Forsdike v Lawrence J. Mansour Pty Limited

[2001] NSWCA 226

CITATION:	Forsdike v Lawrence J. Mansour Pty Limited [2001] NSWCA 226
FILE NUMBER(S):	CA 40157/00
HEARING DATE(S):	29 June 2001
JUDGMENT DATE:	13 July 2001
PARTIES :	Pamela Florence Forsdike v Lawrence J. Mansour Pty Limited
JUDGMENT OF:	Stein JA at 1; Rolfe AJA at 2; Fitzgerald AJA at 54

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 5203/99
LOWER COURT JUDICIAL OFFICER :	Patten DCJ

COUNSEL:	Appellant - W. R. Haylen QC / M.J. Perry Respondent - P.J. Deakin QC / Ms E.E. Beilby
SOLICITORS:	Appellant - Taylor & Scott Respondent - Price Waterhouse Coopers Legal
CATCHWORDS:	Practice and procedure - limitation periods - power to extend limitation period under s151D of the Workers Compensation Act 1987 - standard of review of such a decision
LEGISLATION CITED:	Motor Accidents Act 1988 Workers Compensation Act 1987
CASES CITED:	Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Guyra Meatpacking Pty Ltd v E. Wright & Ors [1999] NSWCA 430 Holt v Wynder [2000] NSWCA 143 House v The King (1936) 55 CLR 499 Salido v Nominal Defendant (1993) 32 NSWLR 524
DECISION:	Appeal dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40157/00

DC 5203/99

STEIN JA

ROLFE AJA

FITZGERALD AJA

Friday, 13 July 2001

FORSDIKE v LAWRENCE J. MANSOUR PTY LIMITED

PRACTICE AND PROCEDURE - Limitation periods - Power to extend limitation period under s151D of the Workers Compensation Act 1987 - Standard of review of such a decision.

The appellant appealed against the refusal of the District Court to exercise its power under s151D of the Workers Compensation Act 1987 to extend the time within which she might sue the respondent, her former employer. On 30 August 1993, while working, the appellant had tripped over some goods and fallen heavily on her right knee. The statutory period during which the appellant was entitled to bring her action ended three years from that date.

In mid 1995 the appellant first consulted her general practitioner about her right knee, and in March 1998, she first obtained legal advice. To this point, the insurer had paid her medical bills and weekly compensation. In May 1999, she was advised that her left knee would require treatment due to the increased dependence she had placed on it as a result of the injury to her right knee. Counsel advised the appellant that the deterioration of both knees meant that her common law rights might me more valuable than those under the Workers Compensation Act. It was also suggested to the appellant that her lower back problems might be due to the same fall. On 15 October 1999 the appellant sought an extension of time.

HELD: (per Rolfe AJA, Stein JA and Fitzgerald AJA agreeing):

(1) It is well established that the Court’s decision as to whether to extend the time within which an action may be brought is a discretionary one, and accordingly the right of an appellate court to interfere in this discretion is limited - House v The King (1936) 55 CLR 499, referred to.

(2) The trial judge’s reasons reveal that he was satisfied that there was a reasonable cause for the delay, and that there would probably be sufficient evidence as to how the fall occurred.

(3) The trial Judge’s finding that the respondent would have been prejudiced as to the causal connection between the accident and the appellant’s present disabilities was open to him. Salido v Nominal Defendant (1993) 32 NSWLR 524, Brisbane South Regional HealthAuthority v Taylor (1996) 186 CLR 541, Guyra Meatpacking Pty. Ltd. v E. Wright & Ors [1999] NSWCA 430, Holt v Wynter [2000] NSWCA 143, considered.

ORDERS

Appeal dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40157/00

DC 5203/99

STEIN JA

ROLFE AJA

FITZGERALD AJA

Friday, 13 July 2001

FORSDIKE v LAWRENCE J. MANSOUR PTY LIMITED

JUDGMENT

1    STEIN JA: I agree with Rolfe AJA.

2    ROLFE AJA:

Introduction.

The appellant, Mrs Pamela Florence Forsdike, for whom Mr W.R. Haylen of Queen’s Counsel and Mr M.J. Perry of Counsel appeared, appeals, following leave granted by this Court against the refusal of the District Court (Patten DCJ) to extend the time, pursuant to s 151D of the Workers Compensation Act 1987, within which she may sue her former employer, the respondent, Lawrence J. Mansour Pty Limited, for which Mr P.J. Deakin of Queen’s Counsel and Ms E.E. Beilby of Counsel appeared.

3 The appellant, who was born on 12 July 1948, was employed by the respondent at its High Street, Penrith store as a shop assistant on 30 August 1993. She was required to carry rolls of material from the front of the store to a truck at its rear. She alleges that whilst doing so on 30 August 1993, she tripped over some curtain rails that had slipped over the walkway and, as a result, fell heavily on her right knee in which she experienced immediate pain. In circumstances to which I shall refer in a little more detail the appellant failed to bring proceedings within the statutory period of three years from 30 August 1993 and, on 15 October 1999, her application for an extension of time was heard. Section 151D relevantly provides:-

“(2) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than three years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken.
(3) The Limitation Act 1969 does not apply to or in respect of court proceedings to which this section applies.”

4    It is well established that the Court’s decision to extend or refuse to extend the time is discretionary and that the right of an appellate Court to interfere with the exercise of the discretion is limited by established principles. Whilst the principles are generally well understood, I think it appropriate that they be repeated. In House v The King (1936) 55 CLR 499, Dixon, Evatt and McTiernan JJ said at pp 504-505:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”

5    Any appellant from a grant or refusal to grant leave must establish that there has been such a miscarriage of the discretion before this Court will interfere. Obviously, where a discretion is involved minds may differ on how, in the circumstances of a given case, it should be exercised. Effect cannot be given by an appellate Court to a mere difference of opinion. The differing opinion must be grounded in the finding of error of the type referred to in House v The King.

The Evidence in Support of the Application .

6    The appellant swore an affidavit on 1 July 1999 in which she deposed to the matters to which I have referred. She continued that the curtain rails over which she tripped were often stored at the rear of the premises in bundles, which were held together with ropes, although on a number of occasions the bundles had slipped down and had to be picked up and re-secured. She remained at work that day with some pain in her knee and, notwithstanding increasing pain, she was only off work for a few days for which she received workers’ compensation payments from the respondent’s workers’ compensation insurer.

7    It was not until about mid 1995 that she first consulted her general practitioner, Dr Rajik, about the increasing discomfort in her knee. Prior to that she had not sought any medical treatment for the knee. He referred her to an orthopaedic surgeon, who recommended an arthroscopy to her right knee, which, she deposed, was accepted by the insurer “who accepted liability for medical expenses relating to my knee injury”. She annexed to her affidavit a letter from the insurer to the respondent dated 4 October 1995, which acknowledged receipt of the claim forms and stated that liability for the claim had been accepted for medical expenses only.

8    The arthroscopy was performed on 3 November 1995 and the appellant had a number of months off work before returning to her employment with the respondent. After doing so she experienced increasing pain in her right knee and ceased work with the respondent on 1 May 1996 for that reason. Thereafter she obtained other employment.

9    Because of the increasing pain in her right knee she consulted a second orthopaedic surgeon on 11 October 1996 and, on 30 October 1996, he performed a high tibial osteotomy on her knee for which, she said, liability for medical expenses was accepted by the insurer. She had approximately four months off work during which time she received weekly workers’ compensation benefits from the insurer. The time limitation for bringing an accident for damages expired at the end of August 1996.

10    She returned to work in May 1997, but continued to have pain and immobility in her knee and, on 9 July 1997, the second orthopaedic surgeon performed a knee arthroplasty and removed the plate and screws from her right tibia. She has not returned to work since. On 17 August 1997 she had an operation for debridement and disinfection of her right knee due to post operative infection and, on 6 December 1997, the orthopaedic surgeon performed a revision of her knee operation with patella resurfacing, tibial polyethylene exchange and release of adhesions. She obtained short term relief, although the pain and immobility continued and became worse.

11    On 3 March 1998, she first obtained advice from her present solicitors, (she not having received any legal advice previously concerning her accident), about workers’ compensation benefits for her knee. Her reason for not having sought advice earlier was:-

“It had only gradually deteriorated and QBE had previously paid for all my weekly compensation and medical treatment”.

12    Her affidavit then traced her dealings with her solicitors and the second orthopaedic surgeon and, on 25 March 1999, she had a further operation to remove the screw in her tibiofibular joint and peroneal neupolysis of her right knee. On 4 May 1999, that surgeon advised her that her left knee “now requires an arthroplasty due to the increased dependence I have placed on it as a result of the injury to my right knee”.

13 On 20 May 1999, she was advised by her solicitors that the second orthopaedic surgeon had furnished a report providing a permanent impairment assessment for her right knee. On 26 May 1999, she provided a full statement to her solicitors and was advised that any application under common law “would possibly be out of time and require leave due to the length of time since” the original injury. On 3 June 1999, she attended a conference with Counsel, who informed her that given the present state of deterioration in both her knees her common law rights were possibly more valuable than those under the Workers’ Compensation Act, and that it would be advisable to consider an application to extend the time in which to commence such proceedings.

14    Her application was supported by affidavits of her solicitor, Mr David Martin Shoebridge, sworn on 9 July 1999 and 25 August 1999. The first traced the history of the steps taken by her solicitors. In the second Mr Shoebridge deposed to having communicated with a Mr David John Trehy on 16 August 1999 by telephone. He asked Mr Trehy whether he was working at the respondent’s Penrith High Street store in August 1993. Mr Trehy said he was. He was asked whether he recalled any accident befalling the appellant at the store at about that time and he replied that he remembered that she fell over and hurt her knee.

15    On the same day, Mr Shoebridge communicated with a Ms Kay Abberton, who said that she was working at that store around August 1993. She was asked whether she recalled the condition “out the back of the shop at around that time” and she replied:-

“Yes it was terrible. The staff were always complaining about it. It was a high traffic area”.

Mr Shoebridge’s evidence was not challenged.

16    Mr Shoebridge annexed a report, dated 24 June 1999, of a consultant orthopaedic surgeon, Dr C. Selby Brown, to his first affidavit. In addition to referring to the problems in both knees, he said that the appellant had identified “over the last twelve months” central low back pain, which he considered may be causally related to the alteration of her gait brought about by the injury to her right knee.

17    The appellant supplemented her affidavit by the tender of a workers’ compensation claim form dated 30 August 1995 and some oral evidence. In that form, under the heading “What happened”, she wrote:-

“While carrying rolls of material on each shoulder I tripped on a track that had fallen and landed heavily on my right knee on the concrete floor”.

18    She nominated Mr John Mansour as a witness and stated that she reported the accident to him. The claim form became Exhibit A and, in oral evidence, the appellant said that Mr John Mansour was the managing director of the respondent and that in the claim form she had said he was a witness because “He was there” and “he helped me up”. On the basis of this evidence, which was not challenged, the reasonable inference is that Mr Mansour was an eye witness. There was no evidence that any of he, Mr Trehy or Ms Abberton is not available to give evidence.

19    The cross-examination of the appellant was confined to her being asked whether Dr Rajik was her treating doctor in 1993; whether he was the first doctor she had seen about her knee problem in mid 1995; and whether she had seen any other general practitioner save for him. She answered the first question in the affirmative and the other two in the negative.

20    The history was, therefore, that the appellant sought no medical treatment for her right knee until some two years after the accident. It was not until 1999 that she had problems, to which a doctor made reference, in her left knee or in her back. In the meantime she had been employed by the respondent and another employer.

The Ordinary Statement of Claim .

21    By her Ordinary Statement of Claim, upon which she seeks to proceed, the appellant sues in respect of the incident on 30 August 1993, which she alleged took place:-

“... whilst in the course of carrying out her duties at Mansours at 415 High Street Penrith the plaintiff was carrying rolls of material from the front to the rear of the premises when she tripped over curtain rails that had slipped down from their place of storage”.

This is consistent with the complaint she made in her workers’ compensation claim form.

22    There were a number of particulars of negligence and of statutory breach, but all of them related to the fact that the appellant was required to move over an area where the curtain tracks provided an obstacle and that in doing so she fell on her right knee.

23    The respondent called no evidence to show that if the application were granted it would suffer any prejudice and, as I have said, it did not seek to establish that any of Mr Mansour, Mr Trehy or Ms Abberton was not available to give evidence. However, their evidence was confined to the happening of the accident and the condition of the premises where it occurred. In any common law proceedings the appellant would not only have to establish the circumstances of the accident, but also the causal connection between it and the injuries she alleges are referable to it and hence, her entitlement to damages not only because of the injury to her right knee, but also to the effects that has allegedly had to her left knee and back.

The Trial Judge’s Decision .

24    The trial Judge set out the facts and the reasons the appellant gave for the delay in bringing the proceedings. He referred in particular to what she had said in par 17 of her affidavit to the effect that the insurer had previously paid all her weekly compensation and medical treatment, and to the fact that notwithstanding the consultation with her solicitors in March 1998 a further fifteen months expired prior to the commencement of the proceedings, although he recognised that part of this delay was due to delays in obtaining medical reports and in undergoing further medical investigations. There is no suggestion in his reasons that he did not accept, and indeed, there would seem to be no reason why he should not have accepted, the appellant’s explanation for the delay.

25    At RAB pp 9-10, he gave his reasons for refusing the application:-

“The test to be applied is whether it is fair and just that an extension of time should be granted. In relation to that I am entitled to take into account the delay, the explanation for the delay, and perhaps most significantly in this case, whether it is likely that a fair trial can be had of the issues, as to which the onus is on the plaintiff.
I have concluded that it would not be fair and just to extend the time as requested, largely because I am not persuaded that a fair trial can be had of the issues. Mr Polin, a counsel for the defendant, points to the scanty material in the plaintiff’s affidavit as to precisely how the accident occurred and as to what in particular are the breaches of duty alleged against the defendant. It seems to me, although there is no specific evidence, that the defendant is likely to be very prejudiced in meeting the plaintiff’s claim by the passage of such a long period since the accident occurred especially having regard to the nature of her claim that she tripped over some rails which were stored in the rear of the store and had apparently fallen down.
Although the Worker’s Compensation Insurer has continued to make periodic payments from time to time to the plaintiff it seems to me that the defendant is likely to be prejudiced as to the alleged causal connection between the accident and the plaintiff’s present disabilities having regard both to the sheer lapse of time plus the lapse of two years before she consulted Dr Rajik in mid 1995 .
In the result, as I have said, I do not think that the plaintiff has shown that it would be fair and just to give her the relief under s 151D of the Worker’s Compensation Act she seeks”. (My emphasis.)

26    His Honour’s finding in relation to the prejudice in relation to causal connection obtained some support from the fact that the appellant’s solicitors had spent a portion of the eighteen month period, after receiving instructions, in investigating the medical situation.

The Applicable Law .

27    In the way in which his Honour formulated his reasons, it appears that he was probably satisfied of the explanation for the delay, but that he was not satisfied that a fair trial could be had of the issues, because there would be prejudice to the respondent on the issue of the causal connection between the accident to her right knee and the subsequent problems with her left knee and back. Not only did she not consult her general practitioner for several years after the accident, but the other injuries did not manifest themselves for some years after that. He accepted that there was “no specific evidence” of prejudice, by which I consider his Honour was referring to the circumstances in which the accident happened, relying rather in that regard, as I understand it, upon presumptive prejudice arising from delay in respect of the causal connection. However, the appellant’s evidence established the onset of the other problems over the years, so that there was no need, in my opinion, for the appellant to put on evidence about the prejudice thereby accruing. The simple point was that until the proceedings were sought to be brought the appellant was unaware of the alleged causal connection between the original injury and the other problems, such that it could have the matter medically investigated.

28    In Salido v Nominal Defendant (1993) 32 NSWLR 524 this Court considered an appeal by an applicant for an extension of time pursuant to s 52(4) of the Motor Accidents Act 1988, which, relevantly for present purposes, is in the same terms as s 151D. Salido bore some resemblance to this case in that the delay in consulting a lawyer was brought about because of the delay in the onset of symptoms suffered by the appellant. On the other hand the delay in Salido was far less than the delay in the present case.

29    Gleeson CJ, at p 532, held that whilst the onus was on the applicant to show that it was fair and just to grant leave it is not possible to establish in advance categories of case in which it would be fair and just to grant leave, and his Honour suggested guidelines that may be of assistance in obtaining consistency of decision making. He made the following points:-

(a) the immediate purpose, as with any limitation period, is to protect defendants against stale claims and to promote forensic diligence;
(b) against this background, the question is whether, in the circumstances of a particular case, the applicant for leave has demonstrated that it is fair and just to grant leave;
(c) the diligence, or lack of diligence, by a plaintiff or his or her legal representative, in ascertaining and asserting his or her rights will ordinarily be a material factor, as will the extent of the relevant delay, and the reason for it;
(d) the effect of any forensic disadvantage to the defendant resulting from the delay will be material, as will be the effect on the defendant’s ability to defend the action; and
(e) leave may be refused if it is plainly futile to grant it.

30    Kirby P gave a separate judgment in which he dealt with the propositions to be gleaned from the authorities. At p 538, his Honour acknowledged that the onus of establishing an entitlement to a grant of leave rested upon the applicant, and that the mere fact that an extension of time would involve some forensic prejudice to the putative defendant could not, of itself, be sufficient to disentitle the applicant to leave.

31    His Honour continued:-

“Yet because it is contemplated that, in some cases at least, leave will be granted, the ordinary prejudice that such leave causes must not, at least standing alone, be sufficient to outweigh other considerations which are placed before the decision maker, relevant to the grant or refusal of the leave sought ...”.

32    At pp 538-539, his Honour said:-

“7. It is relevant, in considering whether or not to grant leave, to take into account any proved, apparent or inferred prejudice to the putative defendant. Thus, a relevant consideration will be the period of time indulgence which is sought, the difficulties of investigation which may be faced by the defendant and any specific, additional forensic or other disadvantages which may have accrued by reason of the applicable delay. A further consideration is that the statute itself contemplated that a matter relevant to the decision upon late claims is the late manifestation of symptoms or, one might add, of serious symptoms”.

33    In my respectful opinion, the learned trial Judge gave appropriate consideration to whether a just and fair trial could be held, which was obviously the correct question to be asked, having regard to the presumptive and actual prejudice, which attended the particular circumstances of this case. He focussed, in relation to actual prejudice, on the question of causal connection.

34    In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 the High Court stressed a further requirement. At p 547 Toohey and Gummow JJ said:-

“It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the Court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the Court that time should be extended remains on the applicant. Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission (Vict) in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd :-
‘It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that those facts do not amount to material prejudice’.”

35    As I have said, in the instant case, the facts relevant to the problems in relation to causation were not in issue. The respondent accepted the time which had elapsed and his Honour relied on this as showing the type of prejudice suffered by the inability to investigate the matter earlier and, also one may infer, by the extension of the case to the other knee and the back after the expiration of the limitation period. The onus then reverted to the appellant.

36    In Brisbane South the Court was confronted with a situation where the trial Judge had found that there was a serious prejudice by reason of difficulties confronting the respondent, the uncertainty of being able to locate a potential witness and the unlikelihood of that witness having any recollection of a relevant conversation.

37    At p 548, their Honours stated that the question as to whether there was any prejudice was to be answered by reference to the situation at the time of the application, and at pp 548-549, continued:-

“It is no sufficient answer to a claim of prejudice to say that, in any event, the defendant might have suffered some prejudice if the applicant had not begun proceedings until just before the limitation period had expired.”

38    McHugh J also recognised the difficulties in calling the witness to which the respondent had adverted. And, at p 555, his Honour said:-

“Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff’s right of action at the end of that period…
When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff’s lost right should not be revived than that the defendant should have a spent liability imposed upon it. This is so irrespective of whether the limitation period extinguishes or merely bars the cause of action.”

39    At p 556, his Honour continued that once the trial Judge had made a finding of actual prejudice “his decision to dismiss the application was inevitable”. He continued:-

“Besides the proved prejudice, the long delay gave rise to a general presumption of prejudice. In the ordinary course of events, it is probable that the plaintiff discussed her operation and the reasons for it with various people - friends, relatives and perhaps even the nursing staff. If Dr Chang’s notes are accurate and the action had been commenced within the limitation period, one or more persons in this group may have been able to provide evidence or information favourable to the defendant. By the time the application for extension of time was made, it is likely that such conversations if they took place, would be no longer within the memory of the participants. The finding of actual prejudice and the possibility of other prejudice to the defendant gave the defendant a strong - in my view overpowering - case for resisting the application”.

The Present Case .

40    There was an argument before this Court as to whether the appellant had relied on prejudice in relation to causal connection. In par 9 of the Notice of Appeal it was stated :-

“That his Honour erred in making findings without any submissions being made by counsel for the Respondent supporting those findings.”

41    In the written submissions, it was asserted that no submissions had been made to Patten DCJ “in relation to prejudice arising from effluxion of time in relation to causation.”

42    I would reject this submission for several reasons. First, there was no evidence before this Court to support it and there was no agreement that no such submissions were made. Secondly, his Honour gave an ex tempore judgment in the course of which he made reference to this point. At the conclusion thereof no objection was taken on the ground that this point had not been dealt with in submissions.

43    His Honour concluded that a just and fair trial could not be had because of the presumptive prejudice caused by the delay and the actual prejudice in relation to the causation issue. When his reasons are considered I do not believe that they are infected with any of the errors, which would justify this Court’s interference in a discretionary judgment. Rather, in my opinion, the conclusion to which his Honour came was clearly open to him.

44    Reference was made to this Court’s decisions in Guyra Meatpacking Pty. Ltd. v E. Wright & Ors [1999] NSWCA 430, in which the evidence of actual prejudice, in my opinion, was far stronger than in this case. However this Court refused to interfere with the decision to extend the time, noting that the trial Judge had:

“…considered these matters” (prejudice) “and also considered that employees do or had rights, which they did have, under the Workers Compensation Act. He also considered the crucial question of whether there can be a fair trial if leave were granted.”

45    Meagher JA concluded by noting that the judgment was discretionary and contained no error of law, mistaken assertion of fact and was “far from being obviously unreasonable”. In my opinion, the present judgment does not suffer from any such deficiencies.

46    In Holt v Wynter [2000] NSWCA 143, a bench of five of this Court considered that the discretion had miscarried. However, the facts in that case were quite different. The insurer had made extensive investigations. Further there was material before the Court that the trial Judge had not applied the correct test.

47    At para 79, Priestley JA said:-

“No submissions were made to the Court in the present appeal dealing with the content of the idea of a fair trial in the context of an application for leave to commence proceedings. Brisbane South itself demonstrates that different judges have somewhat different ideas on the matter. One thing seems to be clear; that is that the term is a relative one and must, in any particular case, mean a fair trial between the parties in the case in the circumstances of that particular case. Further, for a trial to be fair it need not be perfect or ideal. That degree of fairness is unattainable. Trials are constantly held in which for a variety of reasons not all relevant evidence is before the court. Time and chance will have their effect on evidence in any case, but it is not usually suggested that that effect necessarily prevents a fair trial.”

48    If I may respectfully observe, it is the very fact that different circumstances may produce varying responses that demands strict adherence to the principles permitting interference with discretionary judgments. Unless that happens there is nothing more than the substitution of one permissible view by another.

49    At par 114 Sheller JA, with whose reasons Handley JA, Meagher JA and Brownie AJA agreed, said, in referring to Brisbane South:-

“Their Honours did not treat an extension as prima facie prejudicial to the potential defendant. The prospective defendant must show some evidence of prejudice. But if the potential defendant did show significant prejudice and the applicant failed to show otherwise, I do not think their Honours’ view of the significance of that prejudice or its decisiveness was any different.”

50    His Honour was of the view, par 120, that if the trial Judge had correctly concluded that there was significant prejudice as a result of an extension of time, the application was rightly refused. But he did not consider that the trial Judge was right in so concluding.

51    Whilst the appellant placed reliance on this reasoning; the fact that workers compensation payments had been made; and in 1998 the appellant attended a doctor nominated by the insurer, I am not satisfied that there is any basis for disturbing his Honour’s exercise of discretion on the particular facts of this case based as it was on the presumptive and actual unfairness he found. The case is one where minds may differ, but that is not the test for interfering with his Honour’s exercise of discretion.

52    Mr Haylen submitted, at one stage, that the payment of workers compensation amounted to some type of admission. Ultimately, he conceded that if there was an admission it was not one which would preclude the respondent relying on the absence of causal connection.

53    In my opinion, the appeal should be dismissed with costs.

54    FITZGERALD AJA: The circumstances giving rise to this appeal are set out in the reasons for judgment of Rolfe AJA.

55 The primary judge applied established principles to arrive at a conclusion that was open. In particular, it was open to his Honour to decide that the likely prejudice to the respondent “...as to the alleged causal connection between the accident and the [appellant’s] present disabilities having regard to the ... lapse of time ...” meant that she had not shown that it was “fair and just to give her the relief under s 151D of the worker’s Compensation Act she seeks”.

56    I agree that the appeal should be dismissed with costs.

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