Supreme Court New South Wales

• Medium Neutral Citation: Emma Jane Plowman by her next friend Toby Plowman v Sisters of St John of God Inc [2012] NSWSC 376
• Hearing dates: 30 September 2011
• Decision date: 20 April 2012
• Jurisdiction: Common Law
• Before: HOEBEN J

Decision

(1) The limitation period for the plaintiff's action be extended to 24 December 2010, pursuant to the Limitation of Actions Act 1958 (Vic).

(2) I order that paragraph 6 of the defendant's Notice of Grounds of Defence be dismissed.

(3) I reserve the question of costs.

• Catchwords: LIMITATION OF ACTIONS - application for extension of time under Limitations of Actions Act 1958 (Vic) - whether plaintiff able to rely upon s27J of the Act - if not whether plaintiff entitled to discretionary extension of time under s27K and 27L of the Act - reasons for delay on part of plaintiff- extent of prejudice to defendant - absence of actual prejudice - time within which cause of action was discoverable - requirement that extension of time be "just and reasonable" - whether deliberate decision by plaintiff to let limitation period expire - effect of possible availability of cause of action against previous solicitors - delay in advising defendant of possibility of bringing proceedings against it - extension of time granted.
• Legislation Cited: Freedom of Information Act 1982; Guardianship and Administration Act 1986; Interpretation of Legislation Act (Vic) 1984; Limitation of Actions Act 1958 (Vic); Limitation of Actions (Amendment) Act 2002; Wrongs Act 1958 (Vic); Wrongs and Other Acts (Law of Negligence) Act 2003; Wrongs and Limitations of Actions Act (Insurance Reform) Act 2003
• Cases Cited: Adeels Palace Pty Limited v Bou Najem [2009] HCA 48, (2009) 239 CLR 420; Andresakis & Skouteris trading as Andresakis & Associates v Alexus Holdings Pty Ltd [2006] NSWCA 294, (2006) 68 NSWLR 507 at [82] - [93].; Baker-Morrison v State of NSW [2009] NSWCA 35, (2009) 74 NSWLR 454; Batistatos v Roads and Traffic Authority of NSW & Anor [2006] HCA 27, (2006) 226 CLR 256 at [69]; Bostik Australia Pty Limited v Liddiard & Anor [2009] NSWCA 167; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 550; Diaz v Truong [2002] 37 MVR 158; Harris v Commercial Minerals Limited (1995-1996) 186 CLR 1 at 14; Harrison v Melham (2008) 72 NSWLR 380; Holt v Wynter [2000] NSWCA 143, (2000) 49 NSWLR 128; Itek Graphix Pty Limited v Elliott [2002] NSWCA 104, (2001) 54 NSWLR 207; Matthew v Eastern Health (Shelton CCJ unreported, 10 November 2006); Morrison v Judd (Court of Appeal - unreported, 10 October 1995); Noja v Civil and Civic Pty Ltd (1990) 26 FCR 95; Rogers v Whittacker (1992) 175 CLR 479; State of NSW v Gillett [2012] NSWCA 83; Wrongs and Other Acts (Law of Negligence) Act 2003
• Category: Principal judgment
• Parties: Emma Jane Plowman by her next friend Toby Plowman - Plaintiff; Sisters of St John of God Inc - Defendant
• Representation: Mr M Joseph SC/Mr D Stanton - Plaintiff; Mr J Gormly SC - Defendant; Equilaw Solicitors - Plaintiff; TressCox Lawyers - Defendant
• File Number(s): 2010/425441

Judgment

1 HIS HONOUR:

Nature of Proceedings

The plaintiff moves by way of a Notice of Motion filed 23 May 2011 for the following orders:

(1) That the limitation period for the plaintiff's action be extended to 24 December 2010 pursuant to the Limitation of Actions Act 1958 (Vic).

(2) That paragraph 6 of the defendant's Notice of Grounds of Defence be dismissed.

(3) That the defendant pay the plaintiff's costs of the Motion.

2 The Motion is opposed by the defendant.

3 In the substantive proceedings, the plaintiff alleges that she suffered cerebral hypoxia during her birth at the defendant's hospital in Victoria on 13 July 1989. The Statement of Claim was filed on 22 December 2010.

4 The plaintiff presently resides at Tamworth in the State of New South Wales although the alleged act of negligence occurred in Victoria. There was no challenge to the jurisdiction of this Court. It was common ground that the Victorian limitation legislation governed the claim.

Factual Background

5 Within a couple of years of the plaintiff's birth, her parents noticed that she was developmentally delayed. Subsequently, a diagnosis of mild cerebral palsy with moderate-to-severe intellectual disability was made. On 10 March 1992, the plaintiff's father (Mr Plowman) attended a solicitor, Ms Hickey, at Hunt & Hunt, and instructed her to investigate whether the plaintiff had any cause of action against the defendant and Dr Swan who had delivered her.

6 Correspondence passed between Mr Plowman and Hunt & Hunt. The effect of that correspondence was that by August 1993, Hunt & Hunt had in their possession cranial ultrasound films taken of the plaintiff dated 17 July 1989, chest x-rays dated 17 July, 20 July, 23 July and 26 July 1989, clinical notes from the Royal Children's Hospital Melbourne including a letter of referral from the defendant dated 17 July 1989 and a file note of the plaintiff's parents' recollections of the birth obtained in conference. Hunt & Hunt were not able to obtain the clinical notes from the defendant. The defendant refused to provide the clinical notes because it was not hospital policy to do so and the Freedom of Information Act (1982) (NSW) did not apply to private hospitals.

7 Shortly after 24 May 1995, the plaintiff's parents received a letter from Hunt & Hunt enclosing an expert report from Professor McKay. The report was to the effect that, in the absence of the clinical notes from the defendant, Professor McKay could not reach any final opinion. The covering letter from Hunt & Hunt said:

"We would not recommend the commencement of proceedings against Dr Swan and/or the St John of God Hospital on the basis of the material presently before us.

The writer recommends that no further steps should be taken on the file at this stage and that we continue to monitor the development of research into the origins of cerebral palsy. It may be that in some years time medical opinion may be more supportive of a causal link between Emma's condition and the treatment or lack of treatment received during or prior to delivery.

Please note that the six-year limitation period on the commencement of court proceedings will not commence until Emma turns 18.

The writer has several other potential claims of a very similar nature we are therefore monitoring the medical literature to see if further research is of assistance.

We shall unless we hear to contrary adopt this approach on behalf of Emma and will keep you advised of any developments."

8 In his affidavit, Mr Plowman said that because of the advice concerning the limitation period, he was prepared to wait, and concluded that there was no urgency in respect of commencing proceedings at that time. Accordingly, the plaintiff's parents decided to wait to hear from Hunt & Hunt as to any further developments in medical science. The plaintiff's parents did not themselves carry out any research or investigations into the topic of cerebral palsy.

9 There was no contact between Hunt & Hunt and the plaintiff's parents between 1995 and 2000 except for a letter in 1996 advising that Professor McKay would waive his $500.00 fee in respect of the report. This was important because the plaintiff's parents were not financially well off.

10 In early 2000, not having heard from Hunt & Hunt, Mr Plowman read an article in "The Sydney Morning Herald" about Charlton Shearman, a law firm which was experienced in medical negligence matters, winning a multi-million dollar claim for a child that suffered problems at birth. Mr Plowman contacted that firm and spoke to a solicitor by the name of Peter King. By letter dated 5 April 2000, Mr King wrote that it seemed to him that the plaintiff had a good case, and that access to the defendant's hospital notes could be obtained under the Freedom of Information Act. The letter requested authorities to enable Charlton Shearman to get access to the hospital notes.

11 On 12 May 2000, a telephone conversation took place between Mr King and Mr Plowman in which Mr King advised that the hospital notes relating to the Plaintiff's birth had been destroyed. There was no evidence in this application as to how or from whom Mr King obtained this information.

12 By letter dated 2 June 2000, Mr King, on behalf of Charlton Shearman, advised as follows:

"I refer to the conversation with Mr Peter King on 12 May 2000 and advise that the medical records of Penelope Jane Plowman have been destroyed by St John of God Hospital Geelong in 1999.

It is difficult to mount a medical negligence claim against any health provider without having access to the claimant's full medical history. Without Penelope's medical history it would be difficult to factually prove the allegations made of negligent conduct and practice by St John of God staff that resulted in the cerebral hypoxia of Emma.

I am prepared however to review all information in your possession. Following my review of that information I would be in a better position to advise you of the likely prospects of succeeding in a medical negligence claim."

13 As a result of the receipt of that letter, the plaintiff's parents concluded that without the defendant's hospital notes, they could not obtain the evidence necessary to prove breach of duty in respect of the birth of the plaintiff. On the basis of the earlier advice provided by Hunt & Hunt, the plaintiff's parents believed that they still had time within which to commence proceedings if more information was obtained.

14 In about-mid 2008, after the plaintiff had turned 18, the plaintiff's parents decided that they needed closure on the issue of whether litigation could be commenced in relation to the plaintiff's birth. As a result, Mr Plowman consulted his brother-in-law who was a lawyer. His brother-in-law referred him to Mr Morgan, the litigation partner in his firm. Mr Plowman instructed Mr Morgan to assess whether there was sufficient evidence to commence proceedings for damages arising from the Plaintiff's birth. Mr Plowman provided Mr Morgan with all the documents which he had in his possession at that time.

15 By letter dated 21 November 2008, Mr Morgan sought authorities from the plaintiff's parents to obtain documents from the previous solicitors, from treating doctors and from the Defendant. The letter also provided the following advice:

"You will note that the final time limit in relation to commencing any proceedings on Emma's behalf will expire on 16 July 2010.

After that date it will be very difficult for any claim to be commenced.

Therefore if we are going to take any action in this matter time is now of the essence.

I note that a number of earlier lawyers have indicated that because the documents from St John of God Hospital were not available that this precluded you from bringing a claim.

Mr Stanton in his advice has set out what will need to be proved in relation to the claim being successful."

The letter went on to set out a number of steps which needed to be taken as a matter of urgency including the taking of comprehensive statements from each of the plaintiff's parents. The letter indicated that the solicitors and counsel would act on a speculative basis provided the plaintiff's parents paid for disbursements.

16 In May 2009, Mr Plowman conferred with Mr Morgan who advised him of the need to obtain expert evidence, not only as to whether the care provided at the time of the plaintiff's birth had been adequate, but to establish that, if there had been a breach of duty on the part of the hospital, this had caused the plaintiff's disability. Despite the financial difficulties involved, Mr Morgan was authorised to obtain expert medical opinion.

17 Somewhat surprisingly, given the difficulties previously encountered, the defendant provided Mr Morgan with the clinical notes relating to the birth of the plaintiff in January 2009. The notes were provided in answer to a request for them by Mr Morgan.

18 Mr Morgan encountered considerable difficulty in obtaining the Plaintiff's file from Charlton Shearman. The practice of Charlton Shearman had been taken over by another firm of solicitors, Maurice Blackburn Lawyers. In about May 2009, Mr Morgan was told that the plaintiff's file could not be located. The plaintiff's file held by Hunt & Hunt was provided to Mr Morgan in February 2009.

19 In June 2009, Mr Morgan retained Dr Michael Harbord, a paediatric neurologist, to provide advice. Dr Harbord had available to him all of the records which Mr Morgan had been able to obtain, including the clinical notes provided by the Defendant. Dr Harbord consulted with the Plaintiff's parents on 4 August 2009. He provided a report dated 6 August 2009. Dr Harbord concluded that the Plaintiff's cerebral palsy and intellectual disability were due to birth asphyxia. He advised that an opinion should be obtained from a specialist obstetrician on the issue of whether there had been a breach of duty on the part of the hospital at the time of birth.

20 Mr Morgan had difficulty in locating and identifying an appropriate specialist obstetrician. In December 2009, he retained Dr Roger Clements of Harley Street, London to provide an opinion. At Dr Clements' request, an interview took place between him and the Plaintiff's parents on 29 March 2010. Dr Clements provided a report dated 20 April 2010. Dr Clements concluded that the management of the labour was negligent and that had proper care been provided, the Plaintiff would have been born 25 minutes earlier.

21 Upon receipt of that report, Mr Morgan asked Dr Harbord to express an opinion as to the consequences of the 25-minute delay. Dr Harbord provided that report on 8 July 2010. The effect of the report was that had the Plaintiff been delivered 25 minutes earlier, she was likely to have avoided any brain damage and would be neurologically normal.

22 On 27 July 2010, Mr Morgan advised Mr Plowman as to the content and effect of the opinions of Dr Clements and Dr Harbord. Mr Plowman, in his affidavit, said that this was the first time that he had been told that there was evidence available to establish breach of duty by the defendant and that this breach of duty had caused the plaintiff's disability.

23 After obtaining further information as to the plaintiff's treatment and her current condition, Mr Morgan received instructions on 23 October 2010 to commence proceedings against the defendant. Thereafter, there was delay whilst the correct legal identity of the defendant was established. Confirmation of the correct identity of the defendant was not obtained until 26 November 2010. The Statement of Claim was filed on 22 December 2010.

24 The plaintiff remains severely disabled. Since completing school, she has attended the Northcott Day Program Service for four days a week. This is a service run by the Northcott Society, a non-government disability service. Homecare attends to shower the plaintiff four days a week, being the days that she attends the Northcott Day Program Service. For the remainder of the week, the plaintiff's parents look after her daily needs. They prepare her meals, lay out her clothes and provide her basic care because she cannot do these things independently. Although she can dress with assistance, they need to perform any tasks which require fine movement such as putting on and taking off her bra and doing up shoe laces and belts. She is not able to prepare food or meals for herself and cannot perform daily living skills independently. Her fine motor skills are not well developed and she cannot be left on her own. She has considerable difficulty in communicating. The condition is permanent.

The legislation

25 The Victorian Limitation of Actions Act 1958 ("the Act") is an important part of the background to this claim. In 1989, the Act prescribed that an action for damages in tort or contract be commenced within six years of the date on which the cause of action accrued. In actions for damages for personal injury, the six-year period was reduced to three years by the Limitation of Actions (Amendment) Act 2002 ("the 2002 Amending Act").

26 The amendment made by the 2002 Amending Act to s5 only applied to causes of action that accrued after 4 November 2002 (s39). It follows that the primary limitation period applying to the plaintiff's cause of action was a period of six years from the date the cause of action accrued. That period expired on 16 July 1995.

27 This leaves two questions to be considered:

(1) Has the primary limitation period been suspended by reason of disability?

(2) If not, is the plaintiff entitled to an extension of the limitation period?

28 Section 23(1) of the Act provides for an extension of the limitation period in cases of disability. This provision permits an extension of the limitation period to six years from the date when the person ceased to be under a disability, even though the period of limitation has expired.

29 Section 3(2) of the Act provides:

"For the purposes of this Act a person shall be deemed to be under a disability while he is a minor or of unsound mind."

30 Section 3(3) of the Act provides:

"Without limiting the meaning of 'unsound mind' a person is conclusively presumed to be of unsound mind if the person is a protected person within the meaning of section 85 of the Guardianship and Administration Act 1986 or a represented person within the meaning of the Guardianship and Administration Act 1986."

31 It is common ground, that in the circumstances of this case, no order has been made under the Guardianship and Administration Act 1986 and as a result, the common law meaning of "unsound mind" applies. It is also common ground that since the plaintiff's injury is cerebral palsy resulting in moderately severe intellectual disability, she is a person of "unsound mind".

32 Were they the only applicable legislative provisions, the plaintiff would have been regarded at all times as being of "unsound mind", the limitation period would have remained suspended and the proceedings would have been commenced in time.

33 Section 23(1) of the Act does not apply if Part IIA applies (Section 21(1)). This provision was inserted by the Wrongs and Limitations of Actions Act (Insurance Reform) Act 2003 ("the 2003 amending Act"). Part IIA of the Act is entitled "Personal Injury Actions". Part IIA sets limitation periods for personal injury actions (Division 2) and extension of limitation periods for personal injury actions (Division 3).

34 Division 4 of Part IIA contains the transitional provisions. By reason of the operation of s27N(1) and (2) of the Act, Part IIA applies to this cause of action as the injury occurred before 23 May 2003 and proceedings had not been commenced before 1 October 2003. Section 27N(4) makes it clear that the limitation periods that operated before the enactment of the Part are not extended by reason of the introduction of Part IIA. Further, by s27N(5), the fact that the limitation periods are not extended by the introduction of Part IIA does not prevent an application being made under Division 3 for an extension of the limitation period.

35 It is common ground that Part IIA governs the limitation periods in the matter.

36 Section 27E is entitled "Limitation Period for Personal Injury Actions - Persons Under a Disability". Section 27E provides:

"27E(1) This section applies to a cause of action to which this Part applies which is founded on a personal injury to a person who was under a disability at the date of the act or omission alleged to have resulted in the personal injury.

(2) An action in respect of a cause of action to which this section applies shall not be brought after the expiration of whichever of the following periods is the first to expire -

(a) the period of 6 years from the date on which the cause of action is discoverable by the plaintiff;

(b) the period of 12 years from the date of the act or omission alleged to have resulted in the personal injury with which the action is concerned."

37 The effect of s27E is that persons who are disabled, either by minority or unsoundness of mind, may sue in tort or contract in the period of six years from the date on which the cause of action is discoverable, until 12 years from the date of breach, whichever occurs first. Accordingly, disabled persons have double the period within which to commence an action subject to a long-stop period of 12 years.

38 On the plaintiff's case, if a breach occurred, it could only have occurred at birth, ie July 1989. Leaving aside questions of whether and when her action was discoverable, she had a maximum period of 12 years from July 1989 within which to bring proceedings. Pursuant to s27E, the plaintiff's limitation period therefore expired in July 2001, being the end of the long-stop period, but also during her minority.

39 The Act, however, has regard to a particularly vulnerable third group of people who are given special attention in s27J. This section provides:

"27J(1) A person is under a legal incapacity for the purposes of this section while the person -

(a) is a minor, but not while the minor is in the custody of a capable parent or guardian; or

(b) is an incapacitated person for a continuous period of 28 days or more, but not while -

(i) the person is a represented person; and

(ii) the guardian of the person is authorised by law to bring actions in the person's name.

(2) If a person has a cause of action for which a period of limitation has commenced to run and the person is under a legal incapacity, the running of the period of limitation is suspended for the duration of the legal incapacity.

(3) In determining when a cause of action is discoverable by a person who is a minor or an incapacitated person and who is not under a legal incapacity, facts that are known or ought to be known by a capable parent or guardian of the minor or the guardian of the represented person are deemed to be facts that are known or ought to be known by the minor or incapacitated person.

(4) In this section -

capable parent or guardian of a minor means a person -

(a) who is a parent or guardian of the minor; and

(b) who is not under a legal incapacity.

guardian, in relation to a represented person, means -

(a) the guardian or administrator of that person under the Guardianship and Administration Act 1986; or

(b) in the case of a protected person, State Trustees Limited;

incapacitated person means a person who is incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of which the question arises, by reason of any disease or any impairment of his or her physical or mental condition;

represented person means -

(a) represented person within the meaning of the Guardianship and Administration Act 1986; or

(b) protected person within the meaning of section 85 of that Act."

40 This third and particularly vulnerable group consists of persons who have a disability, but in the case of minors, do not have a parent or guardian and, in case of persons of unsound mind, have no legal representative responsible for them. The period of incapacity able to trigger this provision for such a person may be short (though exceeding 28 days) or even intermittent, but during such periods, the limitation period is fully suspended. Likewise, minors without a responsible parent or guardian are vulnerable and the limitation period is suspended for that period of vulnerability. This is the s27J category.

41 The difference between persons who fall within the s27E category of disabled persons and the s27J vulnerable category, is whether the person in question has someone who is able, willing or duty-bound to act in their interest. A s27J person is without a responsible or appointed representative or parent or guardian. A s27E person has such a person.

42 One of the issues between the plaintiff and the defendant is whether the plaintiff is a s27E person and was at all times during her applicable limitation period. It is the plaintiff's submission that she was part of the s27J group of vulnerable persons. If the plaintiff were successful in her submission, no limitation period would apply to her until she had formal representation. On the plaintiff's submission, she would have a new six-year limitation period within which to commence and a new long-stop period of 12 years, such as is provided in s27E.

43 If the defendant's submission is correct and the plaintiff is in the s27E category and has never been in the s27J category, the 12-year long-stop period has clearly expired and the plaintiff would not gain any additional benefit under the Act because she was under a disability. In that circumstance, in order to obtain an extension of time, the plaintiff would have to bring herself within the provisions of s27K of the Act which provides a limited discretion to extend time if it is "just and reasonable" to do so, subject to the Court having regard to the matters set out in s27L.

44 Those sections provide:

"27K Extension of limitation periods

(1) A person claiming to have a cause of action to which this Part applies may apply to a court for an extension of a period of limitation applicable to the cause of action under Division 2.

(2) Subject to section 27L, the court -

(a) may hear any of the persons likely to be affected by the application as it sees fit; and

(b) may, if it decides that it is just and reasonable to do so, order the extension of the period of limitation applicable to the cause of action for such period as the court determines.

(3) If a court orders the extension of a period of limitation applicable to a cause of action under this section, that period of limitation is accordingly extended for the purposes of an action brought by the applicant in that court on the cause of action that the applicant claims to have.

27L Matters to be considered in determining applications for extension of limitation period

(1) In exercising the powers conferred on it by section 27K, a court shall have regard to all the circumstances of the case, including (but not limited to) the following -

(a) the length of and reasons for the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;

(c) the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;

(d) the duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability;

(e) the time within which the cause of action was discoverable;

(f) the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;

(g) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice he or she may have received.

(2) To avoid doubt, the circumstances referred to in subsection (1) include the following -

(a) whether the passage of time has prejudiced a fair trial of the claim; and

(b) the nature and extent of the plaintiff's loss; and

(c) the nature of the defendant's conduct.

..."

45 Section 27M does not impose any time limit on the application of s27K. It relevantly provides:

"27M(1)The powers conferred on a court by this Division may be exercised at any time even though -

(a) the period of limitation has already expired; or

(b) an action in respect of the death or personal injury has been commenced.

..."

Submissions

Can the plaintiff rely upon s27J of the Act

46 The plaintiff submitted that although she was a minor until July 2007, she was also an incapacitated person for a continuous period of 28 days or more. She submitted that there was no issue that, in accordance with s27J(4), she is a person who is incapable or substantially impeded in managing her own affairs in relation to the cause of action by reason of her medical condition and that she is not a "represented person" within the meaning of the Guardianship and Administration Act 1986 or a protected person within the meaning of s85 of that Act.

47 The plaintiff's primary submission was, therefore, that at all material times she was under a "legal incapacity" so that s27J(2) suspended the limitation period referred to in s27E. If that analysis is correct, she submitted that her claim was commenced within time and is not statute barred.

48 Implicit in the plaintiff's submission is the proposition that the categories identified in s27J(1)(a) and (b) were not mutually exclusive. On that interpretation, the word "or" would not be given a disjunctive effect so that s27J(1) created two groups of persons without the need for exclusivity of one group from the other. On this analysis, although the plaintiff may have been disqualified by subsection (1)(a) from relying upon s27J, she also came within the description of an incapacitated person pursuant to subsection (1)(b) which enabled her to rely upon s27J.

49 As an alternative, the plaintiff put the same argument in a slightly different way. She submitted that even if she could not rely upon s27J during her minority, because of the effect of subsection (1)(a), her right to rely upon s27J revived once she reached her majority. That was because subsection (1)(a) no longer applied, but subsection (1)(b) still applied, so that she could then take advantage of it and rely upon the provisions of s27J.

50 The plaintiff was aware of a decision of the County Court of Victoria in Matthew v Eastern Health (Shelton CCJ unreported, 10 November 2006) which had reached a different conclusion. The plaintiff submitted that this Court was not bound by that decision and that, in any event, the decision was wrong.

51 The plaintiff submitted that in Matthew, his Honour was wrong to rely upon the second reading speech and instead should have relied upon the words actually used in the statute (Spigelman CJ in Harrison v Melham (2008) 72 NSWLR 380 at [16]). The plaintiff submitted that the Matthew decision failed to give effect to the word "or" and failed to have regard to the Interpretation of Legislation Act (Vic) 1984. The plaintiff submitted that the interpretation in Matthew had the effect of depriving a minor who attained the age of 18 and who was an incapacitated person, of all protection under the Act.

52 I do not accept the plaintiff's interpretation of s27J.

53 As a start point, it is useful to set out the reasoning of Shelton CCJ in Matthew. There his Honour said:

"13 Mr Murdoch, who appeared for the defendant, submitted that the first plaintiff, being a minor who was in the custody of 'a capable parent' as defined in section 27J(4), in fact two capable parents, as I shortly conclude, therefore could not come within the purview of subsection (1)(b). He submitted that a minor had to come within the purview of subsection (1)(a) or not at all. In support of this submission, he relied upon the opening words of section 27J(3), which suggest that, for the purposes of the section, a person can be categorised as a minor or an incapacitated person, but not both. He further relied upon the second reading speech on the Wrongs and Limitation of Actions Act (Insurance Reform) Bill delivered on 21 May 2003, where it is stated, at Hansard page 1785:

'PartIIA also provides that where a person is under a legal incapacity the running of the limitation period is suspended for the duration of the legal incapacity. However, the suspension of the limitation period during incapacity will not apply to a child who is in the custody of a legally capable parent or guardian or to an incapacitated person who is a represented person. It is reasonable for the community to expect that parents and guardians will act in the best interests of their children and commence proceedings within six years of discovering an injury to their child.'

14 In my view, the approach suggested by Mr Murdoch is the appropriate method of construing section 27J(1). Therefore, I conclude that the first plaintiff is not under a legal incapacity and subsection 27J(2) is not applicable to him."

54 The Interpretation of Legislation Act (Vic) 1984 relevantly provides:

"35 Principles of and aids to interpretation

In the interpretation of a provision of an Act or subordinate instrument -

(a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and

(b) consideration may be given to any matter or document that is relevant including but not limited to-

(i) all indications provided by the Act or subordinate instrument as printed by authority, including punctuation;

(ii) reports of proceedings in any House of the Parliament;

(iii) explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament; and

(iv) reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry or other similar bodies."

55 I do not see how the approach in Matthew offends the Interpretation of Legislation Act (Vic) 1984. The effect of the 2003 amending Act of which s27J was a part, was to reduce limitation periods. Accordingly, it would be contrary to the "purpose or object underlying the Act" to give to s27J the expansive interpretation sought by the Plaintiff. Moreover, as was submitted in Matthew, there is a clear indication in the wording of s27J(3) that the section is referring to two separate and distinct groups in subsections (1)(a) and (1)(b). Apart from that clear indication in the wording of the section itself, it was open to his Honour, in accordance with the Interpretation of Legislation Act (Vic) 1984, to have regard to the second reading speech.

56 As the quotation from the second reading speech makes clear and as the terms in which s27J is expressed make clear, subsection (1)(a) operates separately from subsection (1)(b). The section intends to deal with minors who would normally be expected to have some kind of carer (a capable parent or guardian), but for some reason do not, and incapable adult persons who do not have representation or an authorised guardian acting in their name. Both are highly vulnerable. It cannot be the intended scheme of the Act that an incapacitated minor can elect to trigger subsection (1)(b) to avoid the long-stop bar where there was at all times a capable parent or guardian. That would produce an anomalous result.

57 There is, of course, no issue that the plaintiff has always, throughout the period of the limitation period applicable in s27E, had the benefit of capable parents of the type envisaged by s27J.

58 Accordingly, I have concluded that the plaintiff was bound by the limitation periods fixed in s27E and must, therefore, explain the delay which has occurred in accordance with the requirements of s27K and s27L of the Act.

The defendant's submissions

59 The defendant opposed a discretionary extension of time under s27K and s27L of the Act on three bases:

(1) that the inherent prejudice, both to a fair trial of the issues and to the defendant, after the passage of 21 years was too great to overcome;

(2) that the plaintiff and her legal advisors have not acted to prevent prejudice;

(3) that the usual preference for a primary tort feasor should be displaced in this case and proceedings brought against the first two firms of solicitors, ie Hunt & Hunt and Charlton Shearman.

60 Except where otherwise indicated, the defendant developed its submissions as follows.

61 The first notice of a claim against the defendant was not received until service of the Statement of Claim in December 2010, 21 years after the pleaded event. When taking into account what is just and reasonable, the Court should have regard to the fact that no attempt was made by anyone on behalf of the plaintiff to advise the defendant of the plaintiff's intention to bring proceedings during that 21-year period. The Act had in mind positive actions and obligations on the part of an intending plaintiff which include acting in a way which would prevent prejudice to the proposed defendant.

62 The Act, by using as a criteria "just and reasonable", required the plaintiff to look not only at her own interest, but to consider and ameliorate prejudice and the effect of delay on the fairness and quality of a trial. The plaintiff when seeking the exercise of a discretion for an extension in her favour should at least have signalled the possibility of legal action to the defendant at the earliest time in order to avoid or reduce prejudice.

63 The judgment of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 550 set out the basis for a plaintiff having a positive obligation to reduce prejudice as follows:

"(a) Applicants do not have presumptive rights to an extension.

(b) Extension is a matter of discretion.

(c) The discretion must account for prejudice to the defendant.

(d) The applicant for discretionary relief has not merely an onus but a positive burden of demonstrating 'that the justice of the case requires an extension'." (p544.1)

64 The defendant submitted that an intending plaintiff is the only party that can have any control over whether, and the extent to which, there is prejudice to a defendant in the late commencement of an action. While generally speaking, plaintiffs do not need to consider their opponent's position, if they wish to seek the exercise of a judicial discretion for a delayed commencement and could have acted to reduce prejudice, they must have done so to secure an order extending time. In this case, a delay of 21 years presents an insuperable obstacle to fair judicial assessment of liability.

65 By reference to Taylor, the defendant identified the adverse effect that such a lengthy delay would have on memory, reliability and circumstances that provide the context in which a matter is to be decided. What is now not known is just as important as what is known.

66 In this case, the plaintiff's parents had been considering court proceedings for over 21 years, but postponed commencing until they found some evidence which they thought would assist. They did not at any time seek to notify the defendant of their intentions. The defendant submitted that a mere request for clinical notes is not notice of action. It submitted that had the plaintiff's parents signalled their intention even 10 years ago, whatever the limitation period at the time, an extension might have been more difficult to resist. The Defendant would have had the opportunity to collect and preserve facts, witness lists, statements, documents and other evidence.

67 The defendant submitted that the decision by Mr Plowman after consulting Hunt & Hunt not to take further steps at that stage was a considered decision not to sue, such as was taken into account by the Court of Appeal in Itek Graphix Pty Limited v Elliott [2002] NSWCA 104, (2001) 54 NSWLR 207.

68 The defendant submitted that there was no evidence to justify criticism of it concerning the production of the clinical notes associated with the plaintiff's birth. Twenty one years ago, records were being handled in hard copy and privacy legislation and the change in public policy as to who owned medical records had not yet occurred. The evidence was largely silent as to why and in what circumstances the defendant refused to produce the clinical notes. No adverse inference should be drawn from the information obtained by Charlton Shearman that the clinical notes had been destroyed since the evidence was silent as to the circumstances in which that information was conveyed to Charlton Shearman.

69 The defendant submitted that at the time Mr Plowman consulted Charlton Shearman, the High Court had handed down its decision in Taylor. It would have been known by Charlton Shearman that Taylor placed a significant onus on the plaintiff to establish an entitlement to an extension and emphasised the need to overcome prejudice to the defendant by lapse of time. The defendant submitted that had Charlton Shearman provided proper advice to Mr Plowman, notice of an intention to commence proceedings would have been given to the defendant. In contrast, the matter was approached entirely from the position of the plaintiff as though time was a factor of relevance only to her.

70 The defendant submitted that not only was there presumptive prejudice as explained in Taylor, preventing a fair trial from occurring if the plaintiff was granted an extension of time, but there might well be actual prejudice on the basis of Dr Clements' report. In his report, Dr Clements suggested that the clinical notes produced by the defendant "do not represent reality" and that the observations referred in them did not occur. He made that suggestion on the basis of what he had been told by Mrs Plowman when he met with her. The defendant submitted that it would need to call evidence to meet that suggestion and such evidence might not now be available.

71 In relation to the presumptive prejudice, the defendant relied upon the rationale behind limitation periods generally, and made specific reference to the facts of this case with the very long period that had elapsed between the incident and the commencement of proceedings. It referred to:

(a) the likelihood of relevant evidence being lost;

(b) the oppressiveness associated with allowing an action long after the circumstances had passed;

(c) the need for people to be able to arrange their affairs and utilise resources by relying upon limitation periods;

(d) the public interest in settling disputes quickly.

72 Finally, the defendant submitted that although the courts had a preference for bringing proceedings against the primary tort feasor, in this case the circumstances were such as to favour bringing proceedings against a secondary tort feasor, ie Hunt & Hunt and Charlton Shearman. The considerations relied upon by the defendant were:

(a) the failure to commence proceedings within the limitation period was due to the failure of the solicitors to make use of the court's interlocutory procedures to obtain missing evidence rather than the difficulties of the action, or any fault on the part of the Defendant;

(b) the failure by those lawyers to investigate or commence action or even to bring pre-action procedures was unexplained;

(c) there was no evidence of any failure by the Defendant which amounted to a constructive refusal to co-operate;

(d) during the preceding 21 years, including periods when action was being actively investigated, no consideration was ever given to reducing or avoiding prejudice to the Defendant by informing it of the Plaintiff's investigations or giving notice of an intention to make a claim.

Consideration

73 Section 27K permits a general application for an extension of the limitation period where it would be "just and reasonable to do so". The meaning of "just and reasonable" was considered by the High Court in Harris v Commercial Minerals Limited (1995-1996) 186 CLR 1 at 14 where the Court said:

"After an applicant gets through the s 60I(1) gateway, he or she must satisfy the court that it is 'just and reasonable' (s 60G) to grant an extension of the limitation period. Under that provision, questions of what the applicant knew or ought to have known will often play a critical role in determining whether it is just and reasonable to extend the limitation period. It may not be just and reasonable, for example, to extend a limitation period if before the expiration of the period the applicant knew or ought to have expected most of the consequences of an injury. Unawareness of all the consequences may get the applicant through the s 60I(1)(a)(ii) gateway, but it will not guarantee a passage through s 60G."

74 By this observation, I take the High Court to be saying that even though the plaintiff might satisfy the majority of considerations in s27L, she still has an onus of establishing that it is "just and reasonable" to extend the time. This allows the Court to take into account a wide array of matters which might be relevant to the fairness of granting an extension, including but not limited to, the extent to which significant prejudice would arise and the extent to which a fair trial is likely. If the plaintiff cannot discharge the "just and reasonable" test, then her application will fail.

75 Section 27L sets out a non-exhaustive list of matters which the Court "shall have regard to" when considering an application under s27K. The first of these is:

(a) The length of time and reasons for the delay on the part of the plaintiff.

76 The length of the delay is substantial, i.e. 21 years. In that regard, it is relevant to note that were it not for the amendments made by the 2003 amending Act, the plaintiff would have been entitled to bring these proceedings as of right since the limitation period was suspended for the duration of any disability (s23). Accordingly, the plaintiff only became out of time to bring these proceedings by reason of the legislative amendment. That having been said, the date of assessment of relevant factors is the date the discretion is exercised at which time the Court has to consider the "whole period since the cause of action accrued".

77 The initial delay was due to it taking almost three years for the plaintiff's parents to learn the nature and extent of the plaintiff's disability. This occurred when the plaintiff was assessed in 1991 at Westmead Hospital and when her parents observed the extent of her developmental delay when she was aged 3. In those circumstances, the attendance by the plaintiff's father on Hunt & Hunt in March 1992 was reasonable in the circumstances and did not involve delay.

78 Between that date and May 1995, when the plaintiff's parents received the final letter from Hunt & Hunt and the report from Professor McKay, they did all that they were required to do by those solicitors. The substantial delay thereafter was due to the plaintiff's legal advisers not being able to gain access to the clinical notes relating to her birth from the defendant. The defendant refused to provide the clinical notes to Hunt & Hunt and Charlton Shearman were told that the clinical notes had been destroyed.

79 In circumstances where it was necessary to establish the fact of the injury to the plaintiff and its nature and extent, the existence of any negligent act or omission and a causal connection between it and the injury, it was not unreasonable for the plaintiff's parents to follow the advice which they were given by the solicitors retained on behalf of the plaintiff. Significantly neither Hunt & Hunt nor Charlton Shearman recommended that proceedings be commenced. On the contrary, the recommendation in both cases was that proceedings ought not be commenced at that time. Professor McKay required the clinical notes to make comment upon the standard of care provided by the defendant and in their absence, could not form an opinion.

80 As of the end of 2000, the plaintiff's parents had been told by Hunt & Hunt that any limitation period would not commence to run until the plaintiff turned 18, that they were monitoring the medical literature to see if further research would be of assistance and by Charlton Shearman that without the clinical notes, it would be difficult to factually prove negligent conduct by the defendant. In those circumstances, the decision by the plaintiff's parents not to take the matter further until 2008 when, according to what they had been told by Hunt & Hunt, the limitation period would commence to run, was not only understandable but reasonable. Thereafter, the matter moved expeditiously until the Statement of Claim was filed and served and I do not understand any criticism to be made by the respondent in respect of the period after August 2008 when the plaintiff's present solicitors were first consulted.

81 While the extent of the delay is substantial - 21 years, that by itself is not decisive. The crucial issue is whether a fair trial is possible (Batistatos v Roads and Traffic Authority of NSW & Anor [2006] HCA 27, (2006) 226 CLR 256 at [69]). For example in most of the Voyager cases, this Court has held that a delay of 24-25 years per se provides no reason for the refusal of an extension of time, provided a fair trial is possible.

(b) The extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant.

82 The defendant did not give evidence as to any actual prejudice which it might suffer if the limitation period were extended. It relied upon presumptive prejudice and in particular, the matters set out in Brisbane South Regional Health Authority v Taylor. Nevertheless, presumptive prejudice is an important consideration and there is no doubt that the extent of the delay will inevitably have an adverse effect on the memory of any witnesses and the reliability of their evidence.

83 The defendant specifically referred to that part of the report of Dr Clements which relied upon the recollection of the plaintiff's mother to the effect that the clinical notes recorded more observations of her than she recollects. The defendant submitted that this will involve a contest between the plaintiff's mother and the nursing staff and/or midwives who were present at the birth as to what happened. The defendant submitted that the ability of nursing staff to remember those events after 21 years will undoubtedly have been affected. Importantly, however, it was not said that such persons were not available to give evidence.

84 While there is force in that submission, it relates to only one part of Dr Clements' report. The main thrust of Dr Clements' opinion is based on his close analysis of the clinical records themselves and what he says are discrepancies and imperfections in them. That part of his report which is a fundamental plank of the plaintiff's case depends upon whether his expert opinion is accepted, not upon matters of recollection such as would be adversely affected by the effluxion of time.

85 While the plaintiff has the onus of establishing her entitlement to an extension of time, the defendant has an evidentiary onus if it wishes to establish actual prejudice. It is of significance that there is no evidence to even suggest that because of the effluxion of time witnesses who the defendant would wish to call are not available, that their recollection has in fact been adversely affected or that records which it needs to rely upon are no longer available. Accordingly, while the extent of the delay in the presumptive sense must adversely affect the defendant's capacity to conduct the litigation, no actual prejudice has been established to that effect.

(c) The extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;

86 There is no doubt that the defendant's refusal until January 2009 to make the plaintiff's clinical notes available to her legal advisers contributed to the delay which occurred. This is not to be critical of the defendant which was entitled to take a hard line against a potential litigant. The inevitable consequence, however, was delay in essential documents coming into the hands of the plaintiff's legal advisers and thus a delay in the commencement of proceedings.

87 The circumstances in which Charlton Shearman were told that the clinical notes had been destroyed are not known. Accordingly, I am not prepared to infer that such information was deliberately communicated to Charlton Shearman with an intention to delay and/or frustrate the commencement of the proceedings against the defendant. The important consideration is, however, that the failure to provide the clinical notes to the plaintiff's legal advisers made a significant contribution to the overall delay.

(d) The duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability.

88 There was no issue between the parties that at all times the plaintiff has suffered from a significant disability and has been entirely dependent upon her parents to pursue this action. The disability is permanent.

(e) The time within which the cause of action was discoverable.

89 Section 27J(3) of the Act provides:

"27J(3) In determining when a cause of action is discoverable by a person who is a minor or an incapacitated person and who is not under a legal incapacity, facts that are known or ought to be known by a capable parent or guardian of the minor or the guardian of the represented person are deemed to be facts that are known or ought to be known by the minor or incapacitated person."

90 Section 27F provides:

"27F(1) For the purposes of this Part, a cause of action is discoverable by a person on the first date that the person knows or ought to have known of all of the following facts -

(a) the fact that the death or personal injury concerned has occurred;

(b) the fact that the death or personal injury was caused by the fault of the defendant;

(c) in the case of personal injury, the fact that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action.

(2) A person ought to know of a fact at a particular date if the fact would have been ascertained by the person had the person taken all reasonable steps before that date to ascertain the facts."

91 There was no issue that in fact the plaintiff's parents did not learn that the plaintiff's injury may have been caused by the fault of the defendant until the reports of Drs Harbord and Clements were obtained. The issue between the parties was whether the plaintiff's parents ought to have become aware of that fact earlier.

92 The Court of Appeal has considered the concept of "fault" in a limitation context in Baker-Morrison v State of NSW [2009] NSWCA 35, (2009) 74 NSWLR 454, Bostik Australia Pty Limited v Liddiard & Anor [2009] NSWCA 167 and State of NSW v Gillett [2012] NSWCA 83. That latter case was a decision of a five bench court in which the correctness of the approach in Baker-Morrison was specifically challenged. Those three cases were concerned with the interpretation of s50D of the Limitation Act 1969 (NSW) which is expressed in identical terms to s27F of the Act, with particular reference to the use of the word "fault" in the equivalent of s27F(1)(b).

93 Basten JA (with whom Ipp and Macfarlan JJA agreed) said in Baker-Morrison:

"28 In par (b), the word "fault" is no doubt capable of having a broad generic meaning, not necessarily confined to that which engages legal liability. The context, on the other hand, gives it a different connotation. That which is identified as "discoverable" for the purposes of s 50C is "the cause of action". The "fact" contemplated by par (b) is a relationship between two things, namely the injury or death on the one hand and the fault of the defendant on the other. The relevant connection is one of causation."

94 At [39] his Honour said:

"39 The linguistic difference between s 60I(1) and s 50D(1) cannot be disregarded. The test in s 60I is broader in two respects, and therefore easier for a defendant to establish. First, the relationship between injury and act or omission is said in s 60I to be one of "connection", whereas in s 50D it is one of causation. Secondly, the phrase "act or omission" is replaced by "fault". On the other hand, in a practical sense, the latter distinction may be more apparent than real. Once it is accepted that the act or omission of which the person is to be aware under s 60I is the existence of an alternative system or precaution, apparently being one reasonably available, the point of distinction is diminished. As explained in Drayton, there is no need for the plaintiff to be able to articulate a cause of action in terms of negligence, nuisance, breach of duty or otherwise. It is the key factors necessary to establish legal liability which must be known. In the context of s 50D, to speak in general terms of moral blameworthiness is inapt: it is consistent neither with the context of s 50D, which deals with fault in relation to a cause of action, nor with the underlying approach in Dedousis and Drayton."

95 In Gillett Beazley JA, with whom the other four judges agreed, said:

"94 In my opinion, Basten JA was correct when he stated, at [39] 464, that a cause of action was discoverable when a plaintiff knew or ought to have known the key factors necessary to give rise to liability. As his Honour pointed out, s 50D(1)(b) involves a relationship of causation between "fault" and injury. ..."

96 Applying that guidance, as already indicated, the actions of the plaintiff's parents in consulting solicitors in 1992 and 2000 was reasonable. The fact that those solicitors were unsuccessful in obtaining the necessary information was not a fault of theirs. The absence of the clinical records prevented the obtaining of expert opinion as to any negligent conduct by the defendant. The obtaining of that opinion was also delayed by a lack of academic and medical literature that made a link between birth asphyxia and the onset of cerebral palsy at that time. Neither Hunt & Hunt nor Charlton Shearman advised the plaintiff's parents to commence proceedings. It was reasonable for the plaintiff's parents to accept that advice. Accordingly, all reasonable steps had been taken by the plaintiff's parents to ascertain the relevant fact, up until that fact became known to them as a result of the reports of Drs Harbord and Clements being received.

97 I am satisfied that the relevant information was not known nor ought to have been known by the plaintiff's parents until the reports of Drs Harbord and Clements were obtained.

(f) The extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the act or omission of the defendant to which the injury of the plaintiff was attributable, might be capable at that time of giving rise for an action for damages.

98 As already indicated, the plaintiff's parents acted promptly and reasonably given the legal advice which they received.

(g) The steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice he or she may have received.

99 As indicated, the plaintiff's parents not only acted reasonably in seeking legal advice when they did, but they complied with the advice which they received. The plaintiff's case could not be properly investigated until the clinical notes were obtained. As it turns out, the main part of the plaintiff's claim is based upon a failure to monitor on the part of the defendant. Clearly the absence of clinical notes identifying what monitoring took place, prevented the obtaining of expert opinion on that issue. It was not suggested by the defendant that the plaintiff was required to commence an action before reliable expert opinion in support was available.

100 The defendant made a number of submissions pursuant to s27K(2) of the Act on the basis that it would not be "just and reasonable" for the plaintiff to be granted an extension of time.

101 The defendant submitted that the acceptance by the plaintiff's parents of the Hunt & Hunt advice in 1995 and their decision not to pursue the plaintiff's claim at that time was the same as the decision taken by the proposed plaintiff in Itek Graphix Pty Limited v Elliott. The defendant submitted that the actions of the plaintiff's parents constituted a considered decision at that time not to pursue the plaintiff's claim.

102 I do not accept that the defendant has correctly characterised the decision made by the plaintiff's parents in 1995. The correct characterisation of their decision was to defer commencing proceedings on behalf of the plaintiff pending the receipt of further information which would be sufficient to justify the commencement of such proceedings. It is also significant that this decision was made against the background of advice from Hunt & Hunt that the limitation period would not commence to run until the plaintiff turned 18. In making the decision which they did, the plaintiff's parents were doing no more than following the advice of Hunt & Hunt which was to "await further developments".

103 In further reliance upon the "just and reasonable" test, the defendant submitted that there was clear negligence on the part of Hunt & Hunt and Charlton Shearman in their representation of the plaintiff and that the plaintiff should pursue her rights against those solicitors rather than against the defendant.

104 There are difficulties with that submission.

105 It is by no means clear that the two firms of solicitors were negligent when acting on behalf of the plaintiff. In the case of Hunt & Hunt, preliminary discovery would not have been available since the identity of the proposed defendant was not in issue. There were no proceedings within which a subpoena could have been issued. Even if a subpoena were issued it would have been contested. Accordingly, there were practical difficulties in those solicitors gaining access to the clinical notes.

106 In addition, Hunt & Hunt's reluctance to recommend the commencement of proceedings depended not only upon the absence of the clinical notes, but a paucity of scientific knowledge which causally linked the plaintiff's condition to what happened at her birth.

107 In the case of Charlton Shearman, too little is known about the circumstances in which that firm was advised that the clinical notes had been destroyed. The reasonableness of that firm relying upon that information cannot at this point in time be assessed. If it were reasonable for Charlton Shearman to accept that statement as accurate, it is difficult to see what more that firm could have done.

108 Even if negligence could be established against either or both of those firms of solicitors, the authorities on this issue indicate that while this is a matter which can be taken into account when considering whether to extend a limitation period, it is a matter of little weight.

109 The authorities were usefully summarised by McColl JA in Andresakis & Skouteris trading as Andresakis & Associates v Alexus Holdings Pty Ltd [2006] NSWCA 294, (2006) 68 NSWLR 507 at [82] - [93]. The start point in her Honour's analysis was the decision of the Court of Appeal in Morrison v Judd (Court of Appeal - unreported, 10 October 1995) where Kirby P (Meagher and Powell JJA agreeing) said that the availability of a secondary remedy is relevant but that "it cannot carry much weight". The approach in Morrison v Judd was followed in Diaz v Truong [2002] 37 MVR 158 and Noja v Civil and Civic Pty Ltd (1990) 26 FCR 95.

110 The conclusion arrived at by McColl JA was:

"92 Accordingly it is correct to say that the primary judge erred in dismissing the prospect that the respondent had a cause of action against its former solicitors as "an impermissible consideration". It was a relevant consideration, but one whose weight depended on the circumstances. The authorities to which I have referred have accorded the prospect of a secondary cause of action little weight, partly because of the difficulty of evaluating the prospects of success."

111 It follows that the possible existence of a cause of action against Hunt & Hunt and Charlton Shearman is a relevant consideration but in the circumstances of this case, it is a consideration which should be given little weight.

112 Still relying upon the "just and reasonable" gateway, the defendant submitted that there was an obligation on the plaintiff to notify the defendant of her possible intention to commence proceedings against it so as to avoid any prejudice arising during the postponement of the limitation period. The defendant submitted that if that had been done, steps could have been taken by it to preserve the facts, witness lists and documents etc. The defendant pointed to a number of occasions between 1992 and the service of the statement of claim when this could have been done.

113 There are difficulties with this submission. The first and most obvious is that there is no evidence before the Court of actual prejudice, in particular, that facts, witness lists, documents etc have been lost as a result of delay. Moreover, the precise nature of the notification that should have been given by the plaintiff to the defendant was not identified.

114 Until the reports of Drs Harbord and Clements were received, the most that the plaintiff could have said to the defendant was that she might, should sufficient information come to hand, commence proceedings against it. In a sense such information had already been communicated to the defendant when the initial request for clinical notes was made in 1992/93 and thereafter in 2000 and 2008. Inferentially, from the defendant's point of view, the only purpose in lawyers acting on behalf of the plaintiff requesting the clinical notes would be the contemplation of litigation against it in the future.

115 Another difficulty with the submission is that there was no evidence before the Court as to what, if anything, the defendant would have done had the plaintiff advised it that she was contemplating proceedings if and when sufficient information came to hand to justify them. In the absence of any evidence to the contrary, and in the light of the lack of activity on the part of the defendant following receipt of the three requests for clinical notes, I infer that had the plaintiff provided such a qualified notification to it, the defendant was unlikely to have taken any additional steps to preserve documents etc.

116 Finally, the defendant has quoted no authority for this submission. I have concluded that to the extent such a consideration is relevant, it has little weight.

117 The delay has provided some benefit to the defendant. The amendments to the Wrongs Act 1958 (Victoria) brought about by the Wrongs and Other Acts (Law of Negligence) Act 2003 has reintroduced the "but for" test of causation (sections 51 - 52) (Adeels Palace Pty Limited v Bou Najem [2009] HCA 48, (2009) 239 CLR 420). The standard of care of professionals has been increased (sections 57-60) so as to reintroduce the Bolam test, which was disapproved by the High Court in Rogers v Whittacker (1992) 175 CLR 479. That legislation also introduced caps on damages in cases of this kind (sections 28LA, 28LAB and 28LAC).

118 As with some of the submissions raised by the defendant, I regard those legislative changes which favour the defendant as relevant but of comparatively little weight in this application.

Conclusion

119 In Holt v Wynter [2000] NSWCA 143, (2000) 49 NSWLR 128 a five judge bench sought to reconcile Brisbane South Regional Health Authority v Taylor with previous decisions of the Court of Appeal. Sheller JA (with whom Meagher and Handley JJA and Brownie AJA agreed) said at [116]:

"116 In the lists of guidelines to which Priestley JA has referred, Gleeson CJ (at 532), having identified the immediate purpose of the legislation as being to protect defendants against the injustice of stale claims and the additional purpose to promote forensic diligence, said:

"2 Bearing in mind those statutory purposes, the question is whether, in the circumstances of each individual case, the applicant for leave has demonstrated that it is fair and just that leave should be granted."

This may be more broadly stated than the "real question" which Toohey J and Gummow J described. But bearing in mind the immediate purpose to which the Chief Justice referred, I do not think an applicant would demonstrate that it was fair and just that leave should be granted if to do so would result in significant prejudice to the potential defendant. Rather, these tests are directed to a broader context such as the situation where there has been long and unexplained delay which has not resulted in significant prejudice to the potential defendant. It may be that in the absence of significant prejudice to a potential defendant, in the words of Toohey J and Gummow J which I have quoted, there is no reason why the discretion should not be exercised in favour of the applicant ...

119 In my opinion, the effect of the decision of the High Court in Brisbane South Regional Health Authority is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant."

120 In this case presumptive prejudice has clearly been established on behalf of the defendant, but actual prejudice has not. In the circumstances "significant prejudice" has not been established.

121 The following facts are relevant to this application.

(a) The nature of the damage is brain damage at birth which has not been affected by events since birth.

(b) There is no evidence of actual prejudice.

(c) The contemporaneous clinical notes do exist and can be relied upon by both sides.

(d) Some notification was provided to the defendant on three occasions when copies of the clinical notes were requested by solicitors acting on behalf of the plaintiff.

(e) The conduct of the defendant in refusing, at least initially, to produce the clinical notes has contributed to the delay.

(f) The conduct of the applicant's parents in seeking and relying upon legal advice to the effect that the commencement of proceedings should be deferred until further information was obtained was reasonable.

(g) The applicant at all times remained mentally incapacitated.

(h) The cause of action only became discoverable when the plaintiff's solicitors learned of the possible negligence of the defendant after receiving the reports of Drs Harbord and Clements.

(i) The plaintiff acted promptly once in possession of the relevant evidence as to liability.

122 Taking all those matters into account, I am satisfied that the plaintiff has established that despite the extensive delay, a fair trial of her claim is possible. In that regard, the authorities make it clear that what is to be established is the likelihood of a fair trial not necessarily a "perfect" trial. It follows that I am satisfied that it is just and reasonable to extend the period of limitation applicable to the plaintiff's cause of action to 24 December 2010.

123 The question of costs was not argued before me. In those circumstances, I propose to reserve the question of costs to allow the parties to make further submissions.

124 The orders which I make are as follows:

(1) The limitation period for the plaintiff's action be extended to 24 December 2010, pursuant to the Limitation of Actions Act 1958 (Vic).

(2) I order that paragraph 6 of the defendant's Notice of Grounds of Defence be dismissed.

(3) I reserve the question of costs.

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Decision last updated: 21 April 2012