Hertess v Adams

[2011] QCA 73

SUPREME COURT OF QUEENSLAND

CITATION:

Hertess v Adams [2011] QCA 73

PARTIES:

ISOLDE HERTESS
(applicant)
v
DEBORAH JOY ADAMS
(respondent)

FILE NO/S:

Appeal No 11929 of 2010
DC No 775 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

15 April 2011

DELIVERED AT:

Brisbane

HEARING DATE:

28 March 2011

JUDGES:

Muir JA, Margaret Wilson AJA and Martin J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The application for leave to appeal be granted;1.    

The appeal be allowed;2.    

The orders at first instance be set aside;3.    

The application filed in the proceedings on 10 June 2011 be dismissed; and4.    

The respondent pay the applicant’s costs of the proceedings including the costs of this appeal.5.    

CATCHWORDS:

LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – PRINCIPLES UPON WHICH DISCRETION EXERCISED – where applicant plastic surgeon was alleged to have failed to provide the respondent with adequate information as to the risks associated with the surgery – where claim brought by respondent some three years and nine months outside the limitation period – where primary judge granted an extension of time with which to lodge an appeal pursuant to s 31(2) of the Limitation of Actions Act 1974 (Qld) – where primary judge assessed prejudice created by the delay in commencing proceedings by comparing the respondent’s position during the limitation period with its position at the time of the application, not by reference to the circumstances existing at the time of the application – whether exercise of discretion by primary judge miscarried

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – GENERAL PRINCIPLES – FUNCTIONS OF APPELLATE COURT – SUBSTANTIVE RIGHT OR MATTER OF PROCEDURE – MATTERS OF PROCEDURE – INTERLOCUTORY ORDERS – where primary judge approached the exercise of his discretion on the basis that the applicant bore the onus of proof in establishing “some other matter justifying the exercise of a discretion against the granting of an extension” – whether discretion of primary judge miscarried

District Court of Queensland Act 1967 (Qld), s 118(3)
Limitation of Actions Act 1974 (Qld), s 31

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, applied
Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143, cited
Parsons v Doukas (2001) 52 NSWLR 162; [2001] NSWCA 128, cited
Pickering v McArthur[2005] QCA 294, cited
Sauer v Allianz Australia Insurance Ltd (2006) 47 MVR 220; [2006] NSWCA 364, cited
Smith v Morton (2004) 40 MVR 347; [2004] NSWCA 84, cited

COUNSEL:

G N Diehm for the applicant
G R Mullins for the respondent

SOLICITORS:

Minter Ellison Lawyers for the applicant
Trilby Misso Lawyers for the respondent

[1]      MUIR JA:Introduction: The applicant seeks leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 against an order of a judge of the District Court on 6 October 2010 allowing the respondent’s application, by originating application for an order, that the time for commencing proceedings claiming damages for personal injuries by the respondent be extended to 11 March 2010 pursuant to s 31(2) of the Limitation of Actions Act 1974 (Qld).

[2]      The applicant plastic surgeon carried out breast augmentation surgery on the respondent on 13 June 2003.  The respondent alleged that after the surgery she suffered severe infection, unevenness in the size of her breasts, scarring and psychological distress.  She underwent four corrective surgery procedures resulting in the removal of the left breast implant on 25 January 2006, a left breast reconstruction and a right breast implant replacement on 7 August 2007.  A claim, some three years and nine months outside the limitation period, and statement of claim were filed in the District Court on 11 March 2010.  The most substantial, if not the only, allegation remaining against the applicant after a concession made by the respondent’s counsel at first instance was that the applicant failed to provide the respondent with adequate information as to the risks associated with the surgery.

The applicant’s first contention

[3] The applicant did not challenge the finding by the primary judge that the evidence established that the discretion vested in the court by s 31(2) of the Limitation of Actions Act 1974 was enlivened. It was argued, however, that the exercise of the primary judge’s discretion in favour of the respondent miscarried as it was affected by two errors of law. The first such error was identified as the primary judge’s assessment of whether prejudice had been suffered by the applicant, not by reference to the circumstances existing at the time of the application, but by a comparison of the respondent’s position during the limitation period with its position at the time of the application. This error was said to be apparent from paragraphs 35 and 36 of the reasons:

“35.  The substantive factors underlying the respondents' assertion of prejudice are that the nurse, Ms Diversi, no longer works for the respondents and has indicated that she will not assist them in their defence. I cannot recall being directed to any material to indicate that that situation might be different had the action been commenced within the time limits prescribed by the Act. There is no suggestion that Ms Diversi has left the country or otherwise become unable to be contacted.  She could be subpoenaed by the respondents. This course of action has its inherent difficulties but, in the circumstances of this case, those difficulties should not unduly prejudice the respondents. The applicant acknowledges that she was seen by the nurse and that the nurse provided her with the information and material referred to above.  The nurse's relevant consultation journal entry is also available.

36.  Next it is asserted that the first respondent would be at an unfair disadvantage because she would have to rely on evidence of usual practice. The inference being that otherwise she might have been able to rely on personal recollection of events.  If that were able to be shown or, on the material before me, that inference was reasonably open, that would weigh significantly in favour of the respondents.[1]  However, in my view it has not been shown either directly or indirectly that the respondents would suffer and material disadvantage in this regard. In circumstances where the first respondent “has around 450 similar conversations each year” it is unlikely that the first respondent would have had any independent recollection of a conversation with the applicant even if the proceedings were instituted within ordinary time limits.”  (emphasis added)

[1]MacDonnell v Rolley [2001] QCA 32 at [14] and [15].

Did the primary judge fail to make the requisite assessment of prejudice to the applicant?

[4]      It is useful to commence with the High Court’s exposition of principle in Brisbane South Regional Health Authority v Taylor.[2]   In that case, the court rejected the view of the Court of Appeal that to determine whether a defendant would suffer prejudice in consequence of an order extending time, it was necessary to compare the defendant’s position under an action instituted within time with one instituted at the time of the application for extension of time.  In their joint reasons Toohey and Gummow JJ said:[3]

[2](1996) 186 CLR 541.

[3]At 548-549.

“In other words their Honours approached the question of prejudice by reference to the theoretical situation of an action commenced two and a half years after the conversation between the respondent and Dr Chang. But s 31(2) neither speaks of nor warrants such a comparison. Once an applicant satisfies pars (a) and (b), the Court has a discretion to extend the time for the bringing of an action. A material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is possible. Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application. 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.”  (emphasis added)

[5]      A little later[4] their Honours said:

[4]At 549-550.

“In this regard we have difficulty with the notion of weighing prejudice to an applicant against prejudice to the respondent. In one obvious sense the prejudice to the present respondent is absolute if her application is refused. She can never litigate her claim. But that cannot be enough of itself to warrant an extension of time; in truth there would be no discretion to be exercised. For that reason we do not accept the respondent's argument that the District Court fell into error in failing to balance the prejudice to the appellant against the prejudice against the respondent. It may be appropriate to temper that approach and to say that because the respondent has satisfied par (b) of sub-s (2), there is therefore evidence to establish her right of action. Even then, a weighing process is not called for. The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent.”   (emphasis added)

[6]      McHugh J, with whose reasons Dawson J agreed, also concluded that the Court of Appeal’s approach was wrong:[5]

[5]At 554.

“In the present case, the learned District Court Judge held that the present respondent was "placed in a position of serious prejudice having regard to the lapse of time which has occurred". That being so, his Honour, quite naturally, took the view that an extension of time should not be granted. The learned Judges of the Court of Appeal met the prejudice point by holding that the test for prejudice was whether an order extending time would make the defendant any worse off than it would have been if the action had been commenced within, but towards the end of, the limitation period. But this analysis, with respect, treats the limitation period as little more than a point of reference. It suggests that all that is ordinarily relevant is the marginal prejudice created by the delay. It downplays, if it does not overlook, the second, third and fourth rationales of limitation periods to which I have referred. It treats the parties, subject to the question of prejudice, as if they were on an equal footing. The analysis gives no weight to the fact that the defendant's potential liability expired at the end of that period and that to extend the period may result in the imposition of a new legal liability on the defendant. Indeed, it seems to indicate that a limitation period is a provisional rather than a rigid limit.”  (emphasis added)

[7]      McHugh J proceeded to explain the significance of the expiration of the limitation period and the likely consequence of a finding of actual significant prejudice:[6]

[6]At 555.

“If the action had been brought within time, it would have been irrelevant that, by reason of the delay in commencing the action, Dr Chang might have had little independent recollection of his conversation with the applicant and that the defendant might have had difficulty in fairly defending itself. But once the potential liability of the defendant had ended, its capacity to obtain a fair trial, if an extension of time were granted, was relevant and important. To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action. This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent. But the justice of a plaintiff's claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action.

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 a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action. 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 reimposed upon it. This is so irrespective of whether the limitation period extinguishes or merely bars the cause of action.”  (emphasis added)

[8]      The following discussion by McHugh J of delay and consequent presumptive prejudice has application to the facts under consideration:[7]

[7]At 556.

“Once the learned judge had made a finding of actual prejudice, his decision to dismiss the application was inevitable. 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 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.”

[9]      At first instance the applicant identified the most substantial source of prejudice to the applicant arising from delay as being that:

(a)        the nurse who assisted the applicant with the procedure and who had contact with the respondent “no longer works for [the applicant] and has indicated that she will not assist” in the defence; and

(b)        the disadvantage suffered by the applicant in having to rely on evidence of her usual practice rather than “on personal recollection of events”.

1. In dismissing the first ground, the primary judge said:

“I cannot recall being directed to any material to indicate that that situation might be different had the action been commenced within the time limits prescribed by the Act.  There is no suggestion that Ms Diversi [the nurse] has left the country or otherwise become unable to be contacted.  She could be subpoenaed by the respondents.  This course of action has its inherent difficulties but, in the circumstances of this case, those difficulties should not unduly prejudice the respondents.” 

1. When discussing the second ground his Honour said that the inference which the applicant sought to have him draw was that, without delay, the applicant may have been able to rely on a personal recollection of events.  He concluded, however, that it had not been established that the applicant would suffer any material disadvantage in this regard because it was unlikely that the applicant would have had any independent recollection of a conversation with the respondent even if the proceedings had been instituted within time.  In respect of both grounds then the primary judge looked, impermissibly, to the comparison of the prejudice which was likely at the time of application to that which would have existed in any event had the application been made within the limitation period.

1. Although the prejudice created by the delay in commencing proceedings is relevant and may be a very significant consideration, Brisbane South makes it plain that the existence and extent of any prejudice to the applicant must be assessed as at the date of the application.  The primary judge did not make this assessment.  He thereby failed to give due weight to the prejudice suffered by the applicant, both presumptive and actual, and to the fact that an extension of time would operate to deprive the applicant of the protection of the Act.  The exercise of the primary judge’s discretion then miscarried and it falls to this court to exercise it afresh.  Some of the following discussion in respect of the applicant’s second argument and the manner in which the discretion should be exercised is also of relevance to the ground just discussed.

The applicant’s second contention

1. The second argument advanced by the applicant was that the primary judge approached the exercise of his discretion on the basis that the applicant bore the onus of proof.  It was submitted that the primary judge, after concluding that the respondent did not have “a particularly strong case”, proceeded as if his task was to exercise a discretion to refuse the application.  The argument was developed by counsel for the applicant as follows.  In the part of the judgment relating to the exercise of the primary judge’s discretion, there is no consideration of any factor which the respondent put forward as supporting the exercise of the discretion in her favour, nor is there any indication that the primary judge was concerned to identify any such factor or that he appreciated that the respondent bore the onus in that regard.  To the contrary, he dealt only with the evidence advanced by the applicant. 

Did the primary judge erroneously impose the onus of proof on the applicant?

1. In Brisbane South Regional Health Authority Toohey and Gummow JJ referred to the following passage from the reasons of the Court of Appeal: [8]

   [8]At 547.

“The scheme of the section, in our view, is that, upon compliance with paras (a) and (b) [of s 31(2) of the Act], the applicant is entitled to an extension of time unless there is some matter justifying the exercise of a discretion against the granting of an extension. Once that is accepted, the evidentiary onus on this question is plainly on the respondent [that is, the present appellant] and, for the reasons we have given, was not discharged here.”

and then said:

“With respect to their Honours, that passage does not truly reflect the meaning and operation of s 31(2). The discretion conferred by the sub-section is to order an extension of the limitation period. 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 these facts do not amount to material prejudice."  (emphasis added)

1. McHugh J’s reasons were to similar effect. His Honour, referring to the view below that an applicant was entitled “to an extension of time unless there is some matter justifying the exercise of discretion against the granting of an extension” once the applicant established the matters in s 31(1) said:[9]

“With great respect to their Honours, s 31 should not be read as giving an applicant a presumptive right to an order once he or she satisfies the two conditions laid down in s 31(2) of the Act. An applicant for an extension of time who satisfies those conditions is entitled to ask the court to exercise its discretion in his or her favour. But the applicant still bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour.”

[9]At 551.

1. McHugh J then explained the rationale underlying limitations statutes and the bearing of that rationale and the existence of an expired limitation period on the exercise of a discretion under s 31(2):

“The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates."  Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, "what has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.

…

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

…

The purpose of a provision such as s 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced." But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.

The scheme of the Act is that s 11 forbids the bringing of an action for damages for negligence after the expiration of three years from the date on which the cause of action arose unless leave is given under s 31. It follows that an applicant for extension must show that justice will be best served by excepting the particular proceedings from the general prohibition which s 11 imposes. In this context, justice includes all the relevant circumstances relating to the application including the various rationales for the enactment of the limitation period involved. That the applicant had a good cause of action and was unaware of a "material fact of a decisive character relating to the right of action" does not alter the burden on the applicant to show that the justice of the case favours the grant of an extension of time. Those facts enliven the exercise of the discretion, but they do not compel its exercise in favour of the applicant. Without them, the applicant has no right to call for the discretion to be exercised in his or her favour. Proof of them does not give the applicant a presumptive right to the exercise of the discretion, as Davies JA and Ambrose J held. As Wells J has pointed out, "to qualify is not to succeed". The object of the discretion, to use the words of Dixon CJ in a similar context, "is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case." In determining what the justice of the case requires, the judge is entitled to look at every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period.”

1. In considering prejudice, the primary judge examined the arguments advanced on behalf of the applicant, which centred around evidentiary problems the applicant would face resulting, at least in part, from the passage of time.  His Honour, as discussed earlier, concluded this discussion with the finding that he was not satisfied that:

“…[T]he prejudice the respondents[10] might suffer as a consequence of the delay is sufficient to deny the applicant the exercise of the discretion in her favour.  No real possibility of significant prejudice to a fair trial by reason of the delay has been disclosed.”

[10]At first instance there were two respondents to the application for extension of time, the applicant and her partner.

1. The approach of the primary judge was to assume that the applicant, having brought herself within s 31(1), was entitled to an extension of time unless the respondent to the application for an extension of time established “some matter justifying the exercise of a discretion against the granting of an extension.” That reversed the onus of proof. The error in the primary judge’s approach may be illustrated by reference to the circumstances relating to the potential witness, Ms Diversi. Practice notes show that the respondent was seen by Ms Diversi on 2 June 2003 concerning a bilateral breast augmentation. The notes record:

“  'PAE-29'

Date: Monday, 02/06/2003 12:00 AM
Provider: Nurse
History: I saw Deborah Adams for discussion regarding Bilateral breast augmentation.  The following information was given to Deborah - quotation, general information booklet, mammograms with implants booklet, McGhan information on silicone implants, Australian Society of Plastic Surgeons information A4 flyer, Mediloan and Health Assist leaflets. Post operative results, complications and post operative care were discussed with the use of diagrams, powerpoint presentation, photograph album and computer photographs. Deborah understands the risks associated with the procedure. They have no history of breast cancer, they breast fed successfully and are planning to have more children. Complications specific to the surgery and expected outcome from surgery have been discussed at length. I believe the patient has realistic expectations and is a suitable candidate for surgery. Recently moved to Cairns from Sydney.”

1. As the primary judge recognised, Ms Diversi no longer worked for the applicant and had indicated that she would not assist in the applicant’s defence. 

1. Plainly, Ms Diversi is, potentially, a very important witness.  The primary judge pointed out, accurately, that if she was not a willing witness she could be subpoenaed.  However, subpoenaing Ms Diversi would give rise to obvious risks for the applicant.  Ms Diversi may well prove uncooperative and if subpoenaed by the applicant to give evidence could be cross-examined, possibly to good effect, by counsel for the respondent.  The applicant can only speculate about the evidence Ms Diversi might give even though it may be unlikely that she would refute her contemporaneous notes.

1. The primary judge, implicitly, concluded that the applicant had failed to establish that the uncertainty surrounding Ms Diversi’s evidence occasioned material prejudice to the applicant.  But the applicant had adduced sufficient evidence to satisfy the evidentiary onus on it to show “that prejudice would be occasioned.”  It remained for the respondent to persuade the court that the prejudice to the applicant was not such as to warrant the exercise of the discretion against the granting of the application to extend time.

1. Counsel for the applicant identified the case being advanced by the respondent as being not merely a failure to advise of the risks, but a failure by the applicant personally to discuss the risks inherent in the procedure coupled with what were, in effect, assurances that the risks were unlikely to eventuate.  He submitted that this increased the prejudice to the applicant already occasioned by her lack of actual recollection of any discussion with the respondent.  There is substance in the submission.  Evidence of the likelihood or high probability of a standard practice in relation to warnings having been followed will tend to be more apt to refute an allegation of failure to advise than an allegation of specific things being said and done which had a tendency to negate any general written or oral warning of risk.

1. An additional difficulty with the primary judge’s approach is that it failed to recognise the distinct possibility of presumptive prejudice of the type discussed in paragraph [7] above.

1. For these reasons the second ground is also made out.

The exercise of the discretion under s 31(2) by this Court

1. As appears from the foregoing discussion, the exercise of the primary judge’s discretion miscarried and it falls for this Court to exercise the discretion afresh.

1. There are differences between the approaches in Brisbane South of Toohey and Gummow JJ on the one hand and those of McHugh J, with whom Dawson J concurred, on the other.  The latter would appear to place much more weight than the former on prejudice, both actual and presumptive, and on a prima facie prejudice to the respondent to an application for extension of time flowing from the enlivening of an expired limitation period.  These and other differences have been analysed elsewhere[11] and there is no need to further expand these reasons by considering them once again.  Any differences of principle in the reasons in Brisbane South do not affect the resolution of this appeal.

   [11]See for example, Holt v Wynter (2000) 49 NSWLR 128; Smith v Morton [2004] NSWCA 84; Parsons v Doukas (2001) 52 NSWLR 162 and Sauer v Allianz Australia Insurance Ltd [2006] NSWCA 364.

1. I would not order that an extension of time be granted.  It is apparent from the above discussion that the lengthy delay in commencing proceedings has given rise to presumptive prejudice of the type discussed in paragraph [7] above.  There was also significant actual prejudice to the applicant existing at the date of the application to extend time, as I have already explained, and the respondent has failed to show that delay has not made the chances of a fair trial unlikely.[12]

   [12]Brisbane South Regional Health Authority v Taylor (supra) at 550.

Conclusion

1. It is appropriate that leave to appeal be granted.  Even though the appeal seeks to challenge the exercise of a discretion, and the decision was, technically, interlocutory in nature, I am satisfied that there were errors of law to be corrected and that failure to do so would give rise to substantial injustice.[13]

   [13]Cf Pickering v McArthur [2005] QCA 294.

1. I would order that:

(a)        the application for leave to appeal be granted;

(b)        the appeal be allowed;

(c)        the orders at first instance be set aside;

(d)        the application filed in the proceedings on 10 June 2011 be dismissed; and

(e)        the respondent pay the applicant’s costs of the proceedings including the costs of this appeal.

1. MARGARET WILSON AJA:  I agree with the orders proposed by Muir JA, for the reasons given by his Honour.

1. MARTIN J:  I agree, for the reasons given by Muir JA, with the orders he proposes.