Nominal Defendant v Harris
[2011] NSWCA 70
•25 February 2011
Court of Appeal
New South Wales
Case Title: Nominal Defendant v Harris Medium Neutral Citation: [2011] NSWCA 70 Hearing Date(s): 2nd February 2011 Decision Date: 25 February 2011 Jurisdiction: Before: Hodgson, McColl, Whealy JJA
Decision: (1) Leave to appeal is granted
(2) The appeal is dismissed
(3) Applicant to pay the respondent's costs of the application and appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]Catchwords: APPEAL - civil law - extension of time - principles applicable - reasons for delay - full and satisfactory explanation - plaintiff with intellectual disabilities - prejudice to defendant - onus to satisfy statutory test
Legislation Cited: Motor Vehicle Accidents Act 1999 s109
Workers Compensation Act 1987 s151D(2)Cases Cited: Itek Graphix Pty Ltd v Elliot (2002) 54 NSWLR 207
Salido v The Nominal Defendant 32 NSWLR 5254
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Sydney City Council v Zegarac (1998) 43 NSWLR 195
Walters v Cross Country Fuels Pty Ltd [2009] NSWCA 10 at [37]Texts Cited: Category: Principal judgment Parties: Nominal Defendant (Applicant)
Stuart James Reginald HARRIS (Respondent)Representation - Counsel: Counsel:
S G Campbell SC / D M Wilson (Applicant)
I D Roberts SC / K Oldfield (Respondent)- Solicitors: Solicitors:
Hunt & Hunt (Applicant)
Michael Kreveld Legal (Respondent)File number(s): 2010/3689 Decision Under Appeal - Court / Tribunal: - Before: Sidis DCJ - Date of Decision: - Citation: [2009] NSWDC 372 - Court File Number(s) 168/09 Publication Restriction:
Judgment
HODGSON JA: I agree with Whealy JA.
MCCOLL JA: I agree with Whealy JA.
WHEALY JA: This appeal proceeded by way of a concurrent hearing, in which the applicant seeks an order for leave to appeal and submits, if leave be granted, that the appeal be upheld. The application arises out of orders made by Sidis DCJ on 18 th December 2009. The principal relief granted by her Honour had been an order in favour of the present respondent, giving him leave to commence proceedings in respect of a motor vehicle accident that occurred during the night of 12 th , or the morning of, 13 th August 2004. Consequential orders were made in relation to service of the statement of claim and the costs of the application. The applicant has argued that, in exercising the discretion conferred by s 109 Motor Accidents Compensation Act 1999 (" MAC Act ") to extend the three year limitation period, her Honour had misdirected herself, and made other errors of significance, so as to vitiate the decision. The applicant has sought to revoke the leave that had been given by the order of 18 th December 2009.
The Accident
On the night of 12 th August 2004 (or early the following morning), the respondent was, on his case, knocked down at Bondi Beach by a car that had been deliberately driven at him. The collision was said to have occurred somewhere near the boom gates to the parking area at Bondi Beach on the eastern side of Campbell Parade. The respondent sustained very serious injuries, especially to his head. He was found on the morning of 13 th August 2004, collapsed in or on the back of a motor vehicle in Bondi. He was rushed to hospital when the seriousness of his condition was realised. He was operated on to relieve an intracranial haemorrhage and severe haematoma. Following the initial operation, he was taken to intensive care, where he was placed on life support. He remained in intensive care for two and a half weeks. It was feared he would die or that, if he survived, he would end up in a vegetative state. Further operations were necessary to keep him alive and during these initial periods, he remained in a deep coma.
On 31 st August 2004, the respondent was taken from intensive care at St Vincent's Hospital and placed in a general ward. Gradually, over the next six weeks or so, there was a limited degree of responsiveness and awareness. He could not speak, although he was able to engage in a very basic form of communication by writing in an exercise book. His cognitive faculties were severely impaired. His physical injuries and disabilities were of the most serious kind. On 4 th October 2004, he was transferred by air ambulance to Princess Alexandra Hospital at Woolloongabba in Queensland where he remained as an inpatient for about six months. In April 2005, he was discharged from that hospital and returned to live with his family in Coolangatta. At this time, he commenced long-term rehabilitation treatment at Murwillumbah and the North Coast Brain Injury Rehabilitation Centre at Lismore. He required constant care and attention from his parents, although his disabilities and cognitive shortcomings over time gradually showed signs of improvement. By the time the proceedings came before Sidis DCJ, remarkably, the respondent had recovered much of his physical and mental capacity. He was by then able to behave and communicate relatively normally. He was able to demonstrate a reasonable grasp of matters that had the capacity to affect him in his daily life.
The respondent's recall of the accident
In the immediate aftermath of the respondent's hospitalisation, Waverley police began an investigation into the cause of his injuries. Detective Senior Constable Anthony Binns was in charge of the investigation, but there were at least eight other police officers involved from time to time. Binns left the police force in January 2006, and the investigation was then under the control of Detective Senior Constable Maclay. The police took statements from about 20 witnesses. These included people who had seen the respondent before he was injured and a number who saw him following the receipt of his injuries. No one was able to identify precisely what had happened to him, and there were no immediate eye witnesses to the occurrence. Photographs of the location where he was found and the surrounding area were taken. Security footage was obtained from the Bondi Hotel, Swiss-Grand Hotel and Beach Road Hotel. Footage from the security cameras from one of these hotels showed him near the Swiss-Grand Hotel in circumstances where he was clearly already suffering from injuries. The police organised a number of media releases with the Daily Telegraph and the Wentworth Courier, which circulated locally. A significant number of advertisements for information were placed around the Bondi area by police and the family.
The notices posted contained a photograph of the respondent and informed the reader that he had been injured seriously on Thursday night 12 th August, or early Friday 13 th August 2004, around "the Bondi Hotel or Bondi beach area". The posters asked members of the public to contact Waverley police. Detective Binns was involved in contacting the media outlets to generate publicity about the occurrence. He had asked the media to publicise articles which suggested that the respondent may have been injured either in an altercation, or as a consequence of motor vehicle accident. As the respondent at this time was unconscious in intensive care, no one was able to say at that stage how he had received his injuries.
The police inquiry was clearly hampered by the respondent's inability to assist at all during the early part of the police investigation. It was not assisted by the further fact that no eyewitnesses came forward in response to the media publicity, or to the signs that had been printed out and posted up in the area. The respondent's first explanation was given in the hospital to his father on 26 th September 2004. Mr Harris Snr had been prompting his son to answer questions, and asked him, "Do you remember how you got your injury, son?" The respondent wrote down, in barely legible writing, the words, "with the car hitting me". The respondent's father told Detective Binns about this. He, in turn, endeavoured to question the respondent about the matter. Again, partly in writing, but mostly by way of signals, the respondent gave some further brief information about the event that had caused his injuries. He wrote in the exercise book, "outside with the hoolaganss [sic]...just laughing while hit by a car". He was also able to indicate the type of vehicle and its colour.
In October 2005, the respondent gave a further and more detailed statement to the police. This, however, was done at Tweed Heads police station. In this statement, the respondent gave details of having had words with a group of Lebanese men in a car on the night he was injured. His recollection, by this time, was that he could remember the car, in which the men were, "reversing and driving forward" and hitting him. The respondent was able to recall, he thought, that the incident happened near the boom gates on the beach. He was also able to state that there were other boom gates up towards the Swiss-Grand, but he did not think they were the gates in question. He said he was unable to remember anything after he had been hit by the car.
In January 2005, the New South Wales police service "Case Report" compiled a running list of entries providing details of the police investigation from time to time. It noted that the respondent continued to assert that "he had been hit by a car" and he had described the car as being "a silver station wagon". At that time, he had not been able to pinpoint where the accident had occurred or who may have been responsible. In a later information report, compiled for Superintendent Walton, it was stated that:-
"The cause of injury to Harris cannot be confirmed or verified. However due to the nature of his injuries, bruising and abrasions to various areas of his body including a chipped front tooth and the head injury, it is suggested that he was most probably hit by a car. No witnesses have come forward with information or evidence of a vehicle incident."
The report concluded that police were unable to determine accurately how the injury occurred. There were no other investigative measures available that might be adopted unless further information or evidence could be found.
A private investigator, Mick Kelso, interviewed Detective Senior Constable Emma Maclay on 10 th July 2007. She had been the officer in charge after Detective Binns' resignation from the force. She told the investigator that "all police inquiries have proved fruitless as to ascertaining how Stuart Harris had sustained his injuries". She further stated that the case had been suspended on 24 th October 2006. She concluded by stating:-
"This was a very extensive investigation into the circumstances of the injuries received by Stuart Harris and all police inquiries have failed to reveal the circumstances of those injuries. The management at this Command saw fit to suspend the investigation on 24 th October 2006 but that does not mean the case is closed. If new information came to hand, the case would be re-opened."
It is not clear whether the police subsequently acted upon the additional information provided by the respondent in the statement he gave to the police at Tweed Heads on 23 rd October 2005.
A solicitor is engaged by the respondent's family
At about the time the respondent was discharged from St Vincent's Hospital and sent to Brisbane for further treatment and rehabilitation as an inpatient, Detective Binns suggested to the respondent's father that he should consult a lawyer about the injuries to his son. In the ultimate, Mr Harris Snr engaged the services of a solicitor named Clarke at the Coolangatta offices of Attwood Marshall Lawyers. This happened in December 2004. The respondent himself had nothing to do with this engagement and, of course, knew nothing about it until after the engagement had been terminated. His physical and mental incapacity at the time simply prevented any involvement. Mr Clarke was clearly a diligent solicitor. He lodged a very detailed claim with the Nominal Defendant, in compliance with s 72 of the Motor Accidents Compensation Act 1999 . He also sent medical certificates and other information. The claim notified the Nominal Defendant that injuries had been sustained in a "hit and run in Bondi, Sydney, New South Wales". It was indicated that the vehicle at fault was "unknown". Mr Clarke was notified by the Nominal Defendant that NRMA Insurance Ltd would be acting on its behalf. The solicitor received correspondence from NRMA, allocating a claim number and indicating that a Consultant would look at the matter and would contact the solicitors to discuss the claim after inquiries had been completed.
As a consequence of further correspondence, Mr Clarke sent the insurer copies of all the newspaper articles and notices that had been posted in the Bondi area relating to the incident. Further correspondence took place between Attwood Marshall and the NRMA. Information requested by the insurer was provided, including the following statement:-
"Our client's father instructs us that Stuart Harris Jnr, the victim in the accident, was struck by a car at the boom gates at the Swiss-Grand Hotel which is located on the corner of Curlewis and Campbell Parade, Bondi."
It should be noted that the later statement made at Tweed Heads police station by the respondent in October 2005 indicated that the boom gates where the collision occurred were in a position other than that indicated by Mr Harris Snr. On 25 th May 2005, the solicitors received a letter from NRMA, informing them that no decision had been made on liability "due to the extremely complex nature of the investigations... required in this matter". Further, on 29 th March 2006, the insurance company provided a s 81 Notice to the solicitors, that stated:-
"You have met your due search and enquiry obligations. As a result of our inquiries into the circumstances of the accident we deny liability."
In the meantime, however, Mr Clarke told Mr Harris Snr through a series of letters, that in his opinion any claim in connection with a motor accident would probably fail. This opinion was based on the proposition that there was insufficient evidence to prove that a motor accident had caused the respondent's injuries. It seems the solicitor was particularly concerned that there was no eyewitness to the accident. In about November 2005, according to the respondent's father, he and his wife accepted the advice, and terminated the retainer. Mr Harris Snr acknowledged that he had been told by the solicitors that there was a three year time limit for the claim. As I have said, the respondent knew nothing about these events while they were occurring. He knew nothing about any time limit. The first he knew about Mr Clarke's involvement was most likely in late 2005, or early 2006. It came up in conversation with his parents, because, by then, he had formed the view that a claim for his injuries "of some kind" ought to have been possible. His parents told him about the opinion expressed by Mr Clarke, and the decision they had made. It appears, however, that the respondent did not have any conversation with his mother or father about any time limit to commence proceedings to recover damages. Mr Clarke's advice, though no doubt given professionally and accurately, was provided in a situation where he had not spoken to or communicated with the respondent himself, and where he did not have the advantage of the information later provided by the respondent as his cognitive faculties and memory improved.
A second solicitor is engaged
The respondent was disappointed to be told by his parents of the pessimistic opinion given by Attwood Marshall Lawyers. Friends or acquaintances told him from time to time that he should make a claim and perhaps get fresh legal advice, although he himself had never dealt with lawyers before and didn't know how to go about it. The respondent saw advertisements in January 2007 for a firm of lawyers who advertised that they didn't charge if the claim failed or were lost. He talked to his parents about this, and then rang and made arrangements to see a lawyer from that firm. The lawyer was Mark Flynn, who had an office at Ballina in New South Wales.
The respondent went with his parents to meet Mr Flynn at the Twin Towns Services Club at Tweed Heads. It seems that the discussions were principally between the respondent's parents and Mr Flynn. The respondent claimed that Mr Flynn had never raised time limitations as an issue in any discussions when he was present.
Mr Flynn sent the respondent to several doctors. He apparently briefed counsel, and obtained medico-legal reports and investigators' reports concerning the August 2004 incident. However, in the third meeting between the family and Mr Flynn, a new problem was introduced. This meeting occured in July 2007. Mr Flynn told Mr and Mrs Harris that if they lost the case there would be legal expenses and it could cost them their home. The parents were very concerned about this because the home was all they had to secure their own and the respondent's future. Basically, a carer's pension was the sole source of income for the parents, and their home, which was mortgaged, was their only worthwhile financial resource. Mr Harris Snr knew, from information he had received from Mr Flynn, that there was a deadline approaching, namely 12 th August 2007. However, to complicate matters further, on about 26 th July 2007, he received a letter from Mr Flynn, enclosing a certificate issued by the Motor Accident Authority's CARS Unit. The certificate was dated 18 th July 2007, and indicated that a concession had been made in relation to the legal proceedings for the respondent's claim. Mr Harris Snr did not understand the certificate, nor did Mr Flynn's covering letter tell him what it meant. He spoke to Mr Flynn on the telephone, and was assured that they had been given "a long extension of time".
The next meeting with the solicitor was scheduled for 23 rd August 2007. By this time, Mr and Mrs Harris had had discussions with their son. They told him that they didn't think they could take the chance to proceed with the claim, because of the advice they had received that they could lose their home. The respondent acquiesced in the decision made by his parents. It seems the principal reason motivating the respondent's decision was his concern for his parents, that their house would be at risk, and that, if the case were lost, their house would be lost as well. On 22 nd August 2007, Mr Harris Snr left a message for Mr Flynn to tell him that they had decided not to go ahead with the claim. He maintained, however, that he had no idea that the claim was in peril, because of what Mr Flynn had told him over the phone, and because of his interpretation of what had been said to him in the letter, and during the phone conversation. Mr Harris Snr then devoted himself to furthering his son's recovery and rehabilitation. In the proceedings before Sidis DCJ, the respondent spoke of the strain that caring for his son had put on his health and wellbeing. He said:-
"It could be that the legal side of Suart's claim was neglected because of this. Although overall I think that, on the advice we received, Dianne and I did the best we could."
A third solicitor is engaged
Had it not been for the advice given by Mr Flynn that his parents might lose their home, the respondent maintained he would have continued with the proceedings. He still felt "cheated" because he had been hurt in a motor collision that had drastically affected him, and, in those circumstances, he had not completely abandoned the hope that a claim could be pursued.
The respondent was regularly taken by his parents to a swimming pool in South Tweed Heads, where he engaged in rehabilitation exercises. As it happened, a local solicitor, Mr Kreveld, also used the swimming pool for recreational purposes on occasion. In some fashion or other, the respondent and Mr Kreveld became known to one another on a Saturday afternoon in November 2008. It seems the pool attendant had told Mr Kreveld about the unfortunate history involving the respondent's injuries. Although the precise reason for the meeting is not entirely clear, Mr Kreveld introduced himself to the respondent, and after some brief conversations during which the previous legal advice was mentioned, Mr Kreveld offered to look over any documentation the family had, so that he could give his opinion about the claim. It was customary for the respondent to be dropped at the pool and to be collected by one of his parents. On this occasion, his mother came to the pool to take him home. She too was introduced to Mr Kreveld and took down some details as to where he might be contacted.
This initial meeting did not result in immediate advice being given by the new solicitor to the family. The reason was that Mr Flynn refused to hand over his file, presumably because he wanted to obtain payment for costs and disbursements, even though he had not previously rendered an account. It is not necessary to recite the detail of the confrontation that then occurred between the two solicitors. It is sufficient to say that it was protracted, frustrating and ultimately involved the Office of the Legal Services Commissioner. As it happened, it was not until mid February that the file (or the major part of it) was made available to Mr Kreveld. Between February and June 2009, Mr Kreveld set about preparing the extensive affidavits and documentary material necessary for the bringing of an application for an extension of time. He had determined that, by now, the respondent was sufficiently recovered to bring proceedings in his own name. No part of the application before Sidis DCJ involved any criticism of Mr Kreveld in relation to the lapse of time between his first meeting the respondent in November 2008, and the lodgement of the application for extension of time in June 2009. Indeed, a reading of the material before her Honour demonstrates that Mr Kreveld worked with considerable diligence to get the application ready.
Sidis DCJ extends the time to commence proceedings
Sidis DCJ recognised that the application for extension of time was made under s 109 of the Motor Accidents Compensation Act 1999 . This section stipulates that a claimant is not entitled to commence proceedings in respect of a claim more than three years after the date of the motor accident to which the claim relates, except with the leave of the court in which the proceedings are to be taken.
Section 109(3) provides:-
The leave of the court must not be granted unless:
(a) the claimant provides a full and satisfactory explanation to the court for the delay, and
(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under s 134 as at the date of the relevant motor accident.
Section 66(2) of the Act provides:-
... a reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation. The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay.
Her Honour noted that there was no real issue with the provisions of s 109(3)(b), given that the plaintiff's injuries were of significant severity. In any event, her Honour was satisfied as to that matter, and there is no issue, in the present application, that her Honour erred in so finding.
The principal issues were those identified in the judgment: whether the explanation provided for the delay in the commencement for the proceedings was full and whether it was satisfactory; and whether there was prejudice, presumed or actual, caused by the delay, such that the defendant would not secure a fair hearing.
As to the first question, her Honour's judgment focussed on certain discrete periods between 2005 and ending in November 2008. Her Honour was satisfied that, in the periods referred to, the explanation given by the respondent had been full and frank. In relation to the second question, "the more serious question", her Honour ultimately determined that the explanation given was satisfactory. Her Honour considered two aspects in examining this second point. The first was whether the plaintiff had made a deliberate decision not to proceed with the claim, and to allow the limitation period to expire. Secondly, her Honour considered what might be expected of a reasonable person in the plaintiff's position, and particularly whether a reasonable person in that position would be justified in experiencing the delay that occurred in the present matter. In those regards, her Honour considered the principles mentioned by the Court of Appeal in Itek Graphix Pty Ltd v Elliot (2002) 54 NSWLR 207.
Her Honour did not accept that those principles required the present application for an extension of time to be refused. In particular, Sidis DCJ did not accept that the plaintiff was fully informed about the limitation period. Nor did she accept that he was fully informed about the consequences of failing to commence proceedings within the limitation period. Finally, she did not accept that he was fully informed about alternatives available to him that would have protected his parents' property, and would have allowed him to commence proceedings within time.
Her Honour accepted that the first the respondent knew of a three year time limit was when Mr Kreveld told him that, following upon their meeting in November 2008. After examining the evidence of the respondent, his father and mother, and other documentary material, Sidis DCJ found that she could not be satisfied that the plaintiff, at the time the decision was made not to pursue proceedings through Mr Flynn, had been fully informed of the time limit, and of the consequences of allowing the time limit to expire. Finally, on this point, her Honour examined the position of the plaintiff as a person with a very serious brain injury with a number of attendant consequential impairments. She examined the various time frames involved, from the time of the accident, through to the consultation with Mr Kreveld. Her Honour said that she was satisfied that, but for the advice given by Mr Flynn, namely that the parents' home was at risk, the proceedings would have been commenced in time. Indeed, the respondent had said so in his evidence. In all these circumstances, her Honour concluded that a reasonable person in the position of the respondent would have accepted the advice and supported the parents' decision not to proceed. Equally, when it was made apparent to him that proceedings could be commenced without putting the parents' home at risk, it was reasonable for the respondent to initiate steps so that those proceedings might be commenced.
The third issue, that of prejudice, was considered at length by her Honour in the final part of her decision. In this regard, her Honour noted the difficult nature of the proceedings, stemming from the fact that there was little independent evidence, apart from the nature of the injuries, to support the respondent. In that regard, her Honour acknowledged that the claim was a difficult one, but she was not persuaded that it was "hopeless". The problems facing the parties were twofold. First, there was the problem of determining the circumstances of the accident. Secondly, there was the problem of determining whether a motor vehicle had in fact been involved, and whether the respondent's injuries had been caused by a collision with a motor vehicle. On the issue of prejudice, her Honour examined particularly the material which had been available to the insurance company, and to the police. There was an examination of the question as to whether there was likely to be any difficulty in securing evidence from witnesses, such as they were. Ultimately, her Honour considered whether the delay in the case had made the chances of a fair trial unlikely. She was satisfied that this was not the case. Overall, her Honour concluded her findings with the following statement:-
"In my view, the justice of this case, given the plaintiff's very severe injuries, and his consistent assertion that he was struck by a motor vehicle as the cause of his injuries, requires that the leave sought be granted."
Earlier in her decision she had identified that her discretion had to be exercised in a way that would "best serve the interests of justice".
Grounds of appeal
The applicant's grounds of appeal may be summarised as follows:-
(1)In exercising the discretion conferred by s 109 Motor Accidents Compensation Act 1999, her Honour misdirected herself by misstating the principal established in Itek Graphix Pty Ltd v Elliot , and Walters v Cross Country Fuels Pty Ltd [2009] NSWCA 10.
(2)The exercise of discretion by the learned primary judge miscarried in that in considering the factor of prejudice, her Honour balanced prejudice to either party, in violation of the principals established by Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 and Sydney City Council v Zegarac (1998) 43 NSWLR 195.
(3)Her Honour's discretion miscarried in that she took into account an irrelevant factor, namely further prejudice suffered after the expiration of the limitation period rather than prejudice per se, as discussed in Brisbane South Regional Health Authority v Taylor .
(4)The trial judge erred in inverting the onus of proof in relation to six important factual matters.
(5)Her Honour had misapprehended the facts in finding that the respondent had provided a full and satisfactory explanation for the delay.
Resolution of the issues
Ground One
The resolution of each of the grounds of appeal, as it happens, involves essentially a close and attentive regard to the reasons of the judge at first instance. Mr Campbell SC, leading counsel for the applicant, accepted that the reasons of her Honour must be read fairly, and without an undue propensity to find error.
I turn now to consider ground one. Essentially, the applicant argues that her Honour mistook the correct principle established in Itek Graphix Pty Ltd v Elliott (" Itek Graphix "). The ground has been argued in two ways. The first point argued, the narrower point, is that her Honour incorrectly identified the principle established by Itek Graphix . Her Honour at one point had referred to a passage in the judgment of Ipp JA at page 232 [144]. It was argued that that paragraph expressed, not the principle, but Ipp JA's conclusion of fact in the appeal. It was argued that the correct "principle" appears at page 225 [91] of the decision.
In my opinion, there is no substance in this argument. A fair reading of her Honour's decision shows that she very clearly understood the nature of the matters discussed in Itek Graphix . Her Honour began her analysis by identifying, in the context of whether the explanation was satisfactory, a factual issue that had been investigated before her, namely, whether the plaintiff had made a deliberate decision not to proceed with the claim, and to allow the limitation period to expire. Her Honour correctly identified that such an issue was the very matter upon which the Court of Appeal had passed comment in Itek Graphix . Her Honour dealt briefly and succinctly with the reasoning of Ipp JA, at pages 10-12 of her decision. The one passage that is criticised occurs where her Honour stated:-
[Sheller JA] noted that the plaintiff in that case decided quite deliberately, and on a fully informed basis, not to proceed at common law. She delayed for a further significant period before changing her mind.
This sentiment was confirmed by Justice Ipp at [144] where he stated:
'The fact is that the decision initially taken not to proceed at common law, and the decision to allow the three year period under s 151D(2) of the Workers Compensation Act to expire, were taken quite deliberately on a fully informed basis.'
Her Honour then considered the further reasoning of Ipp JA, noting that he had stated that it would be contrary to the justice of the case, and would subvert the intent of Parliament, if a party were allowed to proceed with a dispute when that party had been careless of his or her rights, and careless of the need to proceed with disputes within the limitation period. Her Honour specifically referred to Ipp JA at [98], where his Honour had said that special circumstances were required when a deliberate decision had been made to allow a statutory period to expire, to warrant the grant of leave to commence proceedings.
Her Honour then concluded her analysis when she said:-
Thus is seemed to me that the Itek principles applied where a decision not to proceed was deliberate, fully informed, and the decision was to allow the three year limitation period to expire.
In my view, the circumstances in this case differed markedly from those dealt with by the Court of Appeal in Itek Graphix . I did not accept that the plaintiff was fully informed about the limitation period, about the consequences of failing to commence proceedings within that period, or about alternatives available to him that would have protected his parents' property, and would have allowed him to commence proceedings within time.
Later she was to repeat, when she examined all the facts in detail, that she would not reject the application on the basis that the respondent had made a deliberate and fully informed decision to allow the limitation period to expire.
For these reasons, a fair reading of her Honour's decision make it quite clear that she well understood the reach and ambit of the Court of Appeal's decision in Itek Graphix .
The second, and broader argument, raised under the first ground of appeal was that her Honour had misapplied the "principle" established in Itek Graphix . It was said that, if she understood the principle, she had failed to apply it correctly.
In Itek Graphix , the court had under consideration an application to extend time pursuant to s 151D(2) of the Workers Compensation Act 1987 . The legislation there under consideration (unlike the present) did not contain any specific criteria to be taken into account by the court when exercising the relevant discretion. The particular significance of the case arose out of the fact that the respondent's delay in bringing her action for damages caused the appellant no prejudice whatsoever. The question which engaged the court's attention was whether, in those circumstances, the court exercising the discretion was bound to grant the application, or whether, and on what basis, it might refuse the application.
All three members of the court (Spigelman CJ, Sheller and Ipp JJA) were in agreement that the fact that there was no actual prejudice occasioned by the delay did not mean that the extension of time must be granted. Even in legislation which did not contain any express discretionary restraints, the justice of the case was to be determined by its own individual circumstances on a broad basis. Ordinarily, the conduct of the person seeking the extension would be an important factor in the exercise of the discretion.
It was against that background that Ipp AJA (with whom Spigelman CJ agreed) said at [91]:-
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 would be difficult to provide an explanation for that decision sufficiently cogent to warrant the grant of leave.
And later, Ipp AJA at [98] made the statement referred to by Sidis DCJ in her decision:-
In my opinion, to grant leave to sue long after the expiry of a limitation period, when the applicant has made a deliberate decision to allow the statutory period to expire, in the absence of special circumstances explaining satisfactorily the conduct of the applicant, would set at naught the purpose of the legislation.
Sheller JA did not disagree with these comments. His Honour said at [4]:-
Ipp AJA has concluded that the appellant suffered no prejudice in
consequence of the resultant delay but that the decision initially taken not to proceed at common law and allow the three year period... to expire were taken quite deliberately on a fully informed basis. The respondent further delayed for a significant period before changing her mind. I entirely agree that this in itself is a potent circumstance which must be taken into account and will ordinarily weigh heavily against an applicant.
First, it needs to be borne in mind that these comments by Ipp JA (and indeed, by Sheller JA) were not "principles" in the true sense of the word. They were intended to provide useful and cautionary guidance as to the way a court exercising a broad statutory discretion to extend a limitation period will ordinarily respond. They do not (and were not intended to) supplant the language of the statute. They were not intended to override the broad discretionary exercise entrusted to a court to take into account all the relevant circumstances in determining what is fair and just. They were certainly not intended to operate as some kind of peremptory trigger or command requiring, without further evaluation, a predetermined outcome, namely a refusal of the application. They might indeed point firmly in that direction but they did not, without proper consideration of all the circumstances, dictate automatic and immediate refusal.
Indeed, Ipp AJA recognised this when he said at [87]:-
In my opinion, in limitation legislation such as s 151D(2) of the Workers Compensation Act , where a broad discretion is conferred to grant leave to sue after expiry of the limitation period, the general question that has to be asked is what is fair and just (per Gleeson CJ in Salido ). Or what does the justice of the
case require (per McHugh J in Brisbane South Regional Health Authority ). In answering such a question, the justice of the case must be evaluated by reference to the rationales of the limitation period that has barred the action, including the four rationales to which McHugh J referred.
[This reference to the "four rationales" is a reference to McHugh J at 552-3 in Brisbane South Regional Health Authority ].
Sheller JA echoed this thought at [2] when, speaking of the legislation there in question, he said:-
... the legislature does no more than enable the court to grant leave to a person to commence court proceedings after the expiry of the limitation period. In broad terms it can be said that a discretion expressed so widely should be exercised in a way which will best serve the justice of the case.
See also Australian Croatian Cultural and Education Association v Benkovic [1999] NSWCA 210, per Mason P at [3] - [5].
Secondly, in my opinion, it is clear that Sidis DCJ applied these various statements to the resolution of the discretionary exercise which she had undertaken. Her Honour recognised, no doubt, that an important factual issue raised in the proceedings before her was the question whether the respondent had been aware that there was a limitation period, and whether he had decided not to commence proceedings within that period. Her findings were that first, he did not know of these matters. Secondly, that he acted in the reasonable belief that his parents' assets would be put at risk if he were unsuccessful in his action.
In relation to the first finding, Mr Campbell SC submitted that the statement by Ipp JA in Itek Graphix at [91] had a broader content as was recognised by Handley AJA in Walters v Cross Country Fuels Pty Ltd [2009] NSWCA 10 at [37]. In that case [40], his Honour had said:-
In my judgment, the principle applied by the court in Itek Graphix Pty Ltd v Elliott is of some generality and does not depend on a deliberate decision with knowledge of the precise limitation period prior to its expiry. Rather, it depends on a deliberate decision on legal advice that proceedings should not be commenced at common law that is adhered to until after the limitation period had expired.
It might be noted that the principal judgment in that case was delivered by Campbell JA. His Honour recognised that there was a distinction between the situation where a plaintiff had made a deliberate decision to let a limitation period to expire, and a situation where the decision made not to sue had been made in ignorance that a limitation period existed or was about to expire. At [30], Campbell JA said:-
However, that error on the part of the judge has no effect in my view on the correctness of his ultimate conclusion. It is not a matter that the judge relied on as part of the prejudice that the Respondent would sustain if the extension were granted. I recognise that the judge accepted that the Applicant's solicitors did not advise her about the existence of any type of limitation period. Hence it could not be said that the present was a case where the Plaintiff personally had made a deliberate decision to let a limitation period expire: cf Itek Graphix Pty Ltd v Elliott .
Allsop P agreed with Campbell JA, although he added some brief comments of his own. He made no reference to Handley AJA's remarks.
Handley AJA was clearly conscious that, in Itek Graphix , Ipp JA at paras [91] and [98] had examined a factual situation where an applicant for an extension of time had made a deliberate decision to allow a statutory limitation period to expire. I do not, however, understand Handley AJA to be saying anything more than that, even in a situation where the applicant does not know of the precise limitation period, but nonetheless makes a deliberate decision not to sue prior to its expiry, that decision will ordinarily operate as a formidable factor against the grant of the application. That is plainly correct. Once again, however, it will not dictate automatic refusal. All the circumstances will need to be considered.
In any event, Sidis DCJ was not drawing a distinction of that kind in the factual finding she made. As I have said, it had been argued by the applicant before her that the respondent actually knew of the existence of the three year limitation period when he decided to acquiesce in his parents' decision not to sue. Her Honour rejected that submission and simply made a finding of fact, as was open to her, that this was not the case.
In relation to the second major finding of fact, namely that the respondent acted in the reasonable belief that his parents' assets would be put at risk if he were unsuccessful in his action, it should also be noted that, indeed, the solicitor suggested he would be looking to recover his own costs out of the parents' assets if the respondent were to lose the case. This appeared to loom large in the respondent's doubts about Mr Flynn.
Mr Campbell SC made the point that the respondent thought that Mr Flynn was unreliable in a number of respects, as indeed he did, but clearly her Honour found that there was no evidence that the respondent's competence to provide instructions in 2007, or his competence generally, had been properly assessed by Mr Flynn, or by anyone on his behalf. Secondly, her Honour clearly thought that Mr Kreveld's complete satisfaction that the respondent had the capacity to provide instructions, as at the end of 2008 and the commencement of 2009, represented, in terms of the respondent's perceptions, a very real change of circumstances.
In relation to the respondent's decision not to bring a case, it was submitted by Mr Campbell SC that there were three bases for this: first, Mr Clarke had advised against proceedings; secondly, the concern about the parents' liability for costs, and thirdly, the respondent's lack of confidence in Mr Flynn, or at least concern as to his reliability. It is clear, however, that her Honour considered that the principal reason for the decision was the respondent's fear that his parents' home would be lost if the litigation were unsuccessful. Indeed, there was evidence that Mr Flynn's "no win/no costs" policy had, by the time of the decision, been subsumed by the prospect of recovery of his own costs from the parents' home.
Mr Campbell's principal complaint, however, was that the respondent really did nothing, following the decision not to commence proceedings, until he had been approached by Mr Kreveld in November 2008. The decision not to proceed with Mr Flynn was made in August 2007. Mr Campbell submitted that a reasonable person, in the respondent's position, would have done "something" in the period between these two situations to revive the claim. Senior counsel said that the respondent did not consult another solicitor, nor did he look for another way out. It seems to me, however, that her Honour was alive to this criticism, and took the view that, because of the respondent's substantial impairment, notwithstanding his gradual improvement during the relevant period of time, it was not unreasonable that some 14 months passed before the matter was again re-agitated in the way it was.
That was a finding that was clearly open to her Honour. The situation had changed markedly in that time as the respondent's continued rehabilitation brought about a gradual improvement in his cognitive faculties, his perception and his physical and mental deficits. The emergence of Mr Kreveld as a guiding light to the respondent illuminated and precipitated all these changed circumstances into the commencement of proceedings. Those factors, centred as they were on the respondent's substantial impairment, appeared to the trial judge as a basis for her satisfaction as to objective reasonableness, and hence as satisfaction that the express dictates of the legislation had been achieved by the respondent. Her Honour did not overlook, however, the need to consider, in the ultimate, whether the respondent had discharged the onus of demonstrating that it was just and reasonable to permit the extension. Mr Campbell's claim that the respondent grudgingly accepted Mr Flynn's advice, even though he did not like it, and then later acted on more "bullish" advice that was more attuned to his own thinking, does not do justice to the realities of the evidence and her Honour's assessment of it.
Grounds Two and Three
The second and third grounds relied on by the applicant focuses on one sentence in her Honour's decision:-
Thus, it appeared to me that both parties were prejudiced from the outset and that this prejudice has not been increased by reason of the delay in the commencement of the proceedings.
Two errors are alleged. First, it is said that this statement by her Honour shows that she "balanced" the prejudice of each party against the other (Ground 2). If she did so, this was an error, because the only prejudice that was relevant was prejudice to the applicant ( Brisbane South , per McHugh J at [566]). Secondly, it was submitted that her Honour had committed an additional error by asking whether the prejudice she recognised both parties had suffered would be increased by reason of the delay (Ground 3). This error contravened accepted principles ( Brisbane South at [554] - [555] per McHugh J; [548] - [549] per Toohey and Gummow JJ). Prejudice arising from delay is to be considered at the time of the application for extension is made not reference to events at or after the expiry of the time limit.
It is convenient to dispose of these grounds together. There is no need for an analysis of the authorities and the principles involved since both parties are in agreement as to their content and reach. In my opinion, however, a fair reading of her Honour's decision shows that she did not fall into error in either respect.
Her Honour's analysis of the issue of prejudice begins at page 18, where her Honour said:-
I turn then to the question of prejudice. In this case there were two problems facing the parties. The first was that of determining the circumstances of the accident and whether a motor vehicle was in fact involved, and also determining whether the nature of the plaintiff's injuries were such that it was probable that they were caused by a collision with a motor vehicle.
Although her Honour couched these problems as difficulties facing both applicant and respondent, it is clear that, throughout the following pages, her Honour was focussing on the prejudice to the defendant. Bearing in mind that the respondent was unable to communicate or give information about the cause of his injuries for a reasonably lengthy period of time, her Honour's method of analysis was a recognition of the obvious. How would this plaintiff prove his case? And, relevantly for the present exercise, how would a defendant defend it? What were the difficulties, apparent from the outset, in these circumstances likely to be encountered by the defendant, and had the respondent's delays increased or added to these difficulties as at the date of the application to extend time?
Her Honour then went on to consider the large amount of medical material, and concluded that no prejudice would be occasioned to the applicant, having regard to the considerable detail available as to the injuries sustained by the respondent. Indeed, her Honour commented that it had not been suggested by the applicant that the delay would cause it any difficulty in relation to the nature of the injuries suffered. Her Honour then said, speaking of the applicant:-
Its argument was that it would be prejudiced by the delay in determining the circumstances of the accident.
This sentence shows that her Honour was indeed focussing on the issue of prejudice to the applicant. Her decision then examined the evidence of Mr Binns, who had been responsible for the investigation into the circumstances of the respondent's injuries. It was relied on by the applicant to suggest prejudice arising from delay. Mr Binns, of course, had been the policeman originally in charge of the investigation following the accident. He gave detailed evidence of all the steps taken by police in relation to the investigation and the attempts to obtain eyewitnesses in the two months following the respondent's hospitalisation. He gave evidence of some discussions he had had with two people which he suggested were "contra-indicative" of the respondent having been injured in a motor vehicle accident. He also gave evidence of additional steps he would have taken in the investigation if he had, at the outset, the information that the respondent provided in his affidavit in support of the extension application.
All these matters were examined by her Honour on the issue of prejudice. Her Honour clearly placed little weight on the "contra-indicative" material referred to by Mr Binns in his affidavit. Although Mr Binns had claimed that he would have made a wider range of inquiries had he possessed information now available to him, her Honour noted that it was apparent from cross-examination and from the documents produced on subpoena by the police service, that the police in fact did have this information, or at least a good deal of it, and that investigations may well have been undertaken on the basis of it. It was also apparent from the police documents that the Nominal Defendant, through its insurer, had made inquiries concerning police investigations in March 2005. Finally, her Honour observed that the names and addresses of people who had been interviewed were available, although it would be unlikely that any of those could give any evidence that would assist on the issue of the cause of the respondent's injuries. All those witnesses had dealt with pre- or post-injury observations, not the immediate circumstances of the event causing the injuries.
It was in the context of this analysis that her Honour made the statement that:-
Prejudice in this case obviously presented a difficult issue to both parties.
Once again, fairly read, I took her Honour to be saying no more than that there had been difficulties from the outset in finding any evidence, apart from the respondent's injuries, that supported his assertion that he had been struck by a motor vehicle. It was, of course, the nature and extent of the respondent's injuries and his consequent inability to communicate and to recall, that had been central to these difficulties. Her Honour noted that the applicant had formally accepted in March 2006 that the respondent had met his obligations of due search and inquiry. However, she observed that responses to that publicity were minimal. It was in that precise context that she made the statement upon which reliance is placed for the purposes of this second ground of appeal.
In its context, the statement is no more than an observation that the minimal responses to publicity, following the advertisements, prejudiced the applicant and, for that matter, the respondent as well. The second part of the observation was simply surplusage to the first. The criticism levelled at her Honour's reasoning is not warranted. This is particularly clear when her Honour is seen in the next two sentences identifying, correctly, that the issue in the subsequent litigation "will be whether the plaintiff's injuries were the result of a motor vehicle accident". Her Honour then noted, citing Sheller JA in Itek Graphix , that the question to be determined was whether the delay had made the chances of a fair trial unlikely. Her Honour found explicitly that the delay in this case did not have that effect. I do not accept that her Honour had engaged in the prohibited task of balancing notions of prejudice as between the applicant and the respondent.
In the same way, I do not consider that the second phrase of the sentence under discussion means that her Honour was saying that the applicant might have suffered some or the same prejudice, had the proceedings been commenced at the first available opportunity. As I have said, her Honour identified in the next paragraph the correct issue in the case, namely, whether the respondent's injuries were the result of a motor vehicle accident. There was no actual prejudice identified, but her Honour clearly took into account the presumptive prejudice flowing from delay, when she determined that the delay had not made the chances of a fair trial unlikely. Indeed, her Honour specifically spoke of prejudice "from the outset", and this clearly shows that she understood that prejudice to the applicant had to be considered by reference to the situation at the time of the application, and not at the time the limitation period expired or following that expiry.
Ground Four
The applicant has submitted that the trial judge erred in inverting the onus of proof in relation to six important factual matters. I shall deal with each of these separately.
The first instance of reversal of onus is said to have occurred at page 8 of her Honour's judgment. There, in a passage dealing with the knowledge of the respondent's father as to the limitation period, her Honour said:-
I was not satisfied that Mr Harris Snr understood precisely when the limitation period expired.
Mr Campbell SC has submitted that it was for the respondent to prove that no advice was given. Senior counsel submitted that the respondent failed in this regard, and that the sentence under scrutiny indicates that her Honour had placed some type of onus on the applicant.
This submission is rejected. The one sentence relied on has been extracted from a process of reasoning on a particular point that spans some five pages of her Honour's decision. At page 6, she set out the basis on which she thought the present factual circumstances differed "markedly" from those dealt with by the Court of Appeal in Itek Graphix . This included the finding she made, an important one, that the plaintiff had not been fully informed about any limitation period. Her Honour then examined, on that page, and the next page, the evidence that led her to conclude the plaintiff did not know of a three year time limit until he was told about it by Mr Kreveld. Her Honour clearly accepted the evidence of the respondent, that he had not been told of a time limit by his parents, nor had they shown him any written advice received dealing with the subject. Consideration was then given as to the father's knowledge. The evidence about this demonstrated that he had been told by Attwood Marshall in correspondence that there was a three year time limit.
At one stage, the respondent's father had said he told his son about the three year time limit before the decision was made to proceed no further with the litigation. However, he subsequently denied that he knew that the plaintiff was aware of the time limit at the time this decision was made. Her Honour's comment was:-
The evidence of the plaintiff's father was somewhat confused and contradictory concerning the extent of the plaintiff's knowledge about time limits, and the extent of his own knowledge concerning time limits.
Mr Harris Snr said that he had read letters from Mr Flynn and made them available to the plaintiff to read, but he said he drew the plaintiff's attention specifically only to those parts of the correspondence that dealt with medical examinations (decision, page 13).
Her Honour, on pages 7 and 8, analysed further the state of Mr Harris Snr's knowledge of the time limit situation. The position had been complicated, her Honour observed, by the contents of a letter from Mr Flynn, enclosing a certificate of exemption issued on 18 th July 2007. Mr Harris maintained that he had been told by Mr Flynn that the effect of this certificate was that there was to be a long "extension of time". Her Honour clearly accepted that this was the belief of the respondent's father at the relevant time.
Her Honour's critical finding, the summary of all that had gone before, appears in the middle of page 8, where she said:-
The result of this evidence was that I could not be satisfied that the plaintiff, at the time the decision was made not to pursue proceedings through Mr Flynn, was fully informed of the time limit and of the consequences of allowing a time limit to expire.
It was in that context that her Honour added that she was not satisfied that Mr Harris Snr understood precisely when the limitation period expired.
Seen in its proper context, the impugned sentence simply cannot be regarded as an indication that her Honour had inverted the onus of proof. The statement regarding the father's understanding related to the discussion with Mr Flynn concerning the certificate of exemption. It was, at best, only marginally relevant to the principal matter her Honour considered, namely, the respondent's state of knowledge of the time limit. As I have said, her Honour accepted that the respondent did not know of the time limit, and further accepted that he had not been told of it by his father.
The applicant next complains that, at page 10 of the decision, her Honour said:-
I have already noted there is no evidence that the plaintiff's competence to provide instructions in 2007 was assessed.
Mr Campbell SC submitted that it was for the plaintiff to prove affirmatively that no assessment was carried out. If it had been, he argued, it would have shown that the respondent was fully competent to conduct the litigation in his own right at that time.
The proceedings before her Honour had an unusual feature to them. For some reason, by no means clear to me, the parties allowed the tender into evidence of a draft affidavit prepared by Mr Flynn. As the judge observed, there was no sworn evidence from Mr Flynn, and he was not called by either party. Her Honour examined the draft affidavit, which had been sent to Mr Flynn but returned unsworn. She also examined Mr Flynn's file. Between pages 14 and 17, she examined statements in this draft affidavit by Mr Flynn, and generally disapproved of them. They were, she said, not supported by other evidence. Her Honour said she was "reluctant" to make findings of dishonesty, given that Mr Flynn was not present at the hearing, but she said that she placed "little weight upon his statement in the light of the obvious errors contained in it and the significant omissions in the materials in his file". She said she had "grave doubts... concerning the extent of the inquiries that were actually made by Mr Flynn".
It was in that context that her Honour made the statement that she had already noted that there was no evidence that the plaintiff's competence to provide instructions in 2007 was assessed.
Once again, when the sentence under discussion is seen in its proper context, it does not support the proposition that her Honour was placing some type of onus on the applicant. This was clearly not the case. Moreover, both the respondent and his father gave evidence that at the time Mr Flynn provided his advice, the respondent was capable of looking after his own affairs. However, Mr Flynn, her Honour accepted, did not speak to the respondent at all. Back in 2006, a neuropsychologist, Robyn Gordon, had prepared a report. This indicated that the respondent, at that period, continued to suffer from cognitive deficits. Her opinion was, however, that, with further rehabilitation, he might be expected to improve. Her further opinion was that she thought the respondent might need assistance or advice in important matters, although it was not clear that, at that stage, he required a substitute decision-maker. By late 2008, however, Mr Kreveld had no concerns about the respondent's competence, as her Honour found.
The third complaint related to a sentence at page 11 of the decision:-
I did not accept, therefore, that the plaintiff was fully informed of the limitation period, the consequences of allowing it to expire, or that he was fully and properly informed of his legal position.
There is no substance in this complaint. I agree with Mr Roberts SC, that this is "surely a matter of semantics". When regard is had to the whole context of the decision, it is clear that her Honour was saying that, on the balance of probabilities, the respondent was not fully informed of each of the critical matters to which she made reference.
The next two complaints may be dealt with together. Dealing with the issue of delay, and speaking of information in the possession of the police, her Honour had said:-
Investigations may well have been undertaken on the basis of it.
This finding was said to have been "speculative". Likewise, in the same discussion about whether witnesses were available, her Honour said:-
There was no evidence... that either party had attempted to locate these witnesses, or that they could not be located.
The complaint is made that the onus rested upon the plaintiff of proving that the witnesses were still available and would be able to give evidence, and that her Honour has, in this sentence, reversed the onus.
These two statements appear in the context of her Honour's examination of the information available to the applicant for the purposes of the proceedings. The real prejudice that her Honour recognised, a presumptive prejudice, arose from the fact that there were no eyewitnesses to the accident. The police had made extensive inquiries. There was extensive advertisement of the incident in an attempt to bring witnesses forward, but the result was disappointing. As the plaintiff's cognitive faculties recovered, he was able to provide the police with further information, but it too led to nothing in the way of independent corroboration. In the end, there was the evidence of the plaintiff himself, and, importantly, the full nature and extent of his injuries which were properly documented in available medical records. Her Honour's comment regarding the possibility that investigations may have been undertaken on the basis of the information in the possession of the police, but unknown to Mr Binns (because of his retirement), was simply a comment on the reliability of his evidence.
In relation to the witnesses, I took her Honour to be saying no more than that there was no suggestion that the witnesses were unavailable, but even if they were, their evidence simply dealt with post-injury observations, and could not bear on the critical issue of the lack of independent observation of the circumstances giving rise to the plaintiff's injuries. Of course, as Mr Roberts SC submitted, if the witnesses were not available, their statements would, in the scheme of things, be admissible nonetheless.
The point, however, is that there is no substance in the applicant's submission that her Honour misunderstood the onus issue. The various sentences extracted from her Honour's decision that comprise this ground of objection were really no more than comments on matters of fact argued before her, and they do not, on a fair reading of the decision, show any misunderstanding or misapprehension as to where the onus of proof lay.
The final sentence under attack appears towards the end of her Honour's reasons for decision. At page 15, her Honour said:-
Mr Justice Sheller in Ikek Graphix ... referred to authority that established that the question was whether the delay had made the chances of a fair trial unlikely. I was not satisfied that the delay in this case had that effect.
Once again, it was argued that this inverted the onus of proof. Perhaps this expression might have been stated more felicitously. I am not, however, persuaded that any error has been demonstrated.
It is clear that her Honour had to be satisfied, before granting leave, about three things. First, she had to be satisfied, that the respondent's explanation for the delay was "full" within the meaning of the statute. She was so satisfied, as she said in her decision. Secondly, she had to be satisfied that the explanation offered by the respondent was a satisfactory explanation. Again, after an extensive and careful evaluation of the evidence, her Honour determined that she was so satisfied. She gave ample reasons for this conclusion. Thirdly, her Honour had to determine whether or not the delay made the chances of a fair trial unlikely. She determined expressly that it did not. Having dealt with each of those matters, her Honour then recognised that she had to consider whether the justice of the case required that leave should be granted. Again, giving appropriate reasons, she thought that it should. In relation to all of the principal findings, it appeared that her Honour understood precisely where the onus lay. As I said earlier, her Honour is a very experienced trial judge, and the proposition that she misunderstood where the burden of the onus fell simply cannot be substantiated. Read fairly, her decision reveals no such error.
Ground Five
The applicant argues that, given the long periods of inactivity on the part of the respondent during which nothing at all was done by the respondent to promote his rights, her Honour ought not to have been satisfied that the respondent had provided a full and satisfactory explanation for the delay.
This ground is substantially a repetition of the matters complained of under Ground One. I have already dealt with these matters and expressed the conclusion that no error was involved.
The findings made by her Honour were plainly open to her. The respondent had suffered a very serious brain injury that left him with very extensive cognitive deficits, but also with significant physical impairments. It was clear that he suffered from a level of depression and other psychological consequences as a result of his injuries. The respondent was in hospital for a lengthy period and thereafter his rehabilitation continued. Indeed, it was continuing at the time the application was heard by Sidis DCJ. Because of his injuries, the respondent was substantially unaware of the dealings between his parents and Attwood Marshall in 2005. Her Honour specifically found that a reasonable person in the respondent's position would not be expected to give consideration to a claim until about the middle of 2006, by which time he had sufficiently recovered to move out into the world socially. Even at that time, he remained physically and intellectually impaired, and relied on his parents for advice and action. At the commencement of 2007, the respondent, on his own initiative, consulted Mr Flynn. Her Honour was satisfied that, but for the advice that Flynn gave regarding the loss of his parents' home, the proceedings would have been commenced in time. Her Honour thought that a reasonable person in the position of the respondent, given his disabilities and concern for his parents, would have accepted Flynn's advice, even though that advice was incomplete and incorrect. While the respondent had doubts about the reliability of Mr Flynn, this principally centred upon the fact that his no win/no costs policy had been supplanted by a direct threat to the respondent's parents' home in the event of a loss.
The gradual improvement of the respondent throughout 2008, and the encounter with Mr Kreveld, together brought about a significant change in the circumstances under which the decision not to sue had been made. His previous perception that a claim, if unsuccessful, would risk his parents' property, was altered in a significant way upon his taking advice from Mr Kreveld. It was open to her Honour to find that these substantially altered circumstances, in the light of the foregoing history, justified a finding that a full and satisfactory explanation had been provided. Her Honour addressed the overall justice of the case in a reasoned fashion and concluded that an extension of time should be granted. In my opinion, no error has been shown.
In these circumstances, I propose that leave to appeal be granted, that the appellant file its Notice of Appeal with 7 days, but that the appeal be dismissed. The applicant should pay the respondent's costs of the application and appeal.
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