Joan Bartlett v Graeme Bartlett [1999] ACTSC 45 (13 May 1999)

Last Updated: 17 June 1999

JOAN BARTLETT v GRAEME BARTLETT [1999] ACTSC 45 (13 May 1999)

CATCHWORDS

LIMITATION OF ACTIONS - extension of limitation period - personal injuries suffered in NSW but action commenced in ACT - NSW limitation law to apply under Limitation Act 1985 (ACT) - action out of time in NSW - leave of court required to commence legal proceedings - whether criteria for grant of leave satisfied by plaintiff - whether "full and satisfactory explanation" for delay in commencing proceedings - whether damages likely to be awarded meet threshold test under Motor Accidents Act 1988 (NSW) - whether "fair and just" for court to extend time - factors to be considered in exercise of discretion - leave granted -Motor Accidents Act 1988 (NSW), ss 43, 50A, 52, 79 - Limitation Act 1985 (ACT), s 56.

DAMAGES - conflict of laws - extension of limitation period - whether procedural laws restricting damages in NSW are substantive laws under Limitation Act 1985 (ACT), s 56 - whether restrictions on damages in NSW relevant to discretion to extend limitation period - ACT court to assess application as if NSW court - whether, considering NSW restrictions on damages, application "futile" in NSW, and therefore, in ACT - consideration of restrictions on damages - substantial damages award potentially recoverable - plaintiff's action not "futile" - Motor Accidents Act 1988 (NSW), ss 70A, 71, 2, 73, 79.

WORDS AND PHRASES - "full and satisfactory explanation" - "fair and just"

Limitation Act 1985 (ACT), ss 56, 57

Motor Accidents Act 1988 (NSW), ss 43, 50A, 52, 68A, 70A, 71, 72, 73, 79, 79A

Salido v Nominal Defendant (1993) 32 NSWLR 524, at 528, 532-533, 539, 541, applied

Lee v Sharpe [1998] NSWSC 90 (9 April 1998), at 7, 9, applied

McIntosh v Southern Meats Pty Ltd [1997] ACTSC 11; [1997] Aust Torts Reports ¶81-424, referred to

S & B Pty Ltd v Podobnik [1994] FCA 1433; (1994) 53 FCR 380, followed

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541; 70 ALJR 866; 139 ALR 1, at (ALJR) 870 - 872, followed

Henricks v Agnew (1997) 26 MVR 277; 9 ANZ Insurance Cases 77, 184 (¶61-382), considered

Daroczy v B & J Engineering Pty Ltd (1986) 67 ACTR 3, at 16, applied

Smith v Department of Defence [1998] NSWSC 101 (6 April 1998), considered

Commonwealth of Australia v McLean (New South Wales Court of Appeal, 28 July 1997, unreported), considered

BHP Steel (AIS) Pty Ltd v Cinquegrana (New South Wales Court of Appeal, 3 September 1997, unreported), considered

The Council of the City of Sydney v Zegarac (1998) 43 NSWLR 195; (1998) Aust Torts Reports ¶81-474, considered

Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41, referred to

Gardner v Wallace [1995] HCA 61; (1995) 184 CLR 95; 70 ALJR 113; 132 ALR 323, referred to

Mason v Murray's Charter Coaches and Travel Services Pty Ltd [1998] FCA 1430; (1998) 159 ALR 45, followed

McKain v R W Miller & Co (SA) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1; 66 ALJR 186; 104 ALR 257, followed

Istvan v Istvan (Supreme Court of Victoria, Lush J, 29 October 1982, unreported), referred to

Janetski v Janetski [1999] VSC 3 (21 January 1999), referred to

No. SC 900 of 1998

Coram: Higgins J

Supreme Court of the ACT

Date: 13 May 1999

IN THE SUPREME COURT OF THE )

) No. SC 900 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JOAN BARTLETT

Plaintiff

AND: GRAEME BARTLETT

Defendant

ORDER

Judge: Higgins J

Date: 13 May 1999

Place: Canberra

THE COURT ORDERS THAT:

1. Leave be granted to the plaintiff to commence proceedings in this court.

1. This is an application pursuant to s 56 of the Limitation Act 1985 (ACT) (ACT Limitation Act) for an order extending time for filing an originating application seeking damages for personal injury.

2. The plaintiff deposed that, on 9 January 1992, she had been a passenger in a Western Australian registered vehicle driven by her husband, the defendant. They were travelling to Canberra in order that the defendant might take up a Defence Force posting. Whilst driving across the Hay Plain, in the State of New South Wales, the defendant moved left to allow more clearance between his vehicle and an oncoming semi-trailer. It is not alleged that the semi-trailer was encroaching upon the defendant's side of the roadway. The defendant, unfortunately, lost control of his motor vehicle and collided with a concrete bridge guard. The vehicle was able to be driven. The accident was not reported to police. The plaintiff received a jolting but no immediately obvious injury.

3. That evening the plaintiff experienced pain and nausea. The cause of this appears to have been a whiplash type of injury resulting from the impact of the collision. She consulted a general practitioner as early as 17 January 1992. She has suffered ongoing symptoms, including severe psychiatric symptoms, since then.

4. It is clear that, if it proceeds, the claim would be a substantial one and, but for being out of time, would enjoy a reasonable prospect of success, assuming the facts to be found as the plaintiff asserts them to be.

5. The plaintiff did not, however, take any step in these proceedings until 22 December 1998. She did not seek legal advice concerning the matter until August 1995.

6. In August 1995, by chance, she met a solicitor, Mr Graeme Blank of Vandenberg Reid, at a social function. She made mention of her accident. He suggested she consult him and she did so on 28 August 1995.

7. She told him that, following the accident, a claim form had been filled out by her husband and delivered to his insurer, CIC Insurance Ltd (CIC). Mr Blank wrote, on 19 September 1995, requesting a copy of that form. A copy was received on 9 October 1995.

8. As he frankly concedes, Mr Blank at that time made two erroneous assumptions. The first was that CIC was the defendant's third-party personal injury insurer. It was not. The correct insurer was the State Government Insurance Commission of Western Australia (ICWA). The second erroneous assumption was that the relevant period of limitation was that imposed by s11 of the ACT Limitation Act. That period is six years. In fact, by virtue of s 56 of the ACT Limitation Act, as the plaintiff was injured in New South Wales by tortious conduct and her cause of action arose in that State, the limitation law of that place is to be applied by this court as if it was part of the substantive law of that State.

9. Even so, despite the fact that, on the assumption that the limitation period was six years, thus expiring on 9 January 1998, nothing further was done, even in relation to CIC, until 25 February 1998. It seems that, in the meantime, Mr Blank had, however, proceeded to obtain some medical information concerning the plaintiff's accident related injuries and disabilities.

10. The limitation period applicable to the action was that imposed under s 52 of the Motor Accidents Act 1988 (NSW) (MAA):

"(1) The objects of this section are:

(a) to encourage and facilitate the investigation, assessment and negotiation of a claim for damages without the commencement of court proceedings, and

(b) to impose a limitation period of 3 years for the commencement of legal proceedings for damages under this Act and to enable the extension of that period only if:

(i) the claimant can explain the reasons for the delay in not commencing the proceedings within the 3-year period, and

(ii) the claim is likely to result in an award of substantial damages,

or in the circumstances described in subsection (4A).

(1A) A claimant is not entitled to commence court proceedings against another person in respect of a claim until:

(a) 6 months have elapsed since notice of the claim was given to the other person and (if required by section 43 (4)) to the other person's insurer, or

(b) 90 days have elapsed since the details required by section 50A were given to the other person's insurer, or

(c) if the other person's insurer has made an offer of settlement to the claimant before the claimant commences court proceedings, 28 days have elapsed from the date on which the claimant's response to the offer is communicated to the other person's insurer,

whichever is the later or latest.

(1B) Subsection (1A) (c) applies only to the first offer made by the other person's insurer and not to any subsequent offer.

(2) If notice is given to the other person's third-party insurer then despite subsection (1A) the claimant is entitled to commence court proceedings if any of the following occurs:

(a) the insurer denies all liability in respect of the claim,

(b) the insurer admits partial liability in respect of the claim but the claimant is dissatisfied with the extent to which liability is admitted,

(c) in the case of a late claim within the meaning of section 43A, the insurer rejects the claimant's explanation for delay in making the claim or rejects the claim on the ground that the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are less than 10% of the maximum amount that may be awarded for non-economic loss under section 79 or 79A as at the date of the relevant motor accident.

(3) (Repealed)

(4) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after:

(a) the date of the motor accident to which the claim relates, or

(b) if the claim is made in respect of the death of a person, the date of death,

except with the leave of the court in which the proceedings are to be taken.

(4A) However, if at the end of the 3-year period referred to in subsection (4), the claimant has complied with section 50A but is unable to commence court proceedings because of the effect of subsection (1A) (b) or (c), the claimant may commence court proceedings within 28 days after the period under subsection (1A) (b) or (c), or the later of those periods, has elapsed.

(4B) The leave of the court must not be granted unless:

(a) the claimant provides a full and satisfactory explanation to the court for the delay, and

(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25 per cent of the maximum amount that may be awarded for non-economic loss under section 79 or 79A as at the date of the relevant motor accident.

(4C) Subsection (4B) (b) does not apply to a claimant who is legally incapacitated because of the claimant's age or mental capacity.

(5) The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim."

Note: Section 52(4) was amended by the 1995 Act as from 1 January 1996. Sections (4A), (4B) and (4C) apply only to motor vehicle accidents occurring after 26 September 1995. There is therefore no mandatory requirement that the plaintiff provide a "full and satisfactory explanation to the court for the delay".

11. The plaintiff had also failed to give notice of the making of her claim as required by s 43 of the MAA. That section provides:

"(1) The object of this section is to promote the early making of claims to enable the insurer:

(a) to commence investigations while evidence relating to a claim is available, and

(b) to identify injuries and facilitate the access of claimants to appropriate injury management and rehabilitation services and thus to expedite the claimant's recovery, and

(c) to allow the insurer to more accurately predict claim frequency and hence formulate premiums.

(2) A claim must be made within 6 months after the relevant date for the claim. The relevant date is the date of the motor accident to which the claim relates unless the claim is made in respect of the death of a person, in which case the relevant date is the date of the person's death.

(3) (Repealed)

(4) A claim is made by giving notice of the claim to the person against whom the claim is made and, if that person's insurer is a third-party insurer, to the insurer.

(5) The requirement under subsection (4) (only in so far as it is a requirement to give notice of a claim to the person against whom the claim is made and without affecting the requirement to give notice to the insurer) does not apply if:

(a) that person is dead, or

(b) that person cannot be given notice."

12. It follows that, assuming ICWA to be a third-party insurer for the purposes of the MAA, the plaintiff was not entitled to commence proceedings until s 50A had been complied with. That section provides:

"Subject to section 52 (1A), a claimant is not entitled to commence court proceedings against another person in respect of a claim until the claimant has given the other person's insurer (if any) full details of:

(a) the injuries sustained by the claimant in the motor accident, and

(b) all disabilities and impairments arising from those injuries, and,

(c) if those injuries, or any of them, have not stabilised, the prognosis for future recovery, and

(d) any economic losses and other losses that are being claimed as damages,

sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant's full entitlement to damages."

Note: This provision was inserted by the Amending Act no. 66 of 1995 with effect from 1 January 1996.

13. Those particulars were not provided until Mr Blank wrote to ICWA on 5 June 1998. There has been no offer of settlement as contemplated by s 52(1A)(c). However, though it is not an issue in the present case, it may well be that this provision is not "a limitation law" but a procedural pre-condition.

14. The relevant time bar arises under s 52(4). It remains three years since the date of the accident to which the claim relates as, at the date of expiry of the period, the plaintiff had yet to comply with s 50A. Early compliance with s 50A, assuming the necessity to do so, would have extended time only for ninety days at the most.

15. Leave of the court is required. Subsection 52(4B), if applicable, prohibits the grant of leave unless there is "a full and satisfactory explanation" for the delay and unless the damages "likely to be awarded to the claimant", if the plaintiff succeeds, are not less than twenty-five percent of the maximum amounts permissible under ss79 or 79A of the MAA. Section 79 is applicable. The maximum sum there specified is $180,000. Even on the limited material before me, it is clear that the plaintiff's claim, if it succeeds, is likely to result in an award of not less than $45,000. The requirement for "a full and satisfactory explanation" for delay does not, in my view, require the court to refuse leave if the explanation reveals some or all of the delay not to be excusable. In Salido v Nominal Defendant (1993) 32 NSWLR 524; 18 MVR 1; [1993] Aust Torts Reports 62, 677, Kirby P referred to the "acceptability, or otherwise, of the explanation given by the applicant for the failure to sue within time" (at 539) as merely a factor in determining whether or not to grant leave.

16. However, Powell JA at 541 posed the test required by s 52(4) as being:

"1. Whether a sufficient explanation has been given for the failure to commence proceedings in time; and

2. If so, whether, having regard to all the circumstances of the case, it is fair and just to grant, or to refuse, the application."

17. Gleeson CJ noted that no consequences were specified in the event of the explanation for delay (inter alia) being unacceptable. His Honour noted that (528):

"...failure to provide the necessary explanation is a ground for the dismissal of the proceedings."

18. Nevertheless, despite the apparently mandatory requirement that the explanation for delay (and failure to give due notice under s 43 and s 43A) be both "full" and "satisfactory", the Supreme Court of New South Wales has accepted that the requirement that the explanation be "satisfactory" does not require each part of the delay to be excusable - see Lee v Sharpe [1998] NSWSC 90 (9 April 1998).

19. It is common ground that, if this application had been made in New South Wales, the principles applicable to its determination would be those adopted by the Court of Appeal (Gleeson CJ, Kirby P, Powell JA) in Salido. The ultimate question is whether the applicant has satisfied the court that it is "fair and just" to extend the time for commencing proceedings by granting leave to so do. The necessarily general guidelines for responding to that question in the circumstances of a given case, as referred to in Salido, do not differ in any substantial way from those applicable to similar applications pursuant to s 36 of the ACT Limitation Act.

20. There is one significant difference in that the time limit to be extended is, in the Territory, six years. In New South Wales it is three years. I did endeavour, in McIntosh v Southern Meats Pty Ltd [1997] Aust Torts Reports ¶181-424, to explain the difference such a consideration may well make.

21. The onus is, of course, upon the plaintiff to satisfy the court that it would be "fair and just" that leave be granted. Nevertheless, as the Court of Appeal noted in Salido:

"The primary question is whether the delay has caused any significant prejudice to the defendant such that a fair trial is unlikely."

22. The presence of actual prejudice to the defendant does not entail the consequence that leave will be refused. Nor does its absence entail the consequence that leave will be granted. All the circumstances need to be considered, including:

(i) the conduct of the claimant or those acting for him or her in respect of the claim;

(ii) the nature of the delay and the explanation for it;

(iii) the availability of any other recourse open to the applicant, such as an action against a solicitor, or whether the applicant has received or has available any other source of compensation; and

(iv) the futility of leave in view of other sections of the [Motor Accidents] Act. (see Gleeson CJ at 532-533)

The conduct of the claimant and those acting for her and the nature and extent of and explanation for the delay

23. The plaintiff was personally intent upon pursuing her rights as from 28 August 1995. That was after the time bar under s 52 of the MAA had expired. However, the extent of delay would then have been only about seven months.

24. Unfortunately, due to Mr Blank's mistaken belief as to the appropriate time bar and the identity of the relevant insurer, no substantive notice of intention to claim was given to the defendant's insurer until 5 June 1998. That was several months outside the limitation period that would have been applicable had the accident occurred in this Territory. It was well outside the period limited by the MAA (see s 43).

25. The delay between August 1995 and June 1998 cannot be regarded as excusable, even accepting that the prior delay from 9 January 1992 can be excused on the basis of the plaintiff's lack of knowledge of her rights. Further, there was some delay in making this application, though that is explained by efforts being made to settle the matter. That was, in the circumstances, not an unreasonable explanation for that delay.

26. Delay, even if all of it is not satisfactorily explained, does not mandate refusal of the application. It is, however, an adverse indication.

Prejudice to the defendant

27. The whole of the delay, even that occurring before the relevant time limit has expired, is relevant to the assessment of prejudice to the defendant - see S & B Pty Ltd v Podobnik [1994] FCA 1433; (1994) 53 FCR 380; Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541. In this case, that must include, and primarily refer to, the prejudice to the defendant's insurer. The defendant himself is obviously not prejudiced at all. That is not entirely irrelevant. It does mean that such evidence that there was at the time of the accident as to the circumstances of its occurrence has been preserved. Although, as with all delay, it is possible that vital details may have been lost, that is less likely with these parties. The consequences to the plaintiff would have been a constant reminder of the event.

28. I am not unmindful that a prudent insurer would have been concerned as to whether the approaching truck driver could have been to blame, at least in part, for the accident. However, on the material before me it seems that the defendant was solely responsible for the event. It should be added that, in the circumstances, even if the truck driver had noticed anything relevant, which seems unlikely as he or she did not stop, the chances of finding that person even within a few hours after the event were, in my view, slender to the point of being illusory.

29. It is also true that the insurer has lost the opportunity for earlier and ongoing monitoring of the plaintiff's accident related disabilities. However, her own medical practitioners have done so. Their records, I infer, will be available for review and comment by the insurer's experts. The plaintiff is available for examination by those experts. There is not here, as there was in Henricks v Agnew (1997) 26 MVR 277; 9 ANZ Insurance Cases 77, 184 (¶61-382), the complication of the effects of non-accident related injury.

30. The opportunity thus lost does not seem to me to be prejudicial to the entitlement of the defendant's insurer to a fair trial of the matter.

Other recourse

31. The plaintiff has not been alleged to have had any alternative right to compensation such as insurance or workers' compensation. Given the purpose of the journey deposed to by the plaintiff, such an alternative source of compensation would be inherently unlikely.

32. The defendant's counsel points to a possible collateral source of compensation by means of an action for negligence against the plaintiff's former solicitors. I acknowledge that possibility. However, as is not unusual, that possibility cannot be authoritatively or fully explored in an application of this kind.

33. Kelly J adverted to this difficulty in Daroczy v B & J Engineering Pty Ltd (1986) 67 ACTR 3 at 16. His Honour accepted, as I do, that it is a relevant matter. In this case, I am prepared to assume that there would, prima facie, be reasonable prospects that such an action might succeed. It would, however, but rarely be a decisive consideration. It would depend on an assumption that the time bar would probably have been extended had this application been made earlier.

Length of delay since expiry of the time bar

34. In McIntosh v Southern Meats Pty Ltd [2004] NSWCA 32; (1997) Aust Torts Reports ¶81 424, I pointed to the remarks of McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 70 ALJR 866; (1996) 186 CLR 541; 139 ALR 1. Those remarks highlighted the very purpose of time bars. They are imposed to ensure finality of litigation in a timely manner. It is a restatement of the view that justice delayed is justice denied. There is an inherent injustice in requiring a defendant to meet a claim first made well outside the ordinary limits imposed by law. The MAA itself cites such a purpose in imposing the time limits it does.

35. That potential injustice can be weighed in the balance with the factors favouring an extension of time. In this case, given the absence of any likely sense of grievance or anxiety in the defendant personally, and that the insurer is a professional litigant, such a balance if made would favour an extension of time. However, the process of deciding an application such as the present is not a mere matter of undertaking such a balancing process only as between the contending parties.

36. In Brisbane South Regional Health Authority v Taylor (supra), a decision of general application to the exercise of discretions of the kind conferred by s 52 of the MAA, Toohey and Gummow JJ warned that it is not a matter of merely weighing the prejudice to a plaintiff against that by then suffered by a potential defendant if the application to extend time be refused or granted as the case may be.

37. In their Honour's view (870):

"The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the [plaintiff]".

38. McHugh J (with whom Dawson J agreed) expressed the appropriate question a little differently (872):

"The purpose of a provision such as s 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced". But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. 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."

39. That not only implies that a plaintiff seeking extension bears the onus of establishing that it is fair and reasonable to extend time. It further requires a consideration not only of the actual and presumed prejudice to the defendant (or the defendant's insurer) in fairly meeting the claim at trial, but also the oppression involved in subjecting a party to a claim long after the event. As McHugh J said (871):

"...people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period."

40. It follows that the public interest is to be regarded as best served by prompt prosecution and resolution of claims. Dawson J agreed with McHugh J.

41. Kirby J dissented as to the result. The observation made by him as to the evidentiary burden in relation to prejudice, however, was not inconsistent with either of the majority judgments. His Honour said (880):

"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."

42. Nor was it a matter of disagreement that an evidentiary onus rests upon a defendant alleging prejudice to prove affirmatively any matter of specific, as opposed to presumed or inevitable, prejudice. That prejudice, of course, might well appear from the evidence adduced by the plaintiff.

43. The Brisbane South case does settle the question as to the focus of inquiry concerning prejudice. That is, it is not an enquiry as to additional prejudice after the expiry of the limitation period. It also confirms the view of the Federal Court in Podobnik. It settles the question as to whether the onus of satisfaction as to the ultimate question ever shifts from the plaintiff. It does not. It does leave unresolved the question as to the manner in which the discretion is to be exercised. That is, as to whether a balance between the undoubted disadvantage to the defendant (insurer) if the application is granted and the undoubted disadvantage to the plaintiff if it is refused, is permissible. It does suggest that the public interest in prompt resolution of disputes must also be weighed in the balance.

44. This issue was faced by the Court of Appeal (NSW) in Henricks v Agnew (1997) 26 MVR 277. The facts of the matter were very different from the present. There had been a work related accident in 1989, and then a motor vehicle accident in 1990. It was an action in relation to the latter event that was sought to be, by leave, commenced in 1996. Notice of claim was given on 6 May 1996 and proceedings commenced on 21 August 1996.

45. The judge at first instance had taken the view, in effect, that to grant the extension of time was a lesser evil than its refusal. The trial judge was also critical of a lack of diligence on the part of the insurers concerned (workers' compensation and third-party) and the plaintiff's solicitor.

46. The judgment of the court was delivered by Cole JA (Beazley and Stein JJA agreeing). His Honour first noted that the requirement for a "full and satisfactory explanation", though assumed, did not apply. Then his Honour observed that it was for the applicant to establish that it was fair and just to extend time, the ultimate test being whether the applicant had satisfied the court that, notwithstanding the delay, and its effects, a just and fair trial could still be held.

47. In accepting as an "overriding concern" the injustice to the plaintiff if the extension of time was refused and in denying "too much importance" to the defendant's prejudice, his Honour the trial judge was held to have erred. The "blamelessness" of the plaintiff was doubted as a relevant matter. So also was the inattention or uncooperativeness of the insurers and the plaintiff's solicitors.

48. The resulting refusal of the application, the discretion being re-exercised, was, however, rested squarely upon the difficulty in distinguishing the effects of the work accident from those of the motor vehicle accident. Whilst the claim in relation to the latter event remained unpursued, no duty rested with the motor accident insurer to investigate that issue, though it had knowledge of the accident at an earlier time than when formally notified.

49. The issue as to whether it is permissible to "balance" the respective prejudice to each of the parties was addressed by Sperling J in Smith v Department of Defence [1998] NSWSC 101 (6 April 1998). That involved, perhaps ironically, the exercise by his Honour of the discretion under s 36 of the ACT Limitation Act.

50. His Honour referred to the unreported decisions of Commonwealth of Australia v McLean (New South Wales Court of Appeal, 28 July 1997) and BHP Steel (AIS) Pty Ltd v Cinquegrana (New South Wales Court of Appeal, 3 September 1997).

51. In the latter case, Mason P had commented that "the issue of prejudice to (the defendant is) critical to the proper exercise of the discretion...it is prima facie prejudicial to a defendant to grant an extension of time in respect of a statute barred claim."

52. Sperling J noted that it was clear from s 36 of the ACT Limitation Act that prejudice to the defendant and the likelihood of a fair trial of the claim could not be the only relevant issues. Thus, a lack of specific or apparent prejudice to a defendant or to the fair trial of the matter does not entail a positive conclusion that an extension of time should be granted.

53. His Honour's attention was drawn to a further Court of Appeal decision, The Council of the City of Sydney v Zegarac (1998) 43 NSWLR 195; (1998) Aust Torts Reports ¶81-474. His Honour observed that, in that case, Mason P seemed to cast doubt on whether previous Court of Appeal decisions had correctly interpreted the Brisbane South case. In Zegarac's case, Priestly JA favoured the view that the balance of injustice was a legitimate consideration. Powell JA expressly rejected that approach.

54. Sperling J was thus driven to comment (17):

"...if [prejudice to the plaintiff if the application is refused] cannot be enough in itself and cannot be weighed against prejudice to the prospective defendant, it is difficult to see how it can be a relevant consideration at all."

55. It must be the case, however, that the very fact that there remains a discretion, whether or not the relevant legislation provides for mandatory preconditions, suggests that all logically relevant factors must be given due weight. Judicial minds may differ on the relative weight to be accorded each of the matters for or against an extension of the time bar in a particular case. However, it seems to me to defy reason to suggest, if indeed it is so suggested, that the injustice to a plaintiff in being unconditionally barred from pursuing his or her claim cannot be relevant. It may not outweigh adverse factors. The grant of such an application merely because the defendant's right to a fair trial seems unprejudiced would be wrong. That too would deny the discretionary nature of the issue to be decided. I could readily conceive of a case where, notwithstanding lack of specific prejudice and a seriously arguable claim for substantial damages, the application might be refused in the proper exercise of discretion. The legitimate expectations McHugh J referred to in his judgment in the Brisbane South case might well, in a particular case, be a decisive factor.

56. More recently, Howie AJ considered these issues in Lee v Sharpe [1998] NSWSC 90 (9 April 1998). That was an appeal from a decision of a Master granting leave under s 52(4). His Honour accepted that the Master had erred in regarding prejudice to the putative plaintiff as relevant but not the availability of workers' compensation benefits. The Master clearly had difficulty in attempting to make sense out of the previous Court of Appeal decisions. His Honour noted (7):

"If the prejudice flowing to the respondent by refusing leave was a relevant matter to be taken into account, then in my view the extent and nature of that prejudice had to be considered. Any mitigation of the loss that would flow to the respondent from a refusal of leave must be a material matter, whether that mitigation be due to the fact that compensation for the injury suffered had been provided from another source, or because there was available to the applicant some other cause of action which might compensate her, such as an action against her solicitor."

57. The Court of Appeal, in his Honour's view, had merely determined a negative proposition. That is, that it is not a correct exercise of the discretion under s 52(4) simply to weigh the competing prejudices as between the parties. The Master had done only that and was therefore in error. That required Howie AJ to re-exercise the discretion. His Honour did so, coming to the same conclusion as the Master had done. The guidelines he adopted in doing so were stated by him to be as follows (9):

"(a) The overall question is whether the applicant for leave has shown that it is fair and just that leave be granted;

(b) The primary consideration is whether the delay has caused any significant prejudice to the defendant such that a fair trial is unlikely;

(c) The prejudice may be actual in that material before the court indicates that such a prejudice exists or it may be presumed by reason of the delay;

(d) Generally if it is unlikely that the defendant can have a fair trial, leave will not be granted;

(e) If there is no significant prejudice to the defendant, such that there is no impairment to a fair trial, other matters can be considered to determine whether in all the circumstances it would be just to grant leave. Such matters may include:

(i) The conduct of the claimant or those acting for him or her in respect of the claim;

(ii) the nature of the delay and the explanation for it;

(iii) the availability of any other recourse open to the applicant, such as an action against a solicitor; or whether the applicant has received or has available any other source of compensation;

(iv) the futility of leave in view of other sections of the Act."

58. It seems to me that (e)(iii) and (iv) above would logically require a consideration of the nature and value of the cause of action which would remain barred if leave was to be refused. Nor does it seem to me that such a consideration is to be regarded, by reason of previous High Court and Court of Appeal authority, as "irrelevant". The error identified is that of merely weighing the respective prejudice to the parties without also giving due weight to the public interest identified in the Brisbane South case and to any other logically relevant factors such as those identified by Howie AJ (supra).

Whether the time bar can be extended

59. The defendant advanced a further argument. As I understood it, the contention was that, as s 56 deems the limitation law of the place of the tort to be part of the "substantive" law of that place, it converts its effect, for the purposes of the law of this Territory, from being a merely procedural bar to one which extinguishes the cause of action. At least, it was submitted, it means that the limitation on damages required under the MAA should be assumed applicable for the purpose of determining the application to extend time. If the application would be regarded as "futile" if made in New South Wales proceedings it should be so regarded in the Territory even though, when damages come to be assessed here, such limitations will be inapplicable.

60. As to the first proposition, if that was what s 56 was designed to achieve, s 57 would be otiose. It is true that s 56 assumes a status given to the extra-territorial law that reflects the early understanding of Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41, rather than the High Court's current position as affirmed in Gardner v Wallace [1995] HCA 61; (1995) 184 CLR 95. However, as I observed in McIntosh v Southern Meats Pty Ltd (supra), that does not defeat the evident purpose of s 56 which is to apply, as if it was a law of this Territory, the relevant limitation law of another State or Territory, if the cause of action arose there.

61. The second proposition is more controversial. It relies upon the majority opinions in Mason v Murray's Charter Coaches and Travel Services Pty Ltd [1998] FCA 1430; (1998) 159 ALR 45.

62. In that case, Drummond J concluded that the restriction on damages under New South Wales law could be taken into account on an application for extension of time such as the present. However, whether those restrictions were, though procedural, also regarded as applicable to the determination of the claim was not a matter his Honour decided. The weight to be placed on that consideration and the basis for its relevance is another matter. However, it was of sufficient weight for his Honour to conclude that the appellant had failed to discharge his onus of proof, even in the absence of any actual prejudice to the respondent other than the presumed effect of delay.

63. Sackville J pointed out, correctly in my respectful view, the disadvantages of the traditional principles affirmed in McKain v R W Miller & Co (SA) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1. It has encouraged "forum shopping". The provisions of s 56 and 57 are designed to require the forum to apply the limitation law of the locus delicti so as, at least, to eliminate forum shopping for the most favourable limitation period. Thus far there was no difference between any of the members of the court.

64. Sackville J, contrary to the views of both Drummond J and myself, considered that both limitation laws (NSW and ACT) had to be satisfied. His Honour agreed, however, with both the primary Judge and with Drummond J that, in exercising the NSW discretion, it would be applied as if the limitations on damages in New South Wales in such matters were applicable.

65. Sackville J deduced from McKain v Miller the proposition that s 56 converts the New South Wales limitation law into a substantive law for the purpose of determining justiciability. That would require, not merely enable, the court to assume, in determining whether the liability under New South Wales law continued, that, in effect, it was a New South Wales Court which had to decide whether to extend time; that is, as if the court was exercising jurisdiction cross-vested to it of the Supreme Court of New South Wales - see, for example, Istvan v Istvan (Supreme Court of Victoria, Lush J, 29 October 1982, unreported) and Janetski v Janetski [1999] VSC 3 (21 January 1999), per Beach J. It was my view that the difference between New South Wales law and that of the Australian Capital Territory as to calculation of damages was relevant only to measure the disadvantage to the defendant if the matter proceeded in the Territory rather than in New South Wales.

66. Accordingly, I dissented on that issue, preferring the view that the role of s 57 was to require the same jurisprudential test as would be used in New South Wales on an application for leave. Section 57 was not, in my view, intended to require the artificial assumption that the restrictions on damages under New South Wales law would be applied to the assessment of damages if the matter proceeded in this court. The role of the relevant New South Wales law was, in my opinion, as a discretionary matter of the kind which would, on a cross-vesting application, indicate a matter of prejudice to a defendant if the application was not to be cross-vested to New South Wales. There was no application to cross-vest either this application for leave or the action itself.

67. Nevertheless, as the majority in Mason v Murray's was of a different view from mine, I must proceed on the basis that s 57 requires, at least, that the question posed is whether this application, if made in a New South Wales proceeding, would succeed. That was, indeed, the test propounded and applied by Miles CJ in the decision appealed from (see [1997] ACTSC 96 (25 November 1997)).

68. The relevant restrictions on the award of damages imposed by the MAA are intended, (Part 6):

"s68A- (a) to control the amount of damages that may be awarded to a claimant for the purpose of ensuring that the scheme under this Act is affordable, and

(b) to achieve this control by the deliberate strategy of placing the burden of ensuring affordability on those who suffer relatively minor injuries so that sufficient funds are available to more fully compensate those who suffer more severe injuries."

69. How that objective applies to a single vehicle accident in which a person not resident in New South Wales was injured by an out of State registered vehicle insured by an out of State insurer may seem to be a difficult question to answer, but I assume, as the parties have done, that such an insurer may in New South Wales, had action been brought there, claim the benefit of the limited payout intended for insurers registered under the Act in respect of New South Wales registered vehicles.

70. The relevant restrictions which may be assumed applicable may be summarised as follows:

S70A - future economic loss - not allowable unless there is "at least a 25 per cent likelihood" that the claimant will sustain future economic loss/diminution of future economic capacity.

S71 - discount rate for future losses is set at 5% rather than 3%.

S72 - limit on home help damages:

* nil for less than 6 hours per week and a period of less than 6 months;

* maximum rate is capped.

S73 - interest - no interest on awards for:

* domestic services, nursing and attendance;

* non-economic loss;

* no interest on any component unless the defendant has been given an early opportunity to offer settlement;

* limited to 75% of Supreme Court rate on judgments in any event.

S79 - non-economic loss on and before 26 September 1995:

* no damages unless the plaintiff's "ability to lead a normal life" has been or is "in the near future" likely to be "significantly impaired for a continuous period of not less than 6 months by the injury...";

* general damages are to be a proportion of the statutory maximum according to the relative severity thereof;

* no damages at all under this head unless the assessed damages exceed the statutory minimum. If the assessed damages are less than a threshold level, the minimum is to be deducted therefrom, and from any greater sum that threshold figure is only to be reduced by $1000 for each further $1000 awarded, originally cutting out at $55,000. (latest indexation: order no. 139 of 25 September 1998 p. 7698)

71. It is difficult, from the limited material available to me to accurately assess the likelihood of damages exceeding not only the absolute threshold, the "floor", but also the deductible barrier.

72. The plaintiff does claim interference with sporting and recreational pursuits, to the extent that they are denied her due to significant pain.

73. Future economic loss is claimed but it seems to me uncertain whether it would meet the threshold imposed by s 70A.

74. The medical reports tendered indicate that the threshold for non-economic loss would be met if that evidence was given and accepted. However, it is not possible to say whether it would be subject to some deduction under s 79. It does appear that any award, if the plaintiff's claim was proved as asserted, would significantly exceed the "floor" for such claims.

75. Out-of-pocket expenses claimed are quite modest.

76. I am prepared to assume in the defendant's favour that a New South Wales Court would assume that the plaintiff would recover significantly less in an action subject to the MAA than if damages were assessed at common law. However, the amount remains substantial and well above that level at which it would be "futile" to bring a claim, in contrast to Mason's case (supra).

77. It seems to me, therefore, that even if I am to assume that a New South Wales Court had to decide whether to grant leave in this case and, in doing so, have regard to the limitations on damages imposed by Part 6, that Court would, nevertheless, grant the leave sought.

78. It is, therefore, ordered that leave be granted to the plaintiff to commence proceedings in this court. If it was necessary to say so, a fortiori, I would have extended time under s 36 of the ACT Limitation Act for similar reasons.

79. I will hear the parties as to directions and costs.

I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

Associate:

Date: 13 May 1999

Counsel for the Plaintiff: Mr R Mildren

Solicitor for the Plaintiff: Ken Cush & Associates

Counsel for the Defendant: Mr R L Crowe

Solicitor for the Defendant: Hunt & Hunt

Date of Hearing: 12 February 1999

Date of Judgment: 13 May 1999