Wright v Australian Associated Motor Insurers Ltd

[1999] NSWSC 208

CITATION:	Wright v Australian Associated Motor Insurers Ltd [1999] NSWSC 208
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	10461/98
HEARING DATE(S):	8 March 1999-9 March 1999
JUDGMENT DATE:	18 March 1999
PARTIES :	Mark Francis Wright (Respondent) Australian Associated Motor Insurers Ltd (Appellant)
JUDGMENT OF:	Studdert J

LOWER COURT JURISDICTION:	Supreme Court (Master)
LOWER COURT FILE NUMBER(S) :	10461/98
LOWER COURT JUDICIAL OFFICER:	Master Harrison

COUNSEL :	M.S. Jacobs QC/P. Liniger (Respondent) B.M. Toomey QC/G. Bateman (Appellant)
SOLICITORS:	Dodaro & Associates (Respondent) McMahons (Appellant)
CATCHWORDS:	Limitation of actions; extension of time sought; Master makes order; appeal from Master's decision; whether exercise of Master's discretion miscarried; whether delay made chance of fair trial unlikely; whether defendant would suffer significant prejudice; evidentiary burden on proposed defendant.
ACTS CITED:	Limitation Act Limitation of Actions Act (Qld) Motor Accidents Act Supreme Court Act
CASES CITED:	Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Council of the City of Sydney v Zegarac (unreported NSWCA 3 September 1997) Do Carmo v Ford Excavations Pty Limited (1981) 1 NSWLR 409 Henricks v Agnew (unreported NSWCA 23 October 1997) House v The King (1936) 55 CLR 499 Martin v Abbott Australasia Pty Limited (1981) 2 NSWLR 430 Salido v The Nominal Defendant (1993) 32 NSWLR 524
DECISION:	Appeal dismissed

- 18 -

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Thursday 18 March 1999

10461/98 MARK FRANCIS WRIGHT v AUSTRALIAN ASSOCIATED MOTOR INSURERS LTD

JUDGMENT
1 HIS HONOUR : This is an appeal from a decision of Master Harrison. Mark Francis Wright, to whom I shall refer as “the respondent” (the plaintiff before the master), claims to have suffered injury in a motor vehicle accident on 30 March 1991. The Motor Accidents Act governed any claim arising from the accident, and in particular s 52(4) of the statute applied. In the form relevant for these proceedings, that sub-section provided:
“A claimant is not entitled to commence proceedings in respect of a claim more than three years after the date on which the claim must be made in accordance with section 43 except with the leave of the court in which the proceedings are to be taken.”
2 By summons filed 20 February 1998 the respondent sought leave of the court to commence proceedings notwithstanding the lapse of time since his accident, and the application was successful. Australian Associated Motor Insurers Ltd was the appellant named in the summons and it is convenient to refer to that insurer as “the appellant” for present purposes. It now appeals to this Court, and in the notice of appeal the following grounds are stated:
“1. The learned Master erred in failing to reject the Plaintiff’s application for leave to proceed brought pursuant to Section 52(4) of the Motor Accidents Act 1988, as amended (‘the Act’).
2. In granting the Plaintiff leave to proceed pursuant to section 52(4) of the Act, the learned Master failed to take into account the prejudice imposed upon the Defendant.
3. The learned Master erred in finding that the Plaintiff had made a full and satisfactory explanation for his delay in commencing proceedings.”
3 Subsequently the appellant gave notice of an additional ground of appeal, namely that the master had erred in admitting certain affidavit evidence, but that ground was not pursued.
4 In the course of the hearing of the appeal ground 3 of the grounds stated in the notice of appeal was not the subject of argument. I shall nevertheless consider this ground shortly.
5 The master dealt with delay, at pp 18-19 of her judgment, directing herself as to the need for a full and satisfactory explanation, and as to the need to consider the guidelines expressed by the Chief Justice in Salido v The Nominal Defendant (1993) 32 NSWLR 524 in a passage at 532-533. The master had set those guidelines out earlier in her judgment. The master’s judgment recorded those guidelines in their entirety and I shall not repeat them here, but guideline 5 of course assumed particular relevance for the master’s consideration of delay.
6 What the master said as to delay was this:
“There was limited correspondence between the plaintiff’s solicitors and the defendant between 1991 and 1994. When the plaintiff was reliant upon his brother, Norrie to pursue his claim. The plaintiff’s brother Norrie has given a detailed explanation as to what he did and did not do to pursue the plaintiff’s claim. After the accident in 1991, the plaintiff found himself in hospital and rehabilitation for the next 5 years - until 1996. The plaintiff experienced depression from 1991 until 1992. He could not talk or physically get around. He communicates by means of a keyboard or by lip reading. His [presumably Norrie’s] contact with the plaintiff became less frequent over the years. After the defendant advised legal aid that it would not consent to the application seeking an extension of time, the defendant closed its file and did not hear anything for 4 years until 1998.
It was only when the plaintiff formed a relationship with Ms George, his partner and current defacto wife, that she assisted the plaintiff to pursue his claim. Their relationship started in December 1995 and she helped the plaintiff with his claim from April 1996. She wrote to his current solicitor in 1996. In April 1996, the plaintiff’s solicitor was to undertake work and advise the plaintiff further. When Ms George did not hear from the solicitor she wrote letters to him on the 27 May 1996, 7 November 1996 and 25 November 1996. As she had heard nothing by the end of 1996 she started to chase up the solicitor by making weekly telephone calls. She finally terminated his instructions on the 13 February 1997. The plaintiff was entitled to rely on his solicitor to carry out his instructions and I consider that the plaintiff is blameless for this delay.
The plaintiff’s partner instructed the plaintiff’s current solicitor in March 1997. They in turn instructed private investigators to obtain reports of the accident from witnesses. The investigators carried out investigations up to the 5 November 1997 a period of about 8 months. These proceedings were commenced on the 20 February 1998. In these circumstances, it is my view that the plaintiff has provided a full and satisfactory explanation for his delay in commencing proceedings.”
7 Mr Toomey of Queen’s Counsel, who appeared for the appellant insurer, did not directly challenge what the master said in the above extract from her judgment, and I do not consider that the finding that a full and satisfactory explanation for delay had been provided can be disturbed on this appeal.
8 I turn to consider the issues which occupied the time of this Court upon the hearing of the appeal.
9 Mr Toomey focussed in his submissions upon two succinct points:
(i) that the master was in error in determining that there was evidence to establish a cause of action;
(ii) that the master was in error in determining that:
(a) the appellant did not suffer from significant prejudice; and
(b) the delay did not have the consequence that a fair trial was unlikely.
10 The evidence before the master comprised the following:
(i) the affidavit of the respondent sworn 1 February 1998;
(ii) the affidavit of his present solicitor Mr Robert Dodaro sworn 12 February 1998. Amongst the annexures to that affidavit were investigators’ reports and a number of statements from witnesses who claimed some relevant knowledge (often hearsay) of the events of the night in question;
(iii) the affidavit of the respondent’s brother, Norrie Wright, sworn 2 February 1998;
(iv) the affidavits of the respondent’s current de facto wife, Stephanie George, sworn 5 February 1998 and 25 June 1998.
11 The appellant relied upon two affidavits:
(v) the affidavit of Rod Buckley, its CTP Claims Manager, sworn 22 June 1998;
(vi) the affidavit of Linda Charleston, the solicitor with the conduct of the matter on behalf of the appellant. Her affidavit was sworn 22 June 1998.
12 On the hearing of this appeal Mr Jacobs of Queen’s Counsel, for the respondent, made application to rely upon what he submitted was fresh evidence, being affidavits from Gary Midwood, sworn 22 December 1998, and of his wife, Leone Midwood, sworn the same date. Mr Toomey opposed the introduction of this evidence, submitting it was not fresh evidence at all. He drew attention to the fact that Leone Midwood is the respondent’s sister and submitted that what she knew in 1991 was available to the respondent throughout, and certainly before the summons seeking the extension of time was filed.
13 Before considering whether the evidence of the last-named deponents should be admitted, it is appropriate to consider the nature of the respondent’s case. In this regard I refer to the master’s findings:
“(1) The plaintiff was born on the 3 April 1961 and is currently 36 years of age.
(2) On the night of the 30 March 1991, the plaintiff alleges that he was travelling along Bay Road Bolton Point in his vehicle, a VW Beetle sedan and he believes that he was a front seat passenger when the vehicle collided with an electricity pole.
(3) The plaintiff has no recollection of the accident. The last recollections prior to the accident are that he had been drinking and socialising for a number of hours. He recalls that at about 9.00 pm Donna, the two Thompson brothers and himself were sitting at a table in a pub. He had decided that he had drunk enough alcohol and told Donna that he was going to lie down in the car and that he was tired and he had had enough to drink. He also said in the presence of the Thompson brothers words to the effect that if someone could drive us home we would appreciate it.
The Thompson brothers are both known by the moniker ‘Animal’ or sometimes ‘The Animal’. Anthony James Thompson is the taller brother.
(5) As a result of the impact of the plaintiff’s vehicle hitting the pole, he suffered and continues to suffer significant brain and spinal injuries which have resulted in quadriplegia
…………….
(27) The next facts relate to whether the plaintiff was the driver or passenger. Mr Lindsay Anderson a witness, gave a statement on the 28 October 1991. He is an independent witness. He says that at 11.00 pm he was driving in a westerly direction along Bay Road, Bolton Point when he saw a white VW coming in the opposite direction over the hill and as that vehicle went past he began to veer towards the centre of the roadway and then skidded back to the left had side mounted the curb and spun around and colliding with an electric light pole as it went. He saw something being thrown out of it. He immediately turned his car around and went back and saw a man on the roadway. There was no other person in the VW. He said when the VW first passed him he could not see how many people were in it. When he returned immediately after the impact there were no other persons in the car or in the near vicinity except the man on the roadway. He remained on the scene until the police and ambulance arrived.
(28) Anthony James Thompson (the taller brother nicknamed ‘Animal’) says that on Saturday the 30 March 1991, he was drinking at the Toronto hotel from about midday to 9.00 pm. As he could not get a lift over to Bolton Point he left and went to his mate Bill Kearn’s place. He arrived there between 9.30 pm and 9.45 pm. While he was talking to Bill and ‘Bluey’ he started coughing and having pains in his chest and went to hospital at about 10.30 pm to about 3.00 am when they let him go. He says that he did not see the accident in which Mark Wright was involved and he has no idea as to what happened. He says that the last time he saw Mark Wright at the hotel on the 30 March 1991, he was legless and leaning over a cigarette machine.
(29) The John Hunter hospital records indicate that the Anthony Thompson was very tender around his chest wall from his ribs 4 to 8 and was given pethidine and panadene forte. He was complaining of left side chest pain.
(30) Brian Paul Thompson (the smaller brother nicknamed ‘Animal’) says that on 30 March 1991, he was at the Toronto RSL club from about midday drinking schooners until about 9.00 pm. At about 9.30 pm he was walking past the accident site and an ambulance officer asked him to hold a drip which he put into a bloke’s arm. He did not know who the injured bloke was but he has since found out that it was Mark Wright. He did not see the accident happen.
(31) Troy Convery went past the accident site and saw the passenger door open and he saw a person who he knows as ‘Animal’ at the accident scene. ‘Animal’ was standing near the front of the plaintiff’s VW.
(32) Sally Anne Warren was drinking in the Toronto hotel and saw ‘Animal’ also drinking there. She saw ‘Animal’ at the accident scene.
(33) The P4 traffic collision report records that the plaintiff was driving the vehicle and no passengers were in the vehicle. The time of the accident is recorded as 23.15.
(34) The damage to the motor vehicle is mainly on the drivers side front guard.
(35) The plaintiff has had convictions in 1989 for driving with high range PCA. On the 21 October 1981 he was convicted of culpable driving with alcohol involved.”
14 The master expressed the following conclusion (at p 13), a conclusion challenged on this appeal:
“There are facts to show that one of the Thompson brothers may have been driving the vehicle at the time of the accident. It is my view that the plaintiff has demonstrated that there is evidence to establish a cause of action.”
15 Against that background I return to consider the evidence sought to be introduced through the Midwoods, and in particular through Mr Midwood. His evidence was that he had seen the respondent at the hotel on the night of the accident. He had observed the respondent to be “pretty drunk” and had later seen him in his car in the hotel carpark before Mr Midwood set off to walk home. According to Mr Midwood as he was walking home he saw the respondent’s car pass him and he saw the respondent at that time in the front passenger’s seat. He did not see who the driver was.
16 The evidence of Mr Midwood was clearly relevant, but should it be received? Section 75A(8) of the Supreme Court Actapplies and accordingly further evidence should not be received “except on special grounds”.
17 The circumstances in which further evidence should be received under s 75(8) were considered by Hunt J in Martin v Abbott Australasia Pty Limited (1981) 2 NSWLR 430. As his Honour pointed out in that case, at 436, “no precise formula has been or could be laid down as to what would amount to ‘special grounds’”, but the term should not be narrowly construed, and calls for a broader approach on an appeal from a master to a single judge than in the context of an appeal from a single judge to the Court of Appeal. In this regard, I respectfully agree with what Hunt J said in Martin (at 436-437):
“Another matter to be considered is the fact (to which Cross J, referred in Do Carmo [1981] 1 NSWLR 409, at 420) that, according to the scheme of the Act and of the rules, the appeals which are directed by Pt 60, r 10 to a single judge (as opposed to those which are directed by r 17 to the Court of Appeal) relate in the main if not entirely to matters of practice and procedure. These are matters which may be heard at first instance by either a master or a judge. If heard at first instance by a master, an appeal as of right lies to a single judge: Pt 60, r 10; if heard at first instance by a judge, an appeal to the Court of Appeal lies only by leave of the Court of Appeal: Supreme Court Act, s 101(2). In my view, these circumstances support a more liberal interpretation being given to the need for special grounds in relation to appeals in such matters from a master to a single judge.”
18 The following considerations assume relevance:
(i) was this evidence that could have been obtained before by the exercise of reasonable diligence?;
(ii) the probative value of the evidence;
(iii) the credibility of the witnesses.
19 Both witnesses were tested extensively in cross examination before me. Mr Midwood gave evidence he told his wife about what he had seen shortly afterwards. Mrs Midwood gave similar evidence. Each asserted for various reasons that they did not discuss with the respondent what Mr Midwood had seen. Whilst this may at first seem surprising, having listened closely to the evidence each witness gave in cross examination and having observed each witness as the relevant evidence was given, I accept that the evidence Mr Midwood had was not passed on to the respondent or to any person involved in the pursuit of the respondent’s cause until October 1998, that is to say at a time months after the hearing before the master.
20 Mr Midwood’s evidence is probative if believed, and whilst ultimately, if this appeal is unsuccessful, the credibility of his testimony will be for another judge to determine, for present purposes the standard appropriate to the admissibility of the evidence has been met. I consider that special grounds have been shown and that I should receive the evidence of Mr Midwood and of Mrs Midwood as further evidence to be taken into account on this appeal.
21 I have referred to the grounds of appeal as they are expressed by Mr Toomey. I have already referred to the finding of the master the subject of the first ground argued. The further finding of the master that prompted the expression of the second ground argued appears at p 18 of the master’s judgment:
“The plaintiff discharged his onus and I am satisfied that the defendant does not suffer from significant prejudice or that the delay has meant that its chance of a fair trial is unlikely.”
22 The decision reached by the master to grant the extension of time sought involved an exercise of discretion. This appeal from that decision does not permit of an unfettered review of the exercise of that discretion: Do Carmo v Ford Excavations Pty Limited (1981) 1 NSWLR 409 at 420. As that case made clear, I should only examine the exercise of that discretion consistently with the principles expressed by Dixon, Evatt and McTiernan JJ in the much cited passage from House v The King (1936) 55 CLR 499 at 504-505:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
23 As I remarked earlier, Master Harrison recorded the guidelines expressed by Gleeson CJ for a court considering an application under s 52(4) of the Motor Accidents Act in Salido v The Nominal Defendant (supra). There was a later decision of the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 which was the focus of submissions in the present case. That decision concerned an application for an extension of the limitation period prescribed under the Limitation of Actions Act, 1974 (Qld), but there were statements of principle expressed in that case considered apt to the discretion under s 52(4) of the Motor Accidents Act by the Court of Appeal in Henricks v Agnew (unreported, NSWCA, 23 October 1997).
24 In Brisbane South the court was constituted by Dawson, Toohey, Gummow, McHugh and Kirby JJ.
25 Dawson J, at 544, said that in discharging his onus the applicant “must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendants.”
26 Toohey and Gummow JJ delivered a joint judgment in which their Honours said at 548:
“Once an applicant satisfies pars (a) and (b) [referring to the statutory requirements as to (a) the late acquisition of knowledge of a material fact and (b) evidence to establish the right of action] the court has a discretion to extend the time for the bringing of an action. The material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is possible. Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application.”
27 In his judgment McHugh J said at 552:
“The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost (Jones v Bellgrove Properties Ltd [1949] 2 KB 700 at 704). Second, it is oppressive, even ‘cruel’, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed (RB Policies at Lloyd’s v Butler [1950] 1 KB 76 at 81-82). Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them (New South Wales Law Reform Commission, Limitation of Actions for Personal Injury Claims (1986) LRC 50, p 3; Law Reform Commission of Western Australia, Limitation and Notice of Actions, Discussion Paper (1992) Project No 36, Pt II, p 11). Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period (In Limitation of Actions for Latent Personal Injuries (1992) Report No 69, p 10, the Law Reform Commissioner of Tasmania said: ‘The need for certainty can be justified in many cases. For example, manufacturers need to be able to “close their books” and calculate the potential liability of their business enterprise with some degree of uncertainty before embarking on future development. Under modern circumstances, an award of damages compensation may be so large as to jeopardise the financial viability of a business. The threat of open-ended liability from unforeseen claims may be an unreasonable burden on business. Limitation periods may allow for more accurate and certain assessment of potential liability.’)”
28 Later, at 555, his Honour said:
“But once the potential liability of the defendant had ended [referring to the expiration of the limitation period], 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.”
29 In Council of the City of Sydney v Zegarac (unreported, NSWCA, 3 September 1997) Brisbane South was considered in its application to s 60C and s 60E of the Limitation Act. Mason P said of the notions of “significant prejudice”, referred to by Dawson J and McHugh J, and of “delay that makes the chances of a fair trial unlikely”, referred to by Toohey J and Gummow J, that they may differ. The President said at p 8:
“I perceive that there may be a distinction between the notion of ‘significant prejudice’ and the notion of delay that makes ‘the chances of a fair trial unlikely’. What further suggests that there is a distinction of importance between the two sets of judgments is the fact that Toohey and Gummow JJ were in no doubt that the lapse of time had definitely caused ‘some prejudice’ to the appellant in Brisbane South, if only because of the extent to which the missing witness (Dr Chang) would have to rely on his notes in view of the lapse of time involved. The concluding paragraphs of the joint judgment also contain an express acknowledgment that different conclusions were open on the question of prejudice to the judge at first instance in Brisbane South, and that it was not open for an appellate court to substitute its own discretion even were it of different view to that of the trial judge. Now obviously these remarks are to be read in the context of the case before the High Court. Nevertheless they represent a clear indication that mere proof of actual prejudice will not dictate the rejection of an application to extend time. I do no more than note this possible gulf between the obiter views of the justices in Brisbane South: it would be presumptuous for me to go further in an attempt to exegete the dicta in a very recent High Court decision.”
30 The various judgments in Brisbane South emphasise that an extension of time should not be granted where a fair trial would not be possible. In determining whether a fair trial is possible, prejudice that would be caused to the defendant in the event of the discretion being exercised to extend time is a most material consideration.
31 The master recognised this to be the case and having cited each of the decisions to which I have referred went on to say:
“In determining whether it is just and reasonable to grant leave, I will examine whether the delay has made the chances of a fair trial unlikely or whether the defendant will suffer significant prejudice.”
32 I detect no error in the master’s expression of approach.
33 This brings me back to the grounds relied upon by Mr Toomey.
34 As to the first of these grounds, that the master was in error in determining that there was evidence to establish a cause of action, I am not persuaded that that challenge has been made good.
35 It seems to me that the respondent was not required to prove before the master the likelihood of success in his cause in the event that the extension was granted. Section 52 expresses no such requirement. The section is to be contrasted for instance with s 58 of the Limitation Act as it stood when considered by Hunt J in Martin (supra) and with the limitation provision considered in the High Court in Brisbane South. The absence of an express requirement in s 52, present in the statutes in Martin and Brisbane South that the plaintiff prove the existence of evidence to establish his cause of action, does not mean that the availability of evidence to prove negligence is irrelevant in proceedings under s 52(4). Plainly, such availability is relevant. It would not be appropriate to grant leave to pursue a hopeless case. The fifth of the guidelines expression by Gleeson CJ in Salido is in point here: “Leave under s 52(4) may be refused if it would be plainly futile to grant it…”
36 Be that as it may, the finding that there was evidence to establish a cause of action cannot in my opinion be disturbed. The respondent’s case at present certainly could not be described as strong, but I am unable to conclude that the master fell into appealable error in expressing the finding first challenged. I would add that the evidence of Mr Midwood now affords direct evidence that the respondent was not the driver of the car on the journey in question so that his evidence strengthens the respondent’s case to some degree.
37 This brings me to the second ground of challenge. Did the master err in determining that the appellant did not suffer from significant prejudice and that the delay did not have the consequence that a fair trial was unlikely?
38 The master addressed those questions at p 18 of the judgment:
“I accept that the defendant would suffer from the tyranny of time as witnesses’ memories fade. I have taken into account that some of the witnesses were affected by drugs and alcohol prior to the accident and their recollection would be impaired. However, the defendant was on notice of the foreshadowed proceedings in 1991, the year of the accident, when the insurer received the claim form and had the opportunity to interview witnesses. It did interview the Thompson brothers.
In relation to the whereabouts of Anthony and Brian Thompson, the defendant interviewed them in October 1991, after it received the plaintiff’s claim form. The plaintiff’s private investigator did not interview them in 1997 but there is evidence to suggest that their mother still lives in the same house in Bolton Point. The defendant has not put on any evidence to show that they do not know the whereabouts of the Thompson brothers.
In relation to the insurer putting his affairs in order, as it was entitled to do so, a claim manager from the defendant has given evidence that although there is no reserve on the file, the defendant is covered by reinsurance should the claim be successful and is able to pay any verdict moneys.
The plaintiff discharged his onus and I am satisfied that the defendant does not suffer from significant prejudice or that the delay has meant that its chance of a fair trial is unlikely.”
39 Mr Toomey submitted that the prejudice occasioned to the appellant by allowing the respondent to pursue his claim is so great that it is manifest that the exercise of the master’s discretion must have miscarried. The appellant has available the statement of Mr Anderson referred to in the master’s findings of fact set out earlier, and it is not suggested that that witness is not available. Indeed, Mr Toomey said that he is. However, Mr Toomey submitted, critical to the appellant is the evidence that Brian Thompson and Anthony James Thompson could give to refute the inference that one or other drove the respondent’s vehicle. Each of the Thompsons was interviewed in the same year as the accident and each gave a statement summarised in the master’s findings earlier set out. Mr Toomey submitted that the inability of the appellant to trace these witnesses compels the conclusion, having regard to the importance of their evidence, that the discretion was wrongly exercised.
40 Reference was made to evidence before the master that the mother of the two witnesses still lived at Bolton Point although it was conceded before me that she is now deceased. In any event, whether the mother of the witnesses is available or not the master did not find that the two witnesses had themselves been lost to the appellant. Had such a finding been made it seems to me that that should inevitably have led to the refusal of the extension application because of the consequential prejudice to the appellant.
41 The master did refer to the fact that the respondent’s investigator engaged in 1997 did not interview either of the Thompsons. That reference presumably draws upon the report Annexure Q to Mr Dodaro’s affidavit where the investigator stated:
“Numerous attempts in contacting and locating the current whereabouts of Mr Tony Thompson of 7 or 9 Quigley Road, Fennell Bay have proved fruitless. Inquiries with other potential witnesses have also failed to provide any witnesses as to the current whereabouts of Tony Thompson.”
42 What is the significance to be attributed to the master’s observation that the appellant had introduced no evidence that it was unable to find the Thompsons?
43 The issue of the onus of proof in an extension application was considered in Brisbane South. In their joint judgment Toohey and Gummow JJ said at 547:
“The discretion conferred by the sub-section is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour (see Main v Main (1949) 78 CLR 636 at 643, though the discretion there was not a discretion to grant, but to refuse, a decree for dissolution of marriage). There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant. Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission (Vic) [1964] VR 788 at 793 in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd [1966] Qd R 465 at 474:
‘It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.’”
44 In his judgment in Brisbane South Kirby P said at 566-567:
“It is always open to a proposed defendant, resisting an application for extension of time, to call evidence of any specific detriment it would suffer if an order were made. The appellant did so in the present case. If any such evidence is called, a court must consider it carefully in exercising its residual discretion (cf Braedon v Hynes (1986) NTJ 885 cited in Forbes v Davies [1994] Aust Torts Reports 61,392 at 61,397-61,399). If a defendant does not call evidence, or calls evidence which is unpersuasive or insignificant, provided it is reasonable to infer that some evidence was available to it in the circumstances the defendant cannot complain if the court concludes that no particular prejudice, over and beyond the generalities, could have been established by it. This is simply another way of saying that, because a prospective defendant has an interest in keeping the limitation bar in place and in resisting an extension that lifts it, it may be inferred that he or she would ordinarily place before a court evidence of specific prejudice pertinent to the exercise of the court’s discretion. If the prospective defendant does not do so, he or she cannot justly complain if the court infers, and then holds, that the defendant has failed to demonstrate such prejudice. This is not to shift the burden in the application from the applicant to the defendant. It is simply to recognise that the burden of persuading a court on the particular issue of specific prejudice lies on the party making any such suggestion. This is what is meant by the ‘evidentiary onus’ resting on a proposed defendant in relation to such an issue.”
45 Mason P referred to the above dicta in Brisbane South in his judgment in Zegarac where his Honour said at p 4:
“Persuasive dicta in Brisbane South indicate that it is for the party opposing the application to adduce evidence of facts suggesting particular prejudice if the discretion were exercise in the applicant’s favour (see at 547 per Toohey J and Gummow J, citing Cowie v State Electricity Commission (Vic) [1964] VR 788 at 793 and Campbell v United Pacific Transport Pty Ltd [1966] Qd R 465 at 474. See also Kirby J at 566-7). Failure to adduce such evidence may draw the unfavourable inference that specific prejudice is absent, due to the fact that it is very much in that party’s camp to know of the existence, impact and ‘extent’ of such prejudice.”
46 Whilst in the present case there was evidence before the master that the respondent had been unable to find the Thompsons, it did not follow that the appellant would be unable to do so. If indeed one or other of these witnesses believed it was being asserted that he had been the driver of the Volkswagon, this could well have generated an unwillingness to come forward at the risk of then being sued. It would not follow that these witnesses would be motivated to hide from the appellant.
47 Whilst the legal onus did rest upon the respondent to persuade the master that the discretion should be exercised in his favour, there was the evidentiary burden on the appellant as considered in Brisbane South to prove the extent of its prejudice in the event of the application being granted. Such evidence as it did introduce did not touch upon any difficulty in finding either of the Thompsons.
48 On the second day of the hearing of this appeal Mr Toomey sought unsuccessfully to introduce evidence on this issue. However no such evidence was placed before the master and whether or not it could have been introduced does not bear upon whether the master’s discretion miscarried in the absence of such evidence.
49 This Court is confined by well settled principles and may not simply substitute its discretion for that of the master. The conclusion I have reached is that I am not convinced that the master’s discretion miscarried in this case.
50 Accordingly, the appeal is dismissed and I order the appellant to pay the respondent’s costs.

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