GIO GENERAL LIMITED v LOVE [2009] NSWCA 269 (4 November 2009)

Last Updated: 5 November 2009

NEW SOUTH WALES COURT OF APPEAL

CITATION:
GIO GENERAL LIMITED v LOVE [2009] NSWCA 269


FILE NUMBER(S):
40049/2009

HEARING DATE(S):
31/08/2009

JUDGMENT DATE:
4 November 2009

PARTIES:
GIO General Limited - Applicant
James Michael Love - Respondent

JUDGMENT OF:
Basten JA Young JA Handley AJA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 1381/08

LOWER COURT JUDICIAL OFFICER:
Kearns DCJ

LOWER COURT DATE OF DECISION:
02/12/2008


COUNSEL:
G Watson SC & N Chen - Applicant
H Kelly SC & D O'Dowd - Respondent

SOLICITORS:
Holman Webb Lawyers - Applicant
Cox West Lawyers - Respondent

CATCHWORDS:
LIMITATION OF ACTIONS – extension of limitation period – loss of realistic claim in contract against third party – witnesses no longer available or uncooperative – statements no substitute – actual prejudice – extension refused.

LEGISLATION CITED:
District Court Act 1973 (NSW)
Judiciary Act 1903 (Cth)
Law Reform (Miscellaneous) Provisions Act 1946
Limitation Act 1969 (NSW)
Workers Compensation Act 1987 (NSW)


CASES CITED:
Border Auto Wreckers (Wodonga) Pty Ltd v Strathdee [1997] 2 VR 31
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1986) 186 CLR 541
Creevey v Barrois [2005] NSWCA 264
Commonwealth of Australia v Shaw [2006] NSWCA 209; (2006) 66 NSWLR 325
Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423
Henry Kendall & Sons v William Lillico & Sons Ltd [1968] UKHL 3; [1969] 2 AC 31
Merton Enterprises Pty Ltd v Nelson (1988) 13 NSWLR 454
Seven Network Ltd v News Ltd [2005] FCAFC 125
Walters v Cross-Country Fuels Pty Ltd [2009] NSWCA 10

TEXTS CITED:


DECISION:
(1) Grant leave to appeal.
(2) The draft notice of appeal is to be filed within 10 days. Further compliance with the rules otherwise dispensed with.
(3) Appeal allowed with costs.
(4) Orders of the District Court set aside, and in lieu thereof order that the Notice of Motion of 9 April 2008 be dismissed with costs.
(5) Respondent to have a certificate under the Suitors Fund Act.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40049/09

BASTEN JA

YOUNG JA

HANDLEY AJA

4 November 2009

GIO GENERAL LIMITED v JAMES MICHAEL LOVE

CATCHWORDS

LIMITATION OF ACTIONS – extension of limitation period – loss of realistic claim in contract against third party – witnesses no longer available or uncooperative – statements no substitute – actual prejudice – extension refused.

HEADNOTE

An employee of ACI injured his back on 23 February 2001 while recovering another person from a confined space during a training course in emergency procedures conducted by Firefox under contract with ACI. He applied for and received workers compensation benefits. In June 2003 Firefox learnt of the accident for the first time when ACI brought proceedings under s 151Z of the Workers Compensation Act against Firefox to recover the compensation it had paid the worker. Firefox’s insurer had the claim investigated at that time. The three-year limitation period expired on 22 February 2004. The section s151Z proceedings were settled in May 2007 on unknown terms. The six-year limitation period for claims in contract by Firefox against ACI expired in February 2007. Firefox was voluntarily deregistered in January 2008. On 9 April 2008 the worker applied for an extension of the limitation period, joining the insurer of Firefox under the Law Reform Act 1946. The primary Judge granted the extension sought. The insurer sought leave to appeal. HELD: (1) leave to appeal should be granted; (2) errors in the Judge’s reasoning entitled the Court to intervene; (3) the delay had caused the insurer substantial actual prejudice in that the Firefox witnesses had become uncooperative or were no longer available, and the investigations in July 2003 and the statements obtained at that time were not an answer because a statement is no substitute for a live witness: Walters v Cross Country Fuels Pty Ltd [2009] NSWCA 10 [22] applied; (4) the defendant had taken reasonable steps to locate the witnesses and obtain affidavits from them, and the plaintiff had the onus of proving that more extensive efforts would have been successful: Ibid [19]; (5) Firefox had a realistic claim for damages for breach of contract against ACI which had been lost when the six-year limitation expired: Creevey v Barrois [2005] NSWCA 264 [56] applied; (6) it would not be just and equitable to extend the limitation period.

ORDERS

(1) Grant leave to appeal.

(2) The draft notice of appeal is to be filed within 10 days. Further compliance with the rules otherwise dispensed with.

(3) Appeal allowed with costs.

(4) Orders of the District Court set aside, and in lieu thereof order that the Notice of Motion of 9 April 2008 be dismissed with costs.

(5) Respondent to have a certificate under the Suitors Fund Act.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40049/09

BASTEN JA

YOUNG JA

HANDLEY AJA

4 November 2009

GIO GENERAL LIMITED v JAMES MICHAEL LOVE

Judgment

1 BASTEN JA: On 23 February 2001 the respondent suffered an injury in the course of his employment whilst undergoing a training course conducted by Firefox Training Corporation Pty Ltd (“Firefox”). Whilst he received payments under the Workers Compensation Act 1987 (NSW) from his employer, he made no claim for damages against his employer.

2 On 9 April 2008, more than four years after the three-year limitation period had expired, the respondent sought an extension of the limitation period within which to commence proceedings in negligence against Firefox. Because Firefox no longer existed, the claim was brought against the appellant as Firefox’s insurer. .

3 The power of a court to extend time with respect to such a claim is to be found in s 60C of the Limitation Act 1969 (NSW). The power is to be exercised where the court determines that it is “just and reasonable” to do so and where the extension sought does not exceed five years. The court is required to have regard to “all the circumstances of the case” and in particular to the matters set out in s 60E(1).

4 On 2 December 2008 Kearns DCJ ordered that time be extended until 31 January 2009. (It is not known whether a statement of claim was filed in accordance with that leave.)

5 In this Court, the applicant sought to overturn the determination of the District Court to extend time on two bases, namely that the applicant suffered both actual and presumed prejudice as a result of the delay and that, secondly, the claim enjoyed insufficient prospects of success to warrant an extension of time.

Grant of leave to appeal

6 It was accepted by the parties that an appeal from an order or judgment extending time was an appeal from an interlocutory judgment or order and therefore required leave: District Court Act 1973 (NSW), s 127(2)(a). This approach is consistent with the decision of this Court in Merton Enterprises Pty Ltd v Nelson (1988) 13 NSWLR 454 (Samuels, Priestley and McHugh JJA), followed in Border Auto Wreckers (Wodonga) Pty Ltd v Strathdee [1996] VSC 55; [1997] 2 VR 49 (Brooking JA, Winneke P and Tadgell JA agreeing) and with the dicta of Windeyer J in Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423 at 445, but cf Barwick CJ at 429.

7 Although Hall was concerned with a question as to whether the order or judgment was final for the purposes of s 35 of the Judiciary Act 1903 (Cth), and related to a specific statutory cause of action, the reasoning of Barwick CJ that a grant of an extension of time restores to the claimant a lost opportunity to sue and exposes the proposed defendant to liability to judgment, demonstrates the potential significance for the rights and liabilities of the parties resulting from such an order.

8 So understood, a wrong decision may be seen to involve a substantial injustice if leave were refused: see Seven Network Ltd v News Ltd [2005] FCAFC 125; 144 FCR 379 at [5] (Branson J, Allsop and Edmonds JJ agreeing). Further, for the reasons fully explained by Handley AJA, the judgment was attended by sufficient doubt to warrant it being reconsidered. Accordingly, it was appropriate that the applicant receive a grant of leave to appeal.

Findings on prejudice

9 The bases of the applicant’s challenges to the reasons given by the trial judge for extending time are fully set out in the judgment of Handley AJA, with which I agree. Significant weight should, in particular, have been given to the loss of a claim in contract against the respondent employer.

10 The argument that some information was lost or otherwise unavailable to the applicant within the limitation period and therefore did not give rise to a relevant prejudice appears to have been directed at the consideration identified in s 60E(1)(b). Under that paragraph, it is necessary for the court to have regard to the extent to which there may be prejudice to the prospective defendant “by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available”. Evidence which would not have been available even within the limitation period may well not fall within that consideration. However, as the chapeau to the subsection makes clear, the matters identified in the listed paragraphs do not affect the generality of the requirement that the court have regard to “all the circumstances of the case”. Any matter which may give rise to prejudice to the prospective defendant will be a relevant consideration.

11 No doubt the way in which particular factors will operate in considering what is just and reasonable in a particular case will vary depending on whether they have arisen before or after the expiration of the statutory limitation period. If they have only arisen after the expiration of the period, and are apt to cause prejudice to the prospective defendant, they may well weigh more heavily in the balance against an extension of time than those matters which had arisen before the expiration of the period and would have caused prejudice to the prospective defendant in any event. Although the trial judge recognised both the distinction and the continued relevance of the unavailability of certain evidence, he dismissed it as a prejudice which was not “of significance”: at [55(3)]. In the circumstances explained by Handley AJA, that assessment was inappropriate.

Conclusions

12 The orders should be made as proposed by Handley AJA.

13 YOUNG JA: I agree with Handley AJA.

14 HANDLEY AJA: This is an application, heard as an appeal, for leave to appeal from the decision of Kearns DCJ of 2 December 2008 who ordered that the 3 year limitation period for an action by Mr Love (the plaintiff) against the defendant be extended to 31 January 2009. The intended action arose out of an injury suffered by the plaintiff, an employee of ACI Glass Containers Ltd (ACI), on Friday 23 February 2001 on the last day of a 5 day training course in emergency procedures conducted by Firefox Training Corporation Pty Ltd (Firefox). He was recovering a person from a confined space when he injured his back.

15 He reported his injury to ACI a few days later, but it was not reported to Firefox until June 2003 when ACI notified its claim under s.151Z of the Workers Compensation Act to be indemnified for its workers’ compensation payments to the plaintiff. In September 2002 he brought a claim for workers compensation which was settled in May or June 2004 for a lump sum payment of $41,052.50 in addition to earlier payments of weekly compensation and medical expenses of $24,592.84. On 15 December 2005 ACI commenced proceedings against Firefox under s.151Z which were settled in May 2007 on unknown terms.

16 On 9 April 2008 the plaintiff issued a summons for an extension of the limitation period for a claim in negligence against Firefox. Since the latter had been voluntarily deregistered in January 2008 GIO General Ltd (GIO), the public liability insurer of Firefox at the relevant time, was joined pursuant to s.6 of the Law Reform (Miscellaneous) Provisions Act 1946.

17 The 3 year limitation period for an action in tort against Firefox expired on 23 February 2004. Any extension of the limitation period against Firefox would operate, under s.26(1)(b) and (3) of the Limitation Act (the Act), to extend the time for a claim for contribution against ACI, but would not extend the time for an action for breach by ACI of any contract between the two companies. The 6 year limitation period applicable to such an action expired on 23 February 2007. The loss of Firefox’s cause of action in contract against ACI is relied upon as a source of material prejudice against the grant of the plaintiff's application.

18 GIO was on notice of a possible claim by ACI against Firefox under s.151Z from June 2003 and it had the claim investigated by G Hughes & Associates. Their report dated 5 August that year annexes statements by Mr Rose, the principal of Firefox, and Mr Moore, the instructor in the training course when the plaintiff was injured.

19 Mr Moore had already discarded his 2001 diary, and had no recollection of the plaintiff or the incident when he was injured. He could only give evidence of his general practice in such courses

20 Mr Rose knew nothing about the actual incident, and could only give evidence about the business relationship between Firefox and ACI. He said in his statement, in a passage quoted by the Judge, (para [41]):

"We have been conducting training courses for ACI ... for approximately 12 years. We do not have any written agreements with ACI regarding services we provide ... Basically, we outline what sort of courses we will do for them and they agree to pay us a certain amount of money. Generally they pay us on a per course basis. We do not require our clients to sign any waivers regarding personal injury. We do not discuss indemnity issues."

21 He said that the initial negotiations were between himself and Barbara Atkinson, then ACI's Occupational Health and Safety Officer, and its then training officer a man called Pat. During these negotiations Mr Rose gave ACI the Firefox guidelines which included the following:

"Your Company Medical Officer should be consulted if you have any doubts relating to the suitability of your candidate remember - you know your employees we don't.

Confined space entry involves stooping, bending, pulling, pushing and crawling [C]andidates should therefore be considered generally fit and physically capable of undertaking semi-arduous tasks in confined areas. Your candidate should have already been trained in safe manual handling practices

ERT Training

Confined space entry training is an integral part of EPT [Emergency Response Training] therefore all of the above considerations apply to EPT training.

Additionally since firefighting and methods of rescue are also involved, candidates presenting for this type of training should possess acceptable levels of upper- body strength flexibility and be considered generally fit.

Once again your Company Medical Officer may need to be consulted prior to presenting a training candidate."

22 GIO alleged that ACI had breached these guidelines by enrolling the plaintiff in the training course, giving Firefox an action for damages if it was liable to the plaintiff. The Judge found that each training course was the subject of a separate contract with ACI and this finding was not challenged.

23 The Judge held that Firefox had not suffered any prejudice as a result of the expiration of the 6 year limitation period. The guidelines were not part of the contract between the companies but were only "a background against which the contracting parties were to work", they did not confer any right of indemnity on Firefox, and they would only be incorporated in contracts while Barbara Atkinson remained ACI’s OH&S officer. The guidelines had to be discussed with each of her successors if they were to be terms of later contracts.

24 The Judge also rejected GIO's claim that the lapse of time had caused it evidentiary prejudice. He said in August 2003 Firefox had investigated ACI's claim that it had been negligent, that "a factual investigation report of some thoroughness was prepared" and that Firefox "at that stage had made as thorough an investigation into the circumstances of Mr Love's injury as it was going to". ACI commenced proceedings in 2005 which Firefox defended, and none of the 2003 material had been lost.

25 GIO also claimed prejudice because they had lost contact with Mr Rose, and Mr Moore was not being co-operative. Its prejudice from the loss of Mr Moore’s 2001 diary was not within s.60E(1)(b) because it was lost within the limitation period but the Judge held that its loss could be relevant under s.60E(1) as one of the "circumstances of the case".

26 The Judge found that the loss of the diary did not occasion prejudice of significance. ACI was aware of the injury soon afterwards and its insurer conducted its own investigations and "presumably all the material is still available" (paras [55](3), [57]). He also inferred (para [55](3)) that Mr Rose and Mr Moore "gave full and complete information in those statements ... [which] are still available".

27 The claim in negligence against Firefox was based on allegations that it failed to give the plaintiff appropriate training for the simulated rescue, and failed to properly assess his suitability for that task. If the guidelines had contractual force ACI was bound to assess the plaintiff’s suitability for this training. His workers’ compensation claim form described the accident as follows (W/B 243-4):

"Doing confined space training with full gear, being lowered in to save person in difficulty, undone lowering safety harness bent over to pull victim out which caused twisting and straining of my back, had pain left side of back ... I had been training with Firefox for a week off site and on site. Trainer could tell you more."

28 He said in his oral evidence (W/B 267) that he had done confined space training before, he had done previous training with Firefox off site, he had volunteered to be a confined space safety officer at ACI, he had previously trained as an OH&S representative, and his duties included training in confined space rescues. The particular exercise being undertaken when he was injured was on ACI’s premises. Since this had been a week long course, and the accident occurred on a Friday it may reasonably be inferred that this was the last day of the course.

29 This evidence may make it difficult for the plaintiff to establish that Firefox failed to give him appropriate training, as alleged in his affidavit (W/B 128 para 5), or that any failure was causative. The same evidence suggests that Firefox may have difficulties in establishing a breach by ACI of the guidelines. The medical evidence in the plaintiff's case does not reveal any prior knowledge of back symptoms although Dr Endrey-Walder stated in his report of 16 July 2003 (W/B 76-7) that he believed that the injury was superimposed on a degree of pre-existing disc degenerative and spondylotic condition in the back which was asymptomatic before the injury.

30 Mr Rose said very little in his statement about the nature of the course. Mr Moore said (W/B 192-7) that Firefox did not introduce five-day courses until 2002, but he must have been mistaken. The plaintiff said in his workers’ compensation claim form signed on 4 October 2001 that he had been on a week-long course. Mr Moore’s statement discussed the one day Confined Space Entry and Emergency Response Team Courses which are not directly relevant. He said (W/B 199) that "We do a course in one of two ways. We use a training dummy or a live patient. The dummy weighs about 30 kg. Weight is not really an issue in this sort of training as technique is more important ... whether or not we are using the dummy or live patient the same technique applies."

31 The lack of information in Mr Moore's statement about his practice in five-day courses shows that the Judge erred when he held (para [55](3)) that Mr Moore gave "full and complete information".

32 If Mr Moore remains uncooperative and cannot be called as a witness his statement will still be of some assistance to GIO. However this Court has recognized the obvious fact that a statement is not "anything like an adequate substitute for a live witness": Walters v Cross-Country Fuels Pty Ltd [2009] NSWCA 10 [22] per Campbell JA.

33 The Judge found (para [51]) that:

"Previously rescue exercises had been done with a 30kg dummy. This exercise was done with Mr Love wearing rescue gear and using a person as a deadweight in a confined space ... The situation called for some very specific training and instruction by reason of the changed and more difficult circumstances. ... I am entitled to infer that had specific training and instruction being given and followed by Mr Love, the injury could have been avoided."

34 The only evidence about the use of 30kg dummies was in Mr Moore’s statement which does not support these findings. There would clearly be a major challenge at any trial to evidence by the plaintiff that he had not been given instructions about the correct technique or warned of the risks. GIO would have Mr Moore's statement about the importance of technique, and the plaintiff’s evidence at this hearing about his earlier training, but the absence of Mr Moore would be very prejudicial.

35 Affidavit evidence was given by Zara Officer, the solicitor handling this matter on behalf of GIO, that she had been unable to obtain affidavits from Mr Rose and Mr Moore for use in the proceedings, and was unable to make effective contact with either. Firefox had been deregistered and Mr Moore told her that Mr Rose had retired and gone to live on the Central Coast. Her only means of contact with Mr Rose was his mobile phone, but he had not answered or returned numerous calls prior to the swearing of her second affidavit on 13 October 2008. She had spoken to Mr Moore on his mobile phone on 12 June and 1 October 2008 but he failed to answer or return her calls on 2, 3 and 9 October. The hearing began on 14 October.

36 The Judge was not satisfied that Mr Moore and Mr Rose would not be available at a trial and said that all reasonable avenues to locate them had not been exhausted (para [55](2)). The applicant has the legal onus of establishing a case for an extension of the limitation period, including the absence of appreciable prejudice to the defendant, but the defendant has the evidentiary onus on issues of prejudice and must produce evidence of actual prejudice if this is to be relied on.

37 The Judge reversed the legal onus on this question. GIO did not have to establish that the witnesses would not be available and cooperative. It was sufficient for it to demonstrate that there was a real risk of this. The plaintiff then has the legal onus of establishing that the risk was not appreciable, or that there was no material prejudice for other reasons. In Walters v Cross-Country Fuels Pty Ltd [2009] NSWCA 10 at [19] Campbell JA said:

“The solicitor made reasonable efforts to find [the witness] without success. While it is possible to make more extensive efforts to find a missing witness ... once reasonable means of finding a witness have proved unsuccessful the onus of showing that more extensive efforts would have unearthed the witness shifts to the applicant.”

38 Ms Officer was not cross-examined on her affidavits and the Judge was not entitled to find that GIO did not face a real risk of prejudice from the loss of those witnesses if the action went to trial.

39 The Judge appears to have assessed GIO's prejudice from loss of Firefox's cause of action in contract against ACI by deciding, on the existing evidence, that it had no such cause of action. In doing so he applied the wrong test and failed to take into account the ability, at an earlier time, to obtain further evidence about the contractual position from Mr Rose, the records of Firefox, and by discovery or subpoena from ACI.

40 As this Court held in Creevey v Barrois [2005] NSWCA 264 at [56] per Basten JA, when considering the loss of rights against a third party the question is whether the claim has been shown to be viable and realistic, and not merely fanciful or theoretical. The Judge did not ask himself the right question.

41 The Judge found that "the only person" with whom Mr Rose discussed the guidelines was Barbara Atkinson (para [56](d)), but overlooked other parts of his statement. Mr Rose said "we" had then dealt with 6 OH&S officers at ACI before their training officer Mr Johnson who arranged this course (W/B 189). He said that it was important to make "the occupational health and safety officers aware of the physical strains imposed by the course" (W/B 191), and that "In addition to discussing the CSE [confined space entry] Guidelines with the relevant OH&S staff he also described the nature of each course and the physical strains imposed ... on the participants” (W/B 191).

42 This shows that there were discussions with other persons at ACI after Barbara Atkinson and Pat. Evidence may well have been available from Mr Rose that the relevant staff at ACI, despite many changes, were aware, or were made aware of what the guidelines "required". Terms may be implied in a contract by a course of dealing: Henry Kendall & Sons v William Lillico & Sons Ltd [1968] UKHL 3; [1969] 2 AC 31, 90, 104-5, 112-13, 130. If the guidelines had contractual force while Barbara Atkinson was the OH&S officer that would not change merely because she left and was replaced. The Court would also infer, in the absence of contrary evidence, that incoming officers were properly briefed by their predecessors, and the guidelines remained on the relevant file at ACI.

43 The Judge treated the guidelines as a statement of what was "required" of ACI (para [56](b)) which suggests that there were binding, but then said that there were only "a background against which the contracting parties were to work". A statement, during negotiations for a partly oral contract, of what is required of a party in the performance of that contract is an indication that the requirement has contractual force.

44 The Judge apparently understood that Mr Chen, counsel for GIO, was claiming that the remedy for a breach of the guidelines was a right of indemnity (para [56](c)) but we were informed by Mr Watson that the transcript of argument shows that the remedy relied on was an action for damages and the Judge was mistaken. Even if Mr Chen claimed too much this did not justify rejection of the proper remedy where this was readily ascertainable from the material before the Court.

45 In my judgment the claim that GIO had suffered material prejudice through the loss of a possible claim by Firefox against ACI for breach of contract should not be dismissed as merely fanciful or theoretical. The weakness of the plaintiff's claim that Firefox failed to properly assess his suitability for this course must flow through to any claim by Firefox against ACI for breach of the guideline requirement that it assess the suitability of its candidates. However as this Court held in Commonwealth of Australia v Shaw [2006] NSWCA 209; (2006) 66 NSWLR 325 at [83] per Basten JA the weakness of a plaintiff's case on the merits tends against granting an extension of the limitation period, and in this case the defendant can have it both ways.

46 The Judge found that the result of ACI’s investigations would be available to GIO in any trial. He said [55](3) "ACI ... or its insurer conducted its own investigations into the circumstances of the injury ... and presumably all that material is still available", and repeated this [57]. It is a reasonable inference that such material would still be available to ACI, but it is presumptively privileged and if the objection was taken it would not be available to GIO at all.

47 If the limitation period is extended GIO may well bring a cross-claim against ACI for contribution and while this remains a possibility ACI will almost certainly claim privilege. This was a significant error.

48 The loss of the diary would have been prejudicial to the defence of Firefox if the plaintiff had sued within the limitation period but that does not make its loss irrelevant if the plaintiff has to apply for an extension of the limitation period. The point was well made by Mr Watson in an epigram which he generously attributed to his junior Mr Chen: "If prejudice occurs to a defendant within the limitation period and the plaintiff sues that is the defendant's problem, but if the plaintiff needs an extension of the limitation period it is the plaintiff’s problem".

49 This epigram is fully supported by the analysis of McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25, 186 CLR 541, 554-5.

50 The cumulative effect of these errors vitiates the exercise of the Judge's discretion and this Court must intervene and grant leave to appeal.

51 The Court must therefore apply ss 60C and 60E for itself. Section 60C(2) provides that the Court may extend the limitation period "if it decides that it is just and equitable to do so." Section 60E(1) requires the Court to have regard to "all the circumstances of the case," including where relevant the matters listed in paragraphs (a) to (l).

52 The relevant paragraphs include (a) the length of and reasons for the delay. The delay covered the three year limitation period, and a further four years. The plaintiff enforced his workers compensation rights without delay but was not advised about or aware of his common law rights until 2007. Paragraph (b) is also relevant - it refers to prejudice to the defendant caused by the loss of evidence that would have been available within the limitation period. This is relevant because the defendant has presumptively lost the benefit of the evidence of Mr Rose and Mr Moore, and the documentary records of Firefox.

53 Other relevant circumstances include the loss of Mr Moore's diary within the limitation period, the loss of Firefox’s claim in contact against ACI, the significant actual prejudice that was established, the presumed prejudice from a total delay of over eight years, and the weaknesses of the plaintiff's case.

54 In the circumstances it would not be just and equitable to extend the limitation period.

55 The following orders should be made:

(1) Grant leave to appeal.

(2) The draft notice of appeal is to be filed within 10 days. Further compliance with the rules otherwise dispensed with.

(3) Appeal allowed with costs.

(4) Orders of the District Court set aside, and in lieu thereof order that the Notice of Motion of 9 April 2008 be dismissed with costs.

(5) Respondent to have a certificate under the Suitors Fund Act.

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LAST UPDATED:
4 November 2009