State Rail Authority of NSW v Scott Preston Grant

[2003] NSWCA 255

CITATION:	STATE RAIL AUTHORITY OF NSW v Scott Preston GRANT [2003] NSWCA 255
HEARING DATE(S):	01/09/2003
JUDGMENT DATE:	30 September 2003
JUDGMENT OF:	Beazley JA at 1; Foster AJA at 2-11; Davies AJA at 11-18
DECISION:	Application dismissed with costs.
CATCHWORDS:	Extension for leave to appeal - damages for injuries whilst travelling on a train.
LEGISLATION CITED:	s 60 of the Limitation Act 1969 Government Railways Act 1912 State Records Act 1988 Archives Act 1960
CASES CITED:	Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 451 New South Wales Sugar Mill Co-operative Limited v Cheetham, (2002) NSWCA 50 Talga Ltd v MBC International Ltd (1976) 133 CLR 622 at 634 House v The King (1936) 55 CLR 499 at 504-505 Holt v Wynter (2000) 49 NSWLR 128
PARTIES :	STATE RAIL AUTHORITY OF NSW - Claimant Scott Preston GRANT - Opponent
FILE NUMBER(S):	CA 41015/02
COUNSEL:	Mr M McCulloch - Claimant Mr K Andrews - Opponent
SOLICITORS:	Gillis Delaney Brown - Claimant McGrath Dicembre & Co - Opponent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2443/02
LOWER COURT JUDICIAL OFFICER :	Murrell J

CA 41015/02
DC 2443/02

BEAZLEY JA
FOSTER AJA
DAVIES AJA

TUESDAY, 30 SEPTEMBER 2003

STATE RAIL AUTHORITY OF NEW SOUTH WALES v Scott Preston GRANT

Judgment

1 BEAZLEY JA: I agree with Foster AJA.

2 FOSTER AJA: This is an application for leave to appeal and, if granted, to appeal from a decision of Murrell DCJ given on 18 October 2002. By that decision, her Honour ordered that, pursuant to s 60G of the Limitation Act 1969, the time for bringing of an action by the opponent, Scott Preston Grant (“Mr Grant”), against the claimant, State Rail Authority of New South Wales (“the Authority”) be extended to 1 November 2002.

3 Mr Grant sought to bring an action for damages against the Authority, arising from injuries suffered by him on 12 April 1987, when he was travelling as a passenger on board a train operated by the Authority. The opponent had suffered serious head injuries, when he extended his head outside the open doors of the carriage in which he was travelling and, whilst in that position, was struck by what has been described as a sign adjacent to the railway track, which was leaning dangerously towards the passing train. Broadly speaking, he sought to sue on the basis that the carriage doors were negligently permitted to be opened and the sign had been allowed to come into dangerous proximity to the train.

4 Mr Grant was born on 3 February 1973 and was fourteen years old when he suffered the accident. Accordingly, the time for the bringing of any action against the Authority expired on 12 April 1994. Mr Grant applied for the extension of time by Notice of Motion filed on 17 April 2002. As a result of his severe head injury occasioned by the accident, he is unable to remember anything, beyond his being present in the railway carriage before it happened. His companion on the day, Daniel Geltch, provided a statement shortly after the accident and also made an affidavit in support of the application. It is clear that he had and has a recollection of the facts of the accident, including the faulty operation of the doors of the Authority’s carriage, the presence of the inward leading notice, his own withdrawal into the interior of the carriage when he saw the approaching danger and the opponent’s failure to observe the danger and take timely avoiding action.

5 Her Honour considered the availability of evidence relating to the accident, as at the time of the hearing of the motion. She referred to the fact that another passenger on the train, Robert Brennan, an independent witness, had provided information, on 2 July 1987, to the effect that the doors were not working and that Mr Grant had been bending down in the open doorway, as though he were doing up a shoe lace, when his head was hit by the sign. Mr Brennan had not been located by those acting for Mr Grant or the Authority at the time of the hearing, although enquiries had been made.

6 The accident was reported in the newspapers at the time. Her Honour noted that a second witness was named in one of the newspaper articles but that that witness had also not been located.

7 Her Honour found that, in 1987, the opponent’s mother had consulted a firm of solicitors, who had notified the Authority that they were acting for Mr Grant in relation to the accident. Her Honour made the following findings in relation to what occurred at that time:-

“In 1987 the applicant’s mother consulted William B. Beilby and Co, solicitors, who notified the respondent that they were acting for the applicant in relation to the accident. They sought details of the respondent’s investigation of the matter.
On 30 September 1987, the respondent’s solicitor sought details from William B. Beilby and Company, including particulars of the person to whom the injury was reported. William B. Beilby and Co forwarded a copy of that letter to the applicant’s mother, but there is no evidence that she provided a response. William B. Beilby and Co had drafted a statement of claim alleging negligence in relation to maintenance of the carriage doors and placement of the sign, but the statement of claim was never filed. The applicant’s mother was not called on this application.”

8 Her Honour also accepted Mr Grant’s evidence that he had been unaware of his mother’s consulting the solicitors shortly after the accident, until shortly before his application was made. He had given no thought to the possibility of bringing legal proceedings and had received, personally, no advice in this regard. It is clear that he was suffering from some cognitive impairment, partly constitutional and partly as a result of the accident. He became involved in some unspecified criminal activity, which resulted in his consulting a solicitor in late 1999, on which occasion he was advised, for the first time, that he had a potential claim against the Authority for injury received in the accident.

9 The opponent provided an explanation in his affidavit as to his failure to bring an action within the limitation period. He sought to rely upon the enabling provisions of s 60 of the Limitation Act 1969. Her Honour found that he had successfully brought himself within these provisions. Her Honour’s decision, in this regard, is not contested in this application.

10 What is sought to be contested, is her Honour’s finding, pursuant to s 60G(2) of the Act, that it was “just and reasonable to order an extension of the limitation period.” Specifically, it is contended that her Honour was in error in failing to hold that the Authority was in a situation of forensic prejudice in relation to the trial of the proposed action, such as to render it unjust and unreasonable for the order to have been made.

11 Her Honour introduced her consideration of this aspect of the case by making the following unexceptionable observations:-

“In relation to the “just and reasonable” requirement of s 60G(2), the onus lies upon the applicant to show that justice requires that an extension be granted. Apart from the effect of delay on the quality of justice, there are other compelling reasons for the enactment of limitation periods: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 451 per McHugh J at 552. The commencement of proceedings outside the imitation period is prima facie prejudicial to a respondent. S 60G(2) confers a wide discretion, which is to be exercised in the light of all the material facts and circumstances for the purpose of determining whether a fair and just trial can now be held.”

12 It is clear that, in relation to defending an action brought by Mr Grant, the Authority was in a position of some difficulty. It could locate no records relating to the accident or to the maintenance of the particular carriage or its doors at the time of the occurrence. It had made attempts to locate the witness, Mr Brennan. It had, through search of the electoral rolls, ascertained that there were a large number of persons with his name. However, it had made no attempt to approach any of them, nor had it advertised in any newspapers of general circulation seeking information as to the accident from persons of that name. It could not, and cannot be said that that avenue of enquiry was totally closed. The evidence of Mr Geltch was, as I have said, available.

13 As her Honour indicated, the Authority’s solicitor had been put on notice of the accident as early as August 1987 when the solicitor, Mr Beilby, wrote to the Authority, on the instructions of Mr Grant’s mother. In that letter, Mr Beilby informed the Authority that the accident had occurred at approximately 6.10pm on 12 April 1987 on a train “between Parramatta and Westmead Railway Stations” when Mr Grant was injured “by a sign which projected from a post located near the carriages in question”. Mr Beilby sought information in relation to the accident, including whether any enquiries had been conducted, the results of the enquiries, whether reports were available and could be provided to him, the number of the carriage, whether and when any remedial action had been taken in respect of the sign, the names of witnesses, and the names of railway detectives attending to the investigation of the accident. He had received a reply from the Authority’s solicitors on 7 September 1987, indicating that enquiries were being made in relation to the matter and that Mr Beilby would be further advised when they were complete. On 30 September 1987 a further letter was received by Mr Beilby from the Authority’s solicitor, requesting information as “to whom the injury was reported, for example to the guard of the train or the station master, and any additional information you have….for example, whether he was given first aid treatment and if so, by whom”? It seems that Mr Beilby, after enquiring from Mr Grant’s mother, was not able to provide this information, although it seems strange that, having regard to the publicity which had been given to the accident, the Authority should have been seeking this information from the victim.

14 It was not contested before her Honour, or in this appeal, that the Authority had obligations in relation to the making of enquiries and the maintenance of records in relation to an accident as serious as this one obviously was. As this appeal, in substance, focuses upon the approach that her Honour took in relation to these obligations and to their effect upon her evaluation of prejudice, in the context of her determination of what was “just and reasonable” in the circumstances, it is appropriate to set out the relevant portions of her Honour’s judgment, as follows:-

“An important matter upon which the applicant places reliance is that, where it is through a proposed defendant’s own default that a prospective trial may have become unfair, the Court may determine that it is nevertheless just and equitable to order an extension of the limitation period: New South Wales Sugar Mill Co-operative Limited v Cheeton (sic, should be “ Cheetham ”) (2002) NSWCA 50. In this case, the applicant submits that, pursuant to s 61 of the Government Railways Act 1912, the respondent had a statutory duty to hold an inquiry into the accident as it was “of a kind…which…might have caused…serious personal injury” and that, pursuant to the Archives Act 1960, the respondent had a duty to retain the record of its inquiry (including any accident report), unless authorised to destroy it. The applicant relies upon the successor to the Archives Act (the State Records Act 1988), which does not alter the position in relation to the requirement that records be retained. Consequently, so the applicant submits, any inability to access an accident report, maintenance records, or other records which may assist it in the conduct of a trial, was occasioned by the respondent’s own statutory breach and is a matter upon which the respondent cannot rely.
The respondent accepts the relevance of the statutory provisions upon which the applicant relies and accepts the proposition upon which the applicant places reliance in Cheetham’s case, but argues that is not established that the respondent was put on notice that the accident occurred and was of such a type that required an inquiry to be conducted.
On my reading of s 61 of the Government Railways Act 1912, there is no preliminary requirement that the respondent be put on notice before it must conduct an inquiry. I suppose that it is assumed that, where a matter of the type referred to in s 61A(2)(d) occurs, the respondent will in any event be on notice about that matter.
In this case, the circumstances of a fourteen year old boy sustaining a very serious head injury such that he was thereafter conveyed to hospital by ambulance and hospitalised for a significant period of time, is such that I would find it quite incredible if the respondent was not at that time, one way or the other, put on actual notice about the accident. In any event, the respondent’s solicitor was put on notice about the accident in August 1987 when William B. Beilby wrote to the respondent.”

15 Her Honour continued by indicating that there was doubt whether any inquiry had been conducted, despite the statutory obligation to do so. If it had been conducted, there would have been an obligation to retain the records, there being no suggestion that permission, under the legislation, had been given for their destruction.

16 In this application, it was not contested that her Honour’s statement of the effect of the relevant legislation was correct. The Court was referred to the legislative provisions but, in view of that concession here and in the Court below, it is not necessary that they be set out in these reasons.

17 Her Honour also made the following remarks in relation to the Authority’s potential prejudice:-

“Undoubtedly, the respondent will suffer prejudice through the lapse of time, the loss of recall of witnesses and the possible inability to locate witnesses. It is also undoubtedly true that the respondent will suffer in the conduct of its case through the unavailability of maintenance records and any accident report. However, it is my view that the unavailability of records of this type (which is an actual prejudice which will no doubt burden the respondent in the conduct of the trial), was brought about through the respondent’s own default in failing to comply with statutory requirements. Consequently, the respondent cannot rely upon this specific prejudice. But for the statutory requirements, I would undoubtedly have found that the absence of the records combined with other factors was such that a fair trial was unlikely to be able to be held at this stage.”

18 Her Honour dealt with a submission on behalf of the Authority that prejudice would occur, after the passage of time, in the identification of “which aspects of the applicant’s cognitive problems were caused by the accident.” Her Honour was of the view that sufficient documentation existed as to the pre-existing cognitive problems suffered by Mr Grant, through available contemporaneous records, to rob this difficulty of any real significance. I am quite satisfied that there is nothing in her Honour’s approach in this regard to warrant appellate interference.

19 Her Honour concluded her reasons with the following remarks:-

“Because of the view that I have taken in relation to the statutory obligations imposed upon the respondent which apparently were not complied with, it is my view that the specific unfairness which will flow to the respondent in relation to the conduct of a trial was brought about by its own default. I acknowledge that, quite independently of this specific prejudice, a general prejudice will flow. But, having regard to all of the circumstances, I am nevertheless of the view that it is just and reasonable to allow the extension of time.”

The arguments on the Application

20 Counsel for the Authority, in arguing for leave, focused attention on “her Honour’s asserted error in relation to the Archives Act and other legislation.” He contended that those considerations were not relevant to a determination whether it was just and reasonable to extend the time for the bringing of the opponent’s action. He submitted that absent these irrelevant considerations, the clear evidence of actual prejudice to the Authority would deny to the opponent the benefit of s 60G of the Limitation Act. He described as “the kernel of the application”, alleged error on the part of the primary judge, in holding that the Authority’s failure to maintain records in accordance with statutory requirements and to hold an inquiry pursuant to the s 16 of the Government Railways Act 1912, disentitled it to the benefit, in resisting the application, of its actual and presumed prejudice arising from the opponent’s delay. He submitted that these failures by the Authority “were not matters which her Honour was entitled to find were a prejudice caused by the claimant to itself, which disentitled it to the presumptive prejudice which existed.”

21 In developing the argument, counsel submitted that her Honour had failed to exercise her discretion in accordance with law and had “misunderstood and misapplied what Einstein J had said on this subject in Cheetham and that this constituted a relevant error of law which had caused her discretion to miscarry. In these circumstances it is appropriate to refer to what Einstein J said in Cheetham. Accordingly, I set out the relevant passages from his Honour’s judgment:-

“The discretion conferred uon the Court by s 60G(2) of the Act in terms of the standard imported by the words “just and reasonable” is plainly a wide discretion to be exercised in the light of all material facts and circumstances. Such a wide discretion has been said to be “A commonplace of the curial process”: Talga Ltd v MBC International Ltd (1976) 133 CLR 622 at 634 per Stephen, Mason, Jacobs JJ [there dealing with the discretion conferred upon the Court by s 5(1) of the Banking Act 1974 (Cth) to hold transactions called in question by reason of failures to comply with the Banking (Foreign Exchange) Regulations, as never having being invalid if it be just and equitable that they should be treated as being valid].
Notwithstanding the extensive consideration given in recent years in a number of the decided cases to aspects of the proper construction of s 60G(2), these authorities have generally focused upon an extremely close examination of the putative plaintiff’s actual state of mind and/or awareness, and/or beliefs, primarily concentrating upon questions of what the putative plaintiff not only knew but ought to have known. Outside of the passage from the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 555 set out below, virtually no consideration has been given to the putative defendant’s side of the record in terms of the part which such defendant may have played in terms of creating or contributing on any parameter to difficulties which such defendant might then seek to rely upon as appropriate to be taken into account in the exercise. In short, the putative defendant asserts that notwithstanding its part played in creating or contributing to these difficulties, the same difficulties when seen in the light of the substantial delay in commencing proceedings, would prejudice such defendant in terms of achieving any likely chance of a fair trial. This is the substantive issue falling for consideration presently.
The passage from the judgment of McHugh J in Brisbane South reads:-
“…But the justice of a plaintiff’s claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action ” [emphasis added]”

22 After considering matters relevant to the question whether the appellant had failed to adhere to a relevant Australian Standard, his Honour returned to matters of principle in the following passage:-

“However where this form of evidence has in fact been adduced, a failure to comply with the Standards has the capacity of supporting the proposition that an employer’s actions had caused a trial to become unfair permitting a Court to find that it is just and equitable to order the limitation period to be extended pursuant to s 60G(2). McHugh J was not in the above passage, listing closed categories which were not capable of being added to. The classes of conduct to which his Honour pointed in Brisbane South are capable of being extended whenever the defendant’s own conduct caused or helped to cause the plaintiff’s delay.”

23 I respectfully agree with what his Honour has said. I would add that his Honour, quite obviously, was not asserting the existence of a legal principle to the effect that a respondent to an application to extend time would be unable to rely upon s 60G if it had contributed to its own prejudice by failing to comply with relevant statutory requirements. His Honour was merely indicating that such non-compliance was an appropriate matter to take into consideration and that the passage cited from McHugh J’s judgment in Brisbane South did not prevent this being done.

24 I am satisfied that a fair reading of her Honour’s judgment in the instant case indicates quite clearly that she was doing no more than taking into account, as a relevant factor, the Authority’s contribution to its own situation of prejudice, by its failure either to conduct an inquiry into the accident or, if it did so, to retain its records of the inquiry. Also, such an inquiry would, in all probability, have identified the relevant carriage and the sign and enabled records relating to their maintenance to have been ascertained at that time and kept, quite apart from any statutory requirement to do so. The Authority was on notice of a potential claim by an infant, shortly after the happening of the accident, in circumstances where it would reasonably have been aware that an action might not be brought for a considerable period of time.

25 In my view, her Honour was clearly entitled to take these matters into account when assessing whether, in all the circumstances, it was just and reasonable to extend the limitation period. Although there was prejudice to the Authority because of the delay, a significant part of that prejudice could be attributed to its own default. I do not accept the claimant’s argument that consideration of that fault was irrelevant. If authority were needed for its relevance, that authority was supplied by Cheetham.

26 In my view, there has been no demonstration of any error of principle on the part of her Honour which could vitiate the exercise of her discretion. In my view, it is not appropriate to grant leave in this case.

27 Accordingly, I propose that this application be dismissed with costs.

28 DAVIES AJA: The issue is whether her Honour, Murrell DCJ, erred in the exercise of her discretion when she granted leave under s 60G(2) of the Limitation Act, 1969 (“the Act”) to Scott Preston Grant to institute proceedings for personal injury. As her Honour’s decision involved the exercise of her discretion, any error, if found, must be a reviewable error of the type enunciated in House v The King (1936) 55 CLR 499 at 504-505.

29 Section 60G(2) of the Act reads as follows:-

60G Ordinary action (including surviving action)

(1) …
(2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines.

30 A provision such as this confers a broad discretion upon a judge. Nevertheless, it is not a discretion which is untrammelled by authority. One of the most influential judgments has been that of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. At pp 551-555, McHugh J said, inter alia:-

“The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’ R v Lawrence [1982] ac 510 at 517, per Lord Hailsham of St Marylebone LC. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo (1972) 407 US 514 at 532, ‘what has been forgotten can rarely be shown’ . So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.
…
Even where the cause of action relates to personal injuries …, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible …
In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by cause of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. … The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.
… In determining what the justice of the case requires, the judge is entitled to look at every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period.
…
If the action had been brought within time, it would have been irrelevant that, by reason of the delay in commencing the action, Dr Chang might have had little independent recollection of his conversation with the applicant and that the defendant might have had difficulty in fairly defending itself. But once the potential liability of the defendant had ended, its capacity to obtain a fair trial, if an extension of time were granted, was relevant and important. To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action. This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent. But the justice of a plaintiff’s claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action.”

31 In the same case, Dawson J agreed with McHugh J and said at p 544:-

“… The section confers a discretion upon a court to extend time and that discretion should only be exercised in favour of an applicant where, in all the circumstances, justice is best served by so doing. …”

32 In this Court, an influential statement has been that of Sheller JA, with whom Meagher JA, Handley JA and Brownie AJA agreed in Holt v Wynter (2000) 49 NSWLR 128, where his Honour said at [119]:-

“In my opinion, the effect of the decision of the High Court in Brisbane South Regional Health Authority is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant.”

33 It follows that, although the discretion is unfettered, particular regard must be had to the policy behind the legislation and to the needs of justice. Although a person having a right to litigate may do so notwithstanding that, for some reason or another, the litigation may be unfair to the other party, once the time has passed and an extension of time is required, that extension should not be granted unless, to use the words of Dawson J, justice is best served by so doing.

34 Scott Grant, then aged 14, was injured on 12 April 1987, when he held his head out of an open door of a suburban train which was travelling between Westmead and Parramatta Stations. He can recall nothing of the incident. A friend who was with him, Daniel Geltch, has given evidence that the doors of the train were not working and that they were open during the trip. However, a brief newspaper report on the following day, 13 April 1987, read as follows:-

“A 14-year-old boy was in a serious condition last night after he was hit by a signal pole as he was hanging from a train travelling west between Seven Hills and Blacktown. A passenger, Kylianne Menadue, said the boy was holding back the train’s automatic doors with his foot when he was hit. She said he was not writing graffiti on the train.”

35 Needless to say, the facts surrounding the incident could be controversial and difficult to establish.

36 The evidence before her Honour showed that, apart from Daniel Geltch, there were at least two witnesses whose names were mentioned in newspaper articles at the time. Neither has been traced by the parties. A further point put on behalf of the State Rail Authority of New South Wales (“the SRA”) is that the information available to the Authority did not enable it to identify the train which was involved. Accordingly, it has been impossible to locate records with respect to the maintenance of that train or records as to its state on the day of the accident. It was said that, even with knowledge of the identity of the train, it would now be too difficult to obtain satisfactory evidence as to the condition of the train and as to the adequacy of its maintenance.

37 The evidence called on behalf of both parties at the hearing below was, as too often happens, abysmally brief. The solicitor for the SRA gave no evidence that attempts had been made to locate and speak with the person who was in charge of Parramatta Station on 12 April 1987. She gave evidence merely that records had been sought and could not be located. The lawyers for Scott Grant, for their part, did not adduce evidence from Mr Grant’s mother or from Mr Geltch’s parents as to any of the events which occurred at Parramatta Station where Mr Grant was offloaded before being taken to Westmead Hospital. Mr Geltch said, in his affidavit, that he had no recollection of the events after the accident, save that his parents collected him from the station.

38 Mr Grant’s mother gave no evidence notwithstanding that, in August 1987, she had instructed solicitors to investigate the matter on her son’s behalf. The solicitors drafted a statement of claim and wrote to the Proper Officer of the SRA on 17 August 1987 seeking information about the incident and about the carriage involved. That was replied to by a letter of 7 September 1987 saying that enquiries were being made. A solicitor in the office of the solicitor for the SRA wrote on 30 September 1987 to request information as to whom the injury had been reported, for example, to the guard of the train or the stationmaster, and any additional information that was known about the matter. It is a safe inference from this letter that enquiries had not elicited any information about the accident. The solicitors for Mr Grant did not pursue the matter further.

39 In the light of the material before the Court, the conclusion is readily drawn that it is unlikely that a fair trial could be held at this stage. The trial Judge drew that conclusion and held that the SRA would suffer prejudice through the lapse of time, the loss of recall of witnesses and the possible inability to locate witnesses.

40 However, the trial Judge referred to the remarks of Einstein J which are set out in the reasons for judgment of my colleague, Foster AJA, in which his Honour stated that where a party’s actions have caused a trial to become unfair, this fact may permit a court to ignore the prejudice which that party has created and to hold it just and equitable to order that the limitation period be extended pursuant to s 60G(2) of the Act. Although I consider that his Honour’s remarks are stated too broadly, I agree with Foster AJA that such a factor may be a relevant factor to be taken into account in an appropriate case.

41 However, in the present case, her Honour treated the factor as decisive. Her Honour held that the SRA had an obligation under s 61 of the Government Railways Act, 1912 to hold an inquiry into the accident, whether or not it had been informed of it and had a further obligation under the Archives Act, 1960 and its successor, the State Records Act, 1988 to retain the results of that inquiry. Her Honour held that problems with respect to witnesses and records were occasioned by the default of the SRA and it was not a default upon which the SRA could rely in an application under s 60G(2) of the Act.

42 Section 61 of the Government Railways Act provided, inter alia, that, in the event of an accident which has caused or might have caused loss of life or serious personal injury, the Authority shall:

(e) cause the earliest information by telegraph, post, or otherwise to be forwarded to the Minister; and

(f) appoint such officer or officers as they may think fit to hold an inquiry into the matter; and

(g) as soon as practicable after such inquiry send to the Minister full information of the accident and the report of such officers.

43 The section was merely one of the provisions which set out the functions to be performed by the SRA. It did not confer a right upon an injured person to sue for damages for its breach and, if Scott Grant had a sufficient interest to sue for its performance, neither he nor any person on his behalf sought the holding of an inquiry in 1987.

44 The facts before the Court do not show what notice the SRA had of the accident. There is no evidence as to the staffing of Parramatta Station on the day and no evidence that any station official participated in the events. Certainly, by August and September 1987, if any officials of the SRA had knowledge of the accident, that knowledge seemed untraceable.

45 I do not regard the letter from Scott Grant’s solicitor to the SRA as a letter calling upon the SRA to hold an inquiry or as casting upon the SRA a duty to do so. The solicitor for the SRA replied seeking more information and that was not provided. The matter was not pursued on Scott Grant’s behalf.

46 I cannot regard the present lack of evidence as a matter for which the SRA should be held responsible. There is simply no evidence of knowledge on the part of officials of the SRA such as to impose upon the SRA an obligation to hold an inquiry of the type of which s 61 of the Government Railways Act provided. The trial Judge considered that knowledge on the part of the SRA to the existence of a serious accident was unnecessary. I reject that view. In any event, by the time of the hearing below, fifteen years had elapsed since the accident. In this time, memories would have become vague.

47 As I read the material which was before the Court below, the position was that, by August and September 1987, any knowledge which the SRA may have had of the accident was untraceable, at least without the further information which was sought but not provided. In the four years before he turned 18, no proceedings were instituted on Scott Grant’s behalf. He had six years thereafter in which to institute proceedings if he wished to do so. He did not. The application for an extension of time was lodged five years after the limitation period had expired and fifteen years after the accident had occurred. In my view, the principles that I have mentioned require the application to be dismissed for it is unlikely that a fair trial of the proceedings can be held.

48 For the reasons I have given, I am of the view that her Honour erred in law in her understanding of the effect of s 61 of the Government Railways Act and in her understanding that the evidence before her was strong enough to overcome the principles enunciated by McHugh J in Brisbane South Regional Health Authority v Taylor and by Sheller JA in Holt v Wynter.

49 I would allow the application for leave to appeal. I would allow the appeal. I would set aside the orders below and I would order, in lieu thereof, that the application to extend time be dismissed with costs. The respondent should pay the costs of the appeal.

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Last Modified: 10/01/2003