out in s 60E of the Limitation Act. She noted that paragraphs (c), (d), (e) and (f) did not raise “any issues contrary to the defendant which assist the plaintiff” in that “the plaintiff conceded that he knew from the time of the injury of its nature and extent and its connection to the defendant’s conduct and there is no evidence of conduct on the part of the defendant which contributed to the delay in bringing the application. She also noted that “as far as paragraph (g) is concerned, there is evidence that the applicant sought legal advice from his current solicitor in March 1999 and that he fully informed his solicitor of the circumstances of his injury and of its extent”. She also noted that he had been advised of his relevant rights at that time and also of the relevant time limit.
After referring to Mr Ryan’s “apparently unsolicited” approach and his taking-over of the opponent’s action, she referred to the evidence that, thereafter, Mr Stringer took advice from Priority Legal Services including advice that there was no prospect of a claim in negligence “against the mine”.
She referred to the opponent’s dissatisfaction with Priority Legal Services in June 1992 and his consequent return to Mr Hart. She also noted that, in relation to s 60E(h) “the potential extent of the plaintiff’s injury or loss is significant”.
Her Honour then went on to state:-
“The issue in this case is whether the explanation for the delay is satisfactory having regard to the extent of the advice which the applicant had been given by August 2001 and the issue is whether he had, in terms that were referred to in the Court of Appeal’s decision in Itek Graphix Pty Limited v Elliott (2002) NSWCA 104, 11 February 2002, acted carelessly of his rights or made a deliberate decision to allow the limitation period to expire.”
Her Honour then considered the judgment of Ipp JA in Itek Graphix Pty Limited v Elliott (now reported 54 NSWLR 207) and referred to what she considered to be its relevant aspects. She then continued, as follows:-
“In this case I must clearly look to what the justice of the situation demands. There is an applicant who has been in no doubt as to the nature of his injury and its extent in the three years prior to the expiration of the limitation period. He had legal advice as to his options and as to the date upon which the limitation period expired. He had conflicting legal advice as to the likelihood of success of any claim at common law.
To counter this, I must take into account the extent of the alleged injury or loss and the relatively short period of delay, together with the fact that there is no evidence that the defendant would not be able to meet the issues that are likely to arise if the matter goes forward to a hearing.”
Her Honour then indicated that, in her view, the present case could be distinguished from Itek Graphix. She drew a distinction in the following passage:-
“In that case, with the guidance of her legal advisers, the applicant made a deliberate decision to pursue one right of action against the respondent and, two years after the limitation period expired, chose to seek to bring common law proceedings. It is clear that that was a situation where, fully aware of what was happening, the applicant was trying to take full advantage of both avenues of redress that might have been available to her.
In this case I have an applicant who appears not to have been well served by the legal profession, in that he has received conflicting advice.”
Her Honour was, thus, of the opinion that there was no impediment, arising from Itek Graphix, to the granting of leave and that a sufficient explanation had been given for the relatively short delay. Consequently, there being no prejudice to Howick, she was satisfied that it was appropriate to make the order that she did, extending time for the opponent to bring his action against the claimant.
The Application for Leave
In giving her decision, her Honour was exercising a discretion. Consequently, the claimant, in seeking leave, must demonstrate a reasonably arguable case of miscarriage of discretion, in accordance with the principles of House v The King (1936) 55 CLR 499.
In this regard, the claimant submits that her Honour did not “apply the appropriate test in relation to the need for forensic diligence to be displayed by a plaintiff in and about bringing the application.” It was also submitted that there was error on the part of the primary judge “in failing to take into account all of the factors referred to in s 60E(1)(c)-(g) of the Limitation Act 1969.
In its written submissions, the claimant expressed its main argument in relation to these submissions, in the following way:-
“1. By 30 March 1999 it is clear that the opponent -
(a) knew that he was seriously injured;
(b)knew the identity of the claimant and knew that it was the occupier of the site upon which he was injured;
(c)received legal advice and knew that he had a right to bring a claim for damages against not only his employer, but also the claimant;
(d)knew that in order to bring such a claim in negligence against the claimant, such claim must be commenced by 7 August 2001;
(e)chose not to bring such a claim and instead changed solicitors and pursued a claim under the Workers Compensation Act.
2. There was no sufficient explanation by the opponent as to why he did not bring common law proceedings against the claimant until 2002, having been previously advised of his right to do so and the date by which he was obliged to do so.
3. In the circumstances, her Honour erred in failing to take into account or give sufficient weight to the lack of forensic diligence shown by the opponent in and about the bringing of his claim.”
In effect, the claimant submits that there was a demonstrably appellable failure on the part of her Honour to apply statements of principle from the judgment of Ipp JA in Itek Graphix, with which Spigelman CJ agreed. It is convenient to set-out those passages, at para 90, p 225, as follows:-
“The reason for this requirement is not hard to understand. A limitation provision is an expression of intent by Parliament that persons who wish to sue must do so within the stipulated time unless circumstances exist entitling them to obtain leave. A limitation provision is the general rule and an extension is the exception. In obtaining leave, a party is in effect obtaining an indulgence. To allow parties leave, when they have been careless of their rights and careless of the need to proceed with their disputes within the limitation period, would, ordinarily, be contrary to the justice of the case and would subvert the intent of Parliament. Just as the rules of court must prima facie be obeyed (Ratnam v Cumarasamy [[1965] 1 WLR 8 at as; [1964] 3 All ER 933), so must the laws of Parliament.”
And at para 98, p 226:-
“In my opinion, to grant leave to sue long after the expiry of a limitation period, when the applicant has made a deliberate decision to allow the statutory period to expire, in the absence of special circumstances explaining satisfactorily the conduct of the applicant, would set at naught the purpose of the legislation.”
It is plain from her Honour’s judgment that she did not overlook these important considerations. In the passage which I have cited she gives reasons for distinguishing the present case from Itek Graphix. For my part, I can detect no error in what her Honour had to say in that passage. In the present case, the period of delay was small in comparison with that in Itek Graphix. Also, it was quite open to her Honour to find that the choice made by Mr Stringer was not, relevantly, a deliberate and informed choice. He was the victim of conflicting advice, which presented a problem for him, with which he was neither intellectually nor emotionally equipped to deal. Her Honour, in this regard, had the advantage of seeing, hearing and assessing the opponent in the witness box.
Although the affidavit evidence before her Honour could have been more explicit as to the time when Mr Stringer received advice from Priority Legal Services, as to there being no prospect of a successful claim at common law, her Honour was, in my view, quite entitled to assume that the advice was effective in determining the course that Mr Stringer took during the time that the limitation period expired. It was well open to her Honour, in my view, to see Mr Stringer’s allowing the limitation period to expire as a result of confusion as to his rights rather than a deliberate intention to abandon them.
It is plain that her Honour, in an ex tempore judgment, did not seek to traverse all the material that had been placed before her. I am not satisfied, however, as faintly submitted by the claimant, that her Honour failed to give adequate reasons for her decision. Nor am I persuaded that she, in some way, reversed the onus of proof.
In my opinion, the case that her Honour’s exercise of discretion miscarried, is not sufficiently arguable to warrant the granting of leave. Accordingly, I propose that the application for leave be dismissed with costs.

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LAST UPDATED: 08/10/2003

[2003] NSWCA 271

8 October 2003

Key Legal Topics

Areas of Law

Civil Procedure

Employment Law

Legal Concepts

Limitation Periods

Costs

Appeal