Engert v Sydney Ferries Corporation

[2009] NSWSC 1400

CITATION:	Engert v Sydney Ferries Corporation [2009] NSWSC 1400
HEARING DATE(S):	9 December 2009
JUDGMENT DATE :	11 December 2009
JURISDICTION:	Equity Division Admiralty List
JUDGMENT OF:	Rein J
EX TEMPORE JUDGMENT DATE:	11 December 2009
DECISION:	The limitation period in relation to the plaintiff's claim extended to the date on which the statement of claim was filed.
CATCHWORDS:	LIMITATION OF ACTIONS – postponement of the bar – extension of period – personal injury and compensation to relatives claims arising out of ship collision – solicitor’s failure to identify the relevant limitation period – no prejudice to the defendant – consideration of policy underlying limitation period
LEGISLATION CITED:	Compensation to Relatives Act 1897 (NSW) Limitation Act 1969 (NSW) Maritime Conventions Act 1911 (UK) Merchant Shipping Act 1995 (UK) Merchant Shipping Act 1786 (26 Geo 3, c.86) Navigation Act 1912 (Cth) Responsibility of Shipowners Act 1733 (7 Geo 2, c.15) Transport Administration Act 1988 (NSW)
CATEGORY:	Procedural and other rulings
CASES CITED:	The Al Tabith [1995] 2 Lloyd’s Rep. 336 The Albany and the Marie Josaine [1983] 2 Lloyd’s Rep. 195 Asianac International Panama SA v Transocean Ro-Ro Corporation (The “Seaspeed America”) [1990] 1 Lloyd’s Rep. 150 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Burns Philip & Co v Nelson & Robertson Pty Limited (1958) 98 CLR 495 CSL Australia Pty Ltd v Formosa [2009] NSWCA 363 Gold Shipping Navigation Co SA v Lulu Maritime Limited [2009] EWHC 1365 (Admlty) Holt v Wynter (2000) 49 NSWLR 128 Itek Graphix Pty Ltd v Elliott (2001) 54 NSWLR 207 The Kashmir [1923] P. 85 Kleinwort Benson Ltd v Barbrak Ltd [On appeal from The Myrto (No 3)] [1987] AC 595; (1987) 2 Lloyd’s Rep. 1 Ling v The Owners of the Ship ‘Longevity’ [1995] FCA 1564 McKinnon v Huxley [2003] NSWSC 1221 Morrison v Judd [1995] NSWCA 300 Murphy v A Raptis and Sons (A Firm) [1991] FCA 128 Navarro v Larrinaga Steamship Company Ltd (The “Niceto De Larrinaga”) [1965] 2 Lloyd’s Rep. 134 Perez v Johnson (1988) 166 CLR 351 Salido v Nominal Defendant (1993) 32 NSWLR 524 Visscher v BHP Petroleum Pty Ltd [2002] NSWSC 65
TEXTS CITED:	K C McGuffie, The law of collisions at sea, Marsden’s British Shipping Law vol 4 (1961) 11th ed. Stevens & Sons Thomas and Steel, Temperley on the Merchant Shipping Acts (1976) 7th ed. Stevens & Sons
PARTIES:	Janice Lily Engert (Plaintiff) Sydney Ferries Corporation (First defendant)
FILE NUMBER(S):	SC 22/09
COUNSEL:	M McHugh (Plaintiff) M Holmes QC (First defendant)
SOLICITORS:	Graham Jones Lawyers (Plaintiff) HWL Ebsworth (First defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
ADMIRALTY LIST

Rein J

Date of Hearing: 9 December 2009
Date of Judgment: 11 December 2009

22/09 Janice Lily Engert v Sydney Ferries Corporation and ors

JUDGMENT (EX TEMPORE)

1 REIN J: On 28 March 2007 there was a disastrous collision on Sydney Harbour between the vessel, the Merinda, and the ferry, the Pam Burridge. The ferry is owned and operated by Sydney Ferries Corporation, a corporation established pursuant to s 35A of the Transport Administration Act 1988 (NSW).

2 Four people on the Merinda died as a result of the collision and seven other people were injured, three of them seriously.

3 The plaintiff and her son were passengers on the Merinda. The plaintiff's son, James, was one of the persons killed as a result of the collision. The plaintiff's claim is that she has suffered physical and psychological injury as a result of the collision. As against Sydney Ferries she alleges that the collision arose because of the negligence of the ferry's master and crew for whom she contends Sydney Ferries is vicariously liable. She also brings a Compensation to Relatives Act 1897 (NSW) claim in relation to the death of her son. The statement of claim joins in addition to Sydney Ferries the owners of the Merinda, Mr Lynch, who is the second defendant, Mr Sutton, the third defendant, and the person who it is alleged was the helmsman of the Merinda at the relevant time, Mr Carlow, the fourth defendant.

4 By virtue of s 22 of the Limitation Act 1969 (NSW) persons with claims against vessels other than the one on which they were a passenger have a period of two years within which to bring their claims. The plaintiff did not bring her claim until after the expiry of the limitation period. Section 22(4)(a) provides:

“For the purpose of an action in the court a court may extend the limitation period mentioned in subsection 2 or subsection 3 to such an extent and on such terms as it thinks fit”.

5 The plaintiff has by its notice of motion brought an application to the court to extend the time within which she can bring her claims against Sydney Ferries. The second, third and fourth defendants accept that s 22(2) does not apply to bar the plaintiff's claim against them because the limitation only applies to a claim against the owners and crew of the vessel on which the injured person was not a passenger: see Burns Philip & Co v Nelson & Robertson Pty Limited (1958) 98 CLR 495 at 506 and Navarro v Larrinaga Steamship Company Ltd (The “Niceto De Larrinaga”) [1965] 2 Lloyd’s Rep. 134.

6 Section 22 is in similar terms to s 396(2) of the Navigation Act 1912 (Cth), and also to s 8 of the Maritime Conventions Act 1911 (UK), now s 190 of the Merchant Shipping Act 1995 (UK).

7 Mr M McHugh of counsel appears for the plaintiff/applicant on the motion. Mr M Holmes QC appears for Sydney Ferries, the first defendant and respondent on the motion.

8 In support of the application the plaintiff relies on her affidavit of 11 November 2009 and also relies on an affidavit of Mr Graham David Jones of 11 November 2009, her solicitor. Sydney Ferries did not file any affidavits but did tender a report of the Office of Transport Safety Investigation (“OTSI”) which document became Exhibit 1. Mr Jones' affidavit makes reference to this report by OTSI and Sydney Ferries relies on the fact that the report was received by the plaintiff's solicitor in March 2008 and that it gave the plaintiff's solicitor all he needed to know to make a decision about whether to sue Sydney Ferries.

9 My attention was drawn to the following decisions on s 22 of the Limitation Act: Visscher v BHP Petroleum Pty Ltd [2002] NSWSC 65 and McKinnon v Huxley [2003] NSWSC 1221 and on s 396 of the Navigation Act: Murphy v A Raptis and Sons (A Firm) [1991] FCA 128 and Ling v The Owners of the Ship ‘Longevity’ [1995] FCA 1564 (“Ling”).

10 Reference is also made to a number of English cases: The Al Tabith [1995] 2 Lloyd’s Rep. 336, Kleinwort Benson Ltd v Barbrak Ltd [On appeal from The Myrto (No 3)] [1987] AC 595; (1987) 2 Lloyd’s Rep. 1 (“Kleinwort Benson”), Asianac International Panama SA v Transocean Ro-Ro Corporation (The “Seaspeed America”) [1990] 1 Lloyd’s Rep. 150 and Gold Shipping Navigation Co SA v Lulu Maritime Limited [2009] EWHC 1365 (Admlty) (“Gold Shipping”).

11 Mr McHugh also drew attention to the New South Wales Court of Appeal's decision in Morrison v Judd [1995] NSWCA 300 per Kirby P with whom Meagher and Powell JJA concurred. The case was one dealing with an extension of time for the bringing of an appeal and the weight to be given to the prospect of a claim by the client against the solicitor was given consideration and is said to be of some limited weight. Section 22(4) does not provide any express terms of reference for the exercise of the discretion. It places no filters or obstacles of the kind found, for example, in ss 60H and 60I of the Limitation Act. On the face of s 22 it is a wide and unfettered discretion. I shall return to discuss the approach to how that discretion should be exercised later in these reasons.

12 The evidence of the plaintiff and Mr Jones provided the explanation of what led to the expiry of the two-year period without the filing of a claim. Essentially, Mr Jones did not appreciate that the two-year limitation period imposed by s 22(2) existed. He thought that the plaintiff had three years within which to bring her claim, three years being the period generally relevant to personal injury claims. The existence of s 22(2) is likely to have become apparent at an earlier time than it did, that is before July 2009 but for the fact that Mr Jones thought it was prudent to await the outcome of a coronial inquest. That inquest was delayed and the plaintiff had decided due to a lack of funds that she would not be represented at it. In July 2009 the plaintiff notified her solicitor that the inquest had not been concluded and he then arranged a conference with a barrister – not Mr McHugh – at which conference that barrister told Mr Jones of the terms of s 22(2). In fact, Mr Jones had briefed the barrister in August 2008 and had received a memorandum from him which I infer, from Mr Jones's evidence, made no reference to s 22(2).

13 Mr Jones, on being advised of the terms of s 22 in July 2009, moved promptly to commence proceedings and to ascertain whether the bar would be relied on by any of the defendants. Sydney Ferries made it clear that it regarded the claim made against it as statute barred.

14 In Visscher v BHP Petroleum Pty Ltd, McClellan J, as his Honour then was, refused leave to extend time in a case brought by a merchant naval officer arising from a claim for salvage in relation to a tanker owned by BHP Petroleum in 1994. The plaintiff delayed in bringing the claim for an extensive period because he thought the commencement of proceedings might prejudice enquiries into work practices and because he thought he had six years within which to bring his claim. McClellan J expressed the view that:

(1) The claimant carried the onus of showing that the justice of the case required discretion to be exercised in a manner favourable to him, relying on a decision in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (“ Brisbane South ”) and in particular the judgment of McHugh J at 553 – 554.
(2) His Honour found that the plaintiff had established that there was no prejudice to the defendant. His Honour, however, looked at the strength of the claim of the plaintiff in that case and found that since he was an employee of the ship's owner he could not maintain a claim for salvage. His Honour deferred a decision on whether the claimant should be permitted to claim out of time because the claimant indicated the desire to attempt to replead his case: see [47].

15 In McKinnon v Huxley the claimant sought an extension of time in respect of injuries allegedly suffered by him as a result of a collision between his vessel and the defendant's vessel three years earlier. The plaintiff had instructed solicitors less than a month after the collision and a notice had been given of a potential claim. Property damage in respect of the plaintiff's vessel was the subject of an agreement. Nothing was done by the plaintiff's solicitor until after expiry of the limitation period and even then for a period of almost a year nothing was done. Palmer J at [14] – [17] discusses the relevant principles:

“[14] The discretion conferred on a court to extend the limitation period under section 22(4) of the Limitation Act is a broad one unfettered by any specific considerations which the legislator has directed be taken into account. However, the discretion is exercised in the context of a policy consideration which is embodied in section 22 of the Act. Limitation on the liabilities of shipowners has a long history going back to the early 17th century in Europe. In England the first Act which adopted the notion of the limitation of liability for shipowners was the Responsibility of Shipowners Act , 7 Geo 2, 15 of 1733, which made it clear by the preamble that the policy of the Act was:

“To promote the increase of the number of ships and vessels and to prevent any discouragement to merchants and others from being interested and concerned therein.”

[15] The policy considerations favouring shipowners by limitation of liability, both in terms of the quantum of damages and in terms of the limitation period for the commencement of proceedings, have been embodied in legislation in the United Kingdom and in this country for many years. For example, the provisions of section 396(1) and (4) of the Navigation Act 1912 (Cth) are in much the same terms as the provisions of section 22(2) and (4) of the New South Wales Limitation Act .

[16] One starts, therefore, from the position that the applicant for an extension of time under section 22(4)(a) must show good reason in the interests of justice why the policy of the Act should be displaced. Numerous authorities show that what is a good reason depends on the facts of the particular case. However, there are some considerations which will commonly arise. They were discussed by Sheen J in The Albany and the Marie Josaine [1983] 2 Lloyd’s Rep 195. There, his Lordship held that the factors to be taken into account included: the degree of blameworthiness on the part of the applicant, for the delay in commencing proceedings, the length of that delay, whether the circumstances which caused the delay were beyond the control of the dilatory party, and whether, if the application were granted, justice would be done between the parties.

[17] Those considerations were regarded as relevant and proper to take into account by Sheppard J in Ling v The Owners of the Ship ‘Longevity’ : (unrep Federal Court of Australia, 25.09.1995). I think that those broad factors are relevant to take into account in the circumstances of this case.”

16 The plaintiff’s evidence was that he had not been told of the relevant limitation period. His Honour accepted that but said that that was no explanation for the inactivity between the various periods that his Honour identified. His Honour said at [19] that the distinct impression from the evidence available was that here was a plaintiff who was not particularly anxious to prosecute his rights expeditiously. I read Palmer J as accepting that the solicitor's failure to tell him of the limitation period was a matter that was relevant in favour of the plaintiff but that it did not explain all of the delay: see also [20] of his Honour’s judgment.

17 Palmer J did consider closely the question of prejudice and seemed to think that there was little prejudice save for the type of prejudice that is noted in McHugh J's decision in Brisbane South which was in these terms:

“But sometimes, perhaps more often than we realise, the deterioration in quality is not recognizable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists.”

18 At [25] Palmer J noted that he had to give weight to that consideration referred to by McHugh J in Brisbane South and he refused the extension of time.

19 In Ling Sheppard J considered s 396 and granted an extension of time for a claim for personal injury and damage to a yacht. The plaintiff's solicitors had not been aware of the two-year limitation period and his Honour regarded the problem as having arisen by reason of "the serious negligence of the plaintiff's solicitor". He then said at [14]:

“My conclusion in this regard means that the dilatoriness which has occurred is not that of the plaintiff himself but that of his solicitors. Of course, the plaintiff is in law fixed with responsibility for his solicitor’s acts and faults but where it comes to the exercise of the discretion such as that here to be exercised, I think it proper to draw a distinction between dilatoriness by a party and dilatoriness by his solicitor. I conclude therefore that no blame attaches to the plaintiff for the delay in question.”

20 Sheppard J then went on to consider prejudice and held that there was no prejudice to the defendant other than an extra year of delay before hearing. He concluded that extension of time should be given.

21 In Murphy v Raptis, French J (as his Honour then was) refused an application under s 396(3) of the Navigation Act for the extension of time in respect of a claim by a cook/deckhand on a vessel that collided with a vessel owned by the defendant causing the plaintiff injury. The collision occurred in September 1985. Application for extension was not made until February 1991, five years and four months after the collision. French J said that there had been inordinate and inexplicable delay on the part of the plaintiff's solicitor generally in relation to the claim and that he was satisfied that, "by reason of that delay there has been prejudice to the prospective defendant", which delay must be imputed to the plaintiff. His Honour noted that the plaintiff had "the possibility of remedy against her solicitor for their admitted negligence in the handling of her claim".

22 That every application for an extension of time must be considered not by reference to what was decided in some other case but in the circumstances of the particular case has been remarked upon in a number of cases: see The Kashmir [1923] P. 85 at 92, Kleinwort Benson at 622 – 623 per Lord Brandon and Ling at [11] per Sheppard J and The Seaspeed America at 154 per Sheen J. This is not to say that the types of matters seen as relevant in other cases are not helpful. For example, see the four matters identified by Sheen J in The Albany and the Marie Josaine [1983] 2 Lloyd’s Rep. 195 and to which reference is made in McKinnon v Huxley at [16]: see [15] above. It follows that the court should avoid placing too much emphasis on whether an extension has been given in another case.

23 I accept that some of the English cases point to a rather stringent view having been taken of what would justify an extension sometimes by requiring "exceptional circumstances" or "good reason for the extension" and "a satisfactory explanation for the delay": see Kleinwort Benson at 622 – 623 per Lord Brandon.

24 Guidance has been given in this country as to what needs to be considered in relation to limitation extensions when a broad discretion is conferred: "what does the justice of the case require" per McHugh J in Brisbane South, "what is fair and just": see Salido v Nominal Defendant (1993) 32 NSWLR 524 at 532 per Gleeson CJ and Itek Graphix Pty Ltd v Elliott (2001) 54 NSWLR 207 at [87] per Ipp AJA with whom Spigelman CJ and Sheller JA agreed.

25 In Visscher v BHP Petroleum Pty Ltd, McClellan J described the plaintiff's task as showing that the justice of the case was that the discretion should be exercised in a manner favourable to the claim: see [25]. Palmer J in McKinnon v Huxley at [17] said the same thing when he said that the applicant for an extension of time must show good reason in the interests of justice why the policy of the Limitation Act should be displaced.

26 I note that in McKinnon v Huxley Palmer J made reference to the need for the discretion to be exercised in the context of a policy consideration: see [14] and [15] of McKinnon v Huxley set out at [15] above.

27 Mr Holmes placed reliance on that policy consideration and he submitted that the Act drew no distinction as to who the owners of the vessel were, whether public or private corporations or individuals. Mr McHugh contended that such a policy has no application in a case such as this where the shipowner was, in fact, an instrumentality created by statute. Neither the Responsibility of Shipowners Act 1733 (7 Geo 2, c.15), referred to by Palmer J in McKinnon v Huxley, nor the Merchant Shipping Act 1786 (26 Geo 3, c.86), which amended it, imposed any time limit on the bringing of an action against shipowners. Rather they were directed to restricting claims to the value of ship and cargo: see K C McGuffie, The law of collisions at sea, Marsden’s British Shipping Law vol 4 (1961) 11th ed. Stevens & Sons at paragraphs 171 and 346. Neither the Maritime Conventions Act 1911 (UK) nor the Merchant Shipping Act 1995 (UK) nor, more importantly, the Limitation Act 1969 (NSW) have any preamble of the kind in the Responsibility of Shipowners Act: see also Thomas and Steel, Temperley on the Merchant Shipping Acts (1976) 7th ed. Stevens & Sons at paragraphs 824 – 844.

28 Whether the limitation of time within which action could be brought pursuant to the maritime conventions that are the subject of the Maritime Conventions Act 1911 and their analogues are a result of bargaining between, on the one hand, member states having shipowners’ protection as a priority and on the other hand, member states having no such interest to protect, it is not discernable from the Act itself, but it may well be that the shorter than usual period of time for action to be brought against shipowners is a reflection of the same protectionist approach that was the genesis of the Responsibility of Shipowners Act.

29 In Gold Shipping, Teare J said of the policy underlying the statutes of limitation that it was “to ensure that claims are pursued with reasonable diligence”. In Brisbane South McHugh J identified motivation of legislature to fix definite time limits for prosecuting civil claims:

"[f]or nearly 400 years the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims."

The enactment of time limitations has been driven by the general perception that, "where there is delay the whole quality of justice deteriorates". At 552 his Honour went on to say:

“The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislator to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.”

At 553 his Honour said:

“In enacting limitation periods, legislators have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut-off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served 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. Against this background, I do not see any warrant treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case.”

At 554:

“Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.”

30 I doubt, with respect, that the policy behind the Responsibility of Shipowners Act can be viewed as being incorporated into the New South Wales Limitation Act or that any regard need be had to such policies, but the precise basis on which the legislature has chosen the period specified does not matter if it leads to the conclusion that the applicant for an extension under a limitations regime must demonstrate that the justice of the case requires the extension, as both Palmer J and McHugh J concluded.

31 I accept Mr Holmes’ point that the Limitation Act itself makes no distinction between the types of vessels against which the injured person seeks to bring a claim so that in determining whether an extension should be granted the court should have no disposition to allow the extension because the defendant operates a public ferry or that it is a statutory corporation. Mr McHugh’s point, however, was not that the statute drew such a distinction, but that if regard was to be had to the policy identified in the preamble to the Responsibility of Shipowners Act, i.e. a policy of encouraging building and ownership of ships, that ought have no weight in a case involving ferries available to and for the use of the public. As I have noted, I do not think that the English protectionist policy objective needs to now be considered, but were it to be taken into account it would have very little weight in this matter. Mr Holmes drew attention to the words of Allsop P in CSL Australia Pty Ltd v Formosa [2009] NSWCA 363 at [64], reminding us of the need to consider the distinctive character of maritime law. I do not regard the passage in CSL Australia Pty Ltd v Formosa as having any relevance to this case.

32 I accept that this is not a case in which the proposed defendant or its solicitors have done anything to encourage the delay by the plaintiff in bringing the proceedings. The problem has arisen because the plaintiff’s solicitor, and it would seem the barrister then briefed, failed to adequately identify the relevant limitation period – one very specific to shipping matters. The problem was compounded by the attention given to the coronial inquest in contemplation that its outcome would reduce the risk of joinder of a party or parties unnecessarily.

33 Mr Holmes pointed to the receipt of the OTSI report (Exhibit 1) as undermining the solicitor's explanation for the delay but there was no cross examination of the solicitor on his affidavit. I proceed on the basis that the solicitor's failure to identify the relevant time period of limitation is the real cause of the problem. I accept that the plaintiff may have a claim against her solicitor should the extension not be granted although such a claim requires effectively a trial within a trial: see Perez v Johnson (1988) 166 CLR 351 and, therefore, would if launched require two cases in effect to be fought by the plaintiff instead of one. The fact that a barrister failed to advise of the limitation period might complicate the matter further.

34 In my view, the following matters are significant matters in favour of permitting the plaintiff an extension of time within which to bring her claim:

(1) There is no evidence of any prejudice to Sydney Ferries in it now being joined.

(2) Sydney Ferries is already joined in nine other personal injury and property claims arising out of the collision and, indeed, all matters will be heard together at least in relation to liability.

(3) There has been an OTSI inquiry which is a detailed investigation of the matter but there also has been a coronial inquest (the findings of the Coroner are yet to be delivered) in which Sydney Ferries has been actively involved. Indeed, the plaintiff herself gave evidence at the inquest.

(4) Sydney Ferries is joined as a cross-defendant in these very proceedings by the owners and helmsman of the Merinda.

(5) It follows from (1), (2), (3) and (4) above that this is not a case in which evidence may have disappeared “without anybody now “knowing” that it ever existed”: per McHugh J in Brisbane South at 551.

(6) The period of delay beyond the limitation period is short.

(7) When the plaintiff's solicitor learnt of the error he took prompt action to commence proceedings.

(8) There was no dilatoriness or unexplained delay by the solicitor other than the failure to commence proceedings, unlike Murphy v Raptis and McKinnon v Huxley .

(9) It is not asserted by the first defendant that the plaintiff's claim is weak or would be assessed as such.

(10) The plaintiff was not herself culpable for the failure to commence proceedings and she was acting on the advice of her solicitor.

35 The tenth matter generated controversy. Mr Holmes relied on English cases which can be seen as rejecting ignorance on the part of the plaintiff’s legal representatives as a reason for extension although The Al Tabith is not a case involving solicitors. I take into account that in Visscher v BHP Petroleum Pty Ltd, McClellan J drew a distinction between a plaintiff himself deciding not to launch proceedings and the situation where a plaintiff was acting on advice.

36 As I have noted, the point was considered by Sheppard J in Ling and I have referred to his conclusion on that point. I accept that lack of culpability in a plaintiff personally will be most unlikely to overcome actual prejudice. It may also be insufficient to overcome prejudice of the type identified by McHugh J in Brisbane South, but I regard it as a matter to be taken into account in considering what justice requires and one which has weight when there is no actual prejudice and no real likelihood of any unknown prejudice.

37 It follows, in my view, that the plaintiff has demonstrated that the justice of the case requires that the extension be given and I extend the limitation period in relation to her claim to the date on which the statement of claim was filed which was 28 July 2009.

38 It is the practice that the party seeking an extension of time should pay the costs of a defendant unless the defendant’s opposition has been wholly unreasonable: see Holt v Wynter (2000) 49 NSWLR 128 (and it was not contended that Sydney Ferries’ conduct could be so characterised). I think, however, that the costs of this application should be paid by the plaintiff's solicitor, Mr Jones, and I note that nothing has been put in opposition to that order by Mr McHugh.

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