Moon v Moon [2001] ACTSC 17 (13 March 2001)

Last Updated: 19 March 2002

MARLENE MAREE MOON v NEIL GEORGE MOON [2001] ACTSC 17

(13 MARCH 2001)

CATCHWORDS

LIMITATION OF ACTIONS - application for extension of time - s 52 Motor Accidents Act 1988 (NSW) - exercise of discretion to grant extension - discussion and application of principles derived from Salido v Nominal Defendant (1993) 32 NSWLR 524 - onus on plaintiff to show defendant will not suffer significant prejudice however the Court should not make any assumptions of prejudice unless defendant has established facts relevant to it - extension granted.

PRECEDENTS - whether s 57 Limitation Act 1985 (ACT) dictates the Court to follow recent NSW Court of Appeal decisions instead of a decision of the Full Federal Court on the interpretation and application of the discretion to grant an extension of time under s 52 Motor Accidents Act 1988 (NSW) - it does.

Limitation Act 1985, ss 8(3), 30, 56, 57

Motor Accidents Act 1988 (NSW), ss 43, 52, 146(3)

Limitation Act 1969 (NSW)

Transport Accidents Compensation Act 1987 (NSW)

Magistrates Court (Civil Jurisdiction) Act 1982, ss 10, 384

O'Brien v O'Brien (1995) 35 NSWLR 664

Salido v Nominal Defendant (1993) 32 NSWLR 524

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541.

Holt v Wynter [2000] NSWCA 143

Seib v Morton [2000] NSWCA 139

Henricks v Agnew (1991) 26 MVR 277

Bartlett v Bartlett [2000] FCA 120; (2000) 170 ALR 25

John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 172 ALR 625; (2000) 74 ALJR 1109

No. SC 859 of 1999

Judge: Higgins J

Supreme Court of the ACT

Date: 13 March 2001

IN THE SUPREME COURT OF THE )

) No. SC 859 of 1999

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MARLENE MAREE MOON

Plaintiff

AND: NEIL GEORGE MOON

Defendant

ORDER

Judge: Higgins J

Date: 13 March 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The plaintiff be granted leave to commence these proceedings.

1. This is an application, dated 31 November 2000, on behalf of the plaintiff, seeking:

". . . leave to institute proceedings in this Honourable Court in relation to injuries sustained in a motor vehicle accident occurring [sic] on 22 November 1987 notwithstanding that the statutory period for the commencement of such proceedings has expired."

2. The facts alleged by the plaintiff are that, on 22 November 1987, she was a passenger in a motor vehicle driven by her brother, the defendant. The vehicle was then travelling upon the Princes Highway, New South Wales when it left the road and collided with a tree.

3. The plaintiff, though restrained by a seat belt, nevertheless suffered what are currently described as " serious injuries."

4. Following the accident, the plaintiff was taken by ambulance to Moruya District Hospital. The next day she was discharged but continued treatment under the care of Dr Edwin Blomfield, her family General Practitioner. She also had physiotherapy and consulted a specialist, Dr Bills.

5. The happening of the accident was notified to Transcover, the statutory body set up to deal with transport accidents and the compensation of persons injured in such accidents.

6. By virtue of s 56 of the Limitation Act 1985 ("ACT Limitation Act") the limitation law to be applied is that prescribed by the Motor Accidents Act 1988 (NSW) ("MA Act").

7. The relevant provision is s 52 MA Act. It provides (in summary):

1. A claimant is not entitled to commence court proceedings against another person in respect of a claim until 6 months have elapsed since notice of the claim was given to the other person and . . .(if required by s 43(4)) to the other person's insurer.

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

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

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

3. If a claimant commences proceedings in respect of a claim more than 12 months after the date on which the claim must be made in accordance with s 43, the claimant must provide a full and satisfactory explanation to the court for the delay.

4. A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after the date on which the claim must be made in accordance with s 43 except with the leave of the court in which the proceedings are to be taken.

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

8. The plaintiff was born on 22 October 1970. Hence she was an infant as at the date the accident occurred.

9. It is relevant first to determine the date upon which the applicable time bar expired. The parties have assumed that it expired on 30 June 1992.

10. The plaintiff was an infant until 21 October 1988 (the day preceding her 18^th birthday). On 22 October 1988 she ceased to be under the disability of infancy (see s 8(3) ACT Limitation Act).

11. Under the MA Act there is no provision postponing the time bar it imposes by reason of infancy - see O'Brien v O'Brien (1995) 35 NSWLR 664; cf s 52 NSW Limitation Act, s 30 ACT Limitation Act. It is, however, a relevant matter in determining whether or not to postpone the bar (O'Brien v O'Brien (supra)).

12. It was agreed by the parties that the plaintiff's Transcover claim form was delivered to Transcover on 24 October 1988. It did not state that the plaintiff had suffered serious injury.

13. At that time the Transcover legislation forbad the making of a claim at common law. There was, on 15 November 1988, a notice of determination sent by Transcover in response to the statutory claim.

14. The barrier to the bringing of common law proceedings was retrospectively, though only partially, lifted as from 1 July 1989. The period specified under s 52 was, by virtue of s 146(3) of the MA Act, deemed to have commenced on that day.

15. That date, being after the plaintiff had achieved her majority, makes it unnecessary to determine whether the time bar imposed pursuant to s 56 of the ACT Limitation Act is or not subject to s 30 thereof. Section 30 postpones the commencement of any time bar imposed pursuant to the ACT Limitation Act until a person has ceased to be under a relevant disability, such as infancy.

16. It is to be assumed, therefore, that the time bar imposed by s 56 of the ACT Limitation Act incorporating by reference s 52 of the MA Act, expired, as the parties have supposed, on 30 June 1992. As from 1 July 1992, that latter time bar has applied.

17. Pursuant to s 57 ACT Limitation Act, a discretion to extend the time bar, if it exists under the relevant, in this case, New South Wales limitation law, is available to be exercised but:

" . . .as far as practicable, . . in the manner in which it is exercised in comparable cases by courts of that place."

18. The guidelines for the exercise of the discretion conferred by s 52 MA Act are those referred to by the NSW Court of Appeal in Salido v Nominal Defendant (1993) 32 NSWLR 524, as subsequently modified by reason of Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541.

19. On 26 July 2000, the NSW Court of Appeal set out its understanding of the effect of that modification in two decisions. Holt v Wynter [2000] NSWCA 143 (26 June 2000) and Seib v Morton [2000] NSWCA 139 (26 June 2000). The bench was constituted in each case by Priestley, Meagher, Handley, Sheller JJA and Brownie A-JA. The former case set out the relevant principles as currently understood more extensively.

20. The main judgment was that of Sheller JA, though his Honour on all but one issue adopted the judgment of Priestley JA.

21. The facts in Holt v Wynter were that lack of competence and diligence by some of the five solicitors sequentially retained by the plaintiff had led to a delay of a little more than 5 years in commencing proceedings. The trial judge refused leave to proceed, holding that the delay had caused "significant prejudice" to the defendant. That prejudice was identified as a lack of sufficient information concerning the plaintiff's medical condition (liability was not in issue) so as to enable a medical examination on behalf of the defendant before 1996. That examination occurred on 4 March 1997.

22. Priestley JA noted that the defendant had not pointed to any particular prejudice arising from the delay. The defendant had, successfully at first instance, submitted that the plaintiff had to show that there had been no lack of availability of relevant medical records resulting from or in consequence of the delay.

23. His Honour derived from Salido five separate propositions [at par 47]:

"1. Section 52(4) confers a discretion which is to be exercised for the purposes of the Act; these purposes include forensic diligence; a corollary of the forensic diligence purpose is . . .protection of defendants against the injustice of stale claims .

2. The eventual question to be decided, in light of the purposes of the Act, is whether it is fair and just to grant leave.

3. The onus is on the applicant to show that it is fair and just to grant leave.

4. In considering whether the applicant has shown that it is fair and just to grant leave it is material for the court to take into account the delay and the applicant's explanation for it.

5. In considering whether it is fair and just to grant leave, the disadvantage to the defendant which would result from the granting of leave is a material but not a conclusive consideration . . ."

24. Priestley JA considered that the views expressed in Brisbane South were not inconsistent with these propositions.

25. In that latter decision there had, his Honour noted, been a divergence of opinion between Toohey and Gummow JJ on the one hand and McHugh J on the other as to the impact of a finding of actual prejudice to a defendant as a result of the delay. Dawson J had agreed with McHugh J though not necessarily on the issue as to the impact of delay. Kirby J dissented.

26. Priestley JA considered that the five Salido principles should be amended, in the light of Brisbane South, by adding to the second Salido proposition " . . .and whether there can be a fair trial." However, though McHugh J's approach would add to proposition 5 " . . . is a highly material and in a great many cases an almost conclusive consideration" [par 73 and 74], the majority opinion, Priestly JA considered, would not require that modification.

27. What, then, should an applicant show to demonstrate that a trial of the matter would be "fair and just?" Priestley JA stated [at par 84]:

" . . .in considering whether the trial would be fair, [the Court] must take into account the circumstances of the parties and what they have done relative to one another about the claimed cause of action in the period between the events relied on as giving rise to it, and the date of applying for leave to commence proceedings."

28. In his Honour's view, there had been no reason to suppose, as the primary judge had, that records of medical attendances were seriously deficient.

29. Sheller JA, with whom the other three members of the Court agreed, held that there should be added to the 5 Salido propositions the qualification that, if the respondent was, due to the delay, placed in a position of "significant prejudice," though minds might differ as to what constituted "significant prejudice," then leave should be refused. This view, effectively, supports the stricter approach advocated by McHugh J in Brisbane South.

30. At par 116, Sheller JA said:

" . . .I do not think an applicant would demonstrate that it was fair and just that leave should be granted if to do so would result in significant prejudice to the potential defendant. Rather, these tests are directed to a broader context such as the situation where there has been long and unexplained delay which has not resulted in significant prejudice to the potential defendant. It may be that in the absence of significant prejudice to a potential defendant, . . .there is no reason why the discretion should not be exercised in favour of the applicant."

31. His Honour agreed with Priestley JA that, on the facts of the case, no significant prejudice had appeared. The application should have been granted. It was so ordered.

32. That was also the result in Seib v Morton [2000] NSWCA 139 (26 June 2000). There, however, the delay had been only three months beyond the time bar. It was, also, a case in which the only real issue was the quantum of damages.

33. Priestley JA set out [at par 18] the Salido guidelines as amended in Holt v Wynter. His Honour did not consider that the delay, though unsatisfactorily explained, had significantly prejudiced the defendant, though it had delayed the due consideration of the claim. Medical opinion had become more pessimistic but that did not prejudice a fair trial. Indeed, it could be argued it made the trial fairer, at least to the plaintiff.

34. Handley JA, with whom the remaining members of the court agreed, concurred in the result proposed by Priestley JA. His Honour noted that the defendant had been given a `great deal' of the relevant medical evidence 18 months after the accident and the benefit of an independent medical examination 2 years after it.

35. There was no supportable finding of particular prejudice, let alone significant prejudice. Thus the appeal was upheld.

36. In the light of these decisions, it is unnecessary further to consider the earlier decision of Henricks v Agnew (1991) 26 MVR 277. However, it is not inconsistent with the above decisions.

37. The question of the test for the proper exercise of the discretion under s 52(4) MA Act was also considered in Bartlett v Bartlett [2000] FCA 120; (2000) 170 ALR 25. The latter is a decision of a Full Federal Court (Gallop, Wilcox and Kenny JJ).

38. In the light of the express legislative provision contained in s 57 of the ACT Limitation Act, it is arguable that, if Bartlett v Bartlett is now to be considered inconsistent with Holt v Wynter then the latter decision, representing, as it does, the correct application of s 52(4) MA Act in the courts of New South Wales, must be followed in preference to Bartlett v Bartlett. On the other hand, it is also the case that I am bound, as a single judge, to follow a Full Federal Court decision directly on point.

39. In Bartlett v Bartlett, Wilcox J, at 40 [par 56] stated:

" . . .there are questions as to Ms Bartlett's pre-accident condition and the course of her post-accident disability. She will be able to give evidence about those matters, but there may be little material available to the defendant to check the accuracy of her evidence. Furthermore, there may not be any documents concerning her earnings. The delay in this case is very considerable. There is a real prospect that it would prejudice the defendant's conduct of the action, if the action were allowed to proceed."

40. There was, in Bartlett, no evidence of any lack of documentation of prior medical consultations or of past earnings. There was no other identifiable source of prejudice, damages alone being in issue. The reasoning of Wilcox J as to the failure of the plaintiff to prove lack of particular prejudice from unavailability of records is clearly contrary to that of the NSW Court of Appeal in both Holt v Wynter and Seib v Morton (supra).

41. In Holt v Wynter, for example, as in Bartlett v Bartlett, it was objected that the plaintiff had not adduced evidence that past medical records were still available [par 36]. The plaintiff, in evidence, had been unable positively to assert that they were still available. It was possible they were not.

42. Priestley JA, with the concurrence of all other members of the Court, considered that the application of the modified Salido principles required a finding that, in reasoning as Wilcox J did in the passage cited above from Bartlett v Bartlett, the primary judge was in error. In his Honour's view the primary judge [par 85]:

" . . .in exercising his discretion . . did not give proper weight to the considerations which . . Salido requires and imposed a higher burden on Miss Holt than the facts required."

43. So far as the facts in Bartlett v Bartlett were concerned, it was unlikely that medical records of consultations in 1993, 1994 and 1997 were unavailable by 1998. In any event, the claim had been notified to the insurer in 1992 and medical examinations held in 1996 and 1997. It should have been inferred that it was more likely than not that the records still existed. In any event, no positive finding that records had become unavailable was open. The onus ought not to have been cast upon the plaintiff to prove that they were still available.

44. In Seib v Morton the primary judge had relied merely on the presumptive prejudice, both from delay itself and the expiry of the bar. There had, of course, been a delay before the defendant could commence investigations both as to the medical condition of the plaintiff and as to his loss of income.

45. In that case, Handley JA noted that the limitation period itself only ensured an opportunity for early investigation of a claim within 3½ years from the accident. Much information had in fact been provided within 18 months thereof and during the 2 years following it.

46. In support of Bartlett v Bartlett it should be noted that the extent of delay after expiry of the bar was greater in that case (3½ years) than in Holt v Wynter (2 years 7 months) or Seib v Morton (3 months only). In Holt v Wynter, intention to make a claim had been notified shortly after 6 months following the accident though no further substantive progress was made until December 1996.

47. Nevertheless, and on this point I do not see a conflict between Bartlett v Bartlett and Holt v Wynter, the onus is on the plaintiff to satisfy the court that the defendant will suffer no significant prejudice in relation to the fair trial of this matter.

48. Further, there is no conflict concerning the fact that, though a lack of significant prejudice will favour a grant of an extension of the time bar, it does not entitle the plaintiff to such an extension. It must, in all the circumstances, appear that it is fair and just that the extension be granted.

49. On that basis, Bartlett v Bartlett may remain supportable. There had been no notification of the claim of the relevant insurer until just over 6 years following the accident. It may be inferred that the longer the delay before an insurer is put on notice of the claim the greater the evidentiary onus on the plaintiff to prove lack of significant prejudice to the defendant. Nevertheless, if it be an issue, I consider that given the terms of s 57 ACT Limitation Act, I am bound by the decisions of the NSW Court of Appeal to make no assumption of particular prejudice unless the defendant has established the facts relevant to it.

The history of the claim

50. The accident occurred on 22 November 1987. The plaintiff was then 17 years of age (DOB 22/10/70). A Transcover medical certificate was submitted to Transcover (relevantly standing in the place of the defendant and the defendant's insurer). Transcover paid the plaintiff's hospital accounts and met the expense of new spectacles (to replace those destroyed in the accident).

51. There was a further medical certificate dated 9 August 1988. It is not clear whether it was separately provided to Transcover or only provided with the Compensation Claim Form dated 24 October 1988.

52. The medical certificate referred to the "injury" as:

"STITCHES TO RIGHT KNEE, BRUISING TO BODY AND LACERATIONS TO LEG'S [sic]."

That was dated 18 May 1988. It could not be said that the "injury" so identified was, apparently, "serious." Part B, completed on 9 August 1998, certified:

" Laceration to leg. Seat belt bruising to anterior chest."

53. The certificate declared the plaintiff to be unfit for work (as a student) until 30/11/87.

54. The claim form specified the plaintiff's injuries as:

"55 stiches to right knee, severe bruising and lacerations to body. Muscular injury to left shoulder."

55. The medical expenses claimed were a consultation with Dr Shephard ($56) and other expenses ($68).

56. There were, of course, no loss of earnings at that stage.

57. On 15 November 1988, an "assessing officer" of Transcover wrote to the plaintiff giving "Notice of Determination" under the then equivalent of the MA Act (the Transport Accidents Compensation Act 1987 (NSW)).

58. Pursuant to that notice the plaintiff was declared eligible to recover "Transcover benefits." There was reference made to s 107 of the Act (lump sum benefits for permanent impairment of at least 4% and up to $127,750 for 100% impairment). The letter continued:

"If you wish to pursue a claim for compensation for permanent impairment, you should contact Transcover at the expiration of 12 months from the date of the accident or when your condition becomes stable and permanent, whichever first occurs and a medical assessment will be arranged."

59. This statement, though no doubt clear to a lawyer familiar with the relevant legislation, is not a model of clarity. What is "permanent"? What if at the end of 12 months the level of disability is neither "stable" nor "permanent"?

60. The letter further stated that, if the determination was disputed, the writer of it could be contacted or legal advice sought. However, it was also stated that the cost of that advice would not be paid for by Transcover "unless the District Court appeal is successful."

61. The plaintiff did not know of her rights at common law to make a claim. Indeed, that right did not arise until 1 July 1989. Neither Transcover nor its insurer, GIO Australia, notified the plaintiff of this alteration to her rights.

62. She became aware of her rights in this regard only after consulting her current solicitor, Mr Roderick MacDonald, on 1 August 1994.

63. She did not instruct Mr MacDonald to commence proceedings until 4 November 1994. That delay came about, she said, because she was impecunious, concerned not only about the expense of proceedings but also, whether suing her brother would, even though he was insured, cause a family rift.

64. Proceedings were commenced on 18 November 1994 in the ACT Magistrates Court by way of an Ordinary Claim. The "injuries," suffered by the plaintiff were specified as being:

(a) Shock

(b) Headaches

(c) Laceration to the tongue

(d) Laceration to the right knee

(e) Severe seatbelt bruising

(f) An injury to the cervical spine

(g) An injury to the thoracic spine

(h) An injury to both shins

(i) An injury to the right thumb

65. The Claim was served on the defendant personally at Bega in the State of New South Wales but not until 5 August 1995. The plaintiff was then residing at Queanbeyan in the State of New South Wales.

66. The delay in service arose out of correspondence between solicitors for the plaintiff and the insurer and its solicitors as to whether service would be accepted. Ultimately the latter declined to do so. The correspondence is summarised below.

67. On 15 February 1995 the plaintiff's solicitors wrote to GIO Australia. They invited the acceptance of service of the Claim.

68. GIO Australia chose to ignore that letter. That is not a course of conduct to be encouraged. The plaintiff's solicitors wrote again on 9 May 1995, seeking a response.

69. The insurer responded on 9 June 1995 that it was not prepared to accept service on the grounds that the plaintiff's solicitors had failed to provide details of the injuries. It must be said that the insurer had contributed to this lack of information by failing to request a copy of the Claim (nor had the plaintiff's solicitors sent one).

70. Presumably, however, GIO Australia became aware of the content of the Claim shortly after 5 August 1995. In any event, a formal "Personal Injury Claim Form" detailing, inter alia, injuries and disabilities was signed on 29 August 1995. It was acknowledged by the insurer that the Form was received some time in August 1995 (ie the 30^th or 31^st).

71. Instructions to defend were given to solicitors for the insurer on 31 August 1995 and a Defence was filed that day.

72. The Defence pleaded that the action was statute barred by virtue of s 11 of the ACT Limitation Act. This was, of course, incorrect. The relevant time limit was provided by s 56 of that Act. It was not 6 years, as the Defence asserted, but 3 years from 1 July 1989.

73. Paragraph 4 of the Defence challenged the jurisdiction of the Magistrates Court to entertain the action. It was pleaded that s 10 of the Magistrates Court (Civil Jurisdiction) Act 1982 ("MC(CJ)Act") excluded these proceedings from the jurisdiction of that Court.

74. The Deputy Registrar of the Magistrates Court correctly perceived that, on the face of it, s 56 of the ACT Limitation Act applied and, therefore, an extension of time application, based on s 52 of the MA Act (not s 11 of the ACT Limitation Act), was required. He so notified the plaintiff's solicitor. However, he either did not notice or did not draw the solicitor's attention to the fact that there was no allegation in the Claim of any circumstance conferring jurisdiction on the Magistrates Court, having regard to the matters referred to in s 10 of the MC (CJ) Act. It was clear from the Defence that there was no submission to the jurisdiction of the Magistrates Court.

75. Indeed, on 17 October 1995, the defendant's solicitors applied to have the action dismissed for want of jurisdiction. However, by then, and on 9 October 1995, the plaintiff had applied for leave to bring the action, that is, to extend the time bar. The affidavit supporting that application was in similar terms, allowing for the earlier time of it, as that supporting the current application.

76. The application of 17 October 1995 to dismiss the action for want of jurisdiction was dismissed on 9 November 1995, apparently by Magistrate Dingwall, though no formal order was transcribed and the Bench Sheet notation of the order is not entirely legible.

77. The plaintiff's application of 9 October 1995 to extend the time bar was adjourned but was, eventually, granted by Magistrate Somes on 7 May 1996.

78. Extraordinarily, on 2 November 1999, there having been no appeal by either party against the interlocutory orders so far made favouring the plaintiff, Magistrate Dingwall on the application of the defendant, made on 2 November 1999, ordered that the claim be struck out for want of jurisdiction. The plaintiff was ordered to pay the defendant's costs (with some exceptions).

79. Why the application was entertained at all in light of the clear decision of 9 November 1995 dismissing the same application on the merits is not explained. The Magistrates Court was clearly functus officio in respect of each of the already decided issues. Any challenge to them should have been by way of an appeal which would have required an extension of time.

80. There is on the file what purports to be an "Order of Registrar" dated 6 November 2000 transferring the matter to the Supreme Court.

81. Such an order may be made under the power conferred on this Court by s 384 of the MC (CJ) Act. There is however, no record in this Court of that power being exercised or of any application for it to do so. In any event, it is not by any means obvious that such a power could be used to save from invalidity proceedings which had been erroneously commenced in the Magistrates Court. It would, in any event, not be available once the Magistrates Court had dismissed the Claim, as it had purported to do, even if erroneously.

82. Fortunately, it is unnecessary to decide those questions. Fresh proceedings were commenced in this court on 12 November 1999. A Defence was filed on 7 March 2000. The application now before this Court to extend time was not made until 31 October 2000 (though it erroneously bears the impossible date "31 November 2000"). The affidavits supporting the application are those of the plaintiff dated 8 July 2000 and of the plaintiff's solicitor, Mr Roderick MacDonald, dated 24 November 2000.

83. The parties have not contested the proposition that the proceedings in the Magistrates Court had at least served the purpose of providing the defendant's insurer with full details of the plaintiff's claim.

84. Further, those proceedings indicated to the defendant's insurer that the plaintiff was intent upon pressing her common law claim. Indeed, between 7 May 1996 and 2 November 1999, the plaintiff had in her favour an order extending time for the purposes of bringing the Magistrates Court proceedings.

85. The Defence pleads that the proceedings in this Court are statute barred. That is a good plea. The proceedings do require a grant of leave to commence them out of time, nunc pro tunc, to avoid dismissal.

86. The defendant opposes the grant of leave on the basis that, given the late notification of particulars of the claim (August 1995), and the total lapse of time since the accident (now 13 years) the presumed prejudice and lack of diligent pursuit of the claim should entail refusal of leave.

Evaluation of the Application

87. I assume in the plaintiff's favour that she will prove negligence against the defendant, despite the denial of it in the Defence. She has, apparently, a good prima facie case.

88. Nor is there any suggestion of any relevant contributing medical condition to complicate the issue of assessment of damages. Nor has there been evidence offered on behalf of the defendant to cast doubt upon that conclusion. In the absence of any evidence of specific prejudice to the defendant then, in accordance with Holt v Wynter (supra), even if contrary to Bartlett v Bartlett (supra), I am obliged, giving effect to s 57 ACT Limitation Act, to conclude that there is no specific matter of prejudice arising from any contributing medical condition. There is no need to separate out any relevant disabilities not caused by or resulting from the relevant motor vehicle accident which might, as a result of delay now create unfairness to the defendant in the assessment of damages.

89. Nor, on the same basis of reasoning, can I conclude that the plaintiff's doctors have destroyed or lost relevant records. They have been informed, on an ongoing basis, that the plaintiff was intent on making a common law claim as the plaintiff's affidavit makes clear. To postulate that, notwithstanding this, they would have lost or destroyed relevant records challenges my credulity. There is no evidence to suggest they have done so. I conclude that no prejudice to the defendant arises on account of the likelihood of loss or unavailability of relevant medical records.

90. Wages records may stand in a different category. The longer the delay, the less cogent would be the assumption that the relevant records remain available. That is the process of reasoning I have assumed that Wilcox J engaged in Bartlett v Bartlett (supra) though, if it was, his Honour did not say so. Nor was the delay in that case such as would, in my respectful opinion, have warranted such a conclusion. Indeed, the issue was determined on the basis that there was an onus on the applicant to prove that the records were available even though there was no reason to assume the contrary. That reasoning in contrary to Holt v Wynter and Seib v Morton.

91. In the present case there is no claim for any actual loss of wages. No prejudice therefore can arise from the lack of any such records. Any claim by the plaintiff for prevention or inhibition of employment can be made out on a comparable employee basis. The plaintiff's actual employment, said to evidence lack of capacity post-accident, as with the medical records, was in the context of a claim made in 1987, renotified in August 1995 and actively pursued since July 1994. The likelihood of loss or destruction of wages records since the plaintiff engaged in employment is very low. Nor is there any evidence to suggest any such occurrence.

92. I turn to address the specific principles referred to in Holt v Wynter and Seib v Morton.

1. Forensic diligence

93. This addresses delay by the plaintiff and her advisers since the accident. For this purpose, the delay before time expired is as relevant as that thereafter.

94. In this case the plaintiff was not as diligent as she might have been following the initial claim against Transcover, that is up until 30 July/1 August 1994, when she consulted solicitors.

95. Those solicitors, it must be said, did not pursue their client's claim with exemplary diligence.

96. They commenced proceedings in the Magistrates Court on 18 November 1994.

97. The delay up until then, from 1 August 1994 was longer than would be expected but the plaintiff had, up until 1 August 1994, been unaware of her right to sue her brother. That was not unreasonable. She also, not unreasonably, had to consider family and financial issues before taking the plunge into the murky waters of litigation.

98. Thereafter, the plaintiff's solicitors should have notified the insurer promptly of the plaintiff's intention to sue and of such details as they had of the circumstances of the accident and, more particularly, of the plaintiff's injuries and treatment.

99. A letter giving notice of intention to sue at common law was not sent until 15 February 1995. Notice of injuries and of treatment was included in the Magistrates Court Claim served in August 1995.

100. Those proceedings themselves were attended by error and confusion. The failure to deal competently with the issue as to lack of jurisdiction, appearing as it did on the face of the proceedings, in turn caused the delay which followed up until November 1999.

101. Since then the plaintiff has pressed her claim, including the necessary step of extending time, with reasonable diligence.

2. Whether there can be a fair trial

102. There seems no reason to suppose that there could not be a fair trial.

103. The only real issue apparent on the evidence as it has been revealed to me, is that of assessment of damages. That is not an issue prejudiced by the delay thus far notwithstanding the presumptive effect of delay both from the date of the accident and at various points since. A trial in this court could be held, if the parties are ready, within 6 months.

104. I conclude that there can be a fair trial.

3, 4 and 5. That it is "fair and just" to grant leave

105. The delay, and the plaintiff's explanation for it I have considered under 1 (supra).

106. The disadvantage to the defendant is, of course, that the insurer is now subject to a claim that presumptively became barred on and from 1 July 1992.

107. As Brisbane South (supra) points out, the latter aspect should not lightly be over-looked. Thus, even if there is no known prejudice to a fair trial, the revival of liability, albeit that an insurer will bear the loss, may in itself be a public policy reason to deny an extension of the time bar. So also will the fulfilment of the legislative intent that late notified claims should be excluded.

108. Nevertheless, there is a discretion to extend the bar. It was exercised in both Holt v Wynter and Seib v Morton. It is for the plaintiff to persuade the court that it should be exercised in her favour.

109. That decision should be made on the practical reality of the matter not mere formality.

110. Thus, for example, if an insurer had been notified of an intention to claim, that should be the relevant date, if the time of notification is relevant, rather than the date upon which the proceedings are formally commenced (unless, of course, the plaintiff has, by delay or otherwise, indicated or permitted the defendant to assume an intention to abandon the claim).

111. In this case, there was notice confirming the accident and its circumstances as early as 18 May 1988. The claim was formally accepted by Transcover on 15 November 1988.

112. The defendant's insurer had no further notice concerning the claim until 15 February 1995. And then it was only of intention to sue, not of particulars of the damage sustained.

113. That was some 6 years 3 months after the most recent previous dealing Transcover had in relation to the matter. It was 2 years and 7 months after the expiry of the time bar. (The same, approximately, as Holt v Wynter).

114. The defendant now has the advantage of the decision in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 172 ALR 625; (2000) 74 ALJR 1109. Damages will be assessed, whether here or in New South Wales, subject to the limits imposed by the provisions of the MA Act.

115. Thus, the regime to be followed in assessing damages will not disadvantage the defendant by reason of the matter being litigated in the Territory. The delay, in that respect has advantaged the defendant compared with the result had the proceedings been competently commenced on 18 November 1994 in this Territory.

116. In all the circumstances, given the history of the matter and the lack of any significant prejudice to the defendant, I am satisfied that the plaintiff ought to have leave to commence these proceedings out of time. She did persuade Magistrate Somes to the same effect in 1996. Whilst that decision is by no means binding upon me and does not relieve the plaintiff of her onus of proof, it does illustrate consistency with the opinion I have formed that she has made out her case for an extension of the time bar.

117. I order that leave be granted to commence these proceedings nunc pro tunc.

118. I will hear the parties as to costs.

I certify that the preceding One hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice

Associate:

Date: 13 March 2001

Counsel for the Plaintiff: Mr R Mildren

Solicitor for the Plaintiff: Vandenberg Reid

Counsel for the Defendant: Mr B Meagher

Solicitor for the Defendant: Barker Gosling

Date of hearing: 24 November 2000

Date of judgment: 13 March 2001