Hodgson v Dimbola Pty Limited trading as Towers Removals and Workers Compensation Nominal Insurer(NSW) [2009] ACTSC 126 (29 September 2009)

Last Updated: 26 October 2009

GLENN JOSEPH HODGSON v DIMBOLA PTY LIMITED trading as TOWERS REMOVALS (ABN 67 094 870 523) & WORKERS COMPENSATION NOMINAL INSURER (NSW)
[2009] ACTSC 126 (29 September 2009)

LIMITATIONS – personal injury – claim against employer – compensation claim previously accepted – Queensland law to be applied – material facts of a decisive character –cause of action – differing legal advice – extension refused.

Civil Law (Wrongs) Act 2002, s 188
Limitation of Actions Act 1974 (Qld), ss 11, 30, 31
Workers Compensation Act 1987 (NSW), s 151H

Hodgson v Dimbola Pty Ltd trading as Towers Removals and QBE Workers Compensation (NSW) Ltd [2009] ACTSC 59
Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261
McKain v R W Miller & Co (SA) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1
John Pfeiffer Pty Limited v Rogerson [2000] HCA 36; (2000) 203 CLR 503
Castillon v P & O Ports Ltd (No 2) [2007] QCA 364; [2008] 2 Qd R 219
Redmond v J C Hutton Pty Ltd [2004] ACTSC 102
Sugden v Crawford [1989] 1 Qd R 683
Placer Exploration Ltd v Misiorowski (1969) 43 ALJR 376
Foufoulas v F G Strang Pty Ltd [1970] HCA 26; (1970) 123 CLR 168
Atkins v Wellam Brothers Pty Ltd [2002] VSC 254
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Rajic v Brighton Ceiling Pty Ltd [2009] ACTSC 68
Brozinic v P H C Operations Pty Ltd t/as Hyatt Hotel [2008] ACTSC 20
Stephenson v State of Queensland [2004] QCA 483
Royal North Shore Hospital v Henderson (1986) 7 NSWLR 283
Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234
State of Queensland v Stephenson [2006] HCA 20; (2006) 226 CLR 197
Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301
Brease v Queensland [2007] QSC 43

No. SC 811 of 2006

Judge: Refshauge J
Supreme Court of the ACT
Date: 29 September 2009

IN THE SUPREME COURT OF THE )
) No. SC 811 of 2006
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: GLENN JOSEPH HODGSON

Plaintiff

AND: DIMBOLA PTY LIMITED trading as TOWERS REMOVALS

(ABN 67 094 870 523)

First Defendant

AND: WORKERS COMPENSATION NOMINAL INSURER (NSW)

Second Defendant

ORDER

Judge: Refshauge J
Date: 29 September 2009
Place: Canberra

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The plaintiff pay the second defendant’s costs of the application.

1. The plaintiff applicant, Glenn Joseph Hodgson, was injured in an accident which occurred on 6 or 7 August 2003 when he fell off a truck that he was unloading in Queensland.
2. As Mr Hodgson did not commence these proceedings until 27 October 2006, the proceedings faced a problem with the limitation law and Mr Hodgson has made an application for an extension of time within which to commence the proceedings so as to overcome this problem. It is this application that I am called upon to decide.
The facts
3. Mr Hodgson was employed by the first defendant, a company trading under the name Towers Removals and it is convenient to refer to it by that name. He was said to be an experienced removalist/driver.
4. On 5 or 6 August 2003, Mr Hodgson was directed to take his truck loaded with furniture to an address in the Sunshine Coast in Queensland. As can be imagined, he had to make an overnight stop. In an affidavit filed in the proceedings, he deposed that he slept in the truck but that he did not sleep well.
5. When he arrived at his destination, he felt that he needed help to unload the truck. He called his employer and two people were arranged to assist him. He commenced work on his own and the assistants arranged by his employer later arrived. Mr Hodgson described them in his affidavit as follows:

I had been working in the removalist industry for many years. Neither of the men were, in my opinion as the person responsible for the load, experienced or capable enough to be trusted with anything more than carrying items of furniture from the truck to the house.

6. Ultimately, Mr Hodgson found these two people of little assistance and he made the decisions about unloading alone and also assisted with the unloading. He became fatigued but kept up a steady pace and concentrated on the job. While he was undertaking the task near a side doorway in the cargo area he lost his footing and fell off the back of the truck onto the road surface and felt immediate pain. He called his employer and advised him of the accident.
7. Subsequently he made a claim for workers compensation. There is no evidence that he obtained legal advice at this time. He was interviewed by an insurance investigator in the presence of a lawyer, from whom, he says, he neither asked for nor received legal advice.
8. Compensation was paid but, on 13 April 2004, his employment was terminated and the compensation payments were also terminated.
9. He initially retained lawyers first on 23 January 2004 as appears from a diary note tendered by Mr C Ryan of counsel, who appeared for Mr Hodgson. This cannot have been about the termination of his compensation payments, for they had not ceased at this time. He saw the lawyers again on 29 January 2004, as appears from the whole of the lawyer’s file, tendered without objection by Mr A Muller, who appeared for the second defendant. Indeed, in an affidavit of Mr Hodgson’s current lawyer, Mr David Lander, agent for his Melbourne lawyer, this file was said to be produced, though not actually tendered by Mr Ryan.
10. In a letter to Mr Hodgson on 10 February 2004 from his then lawyers, Mr Hodgson was advised that:

Your rights to workers compensation arising out of this injury are clear; [sic] whether or not you have an additional claim, namely a claim in negligence against your employer depends on whether it can be established, on evidence, that your employer’s negligence contributed to your injury. This would mean obtaining an expert report about the safety aspects of the truck and safe work practices. Alternatively, it may be possible to claim against the owner of the vehicle under its Third Party policy.
They then sought further information from him.

11. It is not necessary for me to detail the course of communications with these lawyers, though several letters were specifically referred to by Mr Ryan.
12. In a letter dated 21 April 2004 they advised him about his workers compensation rights and added:

We cannot advise you further on any other rights (for example, common law rights) until we have more information about the truck.

13. Later, in a letter dated 20 April 2005, they further advised him:

As already advised, we do not believe a common law claim arising out of the fall in Queensland is feasible. In any case, we believe such a claim would not succeed in proving negligence against your employer. This is because you knew the door was there having driven this truck several times before; despite that knowledge, you fell out of the open door.

14. He later sought advice from Mr Michael T Helman, solicitor of Victoria, who formerly practised in Canberra. The evidence was a little vague, but he appears to have consulted Mr Helman in about June 2006. As a result of Mr Helman’s work, these proceedings were commenced by Mr Helman’s Canberra agent, Lander & Company, on 27 October 2006.
15. In the Originating Claim, Mr Lander, principal of that firm, has certified as follows:

Certificate that claim has reasonable prospects of success
I, DAVID LANDER certify that I believe, on the basis of provable facts and a reasonably arguable view of the law, that this claim has reasonable prospects of success.

16. That certificate was made, I assume, in compliance with s 188 of the Civil Law (Wrongs) Act 2002. It was relied upon by Mr Ryan as evidence of advice to Mr Hodgson that, contrary to the advice of his earlier lawyers whom he had consulted, he indeed had a cause of action and, further, reasonable prospects of success in it.
17. The second defendant filed an affidavit setting out the details of the investigations it had made. It had obtained a lengthy investigator’s report in 2004 and the investigator had managed to interview Mr Gary Green, the Branch Manager of Towers Removals Canberra Office at the time of the accident and Mr Alan Hill, the Sydney Manager. He also interviewed the owners of the home to which the load was being taken and where the accident is said to have occurred but neither of whom witnessed the incident. The report was somewhat inconclusive, summarising its findings:

In the absence of eyewitness confirmation we cannot be fully satisfied as to the factual circumstances alleged in this matter.

18. The statement taken from Mr Hodgson and attached to the investigator’s report was apparently the one taken in the presence of a lawyer who, as noted above (at [7]), did not provide any legal advice.
19. Since then, Towers Removals has been deregistered. Thus, no proceedings can be taken against it, unless it is restored to the register. In the light of the second defendant’s involvement in the proceedings, that seems likely to be regarded as an unnecessary step. See Hodgson v Dimbola Pty Ltd trading as Towers Removals and QBE Workers Compensation (NSW) Ltd [2009] ACTSC 59 (at [12] – [13]).
20. It also appears that the business had been sold in two parts in about June 2004 and 12 months after that. File notes attached to an affidavit of Seyi Onitiri, filed on behalf of the second defendant, disclose that there are now no records as they would, in the ordinary course, have been shredded after five years.
21. There was no information apparently available as to the identity of the two persons assigned to assist Mr Hodgson in Brisbane and who would appear to have been the only eye-witnesses to the accident.
The jurisdiction
22. There are some jurisdictional complications in this matter. Mr Hodgson is a resident of this Territory. He was, however, employed under a contract of employment in New South Wales. The accident occurred in Queensland. He obtained workers compensation through the New South Wales scheme.
23. Traditionally, limitation statutes were regarded as procedural, that is to say, the court would apply the limitation law of the forum when dealing with claims in, for example, tort: Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261. This view was repeated in McKain v R W Miller & Co (SA) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1 but, thereafter, all Australian jurisdictions introduced legislation reversing this decision, whereby if a substantive law of another jurisdiction is to govern the claim before the courts of the forum, then the limitation law to be applied is that of the jurisdiction whose substantive law is also to be applied. This approach was upheld and confirmed by the High Court in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503.
24. In his careful and helpful judgment, the Master has declared that the substantive law to be applied in determining the claim made by Mr Hodgson is the substantive law of Queensland. Despite the fact that the substantive law in Queensland to be applied in itself applies the New South Wales law in this case, the Master held that the appropriate limitation law is that of Queensland: Hodgson v Dimbola Pty Ltd trading as Towers Removals and QBE Workers Compensation (NSW) Ltd.
25. In any event, the limitation provisions of both states have some similarities.
The legislation
26. The relevant legislation is the Limitation of Actions Act 1974 (Qld). Section 11 provides that the limitation period for personal injury action is three years from the accrual of the cause of action.
27. An extension of time may be granted. The relevant provisions are ss 30 and 31 of that Act. They provide:

30 Interpretation
(1) For the purposes of this section and sections 31, 32, 33 and 34 –
(a) the material facts relating to a right of action include the following –
(i) the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
(ii) the identity of the person against whom the right of action lies;
(iii) the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
(iv) the nature and extent of the personal injury so caused;
(v) the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;
(b) material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing –
(i) that an action or the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and
(ii) that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action;
(c) a fact is not within the means of knowledge of a person at a particular time if, but only if –
(i) the person does not know the fact at that time; and
(ii) as far as the fact is able to be found out by the person – the person has taken all reasonable steps to find out the fact before that time.
(2) In this section –
appropriate advice, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.
...

31. Ordinary actions

(1) This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the date of any person.
(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court –
(a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and
(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;
the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.
(3) This section applies to an action whether or not the period of limitation for the action has expired –
(a) before the commencement of this Act; or
(b) before an application is made under this section in respect of the right of action.

28. The effect of this legislation is, it was agreed by both parties, that a material fact of a decisive character (within the meaning of the legislation) had to have been within the means of knowledge of Mr Hodgson after 27 October 2005 and not before. This was because the proceedings, the time for the commencement of which is sought to be extended on this application, commenced on 27 October 2006 and the court can only extend the limitation period for one year after the relevant material fact came within the means of knowledge of Mr Hodgson.
The submissions of the plaintiff/applicant
29. The submissions of Mr Ryan focussed on the fact that Mr Hodgson’s first lawyers had provided him with negative advice about the claim and his later lawyers provided, at least by inference, positive advice. He suggested, too, that this may have come from what he submitted was a change in approach by the High Court.
30. He relied on Castillon v P & O Ports Ltd (No 2) [2007] QCA 364; [2008] 2 Qd R 219 where (at 234) Keane JA said:

The decision of the High Court in State of Queensland v Stephenson cited by her Honour does not obviate the need to consider whether the plaintiff was in possession of a critical mass of information prior to 27 November 2001 [the date there equivalent to 27 October 2005 here] in accordance with the approach in Moriarty v Sunbeam Corporation Limited and Sugden v Crawford. The point made by the High Court in State of Queensland v Stephenson [(2006) [2006] HCA 20; 226 CLR 197 at 206-7] was that unless the material facts assume a decisive character in the assessment of a reasonable person before the critical date, the one year period referred to in s 31(2) will not have begun to run.

31. This, Mr Ryan submitted, meant that Crispin J was wrong when, in Redmond v J C Hutton Pty Ltd [2004] ACTSC 102, his Honour held (at [31]):

The reference to “appropriate advice” in s 30(1)(b) clearly refers to advice that the hypothetical “reasonable person” knowing the relevant facts would have taken rather than to advice that was actually received by a particular applicant. Hence, the provision of objectively inaccurate or inappropriate advice may not demonstrate that this aspect of the test has been satisfied.

32. As I understood what Mr Ryan was submitting, it was that the alleged inaccurate advice provided by Mr Hodgons’s first lawyers could not provide the means of knowledge which if Mr Hodgson had would oust the jurisdiction to extend time.
33. It was, he submitted, a question for the court sitting on the application to determine whether the advice was accurate. He referred to a passage in Sugden v Crawford [1989] 1 Qd R 683 where Connolly J said (at 686):

In Re Sihvola [1979] Qd R 458, 465 Wanstall CJ had said:
The issuing of a writ presupposes knowledge, or at least belief, by the plaintiff or his legal advisers that he can establish the cause of action alleged in his writ by proving the facts that are then within his knowledge. The antithesis of this proposition becomes the basic assumption of the scheme, i.e., that he has not issued a writ because he lacked knowledge of some material fact, on proof of which his cause depended, either entirely or for a worthwhile result. The scheme is designed to relieve such a plaintiff from the consequence of a failure to issue a writ within time which is shown to be due to ignorance of this kind.
...
Where ... the decisive character of the newly discovered fact goes to the prospect of establishing liability, similar but not identical concepts are involved. Section 30(b)(i) focuses on the prospect of success and whether that can be described as reasonable whereas s 30(b)(ii) calls for an enquiry whether the application ought, in his own interests and taking his circumstances into account to bring the action. The basic assumption of the scheme is that if both those conditions were already satisfied without the new evidence, its discovery will not warrant an extension of time. It follows that an order will be justified where there is such an enhancement of the prospect of success as, for example, would suffice to raise it from a possibility to a real likelihood. Thus a prima facie case of actionable negligence may already exist but it may well seem to the applicant’s legal advisers to be, on balance, too risky until the newly discovered fact emerges.

34. Mr Ryan then submitted that there had been a change in the approach of the High Court to “trucking” cases. He referred to Placer Exploration Ltd v Misiorowski (1969) 43 ALJR 376 and Foufoulas v F G Strang Pty Ltd [1970] HCA 26; (1970) 123 CLR 168 to suggest that the High Court had evinced an approach to cases where a truck driver was unlikely to succeed in an action for negligence arising out of the unloading of a truck.
35. He also referred to some comments by Harper J in Atkins v Wellam Brothers Pty Ltd [2002] VSC 254 (at [45]-[46]) suggesting that the ordinary work of truck drivers, in that case “tarping”, was not particularly hazardous.
36. In the light of such cases, he submitted, one could understand the very negative approach of Mr Hodgson’s first solicitors.
37. He submitted, however, that in Czatyrko v Edith Cowan University (2005) 79 ALJR 839 the High Court had changed its approach, holding that such truck drivers were able to succeed in such cases. He referred to two passages in particular (at 842-4):

The appellant relied in this Court on these basic general principles. An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.
...
In the present case, the appellant did no doubt omit to take a simple precaution of looking to see whether the platform was raised before stepping on to it, and this omission was a cause of his injuries. But in acting as he did, the appellant did not disobey any direction or warning from the respondent. No directions or warnings of any kind were given by the respondent in relation to the use of the platform. Furthermore, both the appellant and Mr Fendick were under pressure from their supervisor to complete the job promptly. The work was repetitive. In all of these circumstances it presented a fertile field for inadvertence. The onus of proving contributory negligence lay upon the respondent. This it failed to do in this case. The appellant’s attempt to step on to the platform in the mistaken belief that it was still raised, and in an effort to finish loading the truck, was the product of nothing more than ‘mere inadvertence, inattention or misjudgment’. It was not a remote risk that the appellant might step back without looking behind him. His actions were neither deliberate, intentional, nor in disregard of a direction or order from the respondent. No finding of contributory negligence should have been made. (footnotes omitted)

38. As I understood what Mr Ryan was submitting, though not the formulation he used, this apparent new approach was a new matter which changed the situation Mr Hodgson faced, for it meant that material facts which he already knew now assumed a decisive character which they otherwise would not have assumed.
39. Mr Ryan accepted that he had also to address the issue of prejudice. He acknowledged what the High Court had said in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541. For instance, he quoted the well known passages of the judgment of Toohey and Gummow JJ (at 547) where their Honours said:

The discretion conferred by the sub-section [i.e. s 31(2)] 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. 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 (Vict) in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd:
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. (footnotes omitted)

40. He submitted that there was unlikely to be material prejudice for the second defendant because Mr Hodgson was unlikely to call the two persons recruited to assist Mr Hodgson in Queensland. The owners were, he noted, still available and the insurer, QBE Workers Compensation (NSW) Ltd, still had its records. The investigator’s report was available and Mr Green had recently been contacted.
41. He submitted that an insurer cannot merely sit idly by and allow the limitation period to expire without taking steps. He noted that Mr Helman had contacted the insurer on 28 July 2006, before Towers Removals had been deregistered. Certainly the Master has held that the fact that an insurer has ample opportunity to investigate and, for example, obtain statements, and does not do so is an answer to a complaint of prejudice. See Rajic v Brighton Ceiling Pty Ltd [2009] ACTSC 68 (at [8]). See also Brozinic v P H C Operations Pty Ltd t/as Hyatt Hotel [2008] ACTSC 20 (at [21]).
42. He also expressly submitted, in answer to a question from me, that the relevant material fact on which he was relying was that Mr Hodgson had a good cause of action against the defendants.
The submissions of the second defendant/respondent
43. Mr Muller submitted that s 31(2) of the Limitation of Actions Act 1974 (Qld) required Mr Hodgson to prove two elements, not merely the absence of the means of knowledge of a material fact of a decisive character, but also the right of action (s 31(2)(b)). See Sugden v Crawford (at 686).
44. He submitted that in this case, that matter was significant for Mr Hodgson had to face the strictures of a NSW regime. He noted that the Master had held that while the limitations law of NSW is not the law to be applied in this application, the damages regime of that State is the law to be applied: Hodgson v Dimbola Pty Ltd trading as Towers Removals and QBE Workers Compensation (NSW) Ltd (at [21]). He submitted that Mr Hodgson was bound by s 151H of the Workers Compensation Act 1987 (NSW) and thus had to show that he had a permanent impairment of at least 15%. He referred me to the evidence tendered before the Master.
45. I note that the Master commented on this material (at [10]) as follows:

The defendants rely on reports by a neurosurgeon and a psychiatrist, annexed to a solicitor’s affidavit. Both medical practitioners express the view that when they examined the plaintiff he showed no evidence of permanent impairment. It does not seem to me that I should act on evidence of that kind in what is in effect a summary judgment application. The plaintiff has not gone into evidence on these issues, and it may be that the plaintiff will establish at trial the necessary percentage impairment, if section 151H is found to be applicable.

46. Mr Muller referred me to s 30(2) of the Limitation of Actions Act 1974 (Qld) as to the definition of appropriate advice and submitted that Crispin J was correct in his findings in Redmond v J C Hutton Pty Ltd. He referred me also to what had been said by Davies J in Stephenson v State of Queensland [2004] QCA 483, where his Honour (at [21]) referred with approval to what had been said in Royal North Shore Hospital v Henderson (1986) 7 NSWLR 283 (at 300-1) namely that:

The provision is not directed to excusing inadvertence, or inadvertence as such. It assumes appropriate knowledge and advice as to a plaintiff’s rights and looks to considerations which justify a decision not to exercise them, or not to exercise them at the particular time. And it requires a determination to be made of when the plaintiff is to be expected, for the purposes of his rights under the sections, to have taken action.
Under the general law, the judgment of such a question is simple: he ought to bring an action within the limitation period. This provision substitutes criteria for deciding when he ought to bring the action other than the limitation period: these are his own interests and his circumstances. In a sense, its purpose is to provide considerations justifying delay in bringing an action.
...
A reasonable man, appropriately informed and advised, would I believe have apprehension that the Hospital would prefer not to continue his treatment but to refer him elsewhere or, at least, that it and its officers might feel less enthusiastic in his supervision and treatment [if he had commenced proceedings against it before the critical date]. This is, as was said in argument, not to impute improper motives to the Hospital or its staff. But a reasonable man would, I think, at least apprehend that there would be tension and conflict between duty and human nature in this regard and would feel apprehension, in the circumstances of his condition, about bringing such an action.

47. Mr Muller submitted that the fact that Mr Hodgson was given different advice at different times was not a material fact. He submitted that nothing in the affidavits relied on by Mr Hodgson identified a material fact of a decisive character which was not within his means of knowledge (as understood by reference to the legislation) until after 27 October 2005.
48. He noted that Mr Hodgson had plenty of opportunity to obtain relevant legal advice. For example, in a letter relied upon, he noted that the lawyer who accompanied him when a statement was made to the investigator had, in his written report to Mr Hodgson, offered to consult with him and offer legal advice.
49. As to prejudice, Mr Muller referred me to what had been said by Toohey and Gummow JJ in Brisbane South Regional Health Authority v Taylor (at 548):

A 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. It is no sufficient answer to a claim of prejudice to say that, in any event, the defendant might have suffered some prejudice if the applicant had not begun proceedings until just before the limitation period had expired. (footnote omitted)

See also per McHugh J (at 554-5).
50. The short point is that the prejudice has to be considered at the time of the application for extension and a court is not merely to assess whether there has been additional prejudice since the expiry of the limitation period.
51. Mr Muller submitted that the second defendant suffered prejudice because of the absence of records. Such records would be required, for example, to show:
(i) whether the workload of Mr Hodgson had, as pleaded, been too great;
(ii) whether, as pleaded, he had sought assistance before leaving Canberra; and
(iii) details of the people who had been asked to assist Mr Hodgson in Queensland and who were the eye-witnesses and only eye-witnesses to the accident.
The unavailability of the two eye-witnesses was, he submitted, of significant prejudice.
52. He further submitted that the decision of the High Court in Czatyrko v Edith Cowan University was not novel but the application of established principles.
The submissions of the plaintiff/applicant in reply
53. Mr Ryan confirmed, as I noted above (at [42]), that the only material fact of a decisive character on which he relied was the provision of the fresh legal advice as to the cause of action, expressed in the certificate on the Originating Claim (see [15] above).
54. He also submitted that Mr Hodgson was not subject to the NSW regime for damages for, he submitted, this did not become operative until either 5 April 2004 or 3 June 2004, both of which dates were after the accident. Fortunately, in the way I have approached this matter, I do not have to consider this issue.
55. He also submitted that the prejudice said to arise out of the loss of telephone logs was minimised by the fact that Mr Green, the alleged other party to the conversation, was available.
56. He finally submitted that I could give leave to proceed with the claim limited to certain paragraphs of the Statement of Claim, refusing it in respect of those which relate to the prejudice. While initially having some attraction, this approach has some difficulties for the problem with the eye-witnesses and resulting prejudice would probably mean the accident itself was part of the claim which could not be relied upon (for the extension was refused so far as it was concerned) and so render the claim unable to succeed.
Findings and conclusions
57. Fortunately, I do not have to resolve all the issues in this matter. It seems to me that I can decide it on the basis of whether material facts of a decisive character were within the means of knowledge of Mr Hodgson prior to 27 October 2005.
58. In the first place, it is clear that there were no other facts that came to or became within the knowledge of Mr Hodgson after 27 October 2005. He knew then all the facts of the matter that gave rise to the pleaded cause of action. Indeed, Mr Ryan disavowed any other fact, other than that the cause of action became relevant in this way.
59. That terminology is a problem, however, for the High Court has clearly held that a cause of action is not, for these purposes, a material fact. See Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234. Insofar as Mr Ryan’s argument is to be taken literally, namely that Mr Hodgson only knew he had a cause of action after 27 October 2005, the application was doomed to fail.
60. It failed both because such is not a material fact, but also because the possibility of such a cause of action was known to him prior to that date, as the correspondence with his first lawyers shows and the information they sought, namely about the truck, was all within his knowledge or at least his means of knowledge.
61. It seems to me, however, that this is not, despite the terms he used, what Mr Ryan was actually saying. In State of Queensland v Stephenson [2006] HCA 20; (2006) 226 CLR 197, the High Court gave specific meaning to the phrase “of a decisive character”. Justices Gummow, Hayne and Crennan (at 205) quoted from Davies JA in Stephenson v State of Queensland (at [13]-[14]) and adopted his Honour’s construction of the phrase “material fact of a decisive character”. The passages quoted were:

Thus the question is not when all material facts came within the means of knowledge of the applicant. It is when all material facts of a decisive character relating to the right of action came within his means of knowledge.
...
One cannot have the means of knowledge of material facts of a decisive character at a time when those material facts do not have that character. If the correct question is as I have stated it then the answer is that it was after the critical date because the material facts did not acquire a decisive character until after that date.

62. Thus, what I construe Mr Ryan as submitting is that the facts known by Mr Hodgson did not assume the relevant character, namely “material facts of a decisive character” until Czatyrko v Edith Cowan University was decided.
63. Thus, while Mr Hodgson’s first lawyers may have been right to be negative about Mr Hodgson’s prospects of success on the facts as they then knew them, the facts assumed a different, “decisive” character after that decision.
64. The difficulty with that argument, however, is that I cannot discern any such change in the law as would justify such an interpretation of the events. Certain it is that the High Court in Czatyrko v Edith Cowan University used descriptions of the work there carried out, and which was similar to that undertaken by Mr Hodgson, as “repetitive” and presenting “a fertile field for inadvertence”, phrases Mr Ryan repeated with emphasis. These words, however, were used in a passage which referred to Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301, a much earlier case, which held that an employer’s duty was to take reasonable care to avoid exposing the employee to unnecessary risks of injury, the basis of the very cause of action Mr Hodgson was seeking to maintain.
65. The cases cited by Mr Ryan do not disclose a different approach. Placer Exploration Ltd v Misiorowski was simply a case where the trial judge’s direction to the jury was set aside as too prescriptive. The High Court held, however, that the employee’s claim for damages for negligence could well have succeeded and, if the facts relied on by the worker were found by the jury, could amount to negligence.
66. In Foufoulas v F G Strang Pty Ltd, the appellant worker who was unloading a truck, failed because he was using a method of unloading that he, as an experienced operator, had himself decided to use and because the risks were not such as to call for the intervention of the employer.
67. These cases do not evince an approach different from or changed by Czatyrko v Edith Cowan University where, indeed, the High Court referred, as I have quoted (at [37]) above, to the appellant relying on “basic principles” which were well-known and applied well before 2005.
68. As Gummow Hayne and Crennan JJ said in State of Queensland v Stephenson (at 207), the character that material acts take on, namely “decisive”, looks to the response of “an actor”. That is to say, the court must consider the response of “a reasonable person”. In this sense, it seems to me with respect, that Crispin J is quite correct in Redmond v J C Hutton Pty Ltd; the actual advice is irrelevant, it is the advice of a hypothetical “reasonable” advisor that is relevant.
69. As their Honours continued in State of Queensland v Stephenson (at 208):

It is true to say, as the plaintiffs submit in their written submissions, that in a sense none of the material facts relating to the applicant’s right of action is of a decisive character until a reasonable person “knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing” the features described in sub-paras (i) and (ii) of s 30(1)(b). Whether that test has been satisfied at a particular point in time is a question for the court.

70. Thus, I have to consider whether a reasonable lawyer, knowing what Mr Hodgson knew or had the means to know, would have said that there was an action which had reasonable prospects of success and whether Mr Hodgson ought in his interests to have taken that action.
71. It is not for me to say whether the advice of Mr Hodgson’s first lawyers was right or wrong, nor the same about Mr Lander’s certificate.
72. Clearly, there was nothing that changed at about 27 October 2005 which would mean that, to use the words of the section of the legislation, a competent person qualified in the field would have changed their advice on the facts as known at that time to advise Mr Hodgson.
73. I have proceeded perhaps inconsistently with the strictures set by the High Court in State of Queensland v Stephenson. At 203, Gummow, Hayne and Crennan JJ referred to the “jurisdictional threshold” which “requires the applicant claim to have a right of action” for, in this case, negligence. I have not considered that issue and I do not need to do so.
74. Strictly, I have to decide whether prior to 27 October 2005, Mr Hodgson would regard the facts he knew, having taken advice from a reasonable lawyer, as showing that he had an action which had reasonable prospects of success and that it was in his interests to take it.
75. This cannot depend on the degree of robustness of the advice he receives from a lawyer. It must depend upon a new fact or a change in circumstances between the two relevant periods.
76. Thus, although I have not considered whether Mr Hodgson had an action which had reasonable prospects of success and that it was in his interests to take it, I have decided whether there was a circumstance that would change that assessment such that a fact known prior to 27 October 2005 and after that date, there being on the evidence no new facts discovered, would take on a decisive character because of that circumstance. In my view, that is a reasonable way to deal with this application.
77. As I have said above, I find that there was no circumstance which made all the material facts which were known, or at least within the means of knowledge of Mr Hodgson prior to 27 October 2005, assume a decisive character after that date.
78. After the hearing, Mr Ryan, with the knowledge and apparent consent of Mr Muller, referred my attention to a recent decision of Moynihan J in the Queensland Supreme Court, Brease v Queensland [2007] QSC 43. I have read that decision. It does not appear to assist Mr Hodgson in any particular way. It did turn on a change of advice by lawyers, but there were specific circumstances relating to the circumstances of the plaintiff there which justified that. His Honour described (at [47]) the original decision not to commence common law proceedings as reasonable. Subsequently, a report directed to causation and quantum subsequently was provided and that constituted the material facts of a decisive character which, until the report was provided, were not within the plaintiff’s means of knowledge.
79. That situation is very different to that here where the only change is said to be the change in the approach of the High Court. I have found that there was no such change. This case does not assist Mr Hodgson’s application.
80. As to prejudice, I do not need to consider this matter other than to say that the second defendant’s claim to be prejudiced is a strong one.
81. In all the circumstances, however, I am satisfied that Mr Hodgson knew or had the means of knowledge in relation to all relevant material facts of a decisive character before 27 October 2005.
82. As a result, the application must be refused.

I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 29 September 2009

Counsel for the plaintiff: Mr C J Ryan
Solicitor for the plaintiff: Lander & Company, Barristers and Solicitors
Counsel for the defendant: Mr A R Muller
Solicitor for the defendant: Moray & Agnew, Solicitors
Date of hearing: 14 August 2009
Date of judgment: 29 September 2009