Shone v National Express Group Australia (Swanston Trams) Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURY LIST

S CI 2018 00078

BELINDA SHONE	Plaintiff
v
NATIONAL EXPRESS GROUP AUSTRALIA (SWANSTON TRAMS) PTY LTD (ACN 087 494 997)	Defendant

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JUDICIAL REGISTRAR	Clayton JR
WHERE HELD:	Melbourne
DATE OF HEARING:	18 and 22 August 2019
DATE OF JUDGMENT:	29 November 2019
CASE MAY BE CITED AS:	Shone v National Express Group Australia (Swanston Trams) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2019] VSC 782

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PRACTICE AND PROCEDURE – Estoppel – Waiver – Whether limitations defence waived – Whether the defendant estopped from relying on limitations defence – Revocation of waiver – Operation of Transport Accident Commission’s waiver policy – Limitations of Actions Act 1958 (VIC) s 23A – Extension of time – Relevance of conduct of former solicitor – Where considerable period of unexplained delay by former solicitor – Relevance of potential claim in negligence against former solicitor – Prejudice to defendant from passage of time.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms Maryanne Hartley QC Ms Carmelina Spitaleri	Arnold Thomas & Becker
For the Defendant	Ms Roslyn Kaye	Transport Accident Commission

JUDICIAL REGISTRAR:

Summary

The plaintiff makes application for an order that:

(a) the defendant has waived its right to rely on paragraphs 9 to 11 of its Defence dated 11 May 2018; or alternatively

(b) the defendant is estopped from relying on paragraphs 9 to 11 of its Defence dated 11 May 2018; or alternatively

(c) the period of limitation be extended pursuant to s23A of the Limitation of Actions Act 1958 (Vic) to the date of the determination of this application; and

(d) the costs of this application be costs in the cause.

For the reasons set out below the plaintiff’s application is dismissed.

The application was heard on referral from the Honourable Justice Zammit dated 14 August 2019.

Background

On 22 March 2001 the plaintiff, Ms Shone, was a passenger on a tram travelling south along Elizabeth Street. She alleges that the tram suddenly braked to avoid colliding with a second tram and she was injured as a result (‘the accident’).

On 8 July 2004 she underwent a surgical discectomy and fusion of her neck. She alleges that her neck injury was caused by the accident.

On 19 January 2005 she consulted lawyers, Maurice Blackburn Cashman, now Maurice Blackburn (‘MB’) in relation to a potential legal claim and instructed them to act on her behalf.

Part 6 of the Transport Accident Act 1986 (Vic) (‘TAA’) governs the way claims can be made outside the legislative regime of entitlements under the common law.

Section 93 of the TAA states that a person can only recover damages in respect of injuries sustained in a transport accident if they have a ‘serious injury’. A serious injury is defined as:

(a) serious long-term impairment or loss of a body function;

(b) permanent serious disfigurement;

(c) severe long-term mental or severe long-term behavioural disturbance; or disorder; or

(d) loss of a foetus.

The TAA establishes the Transport Accident Commission (‘TAC’) which manages the statutory compensation scheme. Whilst the named defendant in this case is National Express Group Australia (Swanston Trams) Pty Ltd, the TAC is the insurer and, for the purposes of the litigation, stands in the shoes of the defendant.

A person may not bring proceedings for recovery of damages unless the TAC has determined that the degree of impairment of that person is 30% or more, or, if the degree of impairment is less than 30%, the TAC is satisfied that the injury is a serious injury and issues to the person a certificate in writing consenting to the bringing of the proceedings. An alternative to obtaining a serious injury certificate (‘SIC’) from the TAC is for a plaintiff to make an application to a court for leave to bring the proceedings. This is done by way of issuing an Originating Motion in the County Court of Victoria.

For the purposes of this ruling, there is no requirement to explain in detail the operation of the TAC processes which are used to resolve many transport accident claims in this state. All that is necessary is to say the processes are governed by the No Fault Dispute Resolution Protocols, commonly referred to as ‘the Protocols’, which were agreed between the TAC, the Law Institute of Victoria and the Australian Lawyers Alliance on 1 March 2005 and have since been amended from time to time. The objective of the Protocols is to resolve disputes between claimants and the TAC. Most, though not all, transport accident claims that come before the Courts have first been ‘through the Protocols’, that is, that an attempt has been made to resolve the dispute pursuant to the terms of the Protocols. The Protocols require that claimants provide certain material to the TAC to assist in the early resolution of the claim.

On 28 April 2005 MB wrote to the TAC requesting a serious injury determination on behalf of Ms Shone. A serious injury determination is a determination by the TAC that a plaintiff has suffered an injury that has caused a degree of impairment of 30% or more and would result in the issuing of a SIC. MB enclosed a medical report from Mr Christopher Thien dated 17 March 2004. MB wrote:

[Y]ou will note from the medical report of Dr Christopher Thien the seriousness of the injuries suffered by our client…We ask that you recognize this letter and the enclosure as a claim by our client in respect to a desire to have you make a determination with regard to a “serious injury” certificate. Naturally enough the Common Law Protocols will impact upon this question of the request for the “serious injury” certificate but at this point in time we simply wish you to recognise this correspondence as a claim and provide details of a claim number.[1]

[1]Letter from Maurice Blackburn Cashman (‘MB’) to the Transport Accident Commission (‘TAC’) dated 28 April 2005, exhibited to the Affidavit of Nick Tsongas sworn on 8 March 2019, filed on behalf of the defendant (‘first Tsongas affidavit’), Exhibit NT-3.

On 9 May 2005 the TAC wrote to MB, notifying them of the claim number and advising as follows:

We confirm that in the event that a request for a “Serious Injury” certificate or impairment determination is received by the Commission, the Common Law and Impairment Protocols would apply.[2]

[2]Letter from the TAC to MB dated 9 May 2005, exhibited to the first Tsongas affidavit, Exhibit NT-4.

It appears that the TAC intended for this letter to indicate to MB that MB’s letter of 28 April 2005 did not comply with the Protocols and would not be considered by the TAC to be a request, pursuant to the Protocols, for a SIC. That position seems to be tacitly acknowledged in MB’s letter when Mr O’Halloran says ‘[n]aturally enough the Common Law Protocols will impact upon this question of the request for a serious injury certificate’, but seeks to have the TAC acknowledge that Ms Shone has lodged a claim and provide her with a claim number.

The TAC’s letter of 9 May 2005 was followed by a phone call from TAC to MB on 3 June 2005 in which, according to a TAC file note, a TAC officer advised ‘Cynthia’ from MB that

as per our letter of 9 May 2019 their notification of accident was the first we had heard of it consequently we don’t have any material other than what they have supplied (& especially not any invest statements). Welcomed Don O’Halloran to return my call to discuss further.[3]

[3]TAC, File note dated 3 June 2005 exhibited to the first Tsongas affidavit, Exhibit NT-6.

I do not know what ‘invest statements’ are – that may refer to investigation reports or something similar, but I do not consider it relevant. It is clear that the TAC was telling MB at this point that it did not have the material required to consider a SIC. There is no evidence that Mr O’Halloran, who was the solicitor with carriage of Ms Shone’s MB file at the time, called the TAC to discuss Ms Shone’s claim.

On 8 July 2005 MB wrote to the TAC and enclosed a copy of correspondence to MB from CGU Workers Compensation regarding Ms Shone’s workers compensation claim. MB wrote ‘[w]e would be grateful if you would advise the situation you have reached with regard to our client’s “serious injury” request.’[4]
[4]Letter from MB to the TAC dated 8 July 2005, exhibited to the first Tsongas affidavit, Exhibit NT-7.

MB wrote again to the TAC on 19 August 2005 requesting advice as to what determination the TAC had reached regarding Ms Shone’s impairment and ‘the question of whether or not she has suffered a “serious injury”.[5]
[5]Letter from MB to the TAC dated 19 August 2005, exhibited to the first Tsongas affidavit, Exhibit NT-8.

On 25 August 2005 TAC had a phone conversation with Cynthia from MB. The file note reads as follows:

[Solicitors] correspondence received on 8.07.05 (with copy of agent’s file) and 19/08/05 alluding to a [impairment] determination/ [serious injury] request. Initially they wrote to us on 28/04/05 notifying of [motor vehicle accident] and wanting TAC to “recognize their correspondence as a claim”. We then file raised & advised them via our 09/05/05 letter that if they were to request an SI, the Protocols would apply. Phoned sols today, Don O’Halloran [unavailable] so discussed with Cynthia. Re-iterated that if they want us to treat this as a SI request, Protocols apply & I’d be happy to confirm the same again in writing. We agreed that based on the material they have provided , “off the record: [client] doesn’t appear to have sustained an SI (has returned to pre-injury duties) so there would be a lot of work to be done to comply with Protocols. She’ll discuss with Don & contact back. [Impairments], please allocate an [impairment] officer in event this matter is pursued, thanks.[6]

[6]Abbreviations contained in the file note have been substituted with full words in square brackets, where applicable - TAC, File note dated 25 August 2005, exhibited to the first Tsongas affidavit, Exhibit NT-9.

I interpret this file note to be a record of the TAC again advising MB that their letters do not constitute an SIC application pursuant to the Protocols, and that they will need to comply with the Protocols.

On 11 November 2005 MB wrote to the TAC seeking a response to their earlier letter of 19 August 2005 without appearing to consider the content of the phone call of 25 August 2005. The TAC responded on 14 December 2005 confirming that the TAC’s position remained that if a request was made pursuant to s 47(7) of the TAA, the Protocols would apply and the application would need to comply with the Protocols.

Section 47 of the TAA deals with impairment benefits rather than a claim for common law damages, however I do not think anything turns on this distinction. Whether the SIC is sought for the purposes of an impairment benefit or a common law claim, the TAC position was that the request would have to comply with the Protocols.

There is no evidence of any further action by MB for more than 12 months.

On 4 January 2007 MB wrote to the TAC advising that they had instructions to ‘lodge a request for a Serious Injury Certificate in accordance with the Common Law Protocols’.[7] MB wrote asked the TAC to ‘[p]lease confirm by return mail that the usual waiver policy will apply with respect to this matter’.[8]
[7]Letter from MB to the TAC dated 4 January 2007, exhibited to the first Tsongas affidavit, Exhibit NT-12.
[8]Ibid.

On 10 January 2007 the TAC responded to MB advising that ‘[u]pon receipt of a Serious Injury Application TAC will consider your request for a waiver.’[9] Once again the TAC was telling MB that their request does not comprise a SIC application.
[9]Letter from the TAC to MB dated 10 January 2007, exhibited to the first Tsongas affidavit, Exhibit NT-33.

On 21 March 2007 MB sent an ‘urgent’ letter by fax to the TAC. That letter says ‘we request that the TAC determine that our client has a “serious injury” to enable proceedings pursuant to section 93 of the Transport Accident Act to be commenced’.[10]
[10]Letter from MB to the TAC dated 21 March 2007, exhibited to the first Tsongas affidavit, Exhibit NT-14.

The letter enclosed various documents including an affidavit of the plaintiff, her tax returns and her Centrelink file. MB requested that the TAC ‘confirm the application of the waiver policy immediately upon receipt of this facsimile noting that the transport accident occurred on 22 March 2001’.[11]
[11]Ibid.

On 21 March 2007 Malcolm Cumming of MB spoke by telephone with Stephen Greenham of the TAC. Their respective file notes of the conversation are substantially the same. Both file notes record that Mr Greenham refused to grant a waiver without an explanation for the delay and that Mr Cumming informed Mr Greenham that he would therefore issue an Originating Motion.[12]
[12]MB, File note dated 21 March 2019, exhibited to the Affidavit of Malcolm Cumming), affirmed on 19 August 2019, filed on behalf of the plaintiff (‘the Cumming affidavit’, Exhibit MC-2; TAC, File note dated 21 March 2007.

It was common ground between the parties that the waiver referred to was a waiver of the TAC’s rights to rely, as a defence, on the operation of the Limitation of Actions Act 1958 (Vic), and the Originating Motion referred to an alternative procedure to obtaining an SIC, whereby a plaintiff could apply to the County Court for leave to proceed with a common law claim without an SIC.

On that same day MB filed an Originating Motion in the County Court.

On 23 March 2007 the TAC wrote to MB. That letter is quoted here in full (‘the waiver letter’):

I refer to the above matter and your request for a waiver of the statute of limitations.
We advise that as a Serious injury certificate request has been received within the 6 years since the accident that a waiver will apply in this matter.[13]

[13]Letter from the TAC to MB dated 23 March 2007, exhibited to the Affidavit of Akcan Munir sworn on 7 March 2019, filed on behalf of the plaintiff (‘the Munir affidavit’), Exhibit AM-10.

On 13 April 2007 the TAC wrote to MB and informed them that Ms Shone’s application did not comply with the Protocols in that it did not attach medical evidence establishing that the condition relied upon ‘is stable or at least substantially stable’ and did not attach copies of all medical records regarding the injuries and any relevant pre-existing conditions. The TAC requested that MB obtain a report of the Ms Shone’s treating general practitioner, Dr Lee, an updated report from Mr Thien, and a report from the healthcare practitioner that Ms Shone had consulted in relation to her ‘pre-existing depression’. The letter also noted that page three of Ms Shone’s affidavit was missing and MB had not provided any particulars of the accident.

There was no response to this letter.

On 16 April 2007 TAC wrote again to MB and informed them that Ms Shone’s application for an SIC was subject to the Protocols and that the application did not comply with the Protocols. The letter stated that:

The application does not comply with the Protocols for these reasons:
1. combination. [14]

[14]Letter from the TAC to MB dated 16 April 2007, exhibited to the first Tsonga affidavit, Exhibit NT-15.

It is unclear what was meant by ‘combination’. However the letter went on to say that ‘the TAC is unable to consider this application until such time as the requested information is received and complies with the Protocols’.[15]
[15]Ibid.

More than twelve months letter, on 30 April 2008, MB forwarded reports from Dr Lee and Mr Thien and informed the TAC that they were awaiting a decision from the TAC with respect to the assessment of serious injury.[16]
[16]Letter from MB to the TAC dated 30 April 2008, exhibited to the first Tsongas affidavit, Exhibit NT-36.

On 10 June 2008 the TAC acknowledged the reports forwarded on 30 April 2008 and noted that the report of Dr Lee was not sufficient for the ‘purposes of providing a complete and thorough history, or providing details of pre-existing depression’.[17] The TAC requested a copy of Dr Lee’s clinical notes. The TAC further noted that ‘the application remains non-compliant until that information is received’.[18]
[17]Letter from the TAC to MB dated 10 June 2008, exhibited to the first Tsongas affidavit, Exhibit NT-37.
[18]Letter from the TAC to MB dated 10 June 2008, exhibited to the first Tsongas affidavit, Exhibit NT-37.

On 15 October 2008 the TAC again wrote to MB and advised that the application did not comply with the Protocols for the reasons set out in their letter of 10 June 2008. The TAC asked that MB ‘please rectify the non-compliance so that the TAC can consider the application’.[19]
[19]Letter from the TAC to MB dated 15 October 2008, exhibited to the first Tsongas affidavit, Exhibit NT-16.

On 15 April 2009 the TAC wrote to follow up with MB, referring to their letters of 10 June and 15 October 2008 and noted that it was unable to proceed until the information was provided.[20]
[20]Letter from the TAC to MB dated 15 April 2019, exhibited to the first Tsongas affidavit, Exhibit NT-17.

By letter dated 15 May 2009 MB informed the TAC that they were ‘in the process of obtaining updated material in support of the application which will be forwarded in due course’.[21]
[21]Letter from MB to the TAC dated 15 May 2009, exhibited to the first Tsongas affidavit, Exhibit NT-38.

On 4 September 2009 the TAC wrote to MB (‘the September 2009 letter’). This is a particularly important letter and I reproduce it here in full, save for reference details:

I refer to your client’s application for a serious injury certificate under the Transport Accident Commission Common Law Protocols.
I note that we have written to you on 10 June and 15 October 2008 and again on 15 April 2009 advising that you are non-compliant with the Common Law Protocols. The TAC is unable to make a decision with regard to serious injury without the requested information.
Whilst it is noted that the first notification of TAC’s possible interest in this matter came from your office on 28 April 2005, formal application for a serious injury certificate was not forthcoming until 22 March 2007. Notwithstanding the lack of explanation as to the reason for the delay, the TAC as an act of good faith exercised its discretion to grant a waiver with regard to it’s [sic] right to rely upon the statute of limitations. I refer in this regard, to a telephone conversation between your office and Mr Stephen Greenham on 21 March 2007, in which it was explained that the above discretion was granted subject to an explanation being provided to the TAC as to the delay. This explanation has not been provided and nor has the information initially requested on 10 June 2008.
Accordingly I request the following from your office:
1.Affidavit from your client and/or your office, detailing the reasons for the delay in lodging a formal application for a serious injury certificate.
2.Affidavit from your office as to the steps taken toward progressing the matter.

3. Full copy of clinical notes of Dr Lee, as requested 10 June 2008.
In the event that the TAC has not received the above-requested materials within 30 days of the date of this letter, the TAC will consider that it’s [sic] position is prejudiced, and will reserve the right to rely upon a statute of limitations defence.[22]

[22]Letter from the TAC to MB dated 4 September 2009, exhibited to the Munir affidavit, Exhibit AM-11.

There was no response from MB to the September 2009 letter.

On 3 December 2009 the TAC called MB to speak with Mr Cumming. The TAC file note indicates that the caller, Lindsay Powell, spoke with Cynthia at MB, who said that Mr Cumming was on leave and advised that the file had been sent to Melbourne for ‘some sort of audit’. The file note continues:

I asked if they had any instructions from client. Cynthia thought that they had
not heard from the client for a long time. I explained that it has been a couple of years and indeed approx 9yrs since the accident. I noted that we have requested certain documents from sols but are yet to receive and commented that on the current evidence it seems highly unlikely that a [SIC] would be granted. I explained that we will be either finalizing or closing the file and requested Malcolm call me back’.[23]

[23]TAC, File Note dated 3 December 2009, exhibited to the first Tsongas affidavit, Exhibit NT-19.

On 9 December 2009 Lindsay Powell from the TAC again called MB and spoke with Cynthia. Cynthia is recorded in the TAC file note as saying that she ‘could not really give an answer to the question of whether they act or have instructions’ and suggested that the best method of getting Mr Cumming’s attention would be to write to him.[24]
[24]TAC, File Note, dated 9 December 2009, exhibited to the first Tsongas affidavit, Exhibit NT-20.

On that same day Lindsay Powell wrote to Mr Cumming referring to the TAC letter of 4 September 2009, and the telephone conversations on 3 and 9 December 2009, and asked him to confirm in writing if he still acted for Ms Shone (‘the December 2009 letter’). The letter stated:

If you are instructed not to pursue common law on behalf of your client the matter will be finalized. You will understand in the circumstances that the TAC will close the file if we do not receive a response from your office within 14 days.[25]

[25]Letter from the TAC to MB dated 9 December 2009, exhibited to the first Tsongas affidavit, Exhibit NT-21.

There was no response to the December 2009 letter from MB and the TAC accordingly closed its file.

Nearly five years later, on or around 21 October 2014 the TAC received a copy of a medico-legal report of Dr Nigel Strauss relating to Ms Shone.[26] This prompted Mr Pereira of the TAC to call Maurice Blackburn. He spoke with Cynthia to query why the report had been sent to the TAC. The TAC file note from that conversation records that Cynthia thought that

the client might be entitled to an impairment benefit. I advised that the claim was considered to be in the course of employment, therefore there is no impairment benefit. Cynthia stated that the report may have been sent in as “standard procedure”. She also stated that they intend to lodge a serious injury application. Cynthia stated that she will discuss this matter with Malcolm Cumming and get back to me. I gave her my direct number.[27]

[26]First Tsongas affidavit, at [36].

[27]TAC, File note dated 21 October 2014, exhibited to the first Tsongas affidavit, Exhibit NT-22.

Mr Pereira’s file note also records that he ‘closed off the task’ due to the lack of clarity and the passage of time and that he would reactivate the matter ‘if and when’ Ms Shone’s solicitor got back in touch with him.[28]
[28]Ibid.

On 7 December 2016 Arnold Thomas & Becker (‘ATB’) wrote to the TAC advising that they now acted for Ms Shone ‘in lieu of Maurice Blackburn’.[29] The letter noted that ‘[w]e understand that an application has been made or commenced on our client’s behalf for a Serious Injury Certificate. We request that you advise whether or not a determination has been made and if so, the outcome’.[30] ATB also requested a copy of all documents for their client.
[29]Letter from Arnold Thomas Becker (‘ATB’) to the TAC dated 7 December 2016, exhibited to the first Tsongas affidavit, Exhibit NT-24.
[30]Letter from ATB to the TAC dated 7 December 2016, exhibited to the first Tsongas affidavit, Exhibit NT-24.

On 16 January 2017 Mr Kim Price of ATB had a conversation with Mr Craig Perri of the TAC. ATB’s file note of the conversation notes that ‘MB never provided info. No decision made. Will fax report.[31] Mr Price then wrote to the TAC that day and requested an SIC pursuant to s 93 of the TAA. The letter notes that the request is ‘not made pursuant to the Transport Accident Commissions’ “Protocols”’.[32]
[31]ATB, File note dated 16 January 2017, exhibited to the Munir affidavit, Exhibit AM-7.
[32]Letter from ATB to the TAC dated 16 January 2017, exhibited to the Munir affidavit, Exhibit AM-7.

On 23 January 2017 the TAC wrote to ATB to acknowledge receipt of the application for an SIC and advised that it would require further medical material to assess the application. The material TAC sought was medical records from neurosurgeon Mr Thien, pre and post-accident general practitioner clinical notes from Forest Chase Medical Centre and clinical notes from physiotherapist Ms Jennifer Jacobsohn.

On 16 March 2017 ATB sent the TAC Mr Thien’s medical records relating to Ms Shone and 17 medical reports from various doctors. ATB noted that they were unable to obtain the Forest Chase Medical Centre records as it had closed down, and advised that they had been unable to locate Jennifer Jacobsohn.

On 28 July 2017 Ms Shone underwent a medico-legal examination arranged by the TAC with an orthopaedic surgeon, Dr Peter Boys.

On 14 August 2017 the TAC granted Ms Shone’s serious injury certificate.

On 12 January 2018 ATB issued a writ in this Court on behalf of Ms Shone and on 11 May 2018 the TAC filed a Defence. In that Defence the TAC pleads that any cause of action that Ms Shone might have arose on 22 March 2001, that her writ was issued more than 6 years after the cause of action arose, and that her cause of action is statute barred by operation of section 5(1) of the Limitation of Actions Act1958 (Vic).

On 27 May 2018 ATB filed a Reply to the Defence, pleading that by writing the waiver letter, the TAC had waived their right to rely on the statute of limitation defence, that Ms Shone had relied on the TAC statement that it would not exercise its right to claim that the action was statute barred and as a result, the TAC is estopped from relying on the statute of limitations.

On 14 June 2019 the TAC filed a Rejoinder to the Reply, which sets out the arguments in this application.

Analysis
Was there a Waiver of the Limitation Defence

Ms Shone says that the waiver letter constitutes an unequivocal renunciation of a defence available to the TAC and thus creates a waiver of the TAC’s right to rely on the statute of limitation defence. Ms Shone argues that, once renounced, that right cannot be relied upon as there can be no withdrawal of the waiver. Alternatively Ms Shone argues that the TAC must be estopped from withdrawing the waiver, as she has relied on the waiver to her detriment.

The TAC says that the waiver letter did not constitute an unconditional waiver as the grant of the waiver was always conditional upon Ms Shone providing an explanation for the delay to the TAC and complying with the Protocols. The TAC says that no waiver was ever granted, because the conditions accompanying the grant of the waiver were never met. Alternatively, the TAC says that the act of waiving their rights could only occur at the time immediately before judgment, a time which has not yet arisen. This argument is expounded by Justice Brennan in Commonwealth v Verwayen (1990) 170 CLR 394 at 427 in which he draws a distinction between an expression of an intention to waive a right, and the waiver itself which can only come into operation at the time the waiver is to be exercised. The TAC argues that the time has not yet come in which the right to rely on the limitations defence can be waived and therefore the purported waiver has not moved beyond an expression of an intention. The TAC says that the expression of the intention to waive the right to rely on the limitations defence was always subject to conditions, and because those conditions were never met, the intention was never present.

Further the TAC says there is a real question as to whether a waiver exists as a stand- alone principle separate from estoppel. Even if a ‘waiver’ was found to have been given in the present circumstances, the TAC argues that it ought not be estopped from revoking the waiver and relying on the limitation defence. It says that the September 2009 letter put Ms Shone’s advisers on notice that, unless they took certain steps to comply with the Protocols, it would ‘reserve its rights’ to rely on the limitation defence. It says that because MB did not take those steps, the TAC should be taken to have revoked the waiver at that point.

Alternatively, it says that the December 2009 letter informed MB that if a response was not received within 14 days, it would close its file. That letter referred to the letter of 4 September and the two phone calls the TAC had made to MB between 4 September and 9 December 2009. The TAC says that, by informing MB that it would close its file absent a response from MB, it was informing MB that the closure of the file would result in a revocation of the waiver, or alternatively it put Ms Shone on notice that the TAC might seek to rely on the limitation defence.

Alternatively, if neither of these events constituted a revocation of the waiver, the TAC argues that relying on the limitations act in its pleaded Defence was a revocation of the waiver.

Was the waiver conditional upon an explanation for delay being provided?

In his conversation with Mr Cumming on 21 March 2007, Mr Greenham made it clear that the TAC required an explanation for the delay and would not provide a waiver without one. However on 23 March 2007 the TAC sent the waiver letter which made no reference to the requirement for an explanation, or the requirement to comply with requests for further information and materials, or any other conditions.

It was put to Mr Cumming that he had been told by Mr Greenham on 21 March 2007 that a waiver would not be given without an explanation for the delay, that he had no further conversation with Mr Greenham prior to receiving the waiver letter and the wavier letter did not say that Ms Shone was no longer required to give an explanation for the delay. Mr Cumming agreed with these propositions.

It was put to Mr Cumming that Mr Greenham’s advice about the need for an explanation for delay was consistent with the written policy of the TAC and that Mr Cumming was aware of this policy. A copy of that written policy was shown to Mr Cumming. Mr Cumming said that in his experience the TAC did not usually require reasons for delay,[33] and that ‘as a matter of routine, we would just do a pro forma request for an extension and there’d be a pro forma response, as long as you’d done it before the time due’.[34] He went on to explain that it was not uncommon for a claim to not have been lodged, for whatever reason, when the time period in which to lodge a common law claim was due to expire. In such cases he would send a short, pro forma letter to the TAC, confirming that he acted, that he intended to bring a common law claim and lodge an application for an SIC, and seeking a waiver. His evidence was that the TAC would usually respond promptly, that it was a routine process and that the only criteria for granting a waiver was to ensure that the proposed defendant had a registered vehicle.[35]
[33]Transcript of proceedings, Shone, Belinda vs National Express Group Australia (Swanston Trams) Pty Ltd (ACN 087 494 997) (Supreme Court of Victoria, Judicial Registrar Clayton, 19 August 2019) (‘Transcript, 19 August 2019’) 60 (R. Kaye and M. Cumming).
[34]Ibid, 61 (M. Cumming).
[35]Ibid, 98 (M. Cumming).

Mr Cumming accepted that, despite his usual experience, on this occasion he had been told that he would need to provide reasons for the delay in order to obtain a waiver, that he had not provided those reasons and no one had said to him, verbally or in writing, that the requirement to provide those reasons was withdrawn. However he pointed out that ‘two days subsequent to that (advice), there was an unequivocal grant of a waiver’.[36]
[36]Ibid, 61 (M. Cumming).

Mr Cumming said that the fact that a waiver was granted without his having provided reasons for the delay implied that he was, in fact, not required to give an explanation for the delay.[37] Mr Cumming said this represented a change of position by Mr Greenham.[38]
[37]Transcript, 19 August 2019, 54 (M. Cumming)
[38]Ibid.

I accept that the TAC had a discretion to grant a waiver and that their written policy was to require an explanation for the delay, even though in practice such an explanation may not always have been sought.

In this case the waiver letter did not require an explanation for the delay, nor did it refer back to the conversation on 21 March 2007 between Mr Greenham and Mr Cumming, nor allude in any way to the need for an explanation. The basis for granting the waiver set out in the waiver letter was the fact that the request for an SIC had been received within 6 years from the date of the accident.

The waiver letter supports Mr Cumming’s contention that an explanation was not a prerequisite to being granted a waiver.

If the TAC intended for the waiver to be conditional upon the explanation, I would expect that the letter would have reflected the conversation on 21 March 2007.

I accept Mr Cumming’s assessment that the waiver letter represented a change of position by the TAC from that taken by Mr Greenham in the conversation on 21 March 2007.

If the TAC is correct in its submission that the time for the waiver has not yet crystallised, I find that the TAC expressed an intention to waive its right to rely on the limitation defence. I am not persuaded that anything substantive turns on whether the TAC waived its rights or expressed an intention to waive its rights. For convenience I will use the term ‘waiver’ to reflect the intention expressed by the TAC not to rely on the limitation defence. I am not persuaded that the waiver was always conditional upon the provision of an explanation of the delay.

Did the defendant revoke the waiver?

It is said that ‘the law will not allow an unjust departure by one person from an assumption adopted by another…which…would operate to that other’s detriment’.[39] However, the question in this case is whether there was a reasonable and lawful revocation of the waiver and not an unjust departure from an assumption adopted by another.
[39][Dixon J in Thomson v Palmer (1933) 49 CLR 507 at 547].

On 21 March 2007 the plaintiff’s solicitor issued an Originating Motion in the County Court of Victoria. Had the TAC not sent the waiver letter, Ms Shone would likely have pursued that alternative path available to her. However when, two days later, Mr Cumming received the waiver letter, he took no further steps in relation to the County Court Originating Motion. Consequently those proceedings lapsed. Had Mr Cumming not received the waiver letter, it is reasonable to assume that he would have served the Originating Motion, and pursued Ms Shone’s application for an SIC through the Court.

Whether Ms Shone has suffered detriment in reliance on the waiver is not in issue in this case - she clearly has. The issue in this case is whether a departure by the TAC from an assumption adopted by Ms Shone – that is, that the TAC would not rely on the limitation defence – would be unjust and therefore ought not be allowed at law.

On two occasions after the waiver letter, the TAC wrote to MB to advise that the plaintiff’s application did not comply with the Protocols and to seek further material. There was no response to these letters until 30 April 2008, more than a year after the waiver letter, when MB sent the TAC medical reports from Dr Lee and Mr Thien. I note here that, well prior to the waiver letter, the TAC had informed MB five times by phone or letter that Ms Shone’s application did not comply with the Protocols.

On three further occasions, in June 2008, October 2008 and April 2009, the TAC wrote to MB seeking further material, noting that the application still did not comply with the Protocols and advising that it was unable to proceed until the information was provided.

A further twelve months passed with no response from MB. In May 2009 MB wrote to say they would forward further material ‘in due course’.

Four months passed with no further material forwarded and no further communication from MB.

The TAC then sent the September 2009 letter which put Ms Shone on notice that the TAC might rely on the limitation defence after all, unless certain steps were taken by MB.

Mr Cumming disputes that he ever received this letter. He says he cannot recall receiving it and there is no copy of it on the MB file. He gave evidence that, had he received it, it would have been a ‘red flag’[40] because there was a ‘very pointed reference to a limitation date and it changed the TAC’s previous position which was an open-ended waiver’.[41] He stated:
[40]Transcript, 19 August 2019, 67, 100 (M. Cumming).
[41]Ibid, 64 (M. Cumming).

[S]o a letter like this, dealing with requests for affidavits and particular things and with having that – more importantly – having the TAC say that they would go back on their previously stated position and will purport to withdraw a previous open-ended waiver is – I don’t think I’ve ever seen that before.[42]

He said that, whilst he could not guarantee that the letter had not been received by his office, he could guarantee that he did not see it

because if I saw it then the limitation date on our system would need to be – we’d need to generate a limitation date and then we would need to, in the absence of being able to engage with the TAC and have them move from their position we’d need to do what we did previously when we had a live limitation date on the system, without an open-ended waiver – which was to issue an originating motion.[43]

[42]Ibid, 65 (M. Cumming).

[43]Ibid, 66 (M. Cumming).

Mr Cumming gave evidence that, although he had not responded to other letters of the TAC, he considered those other letters which requested information as more in the order of ‘pro forma’ letters, or letters chasing things up, which did not have the same import as a letter that ‘purports at least to affect someone’s limitation rights.’[44]
[44]Transcript, 19 August 2019, 74 (M. Cumming).

On Mr Cumming’s evidence, he considered that the terms of the September 2009 letter potentially constituted a revocation of the waiver which could have serious consequences for his client. He says that if he had received this letter, ‘I believe I would have taken appropriate steps to provide the information and to protect the position if necessary by issuing a further Originating Motion’.[45]
[45]Cumming affidavit, at [16].

In fact the September letter 2009 itself does not go so far as to purport to revoke the waiver. It says that, unless certain steps are taken within a certain time frame, the TAC will consider its position. I interpret this letter to be confirmation by the TAC that the waiver given is not an ‘open-ended’ waiver, as characterised by Mr Cumming, but is conditional upon Ms Shone complying with the Protocols and complying within a reasonable timeframe. By the time the September 2009 letter was sent, two and a half years had passed since the waiver letter was sent.

Whether or not Mr Cumming received the September 2009 letter, I do not accept his evidence that it would have been a ‘red flag’ and prompted immediate action. His assertion was not supported by the evidence of his conduct in managing this file prior to the date of that letter. Previous letters from TAC telling him his application did not comply with the Protocols had not prompted action. The fact that the letter only indicated that the TAC might take a certain course – that is, reconsider its position in relation to the limitation defence – seems unlikely to have prompted the sort of immediate action Mr Cumming describes.

I am further bolstered in my view that Mr Cumming would not have viewed the September 2009 letter as a ‘red flag’ by the fact that, when he received the December 2009 letter, he was not prompted to take such immediate action.

The December 2009 letter refers to the September 2009 letter. A lawyer, upon reading a letter which referred to a previous letter which had not been received, would be expected to have followed up with the TAC to inquire as to the whereabouts of the September 2009 letter and to obtain a copy of that letter.

The December 2009 letter also referred to the two telephone conversations the TAC had had with Mr Cumming’s assistant, Cynthia. Cynthia apparently brought those conversations to Mr Cumming’s attention. He gave evidence that ‘I recall it distinctly because what was relayed to me, that the outcome of the conversation was that TAC had made a decision to decline serious injury’.[46]
[46]Transcript, 19 August 2019, 93 (M. Cumming).

A solicitor, when told that the TAC did not consider the current evidence sufficient to grant an SIC, would be expected to take reasonable steps to ensure that the further material sought by the TAC was provided, the Protocols were complied with, and that his client was given every prospect of obtaining an SIC. There is no evidence that the December 2009 letter or the two December 2009 telephone calls prompted any such action. If it was indeed Mr Cumming’s belief that the TAC had declined the SIC application, there is no explanation as to why he did not then seek written confirmation of the decision, advise his client of the outcome and advise her in relation to the alternative route open to her to issue a new Originating Motion in the County Court.

In fact, Mr Cumming’s incorrect understanding that the TAC had declined the SIC application also did not prompt any action.

The December 2009 letter informed Mr Cumming that the TAC would close their file if they did not receive a response within 14 days.

Mr Cumming’s evidence was that he took the December 2009 letter to mean that the TAC’s current SIC application ‘will not be considered from their point of view until they receive something further.’[47]
[47]Ibid, 84 (M. Cumming).

It was put to Mr Cumming that the closure of the file would result in the revocation of the waiver:

MS KAYE: The closure of the TAC’s file would carry with it the end of the waiver that you believe the TAC had granted?
MR CUMMING: Well, that’s not how I read the matter. I’d take that as the TAC have an active, um, administrative function to be considering the issue of serious injury, um, allocated to a particular person within the organization, and they’re following up on it. Um, it’s – I - I’ve taken it to be they’re closing – they’re closing their file. It’s an administrative exercise, and I don’t think it can be anything else.
MS KAYE: Mr Cumming are you telling the court that the TAC telling you because you’ve not responded they’re going to close their file, in your mind, you still thought that they would keep considering the matter and they’d leave the waiver open? Is that what you’re really telling the court?
MR CUMMING: Yes it is.
MS KAYE: And how is it that the TAC would keep considering the matter, notwithstanding your lack of response?
MR CUMMING: Well, it means that if-if and when further material is provided, they would have an obligation to and would consider it.
MS KAYE: But the TAC has said here that they’re going to close the file?
MR CUMMING: Yes I – I explained what I take that to mean and I – I – if I could hear from the TAC what do they – what they think it means, but I can’t see what else it could mean, other than that the current administrative process of actively considering it and engaging and following up wouldn’t be continued, from their point of view, unless and until further material was provided.
MS KAYE: Mr Cumming I suggest that when you received this letter on 9 December, you well knew that what the TAC intended to do, unless they heard from you within two weeks, was to close off their file, bringing to an end their consideration of common law and their grant of any waiver; that was your understanding, wasn’t it?
MR CUMMING: No, that’s not correct at all.[48]

[48]Transcript, 19 August 2019, 85-6 (Ms R. Kaye and Mr M. Cumming).

In his affidavit Mr Cumming says, ‘I believe that I understood that letter was operating in the context of an ongoing waiver’.[49] On Mr Cumming’s understanding, the December 2009 letter would have done no work, other than to inform him that the TAC would no longer be chasing him up for the material that they had been seeking for more than two years. The effect of the closure would be administrative only, in the sense that it would alleviate the file operator from having to take any further unilateral steps. If Mr Cumming’s belief was correct, the file would then lie in abeyance, to be reactivated upon receipt of any further material from MB. For Mr Cumming to believe that the letter operated in the ‘context of an ongoing waiver’ means that Mr Cumming believed that, having obtained a waiver, that waiver would continue regardless of his conduct or the conduct of the plaintiff.
[49]Cumming affidavit, at [17].

The TAC presumably deals with a number of cases each year which do not proceed. On Mr Cumming’s analysis, all files that had been opened for consideration of a SIC under the Protocols but which were not pursued or did not have a determination made, would effectively remain open in perpetuity. It seems unlikely that the intention of the TAC in closing a file would be that the file in fact remains open.

It may be correct that when the TAC closes a file because of inaction by a plaintiff, the file can be reopened if and when a plaintiff takes steps to pursue the application. Mr Cumming said that, in his view he did not think that the TAC ‘had the capacity to close it off’ and that ‘if and when further material is provided they would have an obligation to and would consider it’.[50] It is not clear why the TAC would have such an obligation. The TAC would be just as entitled to require a fresh application to be made. However, even if the TAC does reopen a closed file, that does not, in my view, mean that any conditions, waivers or undertakings provided upon opening of the original file would automatically still attach. Whether the file is reopened, or whether the TAC requires a fresh application to be lodged and a new file to be opened, would be a matter for the TAC.
[50]Transcript, 19 August 2019, 85 (M. Cumming)

In the present case, Mr Cumming lodged the application for an SIC within time. As the limitation period expired on the day the application was lodged, Ms Shone would not have been in a position to issue her common law proceedings prior to the expiration of the limitation period. In order to avoid the costs and time associated with plaintiffs issuing protective writs and sitting on those writs whilst the SIC application is determined, the TAC has developed a policy whereby, in certain circumstances, it will waive its right to rely on the limitation period.

That policy is in line with the TAC’s obligations pursuant to the Civil Procedure Act2010 (Vic). It ensures that parties do not incur unnecessary court costs by issuing purely protective proceedings; it ensures that neither plaintiffs nor defendants are put under undue pressure by the need to have an SIC certificate determined prior to the expiration of the limitation period, it encourages parties to act cooperatively and it avoids unnecessary litigation about the expiry of a limitation period.

To extrapolate that the sensible and pragmatic policy approach taken by the TAC in providing waivers to plaintiffs means that, in the circumstances of this case, a waiver survives in perpetuity and cannot be revoked, regardless of the conduct or action of a plaintiff, would be unreasonable.

The leading case on waiver and estoppel is the High Court decision of Commonwealth v Verwayen (‘Verwayen’).[51]
[51](1990) 170 CLR 394 (‘Verwayen’).

In Verwayen, the plaintiff issued proceedings out of time, after public and private representations by the Commonwealth defendant that it would not seek to rely on the limitation defence and would admit liability. The Commonwealth made those representations many years after the primary limitation period had passed, and as a consequences of changes to the law that opened a potential pathway to claim damages by those injured in the Voyager naval disaster.

The majority upheld the Victorian Court of Appeal’s decision that the Commonwealth could not resile from its stated intentions and plead the limitation defence. However there was no single view amongst the majority as to whether the Commonwealth had waived its right to rely on the limitation defence, or was estopped from relying on that defence, or even whether there was a practical distinction between the two.

Toohey J found that the waiver was irrevocable and simply could not be withdrawn.

To uphold a limitations plea in those circumstances would be to permit the Commonwealth to rely upon a defence which it had unequivocally renounced….Waiver, in the sense relevant for the purposes of this appeal, is not capable of being withdrawn. It is of the essence of waiver in this sense that the defendant has unequivocally renounced his right to rely upon the particular defence…in this context, to say that waiver may be terminated unless the other party cannot resume his position is, once again, to move into the area of estoppel’.[52]

[52]Verwayen (1990) 170 CLR 394, 473-474 (Toohey J).

The Commonwealth had unequivocally renounced the defence in circumstances where it had no need to do so. It was not a pragmatic policy decision such as that which the TAC adopts where plaintiffs are within time, but will not conclude the SIC component of their claim until after the expiry of the common law limitation period.

Dawson J did not consider that there was any great distinction between the operation of an estoppel and the sort of waiver which is described by a ‘non-insistence upon a right either by choice or by default’.[53] Dawson and Deane JJ decided that an estoppel operated to prevent the Commonwealth from relying on the limitation defence.
[53]Verwayen (1990) 170 CLR 394, 457 (Dawson J).

Gaudron J, the final member of the majority, found that the important issue, regardless of whether it was viewed as a waiver or as being founded in an estoppel, was whether the representations made by the Commonwealth had changed the relationship between the litigants. The changed relationship constituted an equity which the other party had raised – in Verwayen, the Commonwealth had changed the relationship between it and the plaintiff by making the representations and, as either a matter of general policy, or as a result of an estoppel, or by way of the operation of a waiver, could not then seek to rely on the limitation defence.

The three judges who found against the plaintiff and allowed the appeal, found that he had suffered no detriment in reliance upon the representations, other than incurring legal costs which could be remedied by costs orders in his favour. Because his case was already well out of time when he issued it, he had essentially lost nothing by relying on the Commonwealth’s promise not to raise the limitation defence. The lack of detriment was the decisive factor in their decisions, although they reached their conclusions via different pathways. The lack of detriment meant that the conduct of the Commonwealth could not be considered unconscionable as is required for the operation of an estoppel.

The absence of detriment is not the issue in the present case. The issue is whether the actions of the TAC in relying on the limitation defence are unjust, or unconscionable.

The TAC has a stated policy in relation to the circumstances in which it might offer a waiver. That policy reflects the approach that the TAC has taken in developing the Protocols as an alternative to a court process for SIC applications. That policy is quite different from the circumstances in which the Commonwealth made the representations in Verwayen. In Verwayen one can see a policy decision by the Commonwealth to ‘do the right thing’ by survivors of the Voyager disaster, and then an attempted reversal of that policy decision. The Commonwealth told survivors that they would not exclude them from compensation by relying on a limitation defence and would admit liability. The survivors would then only need to establish causation and the quantum of their damages. In Gaudron J’s view, this ‘raised an equity’ which changed the relationship between the parties. Nothing comparable could be said of the waiver offered by the TAC in this case. Ms Shone was not out of time when she made her SIC application, and the waiver was a way of ensuring that the SIC application could proceed without the need for Court proceedings to be issued. Avoiding unnecessary Court proceedings and associated costs is both reasonable and expected behavior of a defendant, especially one such as the TAC which has obligations to behave as a model litigant, and which is ultimately funded by the Victorian taxpayer.

Had Mr Cumming responded to the September 2009 letter, or the December 2009 letter and provided the information sought, or even had he responded and asked for more time to provide the information sought, Ms Shone likely would have been entitled after December 2009 to consider that her SIC application was ongoing and the waiver still in operation.

However, after years of trying without success to obtain the material it required to determine the SIC application, the TAC, on notice to MB, closed its file. I do not consider that it was unjust or unreasonable for the TAC to seek to revoke the waiver and rely on the limitations defence.

When was the waiver revoked?

The TAC says that closure of the file included revocation of the waiver that had attached to the application. For the reasons below, I accept that submission.

In October 2014, nearly five years after the December 2009 letter had been sent, Mr Cumming sent the TAC a medico-legal report of Dr Strauss relating to the plaintiff. The TAC did not consider that material to be either part of an ongoing SIC application, or the catalyst to reopen the file, as Mr Cumming had anticipated. The TAC did not reopen the plaintiff’s file. Instead Mr Pereira of the TAC contacted Mr Cumming to ask why the report had been sent. Mr Cumming was not available and Mr Pereira instead spoke with Cynthia who said that the report might have been sent in relation to an impairment benefit. When it was pointed out to Cynthia that this could not be correct, the TAC file note records that Cynthia indicated that they (MB) ‘intend to lodge a serious injury application’. It does not appear that Cynthia considered that there was still an SIC application on foot. Although Mr Pereira provided his direct number, and Cynthia advised that she would get Mr Cumming to call him, there was no contact by phone or letter from Mr Cumming.

Contrary to Mr Cumming’s assertion that the TAC would be obliged to, and would, consider any further material, the report was not considered, the TAC did not reopen the file and the ‘task’ generated by the receipt of the medico-legal report was ‘closed off’. This is entirely consistent with the TAC’s view that the file was closed and there was no SIC application on foot.

In the circumstances of this case, the waiver was given because Ms Shone had made an application for an SIC, in the context of a potential common law claim. Although the waiver would attach to the common law claim, which may or may not ultimately be brought, it was only given in the context of the application for the SIC being on foot. Attempts by MB to secure a waiver in the absence of an SIC were unsuccessful. In January 2007 MB sought confirmation that the ‘usual waiver policy’ would apply and had been told by the TAC that ‘Upon receipt of a Serious Injury Application TAC will consider your request for a waiver’.[54]
[54]Letter of the TAC to MB dated 10 January 2007, exhibited to the first Tsonga affidavit, Exhibit NT-33.

At least in this case, the TAC did not give a waiver ‘at large’ or a general waiver in relation to a potential common law claim. The waiver was only given when the SIC application was made. In this case I am satisfied that the waiver was attached to the application and therefore was revoked when the file was closed.

Even if the TAC had not closed its file following the December 2009 letter, the fact that nearly five years passed without any communication from MB was sufficient for the TAC to consider that the application had been abandoned. The abandonment of the application by MB would have to result in the revocation of the waiver.

I cannot see anything in the conduct of the TAC which would make its action in revoking the waiver unjust or unconscionable. It had gone to great lengths to provide MB and Mr Cumming with an opportunity to put material before it, to comply with the Protocols and to obtain the SIC.

There was no further communication between the TAC and MB after MB sent the Strauss report in 2014. MB did not seek to re-enliven Ms Shone’s application, request any information about the status of her application, inquire as to whether a SIC had been granted or take any other step which would indicate to the TAC that the SIC application remained on foot. Again, there is nothing unjust or unconscionable in the TAC’s actions in not reopening the file or pursuing MB or Mr Cumming further at this point.

More than two years later, in December 2016, the plaintiff’s current lawyers, ATB, contacted the TAC enquiring about Ms Shone’s SIC application. As a consequence of this contact, there was a telephone call between Mr Price of ATB and the TAC in January 2017 and this resulted in Ms Shone making an application on 16 January 2017 for an SIC.

It appears that the application for an SIC made by ATB proceeded on the basis that it was a new application. The application was expressly not made pursuant to the Protocols, as distinct from the previous MB application made pursuant to the Protocols.

There is nothing in the material before me to suggest that the subject of the limitation defence was raised by either ATB or the TAC at that time, or at any time prior to the filing of the Defence in this proceeding. As I understand it, there is no limitation period on obtaining an SIC, although the usual purpose of obtaining an SIC would be to pursue a claim for damages.

It is not clear whether ATB considered, at the time of applying for the SIC, that a waiver was in place. Nor is there any evidence that the existence or otherwise of a waiver would have made any difference to the way ATB pursued the application.

ATB decided that the appropriate time to deal with the issue of a limitation defence was as part of the common law claim which would be issued if and when the SIC was obtained. This was a reasonable decision to take and I make no criticism of ATB for not raising the limitation defence at this time.

There is nothing in the conduct of the TAC after the December 2009 letter to suggest that it considered the waiver was still in place. It did not reopen its file in 2014 when it received Dr Strauss’s report, nor did it give that material any consideration. Appropriately it contacted MB to find out why a report had been sent on a closed file and, receiving no satisfactory response and no further communication from MB, took no further action.

In 2016 the TAC was, as far as the material before me indicates, silent on the question of whether it would seek to rely on a limitation defence in any common law claim that might be issued. Whilst it may have clarified matters at that point if the TAC had explicitly stated that it would rely on a limitation defence, I do not consider it was incumbent upon it to do so. At that point the TAC would not have known whether Ms Shone would be successful in obtaining an SIC. Nor would it have made any material difference to her position at that time. The detriment that she suffered as a result of her reliance on the waiver had occurred when her Originating Motion in the County Court became stale in 2008.

To determine that the TAC’s closure of the file would require the TAC to reactivate the file upon receipt of any material from Ms Shone or her advisors, and to maintain the waiver previously provided, would be both inconsistent with the TAC’s actions in this case and unreasonable at law.

The conduct of a plaintiff cannot be disregarded in a claim for an equitable remedy. The plaintiff has to show that it would be unjust or unconscionable for a defendant to revoke a waiver, or resile from a representation made. Ms Shone has not shown that the conduct of the TAC was unjust or unreasonable. I am therefore satisfied that the waiver was revoked when the TAC closed the file following the December 2009 letter, and there is no estoppel in place preventing the defendant from relying on the limitation defence.

Section 23A application

Ms Shone makes an application for an extension of the limitation period pursuant to s23A of the Limitation of Actions Act 1958 (Vic).

That Act provides that:

(2) Where an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to subsection (3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for such period as it determines.
(3)In exercising the powers conferred on it by subsection (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following -
(a)the length of and reasons for the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c)the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)The duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
(e)the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(f)the extent, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.

In order to consider Ms Shone’s application for an extension it is necessary to consider the conduct of Ms Shone personally, as well as the conduct of her solicitors.

The alleged incident occurred on 22 March 2001. On 22 April 2001 Ms Shone contacted the TAC and provided them with details of the accident including the tram number, location and the date and time of the incident.

On 24 April 2001 Ms Shone says that she contacted Yarra Trams to advise them of the incident.

On 27 April 2001 she attended her general practitioner, Dr Lee, in relation to injuries she says she sustained as a result of the incident.

She received a letter, dated 7 May 2001, from Willis Insurance Brokers which advised her that the TAC had been notified about the incident.

On 9 May 2001 she completed a TAC Compensation claim form.[55] The TAC stated that this was not received until 30 October 2008.
[55]Claim for Compensation under the Transport Accident Act 1986 Form, exhibited to the first Tsongas affidavit, Exhibit NT-1.

Between August 2001 and August 2002 Ms Shone had four admissions to hospital as a psychiatric inpatient for periods of a week or more each time.

Ms Shone pursued a worker’s compensation claim in relation to her neck injuries. In 2004 she had a surgical discectomy and fusion in her neck.

She first consulted MB on 19 January 2005. She says that she understood that ‘so long as I had consulted a solicitor within six years of the date of the accident and that the solicitors lodged my claim within six years that a time limit did not apply after that’.[56]
[56]Affidavit of Belinda Shone sworn on 12 December 2018, filed on behalf of the plaintiff, at [10].

She instructed MB to act on her behalf and in March 2007 swore an affidavit in support of an SIC application.[57]
[57]Affidavit of Belinda Shone sworn on 19 March 2007, exhibited to the first Tsongas affidavit, Exhibit NT-14.

Ms Shone’s evidence was that ‘every so often’ she would contact MB to find out what was going on with her claim.[58] She said that Mr Cumming was usually unavailable so she would leave a message asking for him to call her back. She said that he would ‘rarely’ return her calls.[59]
[58]Affidavit of Belinda Shone sworn on 12 December 2018, at [14].
[59]Ibid.

Mr Cumming said that

throughout the period I acted for the Plaintiff, whenever I contacted her and required information or her cooperation, she responded appropriately. The plaintiff contacted my office from time to time to ask about the progress of her claim. I am not critical of the steps she took to enquire about her claim.[60]

[60]Ibid, at [19]-[20].

In early to mid-2014 Ms Shone attended the Ringwood office of MB to see Mr Cumming and ask what was happening. She was told he was not available. She went to see another lawyer at a nearby office - she cannot recall the name of the law firm but recalls that she was told that she should tell MB that she had sought other legal advice, ask for an update on the progress of her claim and express concern about the time limits. She was told by this other lawyer that there might be a cost associated with getting her file from MB.

Ms Shone conducted a County Court website search and found information about her case. On 23 May 2014 she sent an email to Cynthia seeking an explanation for the details she had located about her County Court proceeding, namely that ‘[a] motion was filed on 21.3.07, on the 20.5.08 a “14 month warning letter was sent” then on the 30/06/08 a notice of dismissal was sent’.[61]
[61]Affidavit of Belinda Shone sworn on 19 August 2019, filed on behalf of the plaintiff, at [7].

It appears that she also wrote to Mr Cumming raising the issue of the time limits and the progress of her case. This letter is not in evidence but is referred to in an email of 26 June 2014 from Ms Shone to MB in which she noted that she had still not heard from Mr Cumming in response to her email of 23 May 2014.

After her visit to the MB office, Ms Shone received a letter from MB on 21 May 2014 arranging medico-legal appointments for July and August 2014.

She was told that it would take at least three months for the doctors to prepare the reports.

On 25 February 2015 Ms Shone sent Mr Cumming an email asking for an update in her case as it had been a few months since her medical appointments.

On 6 March 2015 Mr Cumming emailed Ms Shone and told her that he would get back to her next week with a ‘summary of the reports and progress.’[62]
[62]Email from Malcolm Cumming to Belinda Shone dated 6 March 2015, exhibited to the affidavit of Belinda Shone sworn on 12 December 2018, Exhibit BS-7.

On 26 April 2015 Ms Shone emailed Mr Cumming asking ‘what’s happening with the progress of this case??’.[63]
[63]Email from Belinda Shone to Malcolm Cumming dated 26 April 2015, exhibited to the affidavit of Belinda Shone sworn on 12 December 2018, Exhibit BS-8.

On 28 April 2015 Mr Cumming emailed Ms Shone saying he would send an ‘update letter’ this week.[64]
[64]Email from Malcolm Cumming to Belinda Shone dated 28 April 2015, exhibited to the affidavit of Belinda Shone sworn on 12 December 2018, Exhibit BS-9.

On 6 May 2015 Ms Shone responded to that email and asked whether she would have the update letter this week.

On 8 May 2015 Mr Cumming emailed Ms Shone and told her that the update letter had been drafted and that she would receive it that week.

On 19 May 2015 Ms Shone emailed Mr Cumming stating only, ‘nothing has arrived’.[65] Mr Cumming responded on 22 May 2015 noting only, ‘hard copy sent today’.[66]
[65]Email from Belinda Shone to Malcolm Cumming dated 19 May 2015, exhibited to the affidavit of Belinda Shone sworn on 12 December 2018, Exhibit BS-12.
[66]Email from Malcolm Cumming to Belinda Shone dated 22 May 2015, exhibited to the affidavit of Belinda Shone sworn on 12 December 2018, Exhibit BS-13.

A few days after receiving the email of 22 May 2015, Ms Shone received the hard copy letter, dated 21 May 2015 (‘the May 2015 letter’). That letter said:

We confirm that you will be able to proceed with a claim for Common Law damages with respect to injuries that you received in the subject transport accident in the event that we are able to establish that you sustained “serious injury” arising out of the accident…
In light of recent progress and the up to date medico-legal material, it seems clear that it is the cervical spine injury as opposed to the lumbar spine injury and as opposed to any psychological injury that is the injury which we will need to establish is the relevant “serious injury”. In light of the nature of the injury that you sustained and the operative procedure that you required coupled with the fact that you are still having ongoing symptoms causing you a degree of incapacity there is a strong argument that you meet the “serious injury” threshold. We have previously put the up to date medical material to the Transport Accident Commission.
We have now made submissions emphasizing the serious long term consequences that you have sustained as a result of the transport accident. In particular we have focused on the injury to your cervical spine and the operative procedure that was required and the ongoing persisting consequences from which you were suffering.
We will now allow the TAC to consider those submissions and to determine whether they are satisfied that you have suffered a “serious injury”.
In the event the TAC do not concede the issue of “serious injury” within the next 60 days then we shall confirm your instructions to bring that issue for determination in the County Court.[67]

The letter also summarized the medical reports and sought her authority to obtain tax documents and records from her treating general practitioner.

[67]Letter from MB to Belinda Shone dated 21 May 2015, exhibited to the affidavit of Belinda Shone sworn on 12 December 2018, Exhibit BS-14.

Despite the content of the May 2015 letter, Mr Cumming had not made those submissions to the TAC:

MS KAYE:      Do you accept that those submissions are missing from the file that you’ve been through?
MR CUMMING:       No they’re not missing. I didn’t – I – I – I didn’t – Didn’t send the submissions. They - - - -
MS KAYE:     Well, you didn’t make the submissions. Is that what you’re saying to the court?
MR CUMMING:       That’s correct
MS KAYE: So even though you told Ms Shone ‘We have now made submissions’, in the past tense, ‘Emphasising the serious injury consequences and we will allow the TAC to consider these submissions’, you say you didn’t actually ever send submissions?
MR CUMMING:       That’s correct, I didn’t
MS KATE: So that’s a lie that you’ve told Ms Shone in this letter?
MR CUMMING        Um no it’s not a lie. I was making – I was doing both things at once. Um, I had a real sense of urgency of getting the letter out to the client, and obviously it’s been misleading and I had – the – the intent was for these submissions to go on that day, and then shortly after, and then, ultimately, I didn’t send them.   But I wasn’t – I wasn’t to use your word, lying. I was, um, I had formed those submissions, um at the same time in my, um, working draft, which covered the same sorts of ground, but I didn’t ever send it, which is my error.[68]

[68]Transcript, 19 August 2019, 88 (R. Kaye and M. Cumming).

At the time of receiving the May 2015 letter, Ms Shone believed that the TAC now had all her material and was considering the submissions of her lawyers about her SIC application. She believed that if the TAC did not grant her an SIC within the next 60 days, her lawyers would follow up with her to get her instructions to ‘bring the matter for determination’ to the County Court.[69] She was mistaken in her belief that the TAC now had everything that it required and were considering the submissions of her lawyers, because she was misled by her lawyer. This conduct of her lawyer must be considered in the context of her application for an extension of time.
[69]Letter from MB to Belinda Shone dated 21 May 2015, exhibited to the affidavit of Belinda Shone sworn on 12 December 2018, Exhibit BS-14.

A lawyer would understand that the May 2015 letter meant that, if the TAC declined the SIC, the plaintiff could issue an Origination Motion in the County Court. However Ms Shone believed that she already had a claim on foot in the County Court and it is unlikely that she would have readily appreciated the difference between an SIC application pursuant to the Protocols, and an application for leave to obtain an SIC brought by way of an Originating Motion. For her part, she assumed that the legal process was rolling along, albeit slowly.

n August 2015 Ms Shone contacted MB for an update on her case. She received no response.

In October 2015 she again contacted MB for an update. On 26 October 2015 Mr Cumming emailed her to say he would provide an update shortly. That update was not forthcoming. By 24 November 2015, Ms Shone was seemingly at the end of her patience. She emailed Mr Cumming and told him that she would pursue the matter through the Legal Services Commissioner. Once again no response was forthcoming.

On 9 December 2015 Ms Shone again contacted Mr Cumming and asked for a response. On 11 December 2015 Mr Cumming replied to say that he would get back to her the following week. When she had heard nothing by 17 December 2015 she again asked Mr Cumming what was happening. She received no response.

Ms Shone says that at some point in 2016 she contacted the Legal Services Commissioner and was told that they could tell MB to ‘hurry up’ with her case. Having tried on numerous occasions to get answers from MB and having contacted the Legal Services Commissioner, Ms Shone appears to have let things lie for a period.

In her affidavit dated 12 December 2018 Ms Shone says that in around November 2016 she searched her name on the County Court’s Court Connect system and saw that her case had been dismissed. She contacted the County Court and received a response advising that the case had not proceeded. Ms Shone was greatly concerned by this, and thought that this might mean her case had resolved but she had not received the settlement money. She contacted Mr Cumming and was told by him words to the effect that that this was ‘part of the proceeding’.[70] She was understandably not satisfied by this response. However in her further affidavit sworn 19 August 2019 she says this event occurred in 2014 around the time when she emailed MB on 23 May 2014 asking for an explanation of the warning letter and dismissal. The terms for which she seeks explanation appear likely to be a record of Court actions and it appears more likely that this occurred in 2014. This inconsistency as to the date when she contacted the County Court was not put to Ms Shone in cross examination. I do not think anything turns on it. If she was aware in 2014 that her County Court proceeding had been dismissed, she still believed that her claim was continuing and was justifiably fortified in this belief by the fact that finally it appeared that some progress was being made, with medico-legal appointments arranged, and submissions apparently being provided to the TAC.
[70]Affidavit of Belinda Shone sworn 12 December 2018, at [35].

Whether it was learning about the County Court dismissal of her proceeding, or simply that her patience with Mr Cumming had finally been exhausted, by December 2016 she decided to find new lawyers and on 7 December 2016 met with her current lawyers, ATB, who subsequently took over the conduct of her file.

By January 2017 ATB had made an SIC application on her behalf to the TAC and on 14 August 2017 she was granted the SIC.

From January to September 2017 ATB made numerous attempts to obtain Ms Shone’s file from MB. These attempts included at least 14 telephone calls as well as a number of letters.

These calls and letters did not result in MB providing Ms Shone’s file.

On 6 October 2017 ATB lodged a complaint with the Victorian Legal Services Commissioner in relation to the failure of MB to provide Ms Shone’s file. On 3 November MB informed ATB that the file would be provided, and part of the file was provided on that date.

ATB issued this proceeding on behalf of Ms Shone on 12 January 2018 and continued to pursue the complete file from MB. ATB wrote four letters and attempted to subpoena particular documents from MB. Eventually, on 21 November 2018, MB provided a copy of the full file to ATB.

Mr Cumming accepted that the delay of nearly 2 years in providing the file was ‘due to my fault’.[71] His explanation was that

the reality of the situation was that by this stage, this period of time, um, down the track, um, I was generally anxious about it, I think, um, and, um was hoping that, um, it would be resolved and finished and I wouldn’t have to be proactive about it, which is not a good – not a good answer or a good way to be but that was where I was at that point in time.[72]

[71]Transcript, 19 August 2019, 95 (M. Cumming).

[72]Ibid, 95, 96 (M. Cumming).

After receiving the full file in November 2018 ATB then filed the summons in December 2018 for this application. Presumably, and understandably, ATB wanted to be in possession of the full file before providing Ms Shone with advice about making this application.

Length and reasons for delay

The authorities are clear that, once the limitation period has expired, the Court must have regard to the entire period from the accrual of the cause of action to the making of the application for an extension of time.[73] In this case that period is more than 17 years.
[73]Koumorou v State of Victoria 2 VR 265; Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7, 11.

The Act permits the Court to extend time if it is ‘just and reasonable to do so’ and requires that regard be had to ‘all the circumstances’ including the reasons for the delay.[74]
[74]Limitation of Actions Act 1958 (Vic) s 23A(3).

Ms Shone submits that she has a very good explanation for the delay, and that is that she consulted MB well within the limitation period and was entitled to trust that her solicitors were experienced and competent. She points to periods, prior to consulting MB, when she was a person under a disability, owing to her psychiatric condition. These include both voluntary and involuntary admissions to psychiatric hospital for periods of days and sometimes weeks during 2001 and 2002, and ongoing outpatient psychiatric care until 2005.

Ms Shone does have a good explanation. She consulted experienced and reputable lawyers and was entitled to trust them. She was reassured by those lawyers when she made inquiries that her case was progressing. She had no knowledge of the numerous attempts that the TAC had made to obtain information from MB so that it could consider her application. She had no idea that, in the TAC’s view, on the information that they had up to the point at which her file was closed, her SIC application was likely to be refused. She did not know that the TAC had closed her file. She did not know any of this because her lawyer had not told her.

There is no explanation for what occurred between 2009 and 2014. Mr Cumming affirmed an affidavit in this application and attended to give oral evidence. There is simply a lacuna in the evidence about what transpired during this period. The only conclusion I can reach is that nothing happened and that there is no good reason for that lack of action.

Five years after her TAC file was closed, Ms Shone had some concerns about the time it was taking. As she said ‘I had put the claim in in 2005 and it was now 2014’.[75] She was, however, reassured at that time because her visit to MB’s offices and emails did prompt Mr Cumming to take some action, and medico-legal appointments were made. It must have seemed that things were finally moving forward in her case. She did not know that the medico-legal report of Dr Strauss was never considered by the TAC and that the TAC had not reopened her file. She was misled by her lawyer into believing that submissions had been made on her behalf, pointing out the solid reasons why an SIC should be granted, when no such submissions had in fact been made.
[75]Transcript, 19 August 2019, 42 (B. Shone).

When, despite the illusion of progress in 2014, her case appeared once again to have stalled, and she was not able to get any satisfactory response from MB, or any response at all from Mr Cumming, she again took appropriate steps by contacting the Ombudsman and the Legal Services Commissioner, and ultimately other solicitors at the end of 2016. Again there is no evidence from Mr Cumming about what happened between sending the report of Dr Strauss to the TAC on 16 September 2014 and 7 December 2016 when she instructed ATB to act.

In the absence of any explanation, I can only conclude that, once again, nothing was done and that there is no good reason for that lack of action.

Although I make no criticism of Ms Shone in relation to the delay, there is no satisfactory explanation, indeed no explanation at all, for the delay by MB.

Once her case was taken over by ATB, prompt action was taken to apply for an SIC and the SIC was obtained within approximately 7 months. I do not consider that this period was unreasonable. I consider that once the SIC was obtained, ATB acted promptly and appropriately in attempting to obtain the file from MB. It was reasonable to seek that file prior to issuing proceedings and the delay in provision of the file, and consequential delay in making this application, are a result of the conduct of MB. In the absence of the file, ATB did not know what letters of advice MB may have provided to Ms Shone about her limitation period, and would not be in a position to properly advise her about her prospects in this application, or her potential claim against her former solicitors.

Ms Shone submits that the delays after she retained ATB should not ‘weigh in the mix’ against her. Whilst there is force in the submission that she has done nothing wrong, the entire period of the delay occasioned by the conduct of MB is relevant for the purposes of any potential claim against them, and consequently relevant to the discretionary exercise I must undertake.

The extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant

The High Court has found that it is prima facie prejudicial to a defendant to allow the commencement of an action outside the period limited by statute.[76] This is because, relevantly, as time goes by relevant evidence is likely to be lost, it is oppressive to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed, people should be able to arrange their affairs and utilize their resources on the basis that the claim can no longer be made, insurers, public institutions and businesses have a significant interest in knowing that they have no liabilities beyond a definite period, and the public interest requires that disputes be settled as quickly as possible.
[76] Brisbane South regional Heath Authority v Taylor (1996) 186 CLR 541.

In Prince Alfred College Inc v ADC[77] the High Court held that:

Where a trial is conducted long after the events which gave rise to the dispute, the risk that the trial will be a mere simulacrum of the process of doing justice becomes greater with the passage of time. The onus is upon the party claiming an extension of time to show that fair trial may be had now, notwithstanding that passage of time….It has been recognized that there is an element of oppression involved in bringing an action so long after the circumstances which gave rise to it have passed.[78]

[77](2016) 258 CLR 134

[78]Ibid, 167 (French CJ, Kiefel, Bell, Keane and Nettle JJ).

Given the passage of time since the incident, the Court must assume that there will be prejudice to the defendant. However the presumptive prejudice does not always disentitle a plaintiff to an extension of time.[79] If there is significant prejudice, an extension should not be granted,[80] but, regardless of whether significant prejudice can be shown, the applicant is required to discharge the persuasive onus.[81]
[79]Brisbane South regional Heath Authority v Taylor (1996) 186 CLR 541, 555.
[80]Holt v Wynter (2000) 49 NSWLR 128, 116.
[81]Commonwealth of Australia v Smith [2005] NSWCA 478, [129].

The TAC submits that it will suffer prejudice. In other cases of this kind, the TAC may have obtained medical documentation at an early stage as part of an ongoing no-fault benefits claim. This means that the TAC would have contemporaneous medical reports from the time of the incident. However in this case, Ms Shone did not make a no fault benefits claim on the TAC but instead took steps to pursue her common law rights. The first formal notification of the claim was the letter from MB on 21 March 2009, 6 years after the incident, although the TAC had been informally put on notice by MB in 2005.

The TAC sought records of Ms Shone’s treating general practitioner, Dr Lee, in 2008. Those records were never provided by MB. When ATB took over conduct of the file, the TAC was informed that the clinic where Dr Lee had operated had ceased trading. It appears that her files were transferred to Advocate Medical Centre and those records have now been provided. The TAC say that it is not apparent that the records provided are a complete set of Dr Lee’s records as the available records mostly relate to 2004 and 2005. Other material, including reports provided by Dr Lee and a questionnaire completed by Ms Shone, suggest that Dr Lee was Ms Shone’s treater for a significant period of time prior to 2004, including during her return to work post-incident and during her rehabilitation. The TAC says that a complete set of Dr Lee’s records would have been highly relevant to assessing the nature of the complaints post-incident, the course of her complaints and condition and her pre-existing psychiatric condition.

The TAC also points to the absence of physiotherapy records. Ms Shone was referred to a physiotherapist, Jennifer Jacobsohn a few months after the incident. Ms Jacobsohn’s records have been destroyed. There are three reports from Ms Jacobsohn written between 2001 and 2003. The TAC say these do not give complete picture, and the evidence of a contemporaneous physiotherapist would likely provide information about the nature and severity of the post-incident condition, as well as the causal connection between the incident and the injuries.

The TAC says that Ms Shone consulted a myotherapist, Lillian Kinmoth, for a couple of years after 2004, and her records have now been destroyed. The TAC says these records would be relevant to the ‘overall picture’.

The TAC points to loss of records of Dr Phillips, a psychiatrist who treated Ms Shone in July 2001. She wrote a letter to Ms Shone’s general practitioner, which is available, describing a long history of severe depression. Dr Phillips’ records have been destroyed.

The TAC also say that the death of Dr McCarthy, pain management specialist, is also prejudicial.

Finally the TAC point to the fact that the plaintiff was, in her answers to interrogatories, no longer able to recall the tram route in question or the state of slipperiness of the tram floor, in circumstances where she alleged it had been raining. The TAC says this demonstrates that the effluxion of time has resulted in the loss of memory potentially important details.

In response, Ms Shone says that most of her medical records are available, and those that are not are of little consequence, particularly as the full records of her treating neurosurgeon are available and these are likely to be more important than records from her general practitioner or physiotherapist. Ms Jacobsohn herself is available to give evidence, as is Dr Lee. She says that the full records of Dr Lee have been provided, but there is dispute between the parties about whether those records are in fact the full record. She says that the records of a myotherapist are of minimal to no forensic value. She says that Dr McCarthy’s full records are available.

She notes that the defendant does not allege any specific prejudice in relation to issues of liability. She says that in any event, the defendant has suffered no specific prejudice and the passage of time is not such that a fair trial cannot now be had.

Assessing the degree to which the non-availability of particular medical records or medical witnesses might cause specific or significant prejudice is always a difficult task. Trials can unfold in unexpected and surprising ways. An unlikely issue can become significant, and a significant issue can fall away.

It is likely in the context of Ms Shone’s case that the key medical issues will relate to her neurological and psychiatric condition. The evidence of physiotherapists and massage therapists, whilst potentially assisting with the ‘overall picture’ are unlikely to be determinative.

It is difficult to know what the absence of Dr Phillips’ records might mean. I have no information as to whether she has any actual recollection of Ms Shone which might assist the Court. Ms Shone’s evidence is that she saw Dr Phillips on a ‘transient’ basis and did not find her helpful.

It is almost impossible to conclude whether Dr Phillips’ evidence would be of particular forensic value. Ms Shone does claim, in her particulars of injury, that she suffers depression as a result of the accident. Dr Phillips’ report, dated 11 July 2001, notes a ‘long history of severe chronic depression’. Dr Phillips details a history of unhappiness dating back to Ms Shone’s teenage years, dysfunctional family relationships and a severe depression of at least three years with current daily suicidal ideation.

Dr Phillips’ report is entirely silent in relation to the tram accident, or any complaints of physical pain arising from that accident, even though Ms Shone’s consultation occurred about four months after the accident.

The consultation with Dr Phillips occurred after Ms Shone had prepared and signed a TAC claim form on 9 May 2001,[82] and a workcover claim form on 8 May 2001. She had been totally incapacitated for all work duties between 23 April 2001 and 4 May 2001 and had then returned to work on graded duties and a rehabilitation program.
[82]First Tsongas affidavit, [7].

Ms Shone, in her affidavit filed in support of her SIC application on 19 March 2007, says:

Before the subject transport accident [I] went through periods of depression but, for the most part, I mainly just put up with the symptoms and treated them with spells on antidepressant medication. In fact, before the accident, apart from the odd day off work here and there, I do not recall the depressive symptoms having become significant enough to stop me from working long-term. Otherwise, except for a bout of glandular fever in or about 1993, before the subject accident I was a physically fit and healthy young woman and had not experienced any major medical issues.[83]

[83]Affidavit of Belinda Shone sworn on 19 March 2007, exhibited to the first Tsongas affidavit, Exhibit NT-14, [5]

She goes on to say ‘as a result of the incident…I am prescribed Effexor, an anti-depressant…I continue to experience psychological problems including depression and anxiety’.[84] She describes two particular ‘very bad patches’ of depression that led to her hospitalization and says that ‘throughout this time (apart from a short period when I saw a doctor named Dr Phillips) I was mainly treated by psychiatrist Dr Wragg whom I continued to see until approximately August 2005.’[85]
[84]Ibid, [20].
[85]Affidavit of Belinda Shone sworn on 19 March 2007, exhibited to the first Tsongas affidavit, Exhibit NT-14, [21].

Dr Strauss provided a report dated 16 September 2014. He had previously assessed her on 12 December 2006, although the report of that assessment is not in evidence before me. In his 2014 report he notes that she had stopped taking antidepressants seven years ago and was not complaining of any significant psychological symptoms. He found that she did not currently have any psychiatric illness. He assessed her psychiatric impairment at 0%:

A letter from Ms Shone’s employer at the time of the accident, 3M Australia Pty Ltd, to CGU Workers Compensation (Vic) Ltd dated 12 November 2003 notes:
Lost time from 29/6 was in respect of primarily a non work psychological condition. Belinda had a pre disposition for psychologically [sic] difficulties and we were advised that the tram incident and the pain and slow recovery that followed was the cause of her current anxiety and depression which required hospitalization. I discussed with Belinda at the time whether she wanted me to advise insurer of the psych element and she did not want her past history being under investigation and obviously had concerns on effect on her employment.[86]

[86]Report of Dr Nigel Strauss dated 16 September 2014, exhibited to the first Tsongas affidavit, Exhibit NT-23.

That report goes on to say:

Initially when we received notification of Belinda being totally incapacitated this came from her psychologist Dr Wragg. Apparently the intense pain and requirement of surgery frightened Belinda and prompted her to have a relapse of her psychological condition. This time the difference is that there is vast documentation of back/neck pathology to warrant need for surgery and it seems it is her physical condition which is the primary reason for her current total incapacity rather than the secondary relapse of anxiety conditions.[87]

[87]Ibid.

Throughout the course of this matter, the TAC has been interested in and concerned about Ms Shone’s pre-existing psychological condition. On 10 June 2008 it noted in a letter to MB that the report of Dr Lee is not sufficient for the purposes of providing a complete and thorough history, or of providing details of pre-existing depression. It requested a copy of Dr Lee’s notes.

The history reported by Dr Phillips in her report of 11 July 2001 is not consistent with other medical records and statements by Ms Shone. Dr Phillips’ report makes no mention of pain being a cause of her psychological issues, and makes no reference to the tram accident. It details a significant psychiatric history. In comparison, Ms Shone’s statements suggest that her psychiatric history was relatively insignificant until after the accident, when the pain and stress caused by the accident resulted in a very significant, albeit time-limited psychiatric injury.

It is impossible to know how this might all play out at trial and whether Dr Phillips’ records would ultimately have been of significant forensic value. There is a detailed report by Dr Phillips and, presumably Dr Phillips could also be called to give evidence, though it is not known whether she has any actual recollection of a patient she saw only a few times 18 years ago.

At a minimum, the lack of records limits the scope of the examination the TAC can conduct. I cannot dismiss the possibility that the lack of Dr Phillips’ records might cause actual prejudice to the TAC, though I cannot evaluate how significant this prejudice might be.

Similarly, the fact that Dr McCarthy is not available for cross examination may cause actual prejudice to the TAC.

Ms Shone alleges that the tram accident occurred as a result of the negligence of a servant or agent of the TAC (being the tram driver of the first tram) in failing to keep a proper look out, failing to pay attention to the presence of a second tram on the road, failing to travel at a safe speed, travelling at a speed that was excessive in all the circumstances, braking suddenly and without notice, and failing to apply the brakes so that the tram could come to a safe stop.

She alleges that the TAC is liable for the negligence of the driver of the second tram who failed to obey the traffic control signal, entered the intersection against the traffic control signal, failed to keep a proper look out, failed to pay attention to the presence of the first tram on the road, failed to travel at a safe speed and travelled at a speed that was excessive in all the circumstances.

Although the TAC has not pointed to any specific prejudice it says it suffers in relation to its case on liability, it denies all the particulars of negligence that the plaintiff alleges and claims contributory negligence against Ms Shone. Ms Shone bears all the burden of proving her case in negligence, and proving that, despite the significant passage of time, any prejudice the defendant suffers does not preclude a fair trial.

None of the other matters which the Court must consider are, in my view, relevant to the discretionary exercise I have to undertake other than the duration of the plaintiff’s disability which I briefly dealt with above. For the purposes of this application, that period of disability is not relevant. She sought and obtained legal advice well within the limitation period, and issued an Originating Motion and lodged her SIC application within time. It is not put by Ms Shone that there was some reason occasioned by her disability that has caused the delay by MB in this case. That might exist where a plaintiff seeks legal advice close to the expiry of the limitation period and the lawyer has insufficient time to investigate the claim and determine whether it is viable prior to the expiration of that period. That is not this case here and I do not consider that the periods of disability Ms Shone suffered are relevant to whether the application should be granted.

There is another matter that does need to be considered in weighing all the circumstances of the case, and that is the conduct of Ms Shone’s former solicitors and her potential claim against them.

In Tsiadis v Patterson[88] the Court held that the plaintiff’s right to sue his solicitors was a relevant consideration in an application for extension of time. Buchanan JA said:

The weight to be given to the availability of a cause of action against a solicitor will depend upon the circumstances of each case. The liability of a solicitor is not to be equated with that of the original wrongdoer, and accordingly I do not think it is correct to conclude that an applicant with a good prospect of successfully suing his solicitor will suffer no prejudice if his application is refused. The liability of the solicitor will be determined not only by the likelihood of establishing liability on the part of the original wrongdoer, but also by the terms of the solicitor’s retainer, the instructions given by the client from time to time and by the manner in which the solicitor’s work has been performed. If the plaintiff is successful in an action against the solicitor, the damages to be awarded are not based upon an assessment of the losses, pain and suffering caused by the injury sustained by the plaintiff, but are commensurate with the value of the lost chance to recover damages from the original tortfeasor. Proceedings against the solicitor will be more complex and expensive than proceedings against the original wrongdoer. Usually the likelihood that the applicant will succeed in an action against his or her solicitor cannot be known with any precision when an application under s 23A of the Act is decided. In the present case it appears that Turner was in breach of the obligations which he owed to the respondent, but that view is one based upon hearing only the respondent’s version of her engagement of Turner and the events of the succeeding years, for of course no evidence was led or submissions made on behalf of the solicitor. The matters referred to by Smith J in Repco Corporation Ltd v. Scardamaglia should not lead to a plaintiff’s potential cause of action against a negligent solicitor being completely ignored, but rather affect the weight to be given to the availability of the cause of action.[89]

[88](2001) 4 VR 114

[89]Tsiadis v Patterson (2001) 4 VR 1141, 120 (Buchanan JA)

The authorities are clear that the prospect that a party has a cause of action against its former solicitors is a relevant consideration,[90] but what weight is to be given to it depends on the circumstances.
[90]Morrison & Anor v Judd (Court of Appeal of New Sourth Wales) unreported 10 October 1995; Andresakis & Skouteris v Alexus Holdings Pty Ltd [2006] NSWCA 294.

In Gordon v Norwegian Capricorn Line (Australia) Pty Ltd (‘Gordon’)[91] T Forrest J said:

a court must be careful in ascribing weight to the prospect of such a claim, given that the full circumstances surrounding such a claim may not be known. A Court may also take into account the prejudice to the plaintiff in prosecuting the claim against the solicitors as opposed to prosecuting the claim that is potentially statute barred. That prejudice may take several forms – diminution in the value of the claim as well as any added costs and the complexity of the proceeding against the former solicitor.[92]

[91][2007] VSC 517.

[92]Ibid, [86] (Forrest J).

In Gordon T Forrest J was satisfied that the strength of the claim against the former solicitor could be assessed. It was his Honour’s view that it was not possible to see what defence the former solicitor could mount to a claim in negligence and in those circumstances, the prospects of a claim against the former solicitors must be given real consideration.

In the present case, I consider that the prospect that Ms Shone has a claim against her former solicitors must also be given real weight.

Prior to 21 March 2007 the TAC had repeatedly advised MB that the documents that had been submitted to it did not amount to an application pursuant to the Protocols and had repeatedly informed MB that it would consider the request for a SIC and a waiver of the limitation defence, only once an application was made. The failure of MB to make the application pursuant to the protocols between 2005 and 2007 meant that when the application was made, it was made on the very last day before Ms Shone’s limitation period expired.

Nevertheless, that application was made, and, had it been appropriately pursued, the previous period of delay would have been of no consequence.

However the application was not appropriately pursued. Mr Cumming largely ignored the repeated requests of the TAC for more information. Mr Cumming ignored the two telephone calls from TAC in December 2009 during which the TAC indicated that, on the basis of the material before it, an SIC would not be issued. Mr Cumming ignored the December 2009 letter which advised him that the file would be closed. If Mr Cumming had not seen the September 2009 letter which flagged a potential revocation of the waiver, he did not seek a copy of that letter which was referred to in the December 2009 letter.

He then did nothing for nearly five years. There is no explanation for this.

Upon prompting by Ms Shone, he arranged some medico-legal appointments. He sent a report arising from one of those appointments to the TAC in September 2014. That was the last step he took in Ms Shone’s matter in relation to the TAC.

He told Ms Shone in writing that he had made submissions to the TAC and even went into some detail about what those submissions were. He had not, in fact, made those submissions, and never made those submissions. Whilst he may have intended to make those submissions, an intention to act is not the same as an act. It was put to Mr Cumming that he had lied to Ms Shone. He denied this but it is difficult to see how his words could be characterised in any other way.

He then did nothing to progress Ms Shone’s case for a further two years. Again there is no explanation for the delay.

When Ms Shone eventually went to other lawyers, Mr Cumming delayed again in providing the file for nearly two more years. His explanation for this delay, whilst by his own admission ‘not good’ is at least honest – it was causing him anxiety and he was hoping that the whole thing would go away.

Even if Mr Cumming had believed that the waiver was still in operation, it is difficult to see what defence could be available to MB in a professional negligence claim. Even if the waiver was still in operation and Ms Shone was able to pursue her claim without having to make an application for an extension of time, MB’s conduct does not comply with its obligations to her as a client and pursuant to the Civil Procedure Act 2010 (Vic).

The Act allows the Court to extend the time if it is ‘just and reasonable’ to do so.[93] It is for the plaintiff to establish that it is just and reasonable to extend time.[94]
[93]Limitation of Actions Act 1958 (Vic) s 23A(2).
[94]Sydney City Council v Zegarac [2005] NSWCA 478, [123].

In synthesizing the various considerations that I am required to take into account, and looking at all the circumstances of the case, I have had regard to the purposes which underlie the limitation period, as prescribed by statute. I accept that the plaintiff acted reasonably in her conduct of her claim. I consider that the presumptive prejudice that attaches to the defence of the case is real, and that there is likely to be some specific prejudice due to the unavailability of medical records and the death of Dr McCarthy, although I am unable to say that that prejudice amounts to ‘significant’ prejudice. I regard the existence of a viable, and prima facie strong cause of action against her former solicitors as a significant consideration. The defendant has not caused or contributed to the delay. It sought on numerous occasions to progress the matter and, when finally provided with the material it needed by ATB, acted promptly to arrange medico-legal assessment and grant the SIC.

I am ultimately not persuaded that, in all the circumstances of this case, it is just and reasonable to extend the limitation period.

[2019] VSC 782

29 November 2019