Kone Elevators Pty Ltd v Popa

[2006] VSCA 26

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3707 of 2005

KONE ELEVATORS PTY. LTD.
	Appellant
v.
ELENA POPA	1st Respondent
And
RMIT UNIVERSITY	2nd Respondent
And
JOHN HOLLAND PTY. LTD.	3rd Respondent

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JUDGES:	CALLAWAY, EAMES and ASHLEY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 February 2006
DATE OF JUDGMENT:	24 February 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA  26

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Limitation of actions – Extension of time – Personal injury claim – Delayed service by plaintiff on appellant and another proposed defendant of originating motion under s.135A(5) of Accident Compensation Act 1985 seeking leave to bring proceeding – Contribution – Notice of contribution by appellant against other defendant based on breach of contract – Cause of action accrued upon breach of contract - Defence to contribution claim that action under contract statute barred – Prejudice to appellant by denial of claim for contribution – Prejudice caused by delay between accident and likely hearing date of plaintiff’s action – Whether discretion of judge miscarried in granting leave to commence proceedings against appellant – Appeal dismissed – Limitation of Actions Act 1958, ss.23A, 24(4)

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M.J. Corrigan	Herbert Geer & Rundle
For the 1st Respondent	Mr C.J. Blanden, S.C. with Mr C.J. Nettlefold	Ryan Carlisle Thomas
For the 2nd Respondent	Mr J.H.L. Forrest, Q.C. with Mr P.H. Solomon	Wisewoulds
For the 3rd Respondent	Mr B.M. Griffin, S.C.	Deacons

CALLAWAY, J.A.:

1. I agree with Eames, J.A., subject to the qualification that I do not think that counsel for Kone too readily conceded, on appeal, that John Holland’s limitation defence would be unanswerable.[1]

EAMES, J.A.:

[1]Compare [36]  below.

1. This is an appeal, brought by leave, against a decision of a judge of the County Court granting an application for an extension of time for the commencement of proceedings pursuant to s.23A of the Limitation of Actions Act 1958. The appellant, Kone Elevators Pty Ltd (“Kone”), is the third of three defendants in the action, but the only party to appeal the decision of the judge.

1. The plaintiff, and now first respondent to the appeal, Elena Popa (who, for convenience, I will continue to call “the plaintiff”), was employed by RMIT University (“RMIT”) as an information technology teacher, when on 14 May 1996, whilst accompanied by the head of her department, she fell forward and landed heavily as she alighted from a lift.  The lift had failed to stop when its floor was level with the level of the sixth floor of a new building (known as “Building 94”) recently built by John Holland Pty Ltd (“John Holland”) and occupied by RMIT.  She reported the incident to her employer and attended the RMIT Health Service, where she saw a nurse.  In June 1996 having seen a general practitioner the plaintiff was referred to a physiotherapist, suffering back and leg pain.  The physiotherapist fitted her with a brace which she wore for 12 months. 

1. In July 1996 a CT scan disclosed lumbar disc prolapse injury with impact on nerve roots.  In August 1996 she attended an orthopaedic surgeon who was of the opinion that the injury was the result of her fall and that she might require surgery.  She received an epidural injection in September 1996 but her back and leg pain continued.  In February 1997 the plaintiff resumed work on a part-time basis.  At that

time she did not believe her injuries would be permanent, but after about eight months of employment realised that she was at risk of suffering long-term impairment.  Throughout 1997 the plaintiff’s back and leg pain increased and she received a further epidural injection.  She became pregnant in March 1998 and ceased teaching duties in November 1998. 

1. The plaintiff attempted to return to part-time work in February 1999 but could not continue.  In June 1999 she again attempted to return to work on a part-time basis but was dissatisfied with RMIT’s efforts to get her back to work.  In about July 1999 she contacted Job Watch who referred her to the solicitors Ryan Carlisle Thomas.  Her employment was terminated in December 1999.

1. The plaintiff first consulted her solicitor on 28 July 1999 but it was not until 30 August 2000 that an application for a serious injury certificate was made by him to Victorian WorkCover Authority (“VWA”). That was four years and three months after the accident. After a delay of seven months the application was rejected by RMIT on 21 March 2001. On 9 April 2001 an application was brought by originating motion pursuant to s.135A(4)(b) of the Accident Compensation Act 1985 seeking a declaration that she had suffered serious injury. That was served on RMIT on 11 April 2001. The judge observed in his judgment that it was “a matter a notoriety that about that time this court was overburdened with such serious injury applications”. The application lay dormant in the Court, awaiting a hearing date, for some two years.

1. Section 135A(5) of the Accident Compensation Act requires a plaintiff to serve notice of originating motion “on each person against whom the applicant claims to have a cause of action”.  The proceeding by way of originating motion had named only RMIT as defendant, and only RMIT was served with the Notice of Originating Motion.  On 2 May 2003 the solicitor for RMIT informed the solicitor for the plaintiff that he believed the plaintiff had a cause of action against John Holland and Kone.  On the same day, 2 May 2003, the plaintiff’s solicitors served copies of the originating motion on John Holland and Kone.  As earlier noted, John Holland was the builder of the new building and it sub-contracted Kone to install and maintain the lifts in the building at the time when the accident occurred. 

1. The six year limitation period for bringing an action in tort by the plaintiff had expired on 14 May 2002. Although Kone was not served with the plaintiff’s originating motion until 2 May 2003, it had been given earlier notice of the plaintiff’s alleged injury by virtue of being served with a writ by VWA on 20 January 2003. In that proceeding VWA on behalf of RMIT sought indemnity from Kone pursuant to s.138 of the Accident Compensation Act.  Save for forwarding that writ to its solicitor Kone took little action in response to that proceeding before it was itself served with the originating motion on 2 May 2003.  On 19 May 2003 VWA granted Ms Popa a serious injury certificate, thereby obviating the need for determination of the serious injury application.  Notice of a statutory conference with VWA was given to John Holland and Kone for the conference which took place on 30 June 2003.  Neither company attended. 

1. On 13 October 2003 a writ on behalf of Ms Popa was served on RMIT, John Holland and Kone. In January 2004 John Holland and Kone delivered defences claiming that the action was statute-barred by virtue of s.5 of the Limitation of Actions Act 1958. RMIT, however, did not take the limitations defence, it being the policy of VWA that such a defence would not be taken by an employer where the application for a serious injury certificate had been filed prior to the expiry of the limitation period but where the serious injury certificate or the grant of leave had not been obtained until after the expiry of the limitation period. On 21 January 2004 Kone served a notice of contribution on John Holland and RMIT. The claim to contribution was limited at that time to claim under the Wrongs Act 1958, whereby Kone sought to assign liability for the accident wholly or partly to the other defendants. 

1. On 9 September 2004 the plaintiff filed a summons in the County Court seeking an extension of time in which to bring proceedings pursuant to s.23A of the Limitation of Actions Act.  On 11 November 2004 the solicitors for Kone delivered to the solicitors for John Holland a proposed amended notice of contribution and a statement of claim in which, in addition to the existing claim for contribution pursuant to the Wrongs Act, an additional claim against John Holland was made, alleging that John Holland had breached its obligation under clause B8.04 of the sub-contract between it and Kone to effect insurance against any third party liability for damages to which Kone might be exposed at the RMIT site. 

1. The amended contribution notice and statement of claim was served on John Holland on 11 November 2004.  No defence has been filed by John Holland to that amended claim for contribution but the solicitor for John Holland advised the solicitor for Kone that her client “will rely upon the Limitation of Actions Act on the basis that the limitation period for a claim in contract against John Holland expired on 14 May 2002.”  That proposed defence to the contribution claim does not affect Kone’s earlier contribution claim under the Wrongs Act. Section 24(4) of the Wrongs Act allowed Kone 12 months after the writ was served on it by the plaintiff for it to commence contribution proceedings.  Kone was served with the writ on or about 17 October 2003. 

1. The sub-contract which was entered between John Holland and Kone on 11 August 1995 contained the following relevant clauses, namely clauses B8.04 and 8.06.  Those clauses read as follows:

“B8.04     The Builder in the joint names of the Proprietor, the Builder and all sub-contractors (all of whom are referred to in this Clause as ‘the insured’) shall have or effect insurance as stated in item F.2 of the Appendix which at all times covers liability to the public (including the Proprietor) for an amount not less than that stated in item F.2 of the Appendix in respect of personal injury to or death of any person whomsoever (not being a person who at the time of the accident is defined as a worker of the insured under any legislation relating to Workers’ Compensation Insurance of the State or Territory in which the Head Contract Works are situated) … and where the injury, death, loss or damage arises out of or was caused by the execution of the Head Contract Works. …

8.06       Wherever pursuant to the provisions of … clause 8.04, insurance is effected in joint names then such a policy shall provide that insofar as the policy may cover more than one insured all insuring agreements and endorsements with the exception of limits of liability shall operate in the same manner as if there were a separate policy of insurance covering each party comprising the insured.”

1. Appendix F to the sub-contract is headed “Insurance Matters”, and in sub-paragraph F2 reads:

“F2.  Public Liability Insurance effected with – B8.04 – Jardine Australia Insurance Brokers Pty Ltd for not less than $50,000,000.”

1. Kone first became aware of the serious injury proceeding on 2 May 2003 when the originating motion was served on it, although, as noted earlier, by 20 January 2003 Kone had acquired knowledge of the plaintiff’s alleged accident by virtue of VWA’s service on it, on behalf of RMIT, of the recovery proceeding under s.138 of the Accident Compensation Act.  It was not until 3 September 2003, however, that Kone’s solicitors requested Corrs Chambers Westgarth, the solicitors for John Holland in the recovery proceeding, to forward a copy of the policy of insurance referred to in clause B8.04.  A further letter dated 14 November 2003 was sent to Deacons, the new solicitors for John Holland, requesting “a copy of the relevant insurance policy”.  Nine months later, on 18 August 2004, Kone’s solicitors sent a further letter to Deacons noting the previous correspondence and seeking advice “whether your client took out these policies”.  Kone’s solicitors sought delivery of a copy of the policies as soon as possible.  Then on 24 August 2004, Deacons, solicitors for John Holland, responded, stating that they had asked both Jardine Australia Insurance Pty. Ltd. and John Holland and neither had been able to provide a copy of the relevant insurance policy referred to in the agreement.  The solicitors added “We are told no such policy exists”.  

1. In an affidavit dated 12 November 2004 Mr Gerry Davies, the solicitor for Kone, deposed that in the event that the plaintiff was granted an extension of time Kone would suffer significant prejudice as “it would be met with a defence from John Holland that its contractual claim for breach of the obligation to effect insurance is statute-barred and has been statute-barred since 14 May 2002, well prior to the date on which the plaintiff issued this proceeding, being 13 October 2003”.  In addition to the claim of prejudice arising by John Holland’s foreshadowed limitation defence in the contribution proceedings Davies contended that there was additional prejudice which arose due to the lapse of time since 14 May 1996 in that the delay “has probably resulted in loss of documents and difficulty in establishing whether information or documents once existed which might have assisted its defence”.  He added that delay “has probably affected the memories of its employees and made it impossible to know whether those employees once possessed knowledge or information which might have assisted its defence.”

1. Tony Basile, the regional services manager of Kone, deposed that Kone had been unable to locate any maintenance reports or any correspondence from “the job/premises file” and that although Basile would have expected some such documents to have existed he was unable to state whether any such documents had ever existed or their whereabouts.

1. Davies deposed that there were six employees at that time who had some involvement with the lift.  They were Tony Borg, Frank Frencham, Kevin Hughes, Martin Jenkins, Paul Holmes and Paul Vasiliou.  Of these, Frank Frencham, Kevin Hughes and Martin Jenkins did not recall anything out of the ordinary in relation to Building 94.  Kone did not have a contact number for Paul Holmes, nor knew the whereabouts of Paul Vasiliou.  Davies deposed that Tony Borg could recall attending a call in relation to a lift at Building 94 at some stage after the lifts were installed but was unable to be more precise as to the time or nature of the call, and said that the lift was working properly on his arrival and he had no recollection of any incident involving the plaintiff.

1. An affidavit from the plaintiff’s solicitor, Rohan Atherton, disclosed the names, and whereabouts, of two additional maintenance employees of Kone at the relevant time, John Griffith and Jason Martin, and also disclosed that Kone had a maintenance system at the time of the accident that required that upon a report of a fault in the operation of a lift (and maintenance work being performed) details would be recorded in a “report book” which was housed in the machine room at the site and would then be entered on Kone’s office computer.  The primary informant for Mr Atherton, John Griffith, said that he had not been approached by Kone, although it had his contact details.  He did not, however, have any recollection of the incident, and Atherton deposed that upon further investigation the other man named by Griffiths, Jason Martin, also had no recollection of the incident.

1. The learned judge gave detailed reasons for his decision to grant an extension of time to the plaintiff.  The decision of the judge involved the exercise of a discretion, thus the appellant must satisfy the Court that the judge applied a wrong principle of law, had regard to irrelevant or extraneous considerations, or did not take into account some material consideration, or that the decision was based on erroneous findings of fact, or else was so plainly unreasonable or unjust as to manifest error[2].   There is a strong presumption in favour of the correctness of a discretionary decision[3] and the burden on the appellant is a heavy one[4].

   [2]House v. The King (1936) 55 C.L.R. 499, at 504-5; Spitfire Nominees Pty Ltd v. Ducco [1998] 1 V.R. 242, at 246.

   [3]Australian Coal and Shale Employees Federation v. The Commonwealth (1953) 94 C.L.R. 621, at 627

   [4]Lovell v. Lovell (1950) 81 C.L.R. 513, at 519, per Latham, C.J.; at 533, per Kitto, J.

1. The nine grounds of appeal primarily complained as to the weight given by the judge to relevant facts.  It is unnecessary to set the grounds out, or to deal with them individually, save where I will identify a particular ground.  In the course of argument some instances of specific error were identified by Mr Corrigan, which had not been the subject of a discrete ground of appeal.  Counsel for Ms Popa did not complain that the grounds of appeal were deficient and were content to respond to the contentions of specific error when dealing with the other grounds.  It is appropriate, therefore, that I deal with them.

1. The first complaint by Mr Corrigan of specific error was that his Honour had given weight to an erroneous submission made to the judge, by counsel then appearing for the plaintiff, to the effect that John Holland’s defence to the contribution claim might, or would, fail because the limitation period had arguably not expired.  He submitted that the limitation period for Kone’s indemnity claim with respect to the failure of John Holland to effect insurance did not commence to run until the amount of damages payable by Kone to the plaintiff was ascertained.  Thus their contribution claim was not statute barred. 

1. That submission was plainly wrong, in my opinion.  Kone’s right of action against John Holland for breach of contract accrued at the time of the breach, not at the time of the suffering, or ascertainment of quantum, of damage:  see Penrith City Council v. Government Insurance Office of NSW[5];  Ward v. Lewis[6].  To comply with the contract John Holland had to effect insurance cover for Kone within a reasonable time (perhaps a month) of the signing of the contract on 11 August 1995.  The continued failure to effect insurance would not constitute a further breach of contract but merely a failure to remedy the past breach[7].

   [5](1991) 24 NSWLR 564, at 568, where Giles, J. citing authority, states categorically that a cause of action in contract accrues with breach. Surprisingly, this was one of the cases cited to his Honour for the contrary proposition. The other case cited to his Honour (Mideb Nominees Pty Ltd v. Begonia Pty Ltd (1994) 15 ACSR 70, per Senior Master Mahoney) in my opinion also offers no support for the proposition argued below.

   [6](1896) 22 VLR 410, at 418, per Hood, J.

   [7]Larking v. Great Western (Nepean) Gravel Limited (in Liq) (1940) 64 C.L.R. 221, at 236.

1. His Honour did not reject outright the submission of the plaintiff’s counsel as to the time of accrual of the cause of action, but, in my opinion, it is clear that he placed no weight on it when making his decision.  In dealing with that issue in paragraph [30] of his reasons, his Honour simply said that he expressed no view as to that argument of counsel for the plaintiff.  Contrary to the contention of Mr Corrigan on appeal, his Honour, in my opinion, did not therefore devalue the significance of the suggested breach of contract by leaving open the possibility that John Holland’s limitation defence might fail.  Rather, he treated the very exposure of Kone to that defence as being a particular and established prejudice. 

1. In dealing with the matter in that way his Honour was responding to the way Mr Corrigan, for Kone, had dealt with the issue before the judge.  The scope and emphasis of Mr Corrigan’s response on that issue, as argued before the judge, was, in my opinion, significantly different to the approach adopted on appeal. 

1. Before us, the limitation defence which John Holland had foreshadowed was said to be unanswerable and as providing, in itself, the most compelling and conclusive reason why the plaintiff’s application to extend time to sue Kone should be refused.  Thus, so it was submitted on appeal, if an extension of time was granted to the plaintiff then Kone must inevitably suffer loss to the extent of any sum awarded against it in favour of the plaintiff, a loss which it would not have incurred had it been served with the plaintiff’s proceeding within time. 

1. The assertion that there could be no defence to John Holland’s limitation defence, was not made before the judge.  In his written submission to the judge Mr Corrigan noted that “John Holland alleges . . “ that the claim for indemnity was statute barred as at 14 May 2002 and that but for that Kone would have a good claim to indemnity, but that in consequence, “The prospect of Kone being denied such indemnity is a significant prejudice” (my emphases).  His Honour, in my opinion, dealt with that “prospect”, and gave it the full weight for which Mr Corrigan then contended.  There was no error in the approach adopted in that regard.

1. The second specific error that Mr Corrigan identified was said to have arisen in his Honour’s discussion of the delay of thirteen months between the time when the plaintiff’s solicitor was first consulted by the plaintiff and the date of lodging the serious injury application.  In his affidavit, the plaintiff’s solicitor said that in that period he obtained medical material, affidavits, taxation material and other documentation in support of the plaintiff’s application.  His Honour said:

“I note that I have no evidence to show that thirteen months is unreasonably long to prepare a serious injury application.  In the absence of such evidence it would be wrong of me to make an adverse finding against the plaintiff’s solicitor’s.  In the absence of such finding the possibility of proceeding by the plaintiff against her solicitors does not arise for consideration”.

1. Although his Honour might have expressed himself better, I do not consider that those comments disclose that he reversed the onus of proof in determining the application.  Mr Corrigan accepted that the judge was very experienced in the specialist jurisdiction in the County Court concerning serious injury applications.  Not only was the judge very experienced in the practice and disposition of such cases, the counsel who appeared before him were also very experienced.  The judge, as I have said, remarked that this application was lodged at a time when the Court was overburdened with such applications.  The correctness of that assertion was not challenged before us.  In my opinion, against that background, his Honour’s remarks merely reflect a statement based on experience that a thirteen month delay in lodging an application does not bespeak unreasonable conduct on the part of the solicitors.  His Honour was not disregarding the fact of there being such delay, but he was addressing the question whether it remained unexplained[8] and, if so, whether it constituted negligence for which the plaintiff might have a remedy.  Of course, even if this delay was explained it was still relevant as one component of the overall delay[9], and it was taken into account by his Honour, in that way.

   [8]That is, whether under s23A(3)(a) there was a reason for the delay.

   [9]Repco Corporation v. Scardamaglia [1996] 1 V.R. 7, at 13.

1. Ground 2 complained that the judge did not give sufficient weight to his entitlement to refuse an extension of time with respect to one defendant and not another.  Although expressed as a ground concerned with the weight given to a relevant consideration, the argument in support of it came close to asserting specific error in the approach taken by the judge, since counsel submitted that:  “One would be forgiven for thinking that his Honour considered that the application by the plaintiff must either succeed or fail  against both John Holland and Kone”. 

1. The short answer to that suggestion is that nothing in his reasons indicates that his Honour acted on a misguided understanding that he was obliged to make the same order − ­­whether to grant or refuse an extension of time − with respect to both companies.  There are many passages in his Honour’s reasons which reflect the contrary understanding.  Indeed, Mr Corrigan conceded in his submission that “to some extent” his Honour did differentiate between the two proposed defendants.

1. Likewise, the complaint under ground 3 can be quickly dispatched.  It was contended that his Honour failed to appropriately differentiate between John Holland’s position and that of Kone.  Once again, the answer is found in a number of passages in his Honour’s judgment where he highlighted what he called “the particular prejudice” which Kone, alone, suffered. 

1. Putting to one side, then, the unsubstantiated complaints of specific error, I turn to the broader complaints that the decision of the judge was so plainly wrong as to manifest error, or else that relevant factors had been given inadequate weight or that weight had been given to irrelevant factors. 

1. Adopting statements by members of the Court in Clark v. McGuinness[10], Mr Corrigan submitted that the granting to Ms Popa of an extension of time to commence proceedings would deny a fair trial to Kone.  That decision was not handed down when his Honour made his own decision, and there seems not to have been any focus on the concept of a fair trial in submissions to the judge.  Mr Corrigan submitted to us that a fair trial would be denied, first, because Kone’s amended contribution claim against John Holland (which introduced the discrete claim based on breach of contract), would be met by an unanswerable defence that the claim was statute barred (since the cause of action accrued more than six years before commencement of an action based on breach of contract) and, secondly, because the passage of time was so great that it would impact adversely on the recollection of witnesses and on the preparation of Kone’s defence to the plaintiff’s action. 

   [10][2005] VSCA 108, at [41] per Warren, C.J.; at [74] per Winneke, P.; at [78] per Charles, J.A.; at [82] per Callaway, J.A.; at [83], [88], per Eames, J.A.

1. In my opinion, it would be inappropriate to identify the relevant question as being whether a party would be denied a fair trial. The discretion under s.23A is a wide one and the list of factors set out in paragraphs (a) to (f) in sub-s.(2) is non-exhaustive[11].  As Warren, C.J observed in Clark, applications under s.23A must be determined on their individual facts, the judge’s task involving a synthesis of a wide range of considerations, including, but not limited to, those set out in the section itself.

   [11]Clark v. McGuinness at [60], per Winneke, P.

1. The overriding question is whether it is just and reasonable to extend the period for the commencement of the proceeding.  Nonetheless, the question whether the granting of the application would deny a fair trial to the defendant was considered by Toohey and Gummow, JJ. in Brisbane South Regional Health Authority v. Taylor[12] to be perhaps the most important of the considerations to be addressed, and in Clark the circumstances of the case meant that reference to denial of a fair trial had particular significance.  In the present case however, the concept adds nothing to what would be embraced under the heading of prejudice.  In this case it is more helpful to pose the question whether, notwithstanding the prejudice to Kone as found to exist both on account of the limitations defence of John Holland and the impact on the recollection of witnesses and collection of evidence, it is nonetheless  just and reasonable to grant an extension of time to bring proceedings against the company.  Although not expressed in precisely those terms, the test applied by the judge was consonant with that approach.

   [12](1996) 186 C.L.R. 541, at 548; see too McHugh, J. at 555,

1. The first factor which was said to have been undervalued was, again, the John Holland limitations defence.  As I have earlier stated, I can see no error in the way the judge evaluated this factor.  He was not asked, nor was he bound to conclude, that if the defence was taken to the indemnity claim it must succeed.  Indeed, there was some force in the contention of Mr Blanden that counsel for Kone was too readily conceding, on appeal, that the defence by John Holland would be unanswerable.  Mr Blanden did not, however, explore the merits of John Holland’s proposed defence to the contribution proceeding, although he suggested that, in any event, there might be an alternative remedy against John Holland available to Kone under trade practices legislation by virtue of the apparently misleading and deceptive conduct of John Holland in representing to Kone that insurance coverage had been effected.  Such a claim would not be statute barred, Mr Blanden submitted.  It is not necessary to address those arguments, however, since, as I have said, the judge gave full weight to the prejudice as then identified by counsel for Kone.

1. The next factor said to have been undervalued related to the impact – assumed and demonstrated – of delay in the preparation of Kone’s defence to a claim by the plaintiff.  As Mr Corrigan rightly emphasised, by the time of trial more than ten years will have elapsed, and the assessment of the prejudice must be evaluated by reference to the effect of delay as at the likely date of trial[13].  Delay of that order must be assumed to carry the consequence of prejudice to the conduct of a defence, even if the party is unaware of the extent of the prejudice[14].  However, whilst it may be accepted that many of the employees of Kone who were engaged in this project have no memory of any incident such as the plaintiff describes, the judge did not deny that to be so.  In my opinion, he gave the factor full weight, although it might have been thought that the affidavit material reflected that Kone has been less than enthusiastic, and determined, in locating missing witnesses, or in conducting investigations generally.  For example, the plaintiff’s solicitor deposed that Kone had a procedure whereby any such incident, if reported, would have first been recorded in a book at the site and then duplicated in the computer records of the company but no answer has been made by Kone to that specific contention, save for Mr Basile’s assertion that Kone had no record of the incident being reported to it.  Basile said he could not locate any maintenance reports or correspondence in the job records file, although he would have expected them to exist.  Of course, as his Honour found, it was not at all unlikely that no report of the accident had been made by the plaintiff either to Kone or to John Holland, since she swore that she only reported it to RMIT.  Thus, no record of a incident report  may ever have existed in the files. 

   [13]Ford Motor Co (Aust) Ltd v. Kulic [1988] V.R. 152, at 157. In that case delay of nine years to trial led to refusal of an extension of time.

   [14]Tsiadis v. Patterson (2001) 4 V.R. 114, at 120 [22], 123 [32]; Brisbane South Regional Health Authority v. Taylor (1996) 186 C.L.R. 541, at 551, per McHugh, J.

1. Whilst other judges may have given greater weight to this suggested disadvantage than did his Honour, I am not persuaded that in his synthesis of the competing factors raised by the parties he fell into error by undervaluing the prejudice suffered by Kane in mounting a defence to the plaintiff’s proposed action.

1. Mr Corrigan also submitted (grounds 4, 5 and 6) that his Honour failed to give weight to the unexplained nature of the delay by the plaintiff in first contacting a solicitor.  In my opinion, however, his Honour was entitled to conclude, as he did, that the plaintiff was not looking to compensation in that period, but was determined to overcome her injuries and return to work, an approach which his Honour rightly regarded as understandable and commendable.  

1. Complaint was made, too, that the failure of the plaintiff’s solicitor to earlier join John Holland and Kone was unexplained (ground 8), and that the absence of such explanation was not properly taken into account by the judge, a significant omission, so it was submitted, given the obligation cast on an applicant to serve the originating process on all parties against whom the applicant has a claim: see s.135A(5)[15].  The judge did not expressly discuss that matter, save for observing that it was surprising that only RMIT had been initially served[16].  It may, however, be regarded as having been subsumed in his examination, generally, of delay on the part of the solicitors. 

   [15]See Coles Myer Limited v. Victorian WorkCover Authority and Frew [2002] VSCA 144, at [13].

   [16]See [11].

1. Mr Corrigan submitted that much greater weight should have been given to the delay of the plaintiff’s solicitors in taking action against Kone, because had Kone been served at the same time RMIT was served, then the failure of John Holland to insure Kone would have been discovered and action (within time) might have been taken.  In my opinion, however, that remained a mere possibility.  The response of Kone and its advisers, as I have earlier described, following service of the originating motion upon Kone, provides little support for the assertion that had Kone been served at the same time as had RMIT that would have resulted in Kone commencing proceedings within time against John Holland based on breach of contract. 

1. This period of delay by the plaintiff’s solicitors, and their failure to depose to an explanation for it, was undoubtedly a relevant matter to be addressed by the judge, but it remains merely one of “the incommensurable considerations”[17] that may be addressed in the process of judicial synthesis.  In any event, the issue was addressed by the judge and in paragraph [37] of his Honour’s reasons he held: “Overall, it seems to me that the plaintiff and her solicitors at all times acted within the bounds of reasonability”.  In my opinion, this component of the total period of delay was appropriately taken into account by the judge when addressing the overall delay.

   [17]Tsiadis v. Patterson, at 116 [5], per Callaway, J.A.

1. In the course of argument Mr Corrigan advised the Court that Kone had itself effected insurance and it was thereby indemnified from any damages which were ordered against it in favour of the plaintiff.  That was not a matter which was known to the judge and since the discretion, in my opinion, is not re-opened it is unnecessary to consider whether the fact that Kone is insured could have had any relevance to the determination of the application.   

1. I conclude, therefore, that none of the grounds of appeal has been made out.  Applying the principles relating to discretionary decisions, I am not persuaded that the judge erred in the approach he adopted and in the conclusion he reached on the plaintiff’s application.  The appeal should be dismissed.

ASHLEY, J.A.:

1. I agree with Eames, J.A., for the reasons which his Honour gives, that this appeal should be dismissed.

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