Griffiths v Nillumbik Shire Council

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0110

JEFFREY GRIFFITHS	Applicant
v
NILLUMBIK SHIRE COUNCIL	Respondent

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JUDGES:	BEACH JA, KEOGH and J FORREST AJJA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 September 2022
DATE OF JUDGMENT:	30 September 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 212
JUDGMENT APPEALED FROM:	[2021] VCC 1193 (Judge O’Neill)

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LIMITATION OF ACTIONS – Workplace injury – Worker’s cause of action statute barred – Application to extend time within which to commence proceeding refused by primary judge – Application for leave to appeal judge’s decision – Relevance of former lawyers’ conduct and advice – Substantial delay – Whether delay adequately explained – Worker’s knowledge of existence of cause of action and limitation period prior to expiration of limitation period – Whether judge adequately considered advice and conduct of applicant’s former solicitors – Whether judge gave inappropriate weight to period of subsequent delay – Whether judge gave inadequate consideration to deterioration in applicant’s condition – Whether judge failed to consider prejudice to applicant in refusing application – Whether judge erred in assessing prejudice to respondent – Whether judge’s reasons adequate – Whether decision plainly wrong or plainly unjust – Proposed appeal having no prospect of success – Application for leave to appeal refused.

Limitation of Actions Act 1958, ss 5(1)(a) and 23A; Accident Compensation Act 1985, s 134AB.

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 and Prince Alfred College Inc v ADC (2016) 258 CLR 134 applied; Tsiadis v Patterson (2001) 4 VR 114, Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 and Hunt v Holcombe [2018] VSCA 248 referred to.

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Counsel
Applicant:		Mr ADB Ingram KC with Dr JC Plunkett
Respondent:		Mr SE Gladman
Solicitors
Applicant:	Shine Lawyers
Respondent:	Wisewould Mahony

BEACH JA
KEOGH AJA
J FORREST AJA:

In July 2020, Jeffrey Griffiths issued a writ and statement of claim in the County Court of Victoria seeking damages against Nillumbik Shire Council (‘the Council’) for injuries he alleged that he sustained in the course of his employment with the Council between 20 October 1999 and May 2003.
The Council filed a defence (also in July of 2020) pleading that Mr Griffiths’ claim was statute barred by reason of the provisions of the Limitation of Actions Act 1958 (‘LA Act’).
On 13 May 2021, pursuant to s 23A of the LA Act, Mr Griffiths applied to extend the time in which to bring his claim.
On 24 August 2021, a judge of the County Court refused his application and dismissed his claim.[1]
[1]Griffiths v Nillumbik Shire Council (Ruling) [2021] VCC 1193 (‘Reasons’).
Mr Griffiths now seeks leave to appeal that decision, and, if leave is given, for orders setting aside the decision and granting him an extension of time to commence the County Court proceeding.
For the reasons that we will now set out, the judge’s decision was plainly correct, and no error has been demonstrated by Mr Griffiths.

Background

Mr Griffiths left school aged 15 years. His occupational history is one of manual labouring jobs.
He commenced employment with Eltham Shire Council in about 1991 working as a labourer in the carpentry shop. During the period of his employment Eltham Shire Council became Nillumbik Shire Council.
From 1993 to 2003, Mr Griffiths worked for the Council as a garbage collector.
On 8 August 2002, and pursuant to the Accident Compensation Act1985 (‘AC Act’), Mr Griffiths submitted a WorkCover claim for injury to both knees and his left shoulder. The claim was accepted by the Council’s WorkCover Insurer (‘the Insurer’).
In December 2002, Mr Griffiths’ orthopaedic surgeon, Mr Bonomo, performed subacromial decompression and bursectomy surgery on Mr Griffiths’ left shoulder.
Mr Griffiths said that he continued to suffer pain in his shoulder and both knees from 2002. He remained in employment with the Council, working in alternate duties, until he was made redundant in May 2003.
In 2008, Mr Griffiths saw orthopaedic surgeon, Mr Kiellerup, who recommended bilateral arthroscopic knee surgery. Liability was denied by the Insurer and the surgery was not performed.
In early April 2008, Mr Griffiths consulted Maurice Blackburn Lawyers for advice about his injuries and entitlement to compensation.
On 15 April 2008, Maurice Blackburn wrote to Mr Griffiths confirming his instructions as to how his injuries were sustained and giving him information about his possible entitlement to compensation and common law damages. In relation to a potential damages claim he was advised of the need to satisfy the ‘serious injury’ test under the AC Act as a gateway to making a common law claim, and to establish that the injuries were caused by the negligence of Mr Griffiths’ employer in order to succeed with the claim. The letter then read:
We confirm our advice that on the basis of your instructions and the medical material you provided to us, we believe you may have difficulty establishing that you have suffered a serious injury.
In the event you were able to obtain a serious injury certificate, we believe you may have difficulty in succeeding in establishing that you were injured as a result of the negligence of your employer or a third party.
Therefore we would not recommend that you instruct us to pursue a claim for common law damages on your behalf.
As you are aware, you have 6 years from your date of injury to apply for a serious injury certificate should you wish to pursue a claim for common law damages.
With respect to the injury you suffered on 27 May 2002, we advise that you have until 26 May 2008 to apply for a serious injury certificate.
Therefore should you wish to pursue a common law claim, you must act very quickly with respect to instructing solicitors to act.[2]
We confirm our advice that we do not recommend that you instruct us to pursue a claim for common law damages, as on balance, we believe you are likely to have difficulty succeeding in such a claim.
Therefore unless we receive your instructions to the contrary within 7 days, we will assume that you do not wish us to pursue such a claim on your behalf.
Should you wish to obtain a second opinion in relation to your prospects of succeeding in a claim for common law damages, you should do so, and do so as a matter of urgency.[3]
We do however recommend that you instruct us to pursue a claim for lump sum compensation pursuant to Section 98C of the Act. Should you wish to do so, would you please sign the enclosed Cost Agreement and return this to our office, please retain the duplicate for your records.
[2]Emphasis added.
[3]Emphasis added.
On 15 May 2008, Maurice Blackburn wrote again to Mr Griffiths:
We refer to our previous advice regarding a common law damages claim. We note that in the absence of your instructions in response to that previous advice, we confirm that we are not instructed to act on your behalf with respect to a common law damages claim and have not taken any action in this regard. You will note our advice regarding the time limitations with respect to such a claim, and we urge you to obtain alternative legal advice should you wish to pursue this claim within the applicable limitation periods.[4]
[4]Emphasis added.
In February 2010, Mr Griffiths made a claim for lump sum ‘no fault’ compensation against the Council. By letter dated 21 April 2010, the Insurer accepted his claim for injuries to the right knee, left knee and left shoulder, assessed whole person impairment at 8 per cent, and on that basis calculated his entitlement under s 98C of the AC Act as nil. It rejected liability for sleep apnoea and his psychological condition. The letter also alerted Mr Griffiths to his right to claim common law damages if he could establish that he suffered from a serious injury as defined in the AC Act.
On 17 May 2010, Maurice Blackburn wrote to Mr Griffiths seeking his instructions to challenge the Insurer’s decision to reject liability for the injuries not accepted by the Insurer. It included the following:
Your decision as to whether or not you wish to pursue a Common Law negligence claim for pain and suffering damages subsequent to the Medical Panel assessment, will be made in consultation with our office. As previously advised, to pursue a Common Law claim for pain and suffering damages, you will need to satisfy the serious injury test in accordance with the Act.
A challenge to the Insurer’s decision was filed and certain questions were referred to a medical panel under the AC Act.
On 28 October 2010, Maurice Blackburn wrote to Mr Griffiths advising him that liability had been accepted for all injuries claimed in his s 98C Impairment Benefit Claim. He was told that the impairment caused by the injuries had been assessed at 21 per cent based on the medical panel findings, and as a result the Insurer had offered to pay compensation of $35,990. The letter contained the following:
We confirm we have previously provided you with advice in relation to a common law damages claim. We refer you to our letters of 22 May 2008, 15 May 2008, 15 April 2008 and 23 September 2009. We note after each correspondence we have not obtained your instructions to proceed with a common law damages claim.
The letter explained in detail Maurice Blackburn’s reasoning for not recommending that Mr Griffiths pursue a common law claim. It included the following reference to the limitation period:
We also note the statutory limitation period of six (6) years from your injury of 7 August 2002 has well and truly elapsed and we have advised you of this on a number of occasions.[5]
And concluded:
All things considered, we do not recommend you instruct us to proceed with a common law damages claim.
We confirm your instructions were obtained in your conference with the writer on 27 October 2010 not to proceed with a Common Law damages claim.
[5]Emphasis added.
Between 2003 (after leaving the Council) and August 2012, Mr Griffiths worked in a variety of manual occupations. Subsequently, he obtained the disability support pension, and then an aged pension.
In October 2012, the Insurer wrote to Mr Griffiths terminating his entitlement to medical and like expenses from 25 November 2012.
In November 2012, the Insurer received a request from a surgeon, Mr Owen, for the funding of bilateral knee replacement surgery. The Insurer wrote to Mr Griffiths later that month rejecting the request to fund this surgery.
In December 2012, the Insurer received a further request from Mr Owen to fund a right shoulder injection. The Insurer wrote to Mr Griffiths in January 2013 rejecting that request.
A conciliation conference was held in late January 2013 in relation to the Insurer’s decisions to terminate medical expenses and reject surgery requests.
In March 2013, the Insurer wrote to Mr Griffiths rejecting the request for reinstatement of weekly payments. A conciliation conference was held in about May 2013 in relation to the Insurer’s rejection of the request to reinstate weekly payments.
In April 2014, Mr Owen performed a total right knee replacement surgery.
In 2015, Maurice Blackburn arranged for another surgeon, Mr Kossmann, to examine Mr Griffiths. He provided a report dated 12 August 2015.
In 2016, Mr Griffiths attended two conciliation conferences without representation in respect of disputes about his ongoing entitlement to compensation. He said no progress was made at either conference.
In late 2016, Mr Griffiths discussed with his treating psychologist the lack of progress at the conciliation conferences. In his affidavit in support of the application under s 23A he deposed:
[My psychologist] informed me of another firm of lawyers, Melbourne Injury Lawyers, and as a result I consulted Melbourne Injury Lawyers on 13 December 2016.
And:
After I consulted Melbourne Injury Lawyers, and in particular Aleksandar Koteski, who continues to act on my behalf now working at Shine Lawyers, steps were taken to investigate my claim, virtually from the ground up with the obtaining of medical records, medical reports, claim files and like information. Ultimately, those efforts were successful and serious injury certification was granted with respect to my injuries and the current proceeding initiated after a statutory conference process had been exhausted.
In July 2018, Mr Pang, an orthopaedic surgeon, performed total left knee replacement surgery.
In July 2019, Mr Pang performed total left hip replacement surgery.
In November 2019, Mr Griffiths made a serious injury application in accordance with s 134AB of the AC Act which was received by WorkSafe Victoria on 21 November 2019.
That application for leave to bring a proceeding for pain and suffering and pecuniary loss damages was granted by the Victorian WorkCover Authority.

The County Court proceeding

Mr Griffiths’ proceeding against the Council was issued on 15 July 2020 after completion of the pre-litigation process required by s 134AB of the AC Act.
The statement of claim pleaded that his knees and left shoulder injuries were caused by the requirement to repeatedly undertake heavy manual handling work in the period 20 October 1999 to May 2003, more particularly, on 27 May 2002 when he was lifting a bin containing crushed rock while collecting garbage at Hurstbridge Football Club. The particulars of negligence were expressed in the broadest of terms. Mr Griffiths also pleaded breach of the Occupational Health and Safety (Manual Handling) Regulations 1999 (Vic), and of terms implied into his contract of employment with the Council.
The Council alleged in its defence filed on 28 July 2020 that the claim was barred by the provisions of the LA Act.
On 13 May 2021, Mr Griffiths applied by summons under s 23A of the LA Act to extend the time to commence the proceeding.
The application under s 23A was heard on 20 July 2021. The evidence at the hearing comprised:
(a)an affidavit of Mr Griffiths with exhibits including:
(i)his affidavit in support of his serious injury application;
(ii)correspondence to Mr Griffiths from Maurice Blackburn;
(iii)numerous WorkCover claim forms and reports of injury dating from 1991;
(iv)numerous radiological reports dating from 2002;
(v)numerous medical reports written by Mr Griffiths’ treating doctors or obtained on his behalf from medico-legal specialists;
(vi)numerous medical reports obtained by the Council or its Insurer;
(b)an affidavit of former co-worker, Barry Birchall, describing aspects of the work performed by Mr Griffiths;
(c)an affidavit of Anna Dodgshun, lawyer for the Council, with exhibits that included file notes of telephone conversations with potential witnesses; and
(d)the oral evidence of Mr Griffiths.
On 24 August 2021, the judge rejected Mr Griffiths’ application, and made orders dismissing the County Court proceeding.

The evidence in the County Court hearing

Mr Griffiths

In his affidavit, Mr Griffiths said his left shoulder was injured at work in May 2002 when he was required to lift a bin that contained crushed rock. He said his work for the Council required him to get in and out of his truck cabin multiple times each day, run behind garbage trucks and manually carry heavy garbage bins to the truck. He said the heavy manual nature of his work in the period October 1999 to May 2003 was a significant cause of injuries to his knees and left shoulder. He also claimed that a consequential injury to his left hip was caused by his hobbling or limping as a result of left knee symptoms.
In relation to his failure to institute proceedings within time Mr Griffiths said:
The most significant reason for the delay in the commencement of the current proceeding was that by reason of instability of my injuries, impacting particularly upon the assessment of my entitlement to damages, meant that proceedings against the Defendant could not sensibly have been resolved at trial at an earlier point in time.
The thrust of the cross-examination of Mr Griffiths went to (a) his knowledge of the existence of a limitation period and the impact on his potential claim and (b) his explanation for the delay in instituting this application.
In cross-examination, he was asked about the letter from Maurice Blackburn in April 2008 providing advice as to the prospects of a common law claim:
But what the letter also says is that if you wish to pursue a common law claim you must act very quickly with respect to instructing solicitors to act on your behalf; do you see that?---That’s throwing the onus back on me.
Yeah, so their advice was, we don’t recommend it, but they are saying to you, but if you want to pursue the claim you’ve got to act quickly?---Like I said I wasn’t happy with what was going on.
Yes, but do you agree that that was the advice that was given to you?---Well, I had to agree, there wasn’t nothing else to say to it, was there?
Mr Griffiths was asked about seeking advice from a different lawyer:
And you knew that, if you wanted to pursue a common law claim, you’d need to find alternative solicitors?---That’s correct; I didn’t know about that part, but I went to alternative solicitors because I wasn’t happy with the last lot.
Mr Griffiths was asked whether he obtained any alternate legal advice between April 2008 and December 2016, and said:
No, not that I can remember — like, I was too worried about me knee; it was taken in 2014.
Later, Mr Griffiths was asked:
Mr Griffiths, in those letters from Maurice Blackburn that I took you to, there was a repeated recommendation to seek alternative legal advice if you wanted to pursue a common law claim; do you agree with that?---Yes.
Those letters were in 2008 and 2010?---Yep.
Mr Griffiths was then asked about being advised there were time limits with respect to a common law claim:
Do you see in the letter, Mr Griffiths, it also urges you to obtain alternative legal advice should you wish to pursue a common law claim within the time limit?

---Yep.
You were aware that the time limit was soon to end and that, if you wanted to pursue your claim, you needed to find alternative lawyers?---I was still going on the thing that, once it was reported, it was set in cement; nothing about time limits or nothing like that.
Well, you say that, but you’ve just accepted in your evidence that you were advised that there were time limits for making a common law claim?---Well, at the time I didn’t want common law claim, I wanted to go the other way but---
But you knew---?---But that never happened so ...
But you accept that you knew there was a time limit - - - ?---I was told.
You were told?---Yes, I was told.
And you were told that it was important that you obtained alternative legal advice if you wanted to pursue a common law claim?---Yep, I was told.
He was asked again about the need to seek alternate advice:
The question I put was that, you knew you needed to seek urgent advice if you wanted to pursue your claim because there was a time limit; do you accept that?

---I have to accept it, it’s in writing, innit?
Mr Griffiths was asked why he did not take steps to pursue a common law claim before seeing Melbourne Injury Lawyers in December 2016:
Why is it that you didn’t do anything to pursue your claim?---Because I was in pain. I was worried about me work. After I left Nillumbik there was only jobs for here and there and that was it. Once they realised I had a condition, limping around, they got rid of me.
And you said to the court you stopped working in 2012?---Yes.
Why didn’t you do something after you stopped work?---Why didn’t I do what?
Why didn’t you take steps to pursue a common law claim?---Because I was running round getting medical advice to find out how bad my knees were and my shoulder.
What caused you to stop work in 2012?---I was told I wasn’t unemployed. I wasn’t good enough for the job.
Could you not work past 2012 because of your knees?---Yes.
And I suggest that, by 2012 it was abundantly clear to you that your knees were very serious?---Yes.
There were further questions on the same topic:
You knew as at, at least 2012, that your knees were going to prevent you from working into the future?---That’s right.
So, why didn’t you at that time take any steps to pursue a common law claim?

---Because I wanted to make sure I had every — all my facts correct before I started again, and I was talking to an orthopaedic surgeon and he told me not to work again.
…
Are you saying to this court that in 2012 you did nothing because you were busy making sure that you had everything correct before you made a claim?

---I wanted to try and get physically right, I was sick of pain in me knees, or knee at the time.
…
Do you say that the pain stopped you from going to see a lawyer to pursue your common law claim?---At that time I was just too busy worrying about what was going on with me knee.

Mr Griffiths was then asked about the time after he instructed Melbourne Injury Lawyers in December 2016:
At the time that you saw them, in December 2016, you knew that you were out of time to make a common law claim against Nillumbik Shire Council?---I wasn’t happy with the way the court case was handled, so I sat on it for a while; I thought, right, I’ll do something about it. I went back to conciliation and they gave me a lot of legal mumbo jumbo. Then I went back to conciliation later on in the year, and the woman who was talking conciliation to me, she said, ‘I told you legally what you can do’, and she said, ‘I’ll put it into your terms: go for it’. So, I went and seen Melbourne Injury Lawyers (indistinct), go for it.
Mr Griffiths, my question was, or what I put to you was, at the time you saw Melbourne Injury Lawyers you knew that you were out of time to make a common law claim?---That was set in concrete. Youse changed the rules, not me. I didn’t change the rules.
Can I take it that you’re saying, yes, I knew I was out of time? Is that what you’re saying, Mr Griffiths?---I knew I was out of the time. Because there was always something else will come up; there’s always something else.
And you knew that you needed to put in a serious injury application to start the process?---I also knew that the other knee was going a bit dickie too; then the hip gave out so, you know, it’s an ongoing thing.
Then, as to why it took nearly three years to make his serious injury application:
Do you have any explanation as to why it took nearly three years to put in the serious injury application?---Serious injury (indistinct) they waited to see what happened with me; I had a knee taken out in 2014, I had a knee taken out in 2018, I had a hip taken out in 2019. That’s serious injuries, innit?
Finally, there was the following exchange:
Mr Griffiths, that’s in your affidavit, but I suggest that issue of stability and assessment of damages is not something that you took into account when determining whether to pursue a common law claim?---No, I had one knee out, I knew one was gonna go. I didn’t know the hip was gonna go with it.
No, but what’s in that paragraph, I suggest, isn’t an explanation for why you didn’t pursue your common law claim?---I was worried about getting the injuries fixed before anything happened worse.
Precisely, I suggest you weren’t delaying things because you were concerned about how issues might play out at trial in terms of your assessment of damages?---I don’t know what you mean.
In that paragraph - - -?---One knee’s gone: yes. One knee had gone, I was sweating on what was gonna happen with the second knee. The second knee went in 2018; 2019 I had the hip done.
Yes - - - ?---Then I’m worried about whether that second hip’s gonna give out.
Mr Griffiths was also questioned about his work for the Council. He agreed that he worked with Mr Birchall from around 1993 to 1996 when he moved to a different area driving a road sweeper. Later, he said he worked for about five years from 1996 driving a truck picking up green waste: he had two runners working with him at the time, and that he went through five sets of runners because it was a hard physical job. Mr Griffiths said he then worked alone on a ‘one armed bandit’ garbage truck until around mid-2002.

The judge’s reasons

In the main, Mr Griffiths’ case before the judge focused on the adequacy of the advice given by Maurice Blackburn between 2008 and 2015 as to his common law claim for damages. It is, therefore, quite unsurprising that the judge commenced his synthesis of the evidence by examining this issue and considered at some length the question of whether that advice was inadequate or incorrect concluding:
I am not satisfied there is sufficient evidence to prove that the advice provided by Maurice Blackburn as to the prospects of success of a serious injury application, or as to establishing negligence in the common law proceeding, throughout the period they were retained was inappropriate or incorrect. In any event, Mr Griffiths had the option, clearly stated and open to him, to obtain the opinion [of] other solicitors.[6]
[6]Reasons, [38].
The judge then noted there was a delay of between 16 and 20 years from the time the cause of action arose to the writ being issued:[7]
Mr Griffiths said he stopped work completely in 2012. He could not work beyond that point because of the problems with his knees. He said he did not pursue a claim at that time as he wanted to make sure he had all the facts ‘correct’ and because of the physical problem with his knees. While Mr Griffiths is a relatively unsophisticated man and presumably accepted the advice of his lawyers, two things were made clear to him. He was advised of the expiration of the limitation period and the consequences which would result, and he was offered the opportunity to obtain a second legal opinion.[8]
[7]Ibid.
[8]Ibid [40].
After referring to passages in Prince Alfred College Inc v ADC[9] and Itek Graphix Pty Ltd v Elliott,[10] the judge stated:
Mr Griffiths appears not to have made any response to the various letters sent to him about the expiry of the limitation period. He accepted he gave instructions to Maurice Blackburn not to pursue the claim. The advice contained in the various letters from the solicitors was clear and unambiguous. He had the opportunity to consider his position carefully, seek an alternative opinion and proceed with his common law claim if he so chose. Even accepting his relative lack of sophistication and understanding of the law, it was his decision not to proceed.[11]
[9](2016) 258 CLR 134, 167 [106] (French CJ, Keifel, Bell, Gageler, Keane and Nettle JJ) (‘Prince Alfred College’).
[10](2002) 54 NSWLR 207, 225 [91] (Ipp AJA) (‘Itek Graphix’).
[11]Reasons, [43].
The judge then examined the authorities relevant to prejudice and whether there could be a fair trial.
His Honour concluded the Council’s investigation of Mr Griffiths’ claim was ‘somewhat cursory’ and that he would have expected a more comprehensive investigation to have been undertaken. In effect, the judge rejected the Council’s assertion that it had sustained specific prejudice as a result of the alleged destruction of documents.[12]
[12]Ibid [51].
The judge then referred to the range of documents that were available to the Council, and the evidence of the former co-worker, Mr Birchall. The judge concluded that while evidence produced by Mr Griffiths may go some way to understanding the system of work he was required to perform ‘… given the passage of time, it is not known whether there are other documents which may throw light on the issues in dispute’.[13]
[13]Ibid [52]–[54].
The judge then observed that the general nature of Mr Griffiths’ pleadings made it difficult for the Council to determine what evidence it might need to rely on in defending the claim, concluding that significant general prejudice had been demonstrated by the Council.[14] His Honour also treated the delay between instructing his lawyers in 2016 and the issue of serious injury proceedings as being neither prompt nor reasonable.[15]
[14]Ibid [57].
[15]Ibid [54]–[56].
In dismissing the application his Honour concluded:
Section 23A requires a court to be satisfied it is just and reasonable to extend the limitation period. I am not satisfied it is just and reasonable to extend the time, in particular, given the clear advice provided to Mr Griffiths by Maurice Blackburn, which I am not satisfied was inappropriate or incorrect, in conjunction with the very substantial delay between the accrual of the cause of action and the issue of proceedings, which I am satisfied will create significant general prejudice to the defendant, as well as the failure to provide any acceptable reason as to why it took almost three years from December 2016 to November 2019 for the serious injury application to be issued.[16]
[16]Ibid [67].

Mr Griffiths’ proposed grounds of appeal

In his application for leave to appeal Mr Griffiths relies on nine proposed grounds of appeal:
1.The primary Judge erred in that the decision to refuse to extend the limitation period was plainly wrong.
2.The primary Judge erred in failing to properly exercise the discretion to extend the limitation period since it was unreasonable or plainly unjust not to do so.
3.The primary Judge erred in the application of the synthesis required by s 23A(2) of the Act, which resulted in a failure properly to exercise the discretion whether to extend the limitation period, in that the primary Judge gave determinative consideration to the Plaintiff’s decision to instruct his former solicitors not to commence common law damages proceedings without properly synthesising the competing considerations, including the finding of no specific prejudice to the Respondent, and arriving at a conclusion that takes account of them all.
4.The primary Judge erred in his analysis of the length and reasons for delay on the part of the Applicant, and whether the Applicant acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages, including by impermissibly speculating upon whether advice given by former solicitors was ‘incorrect or inappropriate’ [33], [36], [37], [67], and failing to properly asses the weight to be given to the significant deterioration of, and treatment for, the Applicant’s injuries in the years 2012 to 2018.
5.The primary Judge erred in law in determining at [34] that he was not satisfied that it was reasonable for the Applicant’s former solicitors to have reviewed the situation in 2014 at the time of the first knee replacement. Such finding was speculative, without evidentiary foundation, and was an irrelevant consideration in the circumstances of the application before his Honour.
6.The primary Judge erred in law in misapplying established principles in respect of the manner in which the actions of a former solicitor ought be considered in the synthesising exercise required by s 23A(2) of the Act.
7.The primary Judge gave insufficient weight to considerations of the prejudicial effect upon the Applicant should the Application be refused, and failed to give any or adequate consideration to s 23A(3)(d) of the Act.
8.The primary Judge failed to properly consider, and failed to apply the correct legal test as to, whether a fair trial could still be had, particularly in light of no finding of any specific prejudice to the Respondent.
9.The primary Judge erred in failing to provide adequate reasons to support the conclusion at [67] that it was not just and reasonable to extend the limitation period.

The limitation period

It was accepted by the parties at the hearing of the application, and in this Court, that s 5(1)(a) of the LA Act applied to Mr Griffiths’ claim.[17]
[17]For completeness, we note that the three year time limit prescribed by s 5(1AA) for personal injury proceedings has no application in the present case because, even if Mr Griffiths’ cause of action arose on or after 5 November 2002 (as to which, see s 39 of the LA Act), his County Court proceeding is an action for damages to which Part IV of the AC Act applies and is therefore excluded from the operation of s 5(1AA) by the operation of s 40 of the LA Act.
Section 5(1)(a) provides:
(1)The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued—
(a)Subject to subsections (1AAA), (1AA) and (1A), actions founded on simple contract (including contract implied in law) or actions founded on tort including actions for damages for breach of a statutory duty;
Given the apparent lack of attention given to the limitation period by Mr Griffiths and his lawyers, from 2016 and onwards, it is appropriate to say something about the purpose and effect of this limitation period.
The statements of principle of the High Court in Brisbane South Regional Health Authority v Taylor[18] remain the yardstick. Provisions such as s 5(1)(a) represent a judgment by the legislature that a right of a party to pursue a cause of action is not unlimited. There is a general public interest in ensuring that litigation is brought and prosecuted in a timely fashion.[19] Delay is productive of unfairness and prejudice: evidence is lost or diluted; witnesses may not be able to be called, their memories fade and reconstruction may take over.
[18](1996) 186 CLR 541, 544 (Dawson J), 547 (per Toohey and Gummow JJ), 551, 553–554 (McHugh J) and 573 (Kirby J) (‘Brisbane South’).
[19]Brisbane South (1996) 186 CLR 541, 552–553 (McHugh J).
As McHugh J stated:
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.[20]
[20]Brisbane South (1996) 186 CLR 541, 553 (McHugh J).
To put it bluntly, and contrary to what appears to have been the perception of Mr Griffiths and his lawyers after 2016, a limitation period in a personal injuries claim, or in a proceeding more generally, is not just some easily movable line in the sand. Rather, it is a formidable hurdle which can only be overcome by the applicant satisfying the test laid down by the relevant extension of time provisions.[21]
[21]In this State, ss 23A and 27A of the LA Act in personal injuries claims.

Extension of time: s 23A of the LA Act

Subsection 23A(2) of the LA Act enables the Court to extend the limitation period within which to bring a cause of action if ‘it is just and reasonable so to do’. Matters to which the Court must have regard in considering whether to exercise the discretion to extend time are set out in sub-s (3):
In exercising the powers conferred on it by subsection (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following—
(a) the length of and reasons for the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c)the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
(e)the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(f)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
The principles that apply to an application of this type are uncontroversial and can primarily be derived from the decisions of the High Court in Brisbane South and more recently in Prince Alfred College:[22]
(1)The applicant, for an extension of time, bears the onus of establishing that it is just and reasonable to order that the limitation period be extended. It is for the applicant to prove the facts which enliven the discretion to grant the extension and to show good reason for exercising the discretion in his or her favour;[23]
(2)The purpose of a discretion conferred by provisions such as s 23A is to ensure a fair trial on the merits of the case. Loss of evidence, which tends against the prospect of a fair trial, will usually be fatal to an application to extend time;[24]
(3)The relevant delay commences from the time of the accrual of the cause of action;[25]
(4)Relevant prejudice to a defendant is both that which occurs by reason of the delay (such as the demonstrable loss of documents or testimony of a relevant witness) as well as the prima facie prejudice suffered by a defendant who, if not for the application for extension, would have the benefit of the limitation period;[26]
(5)In cases of long delay, there is presumptive prejudice as important, perhaps decisive, evidence may disappear without its existence ever being apprehended;[27]
(6)The circumstances of the case referred to in s 23A(3) require a synthesis of the competing considerations set out in the subsection in reaching a conclusion that takes into account all of them.[28]
[22]258 CLR 134, 164-5 [99] (French CJ, Keifel, Bell, Gageler, Keane and Nettle JJ).
[23]Prince Alfred College (2016) 258 CLR 134,164-5 [99] (French CJ, Keifel, Bell, Gageler, Keane and Nettle JJ); Brisbane South (1996) 186 CLR 541, 544 (Dawson J), 547 (Toohey and Gummow JJ), 551, 553–554 (McHugh J), 567, 573 (Kirby J).
[24]Prince Alfred College (2016) 258 CLR 134, 165 [100] (French CJ, Keifel, Bell, Gageler, Keane and Nettle JJ); Brisbane South (1996) 186 CLR 541, 544, 549–550 (Toohey and Gummow JJ), 556 (Kirby J).
[25]Delai v Western District Health Service [2009] VSC 151, [22]; Koumorou v State of Victoria [1991] 2 VR 265; Repco Corporation Limited v Scardamaglia [1996] 1 VR 7.
[26]Brisbane South (1996) 186 CLR 541, 544 (Dawson J).
[27]Brisbane South (1996) 186 CLR 541, 551 (McHugh J); Prince Alfred College (2016) 258 CLR 134, 165 [100] (French CJ, Keifel, Bell, Gageler, Keane and Nettle JJ).
[28]Tsiadis v Patterson (2001) 4 VR 114, 123 [33] (Buchanan JA) (‘Tsiadis’). See also Bell v SPC[1988] VR 123, 125–126.
Finally, as the judgment below is a discretionary judgment then it must be established by Mr Griffiths that there was specific error on the part of the judge or that the conclusion is so unreasonable or plainly unjust to permit the inference that the discretion was not properly exercised.[29]
[29]House v The King (1936) 55 CLR 499; as applied in the extension of time setting: Hunt and Numurkah District Health Service v Holcombe [2018] VSCA 248, [50] (Beach, Kaye and Niall JJA) (‘Hunt’).
In the context of an application under s23A, in Hunt this Court said as follows:
The principles that apply to the review of such an exercise of a discretion are well established. First, the appellate court is not entitled to substitute its own view for the discretion entrusted to the primary adjudicator, in this case, the Associate Justice. Thus, in considering questions of weight, the appellate court should not regard itself as being in the same position as the Associate Justice. Secondly, where, as in this case, the discretionary judgment, under appeal, is the product of a synthesis of a number of factors, the appellate court should not be astute to discern error, where the decision under review has not specifically mentioned, or referred to, a particular fact or circumstance. In particular, ordinarily, there is a presumption in favour of the correctness of the decision that is the subject of appeal.[30]

Did the judge adequately consider or analyse the alleged negligence of the former solicitors? (proposed grounds 3, 4, 5 and 6)

[30]Hunt [2018] VSCA 248, [51]. See also in the context of s 23A of LA Act: Lord v Australian Safeway Stores (1996) 1 VR 614, 617.

At both the trial and before this Court, counsel for Mr Griffiths maintained that the critical failing by the judge was his conclusion as to the relevance of Maurice Blackburn’s alleged failure, during its retainer, to provide appropriate advice to Mr Griffiths in relation to his potential claim for common law damages.

Notwithstanding that this was the centrepiece of the argument mounted by Mr Griffiths in both courts, it is difficult to understand in the light of the evidence adduced at the hearing how this proposition could rationally affect the determination of the application.
In Hunt this Court made it clear that when determining the reasonableness of an applicant’s actions in delaying the bringing of the claim it is necessary to examine the state of knowledge ‘personal to the position of the [applicant]’.[31] So, in applications under s 23A or its equivalent, a key part of the analysis is directed to the applicant’s knowledge of two matters: the existence of a cause of action against a potential tortfeasor and the existence of a limitation period which may defeat that claim. As we shall now explain (and as found by the judge), Mr Griffiths possessed the requisite knowledge of both these things from at least 2008.
[31]Hunt [2018] VSCA 248, [61] (Beach, Kaye and Niall JJA); See also Clark v McGuinness [2005] VSCA 108, [22] (Warren CJ).
First, true it is that Mr Griffiths had been told that his common law claim faced difficulties. But to stop there and examine the evidence only on that basis, as counsel for Mr Griffiths did, both before the judge and before this Court, is misconceived.
Whilst it can be accepted that Mr Griffiths was unsophisticated and had no knowledge of the law it is, nevertheless, abundantly clear that from 2008 onwards Mr Griffiths was aware of both his entitlement to bring a claim for common law damages and the existence of a limitation period which could prevent such a claim. The extracts from the letters of Maurice Blackburn in 2008 and 2010 at [15], [16] and [20] above and his answers in cross-examination at [44]-[46] above demonstrate this unequivocally.
It was never suggested, either in his affidavit or in re-examination of Mr Griffiths, that he did not understand the thrust of this advice. Indeed, it seems tolerably clear that he did in fact understand that he had a common law claim and was troubled by Maurice Blackburn’s advice as to its poor prospects. It is also not to be ignored that Maurice Blackburn advised him to seek a second opinion if he was concerned about their advice.
Accordingly, if the contention be that in some way the advice of Maurice Blackburn clouded the understanding of Mr Griffiths as to either the existence of a common law claim or his ability to bring one, this misstates the evidence and ignores significant parts of the material considered by the judge.
Moreover, Mr Griffiths, properly advised, made an informed choice not to proceed with his common law claim. Maurice Blackburn did not dismiss the possibility of Mr Griffiths succeeding with a serious injury application or a common law claim against the Council. The firm did not say they would not act for Mr Griffiths if he chose to pursue a claim. Indeed, it may be inferred that had he chosen to proceed with a common law claim against Maurice Blackburn’s recommendation, they would have accepted his instructions and acted on his behalf.
In Prince Alfred College,[32] the High Court said:
Where an injured party makes a deliberate decision not to commence proceedings, there must be strong reasons to permit proceedings to be brought against a defendant who reasonably considered that the dispute had been laid to rest. It has been recognised that there is an element of oppression involved in bringing an action so long after the circumstances which gave rise to it have passed.
[32](2016) 258 CLR 134, 167 [106] (French CJ, Keifel, Bell, Gageler, Keane and Nettle JJ).
Earlier, in Itek Graphix,[33] Ipp AJA (with whom Spigelman CJ and Sheller JA agreed):
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.
[33]Itek Graphix (2002) 54 NSWLR 207, 225 [91] (Ipp AJA).
To use the words of s 23A(3)(e) of the LA Act from the time of the Maurice Blackburn 2008 advice, Mr Griffiths ‘knew that the act or omission of the defendant to which [his] injuries are attributable might be capable at that time of giving rise to an action for damages’. In addition, he knew the claim would soon be statute barred. The judge correctly described the advice given as ‘clear and unambiguous’.[34] It was proffered on at least three occasions (twice in 2008 before the limitation period expired, and again in 2010 when the claim for a lump sum statutory benefit was underway).
[34]Reasons, [43].
Second, if it was thought that Maurice Blackburn’s advice as to the dismal prospects of his claim might, in some fashion, count in Mr Griffiths’ favour (other than as discussed above) then this misconstrues the law. The existence of a cause of action against a solicitor is a relevant matter; but only in determining if it is appropriate to refuse an application to extend time. Two examples demonstrate this point. In Tsiadis[35] the right to sue a solicitor for negligent advice was held to be a relevant factor to the exercise of the discretion to refuse the application but not one which in that case ultimately precluded its exercise in favour of the applicant. On the other hand, in Gordon v Norwegian Capricorn Line (Australia) Pty Ltd,[36] the cause of action against the solicitor was held to be sufficiently strong that the bar imposed by the limitation period was not disturbed by a discretionary extension of time.
[35](2001) 4 VR 114.
[36][2007] VSC 517.
The reality is this: Mr Griffiths made a fully informed decision, on advice, not to pursue common law proceedings against the Council in 2008 and in 2010 when his statutory benefit lump sum claim was completed. The judge’s analysis was entirely appropriate, and no error in his reasoning has been demonstrated.
Finally, in the context of this case (i.e., the knowledge of Mr Griffiths as to both the existence of his right to claim damages and the force of the limitation provisions) we regard the question of the viability of the common law claim for damages as fundamentally irrelevant to the judge’s task. However, if it was necessary to do so, we agree with his Honour’s analysis of the quality of Maurice Blackburn’s advice. In particular, the judge’s finding — that he was not satisfied that it would have been reasonable for Maurice Blackburn to have given different advice in 2008 or 2010, or to have reviewed the situation in 2014 — was clearly open to him on the evidence. Indeed, it ought be noted that nothing had changed between 2008 and 2014 in relation to the weakness of the claim on liability upon which Maurice Blackburn had partly based its advice.
As the judge correctly observed:[37]
The fact that a serious injury certificate was granted in 2019 does not make the advice provided in 2008 or 2010 incorrect or inappropriate.
And as to the position in 2014:
[I]t is not clear what expert medical opinion and other information it had in its possession about the prospects both of the serious injury application and the common law proceedings generally.
[37]Reasons, [33]–[34].
In Tsiadis, Buchanan JA noted that it is difficult in an application under s 23A of the LA Act to determine both the viability of the original claim and the adequacy of the lawyer’s advice - particularly when the lawyer is not a party to the proceeding:
Usually the likelihood that the applicant will succeed in an action against his or her solicitor cannot be known with any precision when an application under s 23A of the Act is decided.[38]
[38]Tsiadis (2001) 4 VR 114, 122 [28].
The judge’s conclusion as to the adequacy of the advice proffered by Maurice Blackburn was neither speculative nor without evidentiary foundation as contended by Mr Griffiths. To the contrary, it was correct and amply supported by the evidence.
These grounds cannot succeed.

Did the judge give inappropriate weight to the delay by Mr Griffiths between 2016 and 2019? (proposed ground 4)

In relation to the issue of delay after Mr Griffiths instructed his current lawyers in late 2016, the judge said:
Even accepting Mr Griffiths was dealing with this surgery, and that it would have taken his new lawyer, Mr Koteski, some time to obtain, read and digest the Maurice Blackburn file, there is no satisfactory explanation as to why it took as long as it did to issue the serious injury application. Section 23A(3)(e) of the Act makes it clear prompt action is required. Absent any proper explanation, a delay of almost three years is neither prompt nor reasonable.[39]
[39]Reasons, [66].
Mr Griffiths contends that the judge gave inappropriate weight to the delay after he had instructed his current solicitors and before issuing the serious injury application (2016 to 2019).
Section 23A(3)(e) mandates an inquiry as to whether the actions of an applicant have been prompt and reasonable once the existence of a cause of action is known. It was entirely appropriate for his Honour to have regard to this specific period and the lack of action on the part of Mr Griffiths, or his solicitors, in bringing the serious injury application. In Ford Motor Company (Australia) v Kulic,[40] Kaye J found that in circumstances where there had been an initial delay of eight years and a subsequent delay once the applicant had knowledge of his rights, that not only was the entire delay inordinate, but that the further delay of seven months, in the circumstances, was inordinate.
[40][1988] VR 152, 157.
Here, as the trial judge observed, there was no explanation whatsoever as to why it took over two and a half years for Mr Griffiths to issue his serious injury application.
This consideration formed a relevant part of his Honour’s analysis of the reasons for the delay and whether Mr Griffiths acted promptly when it was determined to commence proceedings.[41]
[41]See s 23A(3)(e) of the LA Act.
There is no merit in this ground.

Did the judge give adequate consideration to the deterioration of Mr Griffiths’ injuries? (proposed ground 4)

Mr Griffiths, as part of proposed ground 4, contends that the deterioration of the condition of his right and left knees after the expiry of the limitation period, as demonstrated by his knee replacement surgeries in 2014 and 2018, was given insufficient weight by the trial judge.
It is patent that the judge considered the question of the deterioration of the condition of Mr Griffiths’ knees. As just mentioned, this was a central part of the attack by counsel for Mr Griffiths upon Maurice Blackburn for failing in 2014 to reconsider the common law claim against the Council.
In dealing with the conduct of Maurice Blackburn, his Honour referred on several occasions to the issue of degeneration of a body part and the worsening of the condition of Mr Griffiths’ knees.[42]
[42]Reasons, [33]–[34], [40].
In relation to principle we refer, again, to the statements in Brisbane South,[43] and the underlying rationale for the imposition of limitation periods. In any personal injury claim, there is the risk of potential deterioration of the subject injury after the expiry of the limitation period. As the respondent’s written case correctly pointed out:
The fact that a claimant might deteriorate after expiry of the limitations period, and yet might be precluded from bringing an action on the injury, is simply a result of the determination made by the legislature to impose a particular cut-off point to avoid indefinite liability.
[43]Brisbane South (1996) 186 CLR 541, 553.
This ground fails.

Did the judge consider the prejudice to Mr Griffiths caused by the refusal of the application? (proposed ground 7)

Mr Griffiths contends that the prejudice suffered by him as a result of the refusal to extend the limitation period is a ‘powerful consideration’ to which the judge gave inadequate weight.
It is self-evident that in every case in which an extension is denied, an applicant will suffer prejudice, namely the inability to bring a proceeding to claim damages. That said, the prejudice to an applicant in refusing an application under s 23A is not one of the matters specifically referred to in s 23A(3) as being a matter to which a court must have regard. Notwithstanding the absence of any specific reference in the section to prejudice to an applicant in refusing an application under s 23A, in some cases, it will be necessary for a court refusing an application under s 23A to refer to the prejudice to an applicant resulting from a refusal. This, however, was not such a case. As we have said, the prejudice to Mr Griffiths if he failed in his application was self-evident. We do not accept that his Honour did not consider this issue. Indeed, the idea that he did not consider it in his evaluation of the relevant considerations is fanciful.
We also note that Mr Griffiths appears to contend at [28] of his written case that he was under a disability on or after the accrual of the cause of action, which he submits should have been analysed in accordance with s 23A(3)(d) of the LA Act. This is not a proposed ground of appeal nor does the incapacity alleged in the document constitute a disability within the meaning of the subsection.
This ground cannot succeed.

Did the judge misconceive the degree of prejudice to the Council and whether there could be a fair trial? (proposed ground 8)

There were two components to the Council’s assertion of prejudice precluding a fair trial.
The first was that of specific prejudice arising from the alleged loss of documents and inability to locate relevant witnesses. However, his Honour did not accept that the Council had established, through the evidence of Ms Dodgshun, any specific matter that might have impeded its defence of the claim.
The second was that of presumptive or general prejudice which the judge accepted had been established by the Council. His Honour analysed the difficulties in defending a claim of this antiquity.[44] His Honour noted:
Despite the affidavit of Mr Birchall, I am satisfied there is significant general prejudice to the Shire in attempting to conduct the trial of this proceeding now, so many years after Mr Griffiths’ employment. As stated, the delay in bringing proceedings is substantial, even inordinate. The defendant will be expected to make investigations, locate documents and find witnesses now twenty years after the cause of action first arose. It is no easy matter even to know what to seek in order to meet the allegations of the plaintiff.[45]
And concluded:
I am satisfied there was significant general prejudice to the defendant in attempting to respond to the plaintiff’s allegations, and therefore to be able to conduct a fair trial on the merits.[46]
[44]Reasons, [52]–[58].
[45]Ibid [55].
[46]Ibid [58].
It was uncontroversial that the starting point in determining the relevant period of delay was between October 1999 to May 2003 (the time of the accrual of the cause of action). His Honour treated the end point as being the time when the Council, or more accurately the Insurer, received the serious injury application under s 134AB(16)(b) of the AC Act.[47]
[47]Ibid [16], [38].
Although it was not debated before us, we agree that the appropriate end point for calculating the period of delay in a claim involving a “serious injury’ process such as that provided by s 134AB of the AC Act, is the date upon which the respondent to the claim (or its insurer) receives the serious injury application and the material supporting the application (assuming that the documentation sets out in sufficient detail the circumstances of the alleged tortious acts or omissions giving rise to the potential common law claim and where appropriate an account of the injuries and consequences said to flow from the alleged negligence).[48] This approach has been adopted by trial judges of this Court.[49]
[48]A later date may apply to a defendant that is not served with the serious injury application in accordance with s 134AB(5A) of the AC Act.
[49]See, for example, Welsh v Adecco [2017] VSC 44, [6] (T Forrest J).
The serious injury application was received in July 2019. So, as the judge calculated, the entire period of delay for the purpose of assessing general prejudice was between sixteen and twenty years.[50]
[50]Reasons, [38].
The gist of Mr Griffiths’ complaint under this ground is that the judge, having found general prejudice but not specific prejudice to the Council, ought to have granted an extension of time.
This contention must fail. There is no principle that an absence of specific prejudice must necessarily lead to the grant of an extension. In Itek Graphix,[51] Ipp AJA said:
It is not correct to conclude that the absence of such prejudice compels an exercise of discretion in favour of the plaintiff.
[51](2002) 54 NSWLR 207, 210 [3].
As the judgments in Brisbane South and Prince Alfred College amply demonstrate, general or presumptive prejudice may well, with no more, be sufficient to justify a refusal by a court to extend time.
The delay in this case was considerable The matters adverted to by the judge[52] in describing the ‘significant general prejudice’ to the Council in defending the liability aspect of the claim were all appropriate and relevant considerations. They provide a more than adequate basis for his Honour’s conclusion as to the overall prejudice to the Council and the prospect of it receiving a fair trial.
[52]Reasons, [55]–[58]. Also see above, [33]–[34], [66].
This ground cannot succeed.

Are the reasons of the judge adequate? (proposed ground 9)

Mr Griffiths’ assertion that the judge’s reasons are inadequate identifies particularly paragraph [67]. That paragraph sets out the trial judge’s conclusion, and the four principal reasons why his Honour determined not to extend time.
It is trite to observe that the judge’s reasons need to be read in their totality. The reasons, viewed as a whole, clearly explain the judge’s path of reasoning, including the factual findings which were made.
These reasons do not ‘leave the reader to wonder’ how his Honour has reached his outcome in dismissing the application.[53] Quite the opposite — the path of reasoning is patent, and the reader can readily understand the factual and legal basis for Mr Griffiths’ application failing. Indeed, viewed in isolation the four principal reasons set out at [67] and the rejection of the illusory argument concerning the conduct of Maurice Blackburn are on their own a clear and unequivocal summary of why Mr Griffiths’ application failed.
[53]Hunter v Transport Accident Commission [2005] VSCA 1, [21].
This ground cannot succeed.

Is the decision plainly wrong and/or an improper exercise of discretion? (proposed grounds 1 and 2)

The factors that led to the dismissal of the application by the judge were:
(a)the advice provided to Mr Griffiths by Maurice Blackburn as to the existence of the limitation period and a cause of action;
(b)the substantial period of delay;
(c)Mr Griffiths’ deliberate decision not to pursue his claim and then his failure to provide any acceptable reason why it took almost three years for the serious injury application to be issued after his current solicitors were engaged; and
(d)the significant general prejudice to the Council flowing from the delay;
As we have noted, each of these findings was clearly open to the judge. It is also apparent that the judge engaged in the required synthesis of the relevant considerations under s 23A with the appropriate application of the relevant case law. His Honour reached, in our view, an unimpeachable and correct result. When one synthesises all of the circumstances of this case as disclosed by the evidence before the primary judge (including the prejudice which would be caused to Mr Griffiths by not granting him the extension of time he seeks), the refusal of his application was all but mandated.

Finally, it is very much to the judge’s credit that he was not deflected from his overall task by the submissions made on behalf of Mr Griffiths relating to the effect of the allegedly incorrect advice of Maurice Blackburn.
This ground cannot succeed.

Conclusion

The application for leave to appeal should be refused.
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[2022] VSCA 212

30 September 2022