Ramadam v Leda Holdings [2001] NSWCA 41 (16 March 2001)

Last Updated: 27 March 2001

NEW SOUTH WALES COURT OF APPEAL

CITATION: Ramadam v Leda Holdings [2001] NSWCA 41

FILE NUMBER(S):

40207/99

HEARING DATE(S): 1st December 2000

JUDGMENT DATE: 16/03/2001

PARTIES:

Latife Ramadam

v

Leda Holdings Trading as The Hunter Connection

JUDGMENT OF: Meagher JA Handley JA Giles JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC4170/98

LOWER COURT JUDICIAL OFFICER: Christie DCJ

COUNSEL:

Appellant: P W Bates

Respondent: D J Hook & D E Beilby

SOLICITORS:

Appellant: M T Bechara & Company

Respondent: Colin Biggers & Paisley

CATCHWORDS:

Tort - Negligence - Procedure - denial of procedural fairness - right to a proper hearing - comments of trial judge did not indicate the conclusion of an issue.

Tort - Negligence - Procedure - discretion - arbitrary exercise of discretion.

Tort - Negligence - Procedure - District Court Practice - delay in commencing proceedings - Limitation Act 1969 (NSW) - resulting in prejudice towards the defendant.

Tort - Negligence - Procedure - factual error as to evidence - where factual error did not impact upon reasoning.

LEGISLATION CITED:

Limitation Act 1969 (NSW) s 60C

DECISION:

Appeal Dismissed With Costs

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

No. 040207 / 1999

MEAGHER JA

HANDLEY JA

GILES JA

16 March 2001

RAMADAN v LEDA HOLDINGS PTY LIMITED

FACTS

The appellant alleged that she had slipped and fallen on steps at the respondent's premises in Hunter Street, Sydney. The Statement of Claim in respect of this accident was filed out of time. The trial judge found that the plaintiff had not adequately explained her delay in the filing of the Statement of Claim, and that the defendant would be prejudiced by an extension of time, and dismissed the proceedings.

ON APPEAL

HELD per Giles JA (Handley JA agreeing):

(i) The appellant submitted that she was denied a proper hearing as to delay. The trial judge's early observation that he believed the appellant's onus had been discharged with respect to delay, when properly considered in light of the evidence as it was fully exposed and the submissions of the parties, did not indicate that the matter of delay was no longer in issue.; (Meagher JA agreeing)

(ii) There is no indication that the trial judge exercised his discretion in an arbitrary fashion. Although his reference to past appellate reversals was inappropriate, it is impossible to see in these remarks abandonment of the exercise of a judicial discretion or proper regard to authority.

Per Meagher JA:

There was no exercise by the trial judge of any discretion which was in any way capricious.

(iii) No miscarriage of justice occurred on the basis of a failure by the trial judge to address a particular of negligence. The particular of negligence in question was an unhelpful generality which did not materially add to the preceding particulars, and as such the trial judge did not fail to address such.

Per Meagher JA:

The trial judge did address all particulars of negligence, but of greater importance, was not obliged to do so once it became apparent that the plaintiff's application had to fail.

(iv) Any error that was made by the trial judge as to the medical-related prejudice to the respondent does not undermine the dismissal of the application for extension of time. The evidence permitted the finding that individual cleaners could not be found, and the view that there was prejudice arising from this contributed to the prejudice to the respondent on which the trial judge's discretion was exercised.

Per Meagher JA:

The trial judge's factual error with respect to medical evidence was not part of any step essential to his reasoning.

ORDERS

Appeal be dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

No. 040207 / 1999

MEAGHER JA

HANDLEY JA

GILES JA

16 March 2001

RAMADAN v LEDA HOLDINGS PTY LIMITED

JUDGMENT

1   MEAGHER JA: This is an appeal by a plaintiff from a decision by Christie DCJ refusing an application to extend the period allowed under the Limitation Act 1969 (NSW) in order to bring proceedings in which she alleged negligence against the defendant, the present respondent. It was a "slipping" case. She was alleged to have slipped at a place called the Hunter Connection.

2   The application was brought under ss 60C and 60E of the Limitation Act 1969 (NSW).

3   The accident took place on 7 June 1995; the period of limitation expired on 7 June 1998; the plaintiff filed her Statement of Claim on 11 June 1998, four days out of time; the Notice of Motion seeking an extension of time was filed on 4 September 1998.

4   The issues in the case were 1) whether the plaintiff had adequately explained her delay in filing the Statement of Claim, and 2) whether the defendant would be prejudiced by an extension. His Honour found adversely to the plaintiff on both issues. I think that, on any view of the law, his Honour was quite right.

5   In analysing the case, his Honour placed great reliance, as is proper, on the judgments of the High Court in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, and, as subsequent events (particularly the decision of this Court in Holt v Winter [2000] NSWCA 143; [2000] 49 NSWLR 128) make clear, on the judgment of McHugh J in that case.

6   In this regard, his Honour vigorously disregarded the fact that the Statement of Claim was filed only four days late. Before Taylor's case the New South Wales Court of Appeal held that the statutory tests amounted to asking whether the defendant was any worse off than it would have been if the action had been commenced within time but towards the end of the limitation period. That, we now know, is a wrong approach. In the present case it is a delay of 3 years and 4 days which has to be explained, not merely a delay of 4 days. And it is prejudice to the defendant as at the date of the filing of the Statement of Claim which must be examined, no matter what was the date of its origin.

7   A vital witness in the action would have been a Miss Braithwaite, and, although she was discovered towards the end of the limitation period her memory of the incident (which she had witnessed) had evaporated; and this was also the situation of another eye-witness, Miss Ashland. Moreover, the cleaner on duty on that day could not be located, nor was his identity known. The cleaning company by which he was employed could not discover its contract to clean the premises, and Westpac's employment records had vanished.

8   Moreover, her medical state attributable to the fall at the Hunter Connection was, relevantly, difficult to analyse, as it was complicated by a later fall at or near a Franklins store, and also by two earlier accidents.

9   These being the relevant facts, how could the defendant have expected a fair trial if an extension were granted? How could it not have been prejudiced, and significantly?

10   I shall now deal with the four specific grounds of appeal, although it is apparent from what I have said that none of them has anything to do with contradicting the absence of any rebuttal of delay or prejudice. The first was that at some stage earlier in the hearing of this motion his Honour indicated that the delay had been satisfactorily explained, leaving only the alleged absence of prejudice to be explained. It is true that his Honour did make such an indication to that effect, but it must have been only a passing indication of what he was thinking at that moment. This is made clear by his subsequent conduct of the case. The plaintiff's solicitor was cross-examined on that very topic after his Honour's remark, and both sides addressed his Honour on the subject of delay in their final submissions to him.

11   The second ground of appeal concerns some semi-jocose remarks his Honour made on the fickleness of discretionary judgments. But there is no exercise by his Honour of any discretion which is in any way capricious.

12   The third ground of appeal was that his Honour dealt with only three of the four acts of negligence alleged by the plaintiff. In my view, reading his Honour's remarks as a whole, I think he did deal with all four. But, what is perhaps of greater importance, his Honour was not obliged to do so once it became apparent that the plaintiff's application had to fail, whatever the precise acts of negligence alleged.

13   The fourth ground of appeal arises out of a remark which the judge made in his judgment:

"all of the medical evidence so far made available by the plaintiff to the defendant relates to conversations with doctors obviously after the incident of 7 June 1995 but also after the incident that is said to have taken place in Franklins in March 1998."

14   His Honour's remark is factually wrong. The defendant's counsel concedes this. However it does not matter, because it was not part of any step essential to his reasoning. This is made plain by his Honour when summarising the plaintiff's case. He said:

"Even without considering that (sc, the medical evidence) I do not think the plaintiff has established why it would be that the Court should exercise discretion in her favour even though the period of time involved is comparatively minor."

15   The appeal should be dismissed with costs.

16   HANDLEY JA: I agree with Giles JA.

17   GILES JA: On 11 June 1998 the appellant brought proceedings in the District Court, alleging that she had slipped and fallen on steps at the respondent's premises in Hunter Street, Sydney on 7 June 1995 and claiming damages. The proceedings were four days out of time. On 29 July 1998 the respondent filed a notice of motion claiming an order that the proceedings be dismissed. On 4 September 1998 the appellant filed a notice of motion claiming an extension of time within which to bring the proceedings until 12 June 1998. On 2 March 1999 Christie DCJ dismissed the appellant's notice of motion and, either pursuant to the respondent's notice of motion or because the appellant acknowledged that her claim must then fail, dismissed the proceedings.

18   In this appeal the appellant claimed orders setting aside his Honour's orders and remitting her application for an extension of time to the District Court for re-hearing.

19   The appellant's application was made under s 60C of the Limitation Act 1969, by which a court may extend a limitation period if it decides that it is just and reasonable to do so. By s 60E, in exercising that power the court is to have regard to all the circumstances of the case, and without affecting the generality of that requirement is to have regard to a number of enumerated matters to the extent that they are relevant to the circumstances of the case. The first two enumerated matters are -

"(a) the length of and reasons for the delay;

(b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available."

20   In the application before Christie DCJ the parties concentrated on these two matters. His Honour correctly proceeded on the basis that the appellant had to satisfy the court that it was just and reasonable to extend time, there being a discretion to grant and a not a discretion to refuse an extension of time (Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541; Sydney City Council v Zegarac (1998) 43 NSWLR 195; Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128). As to delay, he was "of the view very marginally that the plaintiff has not ... discharged an onus of explaining why it was not until three years four days after the incident that this statement of claim was filed". As to prejudice to the respondent, he took Brisbane South Regional Health Authority v Taylor to establish that prejudice to the respondent was not confined to prejudice occasioned by the four days, and said that even if he were wrong as to delay he would be "of the view that the prejudice demonstrated by the defendant at this stage is prejudice of significance". It is tolerably clear that his Honour regarded the unexplained delay and the prejudice to the respondent as independent bases for his not being satisfied that it was just and reasonable to extend time.

21   There were four grounds of appeal, the last of which was really two grounds. The grounds of appeal did not raise whether Brisbane South Regional Health Authority v Taylor established that prejudice to the respondent was not confined to prejudice occasioned by the four days, cf Sydney City Council v Zegarac at 197, 200 per Mason P.

Ground 1: Denial of procedural fairness

22   The appellant submitted that Christie DCJ denied her a proper hearing as to delay. Even if that were so, his Honour's conclusion as to prejudice to the respondent stood as an independent basis for his decision, sufficient in itself (see Holt v Wynter at 147). But I do not think the appellant was denied a proper hearing.

23   The notices of motion came on for hearing on 4 February 1999. It seems they were reached late in the day, and the hearing was adjourned to 5 February 1999. After some further evidence was taken, on the appellant's application the hearing was again adjourned so that the appellant could inquire into the whereabouts of a witness to the slipping incident. The hearing resumed and concluded on 1 March 1999.

24   A number of affidavits were provided to his Honour on 4 February 1999. They included an affidavit of the Ms Maria Bechara sworn 3 September 1998. Ms Bechara was the appellant's solicitor, and deposed to steps taken to obtain reports from medical practitioners and to brief counsel to advise and draft "relevant documentation". Counsel for the respondent indicated that he wished to cross-examine all the deponents, including Ms Bechara.

25   When the hearing of the motions resumed on 5 February 1999 his Honour suggested to counsel for the respondent that his "major complaint will be prejudice because you have lost a witness". Counsel agreed, adding "more than one". It seems before Brisbane South Regional Health Authority v Taylor was recalled to his mind, his Honour questioned whether being four days late could give rise to prejudice. He asked counsel for the respondent what his position would be as to prejudice if the appellant had commenced her proceedings six days earlier. Counsel replied that that was not the case, apparently meaning that his Honour's question was founded on an erroneous approach to assessment of prejudice.

26   The transcript then records -

"HIS HONOUR: Well it is isn't it if we get to prejudice because I think the lady can otherwise discharge the onus. She appears to have instructed the solicitors almost straight away and there appears nobody seemed to want the brief to do the statement of claim. Eventually it went through about 18 hands by the look of it. But its really only an accident of history that the thing is three or four days late isn't it?" (sic)

27   After remarks by his Honour to which I will return in relation to ground of appeal 2, there was reference to Brisbane South Regional Health Authority v Taylor and the onus it placed on the appellant. In the course of this his Honour said, "I just started this conversation on the basis that I think the plaintiff is going to discharge that onus".

28   The appellant submitted that in saying what he did his Honour indicated that he thought delay had been explained and the appellant's onus discharged on that issue; that his Honour thereafter gave no indication that he was reconsidering or had resiled from that view; and that procedural fairness required that his Honour make known to the appellant that explanation for the delay was still a matter in issue. She said that there was a miscarriage of justice insofar as his Honour had disposed of her application for an extension of time on the basis of unexplained delay.

29   I am prepared to accept that in what he said his Honour did convey a preliminary view - indeed, a preliminary view extending to the issue of prejudice to the respondent, albeit without full appreciation of Brisbane South Regional Health Authority v Taylor. However, just as the issue of prejudice to the respondent was nonetheless canvassed by the parties in evidence and submissions, so also did the parties canvass the issue of unexplained delay. I consider that what his Honour said was at the time seen as what it was, no more than thinking aloud and always subject to proper consideration in the light of the evidence as it was fully exposed and the submissions of the parties.

30   Later on 5 February 1999 counsel for the appellant informed his Honour that Ms Bechara was present for cross-examination if desired, and the transcript records -

"HIS HONOUR: What possible purpose would there be in --

HOOK[counsel for the respondent]: Firstly the fact that nothing was done to timely prosecute the actual way ... (not transcribable) from the affidavit --

HIS HONOUR: She can make submissions on the contents of her affidavit, is there anything in her affidavit you wish to test is the test as to whether you need to cross-examine her. I mean are you going to suggest that it's wrong or something because the submissions you want to make about it will be apparent from the affidavit won't they?

HOOK: Yes, that's --

HIS HONOUR: Unless there's something you wish to contest.

HOOK: No your Honour."

31   The transcript is incomplete and perhaps corrupt. But makes it plain that the respondent still considered explanation for delay a live issue, because counsel wished to cross-examine in relation to failure in timely prosecution of the appellant's claim. And his Honour still anticipated that both parties would be putting submissions on that subject. Counsel for the appellant can not have been of a different view.

32   On 1 March 1999 counsel for the appellant informed his Honour that he understood that Ms Bechara was not required for cross-examination. The evidence concluded almost immediately thereafter, and the parties embarked on submissions. The submissions were not transcribed in full, but the record includes his Honour saying in the course of the submissions of counsel for the appellant, "The issue here is why the lady didn't commence within time and if she's out of time which isn't by much whether that disentitles her, whether she can explain the delay". Clearer confirmation, and notice to the appellant, that unexplained delay was exercising his Honour's mind it would be hard to find.

33   This ground of appeal fails.

Ground 2: Arbitrary exercise of discretion

34   The ground of appeal took up some remarks made by Christie DCJ in the course of the hearing and some observations in his judgment, and in the words of the notice of appeal was that his approach to exercising his discretion "is arbitrary, subjective, idiosyncratic and does not accord with the objective principles governing the proper exercise of judicial discretion".

35   Immediately after the exchange set out in para [10] above, the transcript records -

"HIS HONOUR: If I were to refuse this application you'd be in the Court of Appeal before sunset, indeed before they had lunch.

HOOK: It wouldn't trouble us your Honour on the authorities.

HIS HONOUR: I've knocked a few of these back over the years and the Court of Appeal will just find some reason to allow them. When did you last win one of these? I'm talking quite frankly. I knocked back a couple that I thought were outrageous and Mr Justice Kirby as he then was found some way to get the punter home."

36   A little later in the discussion which followed counsel for the appellant observed that "we seem to be going on a debate about the matter before the evidence is complete", and his Honour replied, "That's because I always put the cart before the horse". Counsel said that he did not want to be "cut off in regard to any evidence that I might wish to call your Honour".

37   His Honour's reasons delivered on 2 March 1999 included in relation to prejudice to the respondent -

"Consequently I think I encapsulate all that the defendant says about prejudice when I say that they cannot allegedly locate the cleaner because they cannot find the cleaning contract. They are prejudiced, they say, because Ms Braithwaite and Ms Ashland appear to have suffered some significant loss of memory or are in the early stages of Alzheimer's disease. In any event they certainly do not seem to have any recollection of these events and I think I have made sufficient mention of the matter concerning the medical reports.

All of those things taken singularly I think have some importance, taken together, that is lumped together, I think they assume what Mr Justice McHugh described as the proportions of some prejudice of significance. So that, one bears in mind that it is not simply the question of prejudice that decides these matters. I have to look at that prejudice in the light of the overall situation presented by the plaintiff's evidence whilst being careful, as has been pointed out in Brisbane South Region v Taylor, whilst being careful not to attempt to weigh one prejudice against the other so to speak and to draw some sort of comparison with a view to perhaps attempting to decide where the least injustice would occur. Because that is not really one's duty in exercising the type of discretion available to a judge at first instance as, of course, Mr Justice McHugh makes perfectly clear. The limitation periods are enacted because the legislature makes a judgment that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of the period.

I confess that I find it difficult to exercise discretions this way. Sometimes I do it one way, sometimes the other, sometimes the Court of Appeal disagrees with me, sometimes they agree with me but when all is said and done it is for me to exercise my discretion in the manner which I see fit and not in a manner which I perceive some other jurisdiction might see fit."

38   On the appellant's argument, the early remarks and the observations in the last paragraph in this passage showed that his Honour exercised his discretion otherwise than judicially and otherwise than as required by Brisbane South Regional Health Authority v Taylor.

39   His Honour's remarks and observations could have been better expressed, and even better not expressed at all. But I do not think they indicate an arbitrary exercise of discretion.

40   In his first remarks his Honour was addressing counsel for the respondent, and as I have earlier accepted was conveying a preliminary view that the appellant would satisfy him that an extension of time should be granted. His Honour inappropriately adverted to past appellate reversals, it seems in order to suggest that the respondent's tasks in opposing the appellant's application was not an easy one. But his Honour went on to find facts and apply legal principles to them in a proper way, and it is impossible to see in these remarks abandonment of the exercise of a judicial discretion or proper regard to authority. Indeed, the exercise of a judicial discretion brought his Honour to a conclusion the opposite of his preliminary view.

41   The remark about putting the cart before the horse was of no significance. There was discussion before the evidence was complete, as is not uncommon in order to explore or reach common ground upon what a hearing involves. There is no suggestion that the appellant was denied the opportunity to put before his Honour all the evidence on which she wished to rely. The remark was no more than a jocular aside.

42   The observations in his Honour's reasons must be seen in context. The law had fluctuated in relation to weighing competing prejudices or concentrating on the prejudice to the defendant, and I am inclined to think that his Honour was rather wryly referring to the difficulties encountered by a trial judge in such circumstances. Be that as it may, his Honour was firmly and correctly stating that the discretion was his to exercise, and that he would not exercise it in a particular way for fear of reversal on appeal. He was not espousing an arbitrary exercise of discretion, but as the preceding paragraphs in the passage I have set out and the balance of his reasons show when exercising his discretion was seeking to direct himself in accordance with Brisbane South Regional Health Authority v Taylor in particular.

43   Although not comprehended by the ground of appeal, in the appellant's written submissions it was also submitted that Christie DCJ had failed to give proper reasons for the manner in which he had exercised his discretion. It is enough to say that it is apparent from the reasons why his Honour came to the views I have earlier noted in relation to unexplained delay and prejudice to the respondent, and apparent from the reasons that having come to those views he was not satisfied that it was just and reasonable to extend the limitation period.

44   This ground of appeal also fails.

Ground 3: Failure to address all particulars of negligence

45   The appellant submitted that there had been a miscarriage of justice because Christie DCJ failed to address a particular of negligence as to which there was no or no material prejudice to the respondent telling against an extension of time. Putting aside whether there could be an extension of time for a claim founded on one particular of negligence but not on others, even if this were so his Honour's conclusion as to unexplained delay was an independent basis for his decision. But I do not think the ground of appeal is well founded.

46   In para 3 of her statement of claim the appellant alleged that she was "walking on the steps to the food court ... when she slipped on a substance which had been dropped on the floor, and fell down the stairs suffering injury loss and damage". In para 4 of the statement of claim she then alleged -

"4. The injuries, loss and damage referred to in paragraph 3 above were caused by the negligence of the defendant, its servants or agents.

Particulars of Negligence

(a) Failure to institute and/or maintain any or any adequate system of inspection, reporting and cleaning of spillage's.

(b) Failure to detect and clear the spillage.

(c) Failure to warn visitors to the premises such as the plaintiff of the presence of the spillage on the floor.

(d) Exposing the plaintiff to a risk of injury of which the defendant, by its employees or agents knew or ought to have known existed."

47   As appears from the passage from his reasons set out in para [21] above, his Honour accepted that there was prejudice to the respondent in the inability to locate the cleaner on duty at the time because the cleaning contract could not be found; in the effect of the passage of time or a medical condition on two witnesses (being witnesses who had inspected the relevant area after the incident); and in a deficiency in relation to medical reports. The appellant submitted that notwithstanding that particulars (a), (b) and (c) were premised upon a spillage, particular (d), was not. So, it was said, the appellant could conduct a case such as slipping on negligently designed or constructed stairs to which the evidence of the cleaner and the other witnesses was not material, as to which the respondent was not relevantly prejudiced.

48   There would remain any prejudice in relation to medical reports, (although that prejudice was the subject of ground of appeal 4.1), and the submission rather generously assumed that a case of slipping on negligently designed or constructed stairs could not otherwise involve prejudice to the respondent. But the defect in the submission is more fundamental. Read in the light of para 3 of the statement of claim, the allegation of negligence was of negligence in allowing the substance on which the appellant slipped to be on the floor. Particular (d) was an unhelpful generality, regrettably of a kind not infrequently encountered, of little or no meaning in itself and having such meaning as came from particulars (a), (b) and (c). It did not materially add to the preceding particulars.

49   I do not accept that there was a separate case within particular (d) which his Honour failed to address. This ground of appeal also fails.

Ground 4.1: Error as to evidence

50   The appellant submitted that Christie DCJ was in error in saying in his reasons that the appellant had not seen any medical practitioners between 7 June 1995 and a subsequent accident at Franklins on 26 March 1998, and that this error "infected and tainted" his view as to prejudice to the respondent.

51   His Honour's reasons included a passage to the effect that it was often said that a defendant suffered natural prejudice because the defendant did not have a timely medical examination of the plaintiff, or timely reference to the plaintiff's medical records (described as "seeing medical records between the time of an alleged incident and the time that they actually learn that they are about to be sued").

52   His Honour then said -

"But the defendant points out that the doctors seen by the plaintiff were seen by her after a subsequent accident that occurred at Franklins. Apparently she had a fall of some description at Franklins in March 1998. In addition it is pointed out that as it turns out from various histories and so on and from cross-examination of the plaintiff here, she was also involved in two earlier accidents pre-dating the alleged incident on 7 June 1995. So that in this particular instance it is said that this is the third of four incidents involving the plaintiff and it is pointed out on the information available, that the injuries allegedly sustained at Franklins in March 1998 appear to relate to identical parts of the body as might be alleged were injured in this particular incident in June 1995. So that any perceived prejudice or presumed prejudice in regard to medical records and the ascertainment of symptoms and so on at particular times, appears to carry some little more weight in a case in which two earlier incidents have been finalised and in which some of the injuries relate to the same parts of the body as here. A subsequent matter involving Franklins is apparently in the stages of litigation or about to become so, and that [sic] all of the medical evidence so far made available by the plaintiff to the defendant relates to consultations with doctors obviously after the incident of 7 June 1995 but also after the incident that is said to have taken place at Franklins in March 1998. I regard that matter of prejudice as being somewhat in common with what I would describe as presumed prejudice in relation to any delay in this type of matter of any other." (emphasis added)

53   It is necessary to distinguish between the appellant consulting doctors and the appellant (in reality her solicitors) providing reports of consultations with doctors. The appellant had given evidence that she started seeing Dr Amin and Dr Giurgis after her fall at Franklins on 26 March 1998. It did not follow that the appellant had not consulted doctors after 7 June 1995 and before the fall at Franklins, and the respondent conceded that the appellant had in fact consulted doctors after 7 June 1995 and before the fall at Franklins. Consistently with that, however, the appellant might have provided to the respondent reports only of consultations with doctors after the fall at Franklins.

54   Given the introductory passage to which I have referred, in my view his Honour was focussing on the provision of reports of consultations with doctors. Read as referring to Drs Amin and Giurgis, the first emphasised part of the paragraph I have set out was correct. There were differing contentions in the appeal as to the evidence before his Honour showing what medical reports had been provided to the respondent. In the second emphasised part of the paragraph his Honour said that the reports were only of consultations with doctors after the fall at Franklins, and I am not persuaded that this was incorrect. The prejudice to the respondent in the nature of a presumed prejudice seen by his Honour was absence of timely reference to any medical reports of consultations with doctors after 7 June 1995 and before the fall at Franklins. He did not say that, or find prejudice to the respondent in that, the appellant had not seen any medical practitioners between 7 June 1995 and the fall at Franklins. The error asserted was not made: whether a different error was made in seeing the prejudice to the respondent was not the subject of a ground of appeal.

55   In any event, his Honour made it plain enough that the exercise of his discretion would have been the same even if the medical-related prejudice to the respondent were put aside. His Honour had referred to the importance of the matters earlier identified "taken singularly" and the proportions they assumed "lumped together": see para [21]. At the conclusion of his reasons he said -

"Quite frankly to have one witness who does not recall the matter at all, to have another witness who does not recall it even though some conversation she had about the matter is recorded, I regard as significant prejudice to the defendant. When one marries that to the difficulties in relation to the medical evidence as I would perceive them, complicated as they are by a subsequent fall and alleged injuries to similar parts of the body, I think that prejudice of itself would have been sufficient to make the defendant's opposition to this application successful. But I am of the view that even without considering that, I do not think the plaintiff has established why it would be that the Court should exercise discretion in her favour even though the period of time involved is comparatively minor." (emphasis added)

56   Any error as to the medical-related prejudice to the respondent therefore does not undermine the dismissal of the application for extension of time. This ground of appeal also fails.

Ground 4.2: Further error as to evidence

57   The appellant initially sought to support this ground of appeal in a number of ways, differing between a narrative in the notice of appeal and the written submissions in support of the appeal. In the end the appellant came down to the submission that Christie DCJ had erred in finding that the cleaner could not be identified because the cleaning contract could not be found, and had erred because the affidavit of Theodore Grossman sworn 4 February 1999 did not permit that finding.

58   I have already referred to his Honour's apparent acceptance of prejudice because "they cannot allegedly locate the cleaner because they cannot find the cleaning contract": see para [21] above. Earlier in his reasons his Honour had said -

"The defendant also says that the actual cleaning contract has been mislaid or cannot be found in any event thereby depriving the defendant, so it is said, of the possibility of issuing a third party notice or cross claim in respect of whatever allegations are made by the prospective plaintiff regarding the cleanliness of these premises at The Hunter Connection. The identity of the cleaner, it is said, cannot be now ascertained. I suppose that follows as night follows day, if the cleaning contract itself cannot be located."

59   Mr Grossman had been the manager of the respondent's premises as at 7 June 1995. His affidavit included -

"9. On 4 February 1999, I had a conversation with the current centre manager of the premises, Sean Baker. Mr Baker informed me, and I verily believe, that the cleaners contracted to clean the premises in June 1995 were a company called Kennedy's. Mr Baker also informed me, and I verily believe, that since the time of the alleged incident, Kennedy's have been bought out by another company.

10. I do not have a copy of the cleaning contract for the relevant period. I am informed by Mr Baker, and do verily believe, that he has not been able to locate the cleaning contract.

11. I do not know the names of the individual cleaners who worked in the centre at the time of the alleged incident."

60   It is evident that Mr Grossman was no longer the manager of the premises, although when he ceased to be manager was not revealed. There was no elucidation, in chief or by cross-examination, of whether he would have been expected to have a copy of the cleaning contract. The hearsay from Mr Baker was admitted without objection. One would expect the records under the control of the current manager, Mr Baker, to include the cleaning contract for the relevant period. On the hearsay evidence, it could not be found. One would expect the company called Kennedy's to have had a copy of the cleaning contract for the relevant period. Perhaps Kennedy's still had it, perhaps it had gone to the company which bought out Kennedy's, and perhaps the company which bought out Kennedy's could have been identified. None of these matters was explored.

61   Although his Honour apparently accepted this prejudice to the respondent, it is not clear from the passage at the conclusion of his reasons (see para [39]) that in the end it was material to the dismissal of the application for an extension of time. The reasoning and expression of reasons in relation to identification of the cleaner is perhaps unsatisfactory. The cleaning company was known, a company called Kennedy's. It could have been joined as cross-defendant, although if it had been bought out by another company Kennedy's may not have been a worthwhile target. The individual cleaners were not known, and identifying them would have been important for the evidence they could give rather than because they could have been joined as cross-defendants. It may be thought unlikely that the cleaning contract would include the names of the individual cleaners. Confusion of thought appears to have exacerbated an inadequate evidentiary investigation.

62   Nonetheless, the essential matter was that the individual cleaners could not be identified. Inability to identify the individual cleaners, so that they could give evidence of their cleaning programme and its implementation, even of what they saw and did on 7 June 1995, was of self-evident significance to the respondent. Despite the unsatisfactory reasoning and expression of reasons, this can I think be seen in what his Honour said.

63   Mr Grossman did not know the names of the individual cleaners. There was nothing to suggest that Mr Baker would have known their names. If the cleaning contract could have provided the names, Mr Baker could not find it, and (whether or not one would expect him to have it) Mr Grossman did not have it. Perhaps further investigation could find the contract or employment records identifying the individual cleaners in the possession of Kennedy's or of the company which bought out Kennedy's, but that sort of investigation to an uncertain result was itself an element of prejudice to the respondent (see Holt v Wynter at 146, citing earlier authority to the effect that a defendant must place in evidence sufficient facts to lead the court to the view that prejudice would be occasioned, and the plaintiff must then show that the facts do not amount to material prejudice).

64   In my view the evidence permitted the finding that the individual cleaners could not be identified, and the view that there was prejudice in this respect contributing to the prejudice to the respondent on which his Honour's discretion was exercised. This ground of appeal also fails.

65   In my opinion the appeal should be dismissed with costs.

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LAST UPDATED: 21/03/2001