Nominal Defendant v Manning

There is no general rule which would preclude an unsuccessful applicant for interlocutory orders from repeating the application simply because the applicant sought to rely on additional relevant facts which did not amount to fresh evidence. Some other factor must be present before an abuse of process is established. The exercise of the discretion to admit and consider this evidence was not flawed. D A Christie Pty Ltd v Baker [1996] 2 VR 582 (not followed); Hall v Nominal Defendant (1966) 17 CLR 423 (referred).

A primary judge has a wide discretion under s52(4) of the Act. He or she must determine on the material adduced by both sides whether it is “fair and just ” that time for bringing the action be extended. It was reasonably open to His Honour to find that there was no significant prejudice to the Nominal Defendant in relation to liability. Salido v Nominal Defendant (1993) 32 NSWLR 524 (discussed); Sydney City Council v Zegarac (1998) 43 NSWLR 195 (referred); Brisbane South Regional Health Authority v Taylor (1996-1997) 186 CLR 541 (referred).

It was open to his Honour to find that no significant prejudice had accrued to the Nominal Defendant in respect of the issue of damages, and that the respondent was “ blameless ” in regard to the extensive delay in bringing the application.

There is no rule that a solicitor’s mistakes will necessarily act as a bar to the client obtaining an extension of time, particularly where the Court hearing the relevant application has a discretion as wide as s52(4). (Per Heydon JA)

Discussion of “hearing on the merits” under s75A(8) of the Supreme Court Act . Wickstead v Browne ( 1992) 30 NSWLR 1 (discussed); Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR 430 (doubted). (Per Mason P dissenting)

The second application was an abuse of process. As a rule of practice an interlocutory order made after a hearing should not be set aside, varied or discharged, except to accommodate a change of circumstances or where evidence has become available which was not available at the earlier time. Judges have a duty to block abuse of process when detected. His Honour failed to apply the rule of practice and erred in treating the matter as one of pure discretion. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41054/98 DC 6662/98 MASON P HEYDON AJ FOSTER AJA Monday, 28 August 2000 THE NOMINAL DEFENDANT v Phillip Richard MANNING JUDGMENT 1 MASON P: I have had the benefit of reading the judgments of Heydon JA and Foster AJA. I happily adopt Foster AJA’s recitation of the facts. And, like Heydon JA, I agree with Foster AJA’s reasons for rejecting the challenge based on Salido v Nominal Defendant (1993) 32 NSWLR 524. 2 This leaves the correctness of Williams DCJ deciding the application on the basis of evidence not tendered in the earlier application before George ADCJ. It was evidence explaining the delay that preceded the original application. That was new evidence which, with due diligence, could have been put before the judge in the first application. There was no relevant change in circumstances. 3 The appeal appears to raise an important issue of principle, involving a recurring situation. The paucity of appellate authority on the critical issue is probably explained by the fact that few cases have raised the problem in such a stark way. 4 It is clear that the order of George ADCJ dismissing the first application was interlocutory ( Hall v Nominal Defendant (1966) 117 CLR 423, Christie v Baker [1996] 2 VR 582). It follows that there was no res judicata . The order was not a bar to a second application. 5 It is equally clear that Williams DCJ had power to stay or dismiss the second application if satisfied that it was an abuse of process. The power to rebuff an abuse of process is such an essential attribute of jurisdiction that it is properly described as a duty ( Williams v Spautz (1992) 174 CLR 509 at 520, citing R v Sang [1980] AC 402 at 455). The duty springs from a range of factors, most notably the need to protect the ability to function as a court of law by ensuring that processes are used fairly; and concern that failure to do so will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice ( Williams at 520. See also Smiles v Commission of Taxation (Cth) (1992) 37 FCR 538 at 552, Director of Public Prosecutions (NSW) v Shirvanian (1998) 44 NSWLR 129 at 133-135). 6 The maxim nemo debet bis vexari pro una et eadem causa (it is a rule of law that a person shall not be twice vexed for one and the same cause) is an ancient one. It appears in Sparry’s Case (1589) 5 Co Rep 61a, 77 ER 148. The principle reflected in the maxim is not confined to res judicata . It extends to abuse of process in the form of attempts to relitigate an issue which has already been lost, whether against the same or another party. Discussion of this extended application of the principle may be found in Walton v Gardiner (1993) 177 CLR 378 at 393, Rogers v The Queen (1994) 181 CLR 251, Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 and Pearce v The Queen (1998) 194 CLR 610.

Repeated applications for interlocutory orders may constitute such an abuse of process ( Christie ). The critical question in the present appeal is whether the application to Williams DCJ was of this character. In my view it was, for the reasons given by the majority in Christie (Hayne JA, with whom Brooking JA agreed on this point at 597-8).

Christie is indistinguishable from the present case in essential facts. The first application to extend time was rejected because there was no adequate explanation for the delay which preceded it. The second application brought forth evidence explaining that delay in circumstances which excited considerable sympathy for the plaintiff because of a fatal combination of solicitor’s neglect and a litigant whose capacity to look after his own interests was impaired, but not to a degree requiring the appointment of a tutor. The new evidence was as accessible to the plaintiff’s legal advisers in the first application as it was to his advisers in the second one. In its essentials, it was no different to any other evidentiary deficit.

In one respect this is a stronger case than Christie because there was cross-examination of the applicant’s deponents in the first hearing before George ADCJ whereas this did not occur in the first Christie application (see Christie at 604, 609).

A long line of authority attests to the practice of courts hearing interlocutory applications on matters of substance declining to allow a second contested run at the target where the only change of circumstances is an applicant coming forward with new evidence. (See Brimaud v Honeysett Instant Print Pty Ltd , Supreme Court of NSW, McLelland J, 19 September 1988, noted in Ritchie’s Supreme Court Procedure [13,047] and Wentworth v Rogers , Supreme Court of NSW, Sperling J, 28 April 1995, noted in (1996) 70 ALJ 613 for statements of the practice and extensive references to earlier authorities.) Extracts from these judgments are set out by Foster AJA. See also Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 313.

In Brimaud , McLelland J stated the following principle: In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the Court on the hearing of the original application …. Sperling J expressed the point in the following terms in Wentworth : I hold that, as a general rule, an interlocutory order made after a hearing at which each side has the opportunity to put its case should not be set aside, varied or discharged, except to accommodate a change of circumstances or where evidence has become available which was not available at the earlier time. By the same token, where an application for interlocutory relief has failed, a further application for the same relief should, as a general rule, not be entertained, subject to the same qualifications, at least after a hearing on the merits, particularly where the application is designed to finalise the principle proceedings, such as an application for summary judgment or for a permanent stay.

I do not see any point of material difference in these two formulations of what I shall henceforth call “the rule of practice”.

As Heydon JA demonstrates, the rule of practice has been applied to a range of interlocutory orders of a substantive nature, including the appointment of a provisional liquidator, the grant or refusal of an interlocutory injunction and orders staying proceedings on various grounds, including security for costs.

The rule of practice is not a rule of evidence barring the admissibility of certain types of evidence in an interlocutory application. The court hearing the second interlocutory application will receive evidence if otherwise admissible but, as soon as it has satisfied itself that the second application falls foul of the general rule, there will be an abuse of process calling for an appropriate remedy.

As Heydon JA points out, statements of the relevant principle are usually formulated “as a general rule” (thereby implying undefined exceptions) or as a “rule of practice” (thereby implying something less than a principle of law).

Nevertheless, it would in my view be an error to view these cases as authority for no more than a statement that a broad judicial discretion is at work. Despite the language used, the category of reference is abuse of process. I have sought to demonstrate that, in the final resort, judges have a duty to block abuse of process when detected. The protean nature of abuse of process may generate a band of remedial responses in which there is much room for the exercise of judicial discretion (cf Jago v District Court (NSW) (1989) 168 CLR 23 at 31-2).

There will be cases in which the attempt to revisit a contested interlocutory application without change of circumstances or genuinely fresh evidence will not amount to an abuse of process. For example, the opposition to an application for an interlocutory injunction on the first return of the motion may be of such a perfunctory nature on both sides that an attempt to revisit the issue at the interlocutory stage would not be an abuse of process even if the evidence were accessible to the defendant on the first occasion. One can also conceive of situations where the revisiting of a legal proposition adopted or assumed in an earlier interlocutory hearing would not constitute an abuse of process. For example, new and unexpected appellate authority may have arrived on the scene.

To concede that there may be exceptions to the rule of practice does not mean that there is no general rule. Nor does it mean that the rule of practice is a matter of pure discretion. Nor does it mean that cases falling within the letter and spirit of the rule of practice are any less abuses of process. The present case falls squarely within the ambit of the rule of practice.

I agree with the reasoning of Hayne JA in Christie . Subject to possible and presently irrelevant exceptions, the principle expressed as “the ordinary rule of practice” in Brimaud means that an attempt to evade that principle in a second substantive interlocutory application is an abuse of process. Once the Court detects this and satisfies itself that the case falls within the letter and spirit of the rule of practice then the application should be dismissed.

If there is no principled general rule then there will be an area of pure judicial discretion. I prefer to avoid this if possible, if only because it lends itself to the perception that the persistent applicant’s rights vary from judge to judge and, in the final analysis, depend upon no pre-existent principle.

Application of the rule of practice will bear harshly upon some litigants. But all legal principles have that capacity yet that is no reason to spurn them when appropriate (cf Coulton v Holcombe (1986) 162 CLR 1 at 10-11). Rules of practice and procedure are not designed to be shackles for their own sake, but many serve useful functions. It is not the universal fate of rules that they can be dispensed with because a judicial officer does not like the outcome they produce in a particular case.

There will necessarily be cases which excite judicial sympathy and reluctance to send an applicant away with nothing more than a possible cause of action against former legal advisers. This of course will be the fate of a final judgment or order that cannot be corrected through the appellate process. It is difficult to see why the interlocutory nature of an order should necessarily spawn a different approach.

Equality before the law requires that rules should be tested hypothetically in a range of potential applications before they are invoked or discarded. The rule under question has obvious utility, for reasons I have sought to demonstrate. It may entrap some badly advised litigants, but it will spur others to greater efficiency. The rule of practice is appropriate for application to those whose sheer wealth, sheer poverty or sheer determination arm them with the capacity to oppress opponents by repeated interlocutory applications. Such litigants would have the right to insist upon the full hearing and weighing of multiple applications unless the rule of practice is available to stop them in their tracks once their true aspect is detected.

Charles JA dissented in Christie and it is his views that appeal to my brethren. Charles JA held that a second substantive interlocutory application made in breach of the rule of practice would not itself constitute an abuse of process because it would be anomalous in light of the greater liberality with which new evidence may be admitted on an interlocutory appeal after the first application.

In New South Wales, the discretionary power of the Court of Appeal to receive “further evidence” is broader where the appeal is from an interlocutory order as distinct from an appeal “from a judgment after a trial or hearing on the merits” (see Supreme Court Act 1970 , s75A(7) and (8)). The scope of the latter provision may possibly be contentious although I reserve my position on the matters addressed by Heydon JA in this regard. What is clear is that the Court of Appeal may receive further evidence in appeals from interlocutory orders even though such evidence would not be “received” at first instance in consequence of application of the rule of practice. (Technically the rule of practice is not a rule of admissibility, as I have indicated above, but this does not detract from the point being made.)

A similar situation prevails in Victoria. The possibility that the Court of Appeal might have given leave to adduce further evidence which would not have satisfied the rule of practice had it been tendered in a second application at first instance was one of the reasons why Charles JA held in Christie that it was not possible to treat the rule of practice as preclusive.

I respectfully disagree. To my mind, there is nothing anomalous in preserving the rule of practice at first instance while recognising that the Court of Appeal has (by statute) power to admit evidence which would not be “admitted” under the rule of practice.

The applicant for leave to appeal requires leave to adduce further evidence and the Court of Appeal may take account of the reasons why it was not adduced in the original application under appeal. Admittedly there is inconvenience in requiring an appellate court to address the evidentiary deficiencies of the first application. But the alternative is to permit the appearance and (at times the reality) of first instance judge-shopping. This is incompatible with the policies underpinning the abuse of process doctrine (par 5 above). See Saif Ali v Sydney Mitchell & Co [1980] AC 198 at 222F. The evils of abuse of process are avoided if the sole gateway for overcoming the evidentiary deficiencies of an unsuccessful first application is at the appellate level and in the limited context of determining whether the first interlocutory application miscarried.

There are additional benefits that can be placed in the scales: adherence to the rule of practice promotes greater efficiency in the first place and it ensures that the fresh or new evidence is viewed against the template of the evidence and issues adduced in the first application under appeal.

The alternative is exemplified by the proceedings leading to the decision under appeal. The application to Judge Williams was presented afresh, with a body of old and new affidavits. This prompted the opponent to the second application to tender the transcript and exhibits before Judge George. The result was a considerable overlap of time and paper as one litigant sought to persuade Judge Williams to view the issue through the prism of the second application and the other wanted him to view it through the prism of the first application.

Charles JA’s second reason was that he considered adoption of the rule of practice to have been foreclosed by the reasoning of Taylor and Owen JJ in Hall (see Christie at 610-611). Again I respectfully disagree, because the furthest Taylor J (with whom Owen J agreed) went was to contemplate that a further application might be brought if “supported by additional relevant facts” (at 411). I do not read this as a statement that the presence of “additional relevant facts” will suffice to overcome an abuse of process, including one that occurs through breach of the rule of practice. Taylor J was simply not addressing the present problem. Nor were the judgments in Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 which cited Hall with approval. These cases in the High Court were concerned merely with the juridical nature of the order under appeal in the context of s35 of the Judiciary Act 1903 (Cth).

Applying these principles, I would uphold the appeal. The application to Williams DCJ was an abuse of process.

Judge Williams referred to Brimaud and Wentworth . He recognised that there were sound public policy considerations as to why there should be finality of litigation and he noted the concession of counsel for the present respondent that a prospective litigant in similar circumstances cannot just keep presenting the same material to the same or to a different judge in the hope that eventually the application will be granted.

However, when one examines the judgment to see why the matter was allowed to proceed, it is difficult to find any reason beyond the fact that the new case satisfied the new judge.

There is a statement that “applications such as this for leave to commence proceedings cannot be looked at in the same light as interlocutory orders made during the currency of proceedings” . This suggests that there are lesser restraints involved in interlocutory applications involving matters of substance as distinct from procedural applications. If that is the case, I disagree.

There is a portion of the judgment discussing the basis of entertaining a further application (pp8-9). That records a finding that there is nothing about the material in the recent affidavits which could not have been included in the affidavits filed in respect of the proceedings before Judge George. This finding did not advance the respondent’s position. Various arguments are then recorded without being embraced or rejected.

The closest his Honour got to a statement of principle was: There is some force to Mr Ashburner’s submission that the Court’s earlier judgment should not be treated, as it were, as an advice on evidence allowing the applicant to deal with the defects in his application as decided by the judge and then bring a fresh application. I certainly think it is desirable that applications such as this should be presented to the fullest extent possible at the time of the initial application, because it is the applicant or his solicitors who are going to have to bear the cost of a failed application. It would seem somewhat illogical to further penalise an applicant for what will usually be defects in his legal representative’s preparation of the matter by not reconsidering the application when renewed, because it contains material that should have been in the initial application. The fact that this application contains material that was not before His Honour Judge George, but which could have been before His Honour should not affect the issue to be decided, especially where a costs order can be formulated to discourage such piecemeal preparation of an application in the future.

Judge Williams then moved directly into considering whether it was fair and just to grant the application on the basis of the entirety of the undifferentiated evidence, new and old.

In my view, the passage set out above reveals error because it treats the matter as one of pure discretion and it fails to apply the rule of practice or the policies underlying it.

The “piecemeal preparation” of repeated applications is more than a nuisance to the opponent. It is usually an abuse of process and it was here, however well intentioned.

The salve of a costs order should not be the key to open the door to a second application which constitutes an abuse of process through being in breach of the rule of practice. Nor should it suffice that the second application contains new material that satisfies the new judge in its ultimate substance.

I would uphold the appeal, set aside the orders below and dismiss the respondent’s application to extend time.

HEYDON JA: I agree with Foster AJA and wish only to add the following about the Nominal Defendant’s first argument. The Nominal Defendant’s broad contention

The first argument of the Nominal Defendant invited this Court to decide the appeal on a very wide basis, namely that the very important public interest in the courts ensuring that the parties conduct litigation efficiently and expeditiously meant that in interlocutory proceedings of all kinds, including proceedings to obtain extensions of time, only one application should be permitted unless there has been a change of circumstances, or unless the second application rests on evidence which could not, with reasonable diligence, have been obtained for use in the first application. The bar contended for was said not to operate as a bar to jurisdiction, but to be a principle relevant to the proper exercise of judicial discretion.

Whether or not it is desirable to pose any question more widely than is necessary for the resolution of the present controversy, it is certainly undesirable to answer any question in terms not necessary for the resolution of the present controversy. Authorities which in their actual reasoning deal with questions different from the present one are not determinative of the answer to the present one. Examples of those authorities are those in relation to the setting aside of interlocutory relief the function of which is to hold the position until a final hearing, such as orders appointing a provisional liquidator (e.g. Brimaud v Honeysett Instant Print Pty Ltd (1988) Ritchie’s Supreme Court Procedure NSW volume 2 [13,047] at p 8) and interlocutory injunctions or interlocutory undertakings ( Chanel Ltd v F W Woolworth & Co Ltd [1981] 1 WLR 485 at 492-3; Butt v Butt [1987] 1 WLR 1351 at 1353); those relating to the setting aside of an order staying one set of proceedings until the costs of earlier proceedings which resulted in a non-suit were paid ( Hutchinson v Nominal Defendant [1972] 1 NSWLR 443 at 447-8); those relating to a second attempt to obtain a stay of proceedings after a first attempt failed ( Wentworth v Rogers (Sperling J, 28 April 1995, CL 19228/92); and those in relation to orders for security as to costs ( Woods v Sheriff of Queensland (1895) 6 QLJ 163; Gordano Building Contractors Ltd v Burgess [1988] 1 WLR 890 at 894). To these could be added cases dealing with innumerable procedural orders and directions. The point is that there are considerable differences between the particular goals of each type of order, and the categories of circumstances in which each type of order is made. These differences make it difficult to propound a general rule suitable for all cases when the controversy in one specific case for decision does not have characteristics which are common to all categories. Not only are the categories different, but the circumstances of particular cases falling within each category are almost infinitely various. It is unlikely that a single set of rigid and exhaustive criteria could justly settle all issues.

In any event, many of the statements on which the Nominal Defendant relies are prefaced by expressions like “as a general rule” (for example, Wentworth v Rogers (Sperling J, 28 April 1995, CL 19228/92, page 6), which imply undefined exceptions. The rules are also often described as “rules of practice”, sometimes qualified by the word “ordinary” ( Brimaud v Honeysett Instant Print Pty Ltd (1988) Ritchie’s Supreme Court Procedure NSW volume 2 [13,047] at p 8594); again undefined exceptions are contemplated. These “general rules” and “ordinary rules of practice” are to be administered bearing in mind the “over-riding principle governing the approach of the Court to the interlocutory applications”, namely “that the Court should do whatever the interests of justice require in the particular circumstances of the case”: Brimaud v Honeysett Instant Print Pty Ltd (1988) Ritchie’s Supreme Court Procedure NSW volume 2 [13,047] at p 8594. The conflict between Hayne JA and Charles JA from the New South Wales point of view

There is no decision of the High Court, of this Court, or of any other intermediate court of appeal directly in point on the question presented.

In its result, D A Christie Pty Ltd v Baker [1996] 2 VR 582 is broadly favourable to the Nominal Defendant in the sense that though a majority (Hayne JA and Charles JA) rejected the application of issue estoppel, a different majority (Brooking JA and Hayne JA) supported the conclusion that a second application under s 23A of the Limitation of Actions Act 1958 (Vic) for an order extending time in which an action for the recovery of damages for personal injuries might be brought was an abuse of process, and hence liable to be dismissed, where it relied on additional material which was not “fresh” and where there was no fraud.

However, the dissenting judge, Charles JA, drew attention to the existence of a statutory regime for appeals which would create an anomaly in New South Wales if the majority view were applied here. The essence of Charles JA’s approach is that since new evidence can be admitted on appeals from interlocutory decisions with leave but without demonstration of special grounds (not only in Victoria, but also, for different reasons, in New South Wales and England) it would be anomalous if new evidence could not be received on a further application made in the court below without an appeal. The anomaly would tend to generate greater waste of time and inconvenience by forcing disappointed parties to appeal from the primary court rather than return to it. Hayne JA, however, detected a converse anomaly at 605: “there is in my view a considerable tension between saying that an appellate court should not receive the further evidence which the applicant desires to adduce to bridge a gap in proofs that was identified below whereas a judge at first instance not only may receive that material but presumably must receive it and determine the application taking it into account.” The difference in part flows from a difference in premise: Charles JA assumes a relatively liberal approach to the admission of new evidence on appeal, while Hayne JA assumes a relatively restrictive approach. Which approach is correct, as a matter of New South Wales law? The position in New South Wales: Wickstead v Browne

The question of whether Charles JA’s approach is correct as a matter of New South Wales law, or whether that of Hayne JA is correct, depends on the meaning and operation of s 75A(7) and (8) of the Supreme Court Act 1970 (NSW). Those sub-sections provide: “(7) The Court may receive further evidence. (8) Notwithstanding sub-section (7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds.” These provisions raise two issues: an issue of construction and an issue of discretion.

So far as the issue of construction is concerned, the requirements attending the need to obtain leave under s 75A(7) are less onerous than those attending the demonstration of “special grounds” in s 75A(8). This is because, according to such cases as Akins v National Australia Bank (1994) 34 NSWLR 155 at 160: “in general, three conditions need to be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible.”

The more the expression “trial or hearing on the merits” in s 75A(8) extends to a significant number of interlocutory appeals, the less the capacity of the appellate court to receive new evidence.

So far as the issue of discretion is concerned, anomalies may arise if leave to call new evidence is more readily available in appeals under s 75A(7) than it is on second interlocutory applications to the primary court. There is nothing in the authorities to suggest any restriction in relation to the grant of leave to call new evidence under s 75A(7) of the type suggested by the argument of the Nominal Defendant in relation to the tender of evidence at a second interlocutory hearing.

It is certainly possible to collect instances of interlocutory appeals in which evidence was admitted despite its non-compliance with the requirements inherent in the words “special grounds” in s 75A(8). Thus in Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 674, the Court of Appeal admitted medical and other evidence in an application for leave to bring an interlocutory appeal against the rejection of an adjourned application, even though the evidence could have been called before the primary judge. But the present question was not debated.

One construction of the expression “trial” is the final hearing of proceedings on the merits. A corresponding construction of the expression "hearing on the merits” would be hearings leading to a decision of a separate question under Pt 31 r 2 of the Supreme Court Rules. Assuming but not deciding that those instances exhausted the meaning of “trial or hearing on the merits”, the expression would not include a hearing on whether an interlocutory injunction should be granted, because that type of hearing is not a hearing on the ultimate substantive merits of the case, only on whether there is a serious question to be tried and where the balance of convenience lies. Nor, on the same assumption, would “trial or hearing on the merits” include hearings on whether proceedings should be summarily dismissed for want of a triable issue. In Wickstead v Browne (1992) 30 NSWLR 1, a hearing on whether proceedings should be summarily dismissed was described at 11 as not being “a trial on the merits”: it is certainly not a trial, and it is thought that by that expression in the relevant passage was meant “a hearing on the merits”. Wickstead v Browne is thus consistent with the construction propounded above. Wickstead v Browne compared with Martin v Abbott Australasia Pty Ltd

There are difficulties connected with Wickstead v Browne . One arises from Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR 430. That case was cited without disapproval in Wickstead v Browne , but the two cases do not appear to be consistent. In Martin v Abbott Australasia Pty Ltd Hunt J stated that s 75A(8) should be construed as if it read: “ … wherever the appeal is from a judgment after a trial or (from a) hearing on the merits” (at 434). One difficulty with that approach is that the notion of appealing from a hearing is peculiar: appeals lie from judgments or orders (s 101(1)(a) of the Supreme Court Act 1970 (NSW)) and from other juridical acts (s 101 (1)(b)), but not from “hearings”.

Hunt J concluded an analysis of the expression “hearing on the merits” thus (at 435-436): “In my judgment, taking into account the context in which the phrase ‘hearing on the merits’ is to be found in s 75A(8) and the apparent purpose of the restriction imposed, that phrase should be construed as meaning the hearing of any interlocutory matter in which both parties appeared and in which the issue between them in that interlocutory matter (whether of fact and/or law) was investigated by the relevant tribunal. There is no need for the issues between the parties in the proceedings as a whole to be investigated or determined for the hearing to be one ‘on the merits’. The issue to be investigated or determined is that which arises between the parties in the particular interlocutory proceedings in question. Thus, in an application for summary judgment, which is unconcerned with the merits of the proceedings as a whole, the issue between parties is whether there is a real question of fact to be tried in the action itself. An investigation of that issue where both parties are present will amount to a ‘hearing on the merits’ within the meaning of s 75A. But orders made on such an application or any other application upon default of appearance or by reason of compromise would not, in my view, amount to such a hearing.” Hunt J’s test was applied (though without dissent or argument from either party) by the Full Court in Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.

That is inconsistent with Wickstead v Browne. Wickstead v Browne permitted the reception of additional evidence on the basis that the proceedings, an appeal from a decision of a judge dismissing an appeal from a master’s summary dismissal of an action on the ground that no arguable case was made out, were outside s 75A(8). The master there had investigated the issues between the parties in that interlocutory matter: the Court of Appeal did not hold, but Hunt J would have held, that s 75A(8) applied.

According to Hunt J, the practical consequences of a difference between his approach in Martin v Abbott Australasia Pty Ltd and that of the Court of Appeal in Wickstead v Browne are reduced by the fact that the s 75A(8) test of “special grounds” is differently applied at least in appeals from masters to judges, and perhaps in interlocutory appeals generally (at 436-7). Hunt J also said that where the issue was, as in that case, not whether the plaintiff had established a causal connection between his medical condition and his employment, but whether there was “evidence to establish the cause of action”, it would be “an affront to common sense, where there was a challenge to the sufficiency of the material which the plaintiff produced to the satisfaction of the master, to deny him the right to show that at the trial he will be able to produce even more evidence upon that issue” (at 437). He continued: “In other words, the particular nature of the issue decided in the interlocutory proceedings is relevant in considering whether further evidence should be received. As I have already said, the issue in the present case was not whether the plaintiff had established a causal connection between his medical condition and his employment; it was whether there was ‘evidence to establish’ that connection. This, in my view, is the very sort of case to which a respondent to an appeal in such an interlocutory matter should in justice be permitted to mend his hand” (at 437). These statements are out of line with those in other authorities in that, though they are made on the assumption that “special grounds” must be shown before evidence can be admitted, they permit its admission merely in order to enable one party to mend its hand. The party there was the respondent, but the same departure from the criterion of finality occurs where it is the respondent who is doing this as much as where the appellant does it.

The inconsistency of Martin v Abbott Australasia Pty Ltd and Wickstead v Browne was noted by Young J in Asian Investments Corporation Ltd v Symons (Supreme Court of New South Wales, unreported, 10 April 1996, ED 5399/92). It was also noted by Bryson J in Hartigan v International Society for Krishna Consciousness Inc [1999] NSWSC 139. Bryson J observed that Hunt J’s conclusions were wider than was necessary to dispose of the case before him. Further, he disagreed: he said that the reference in s 75A(8) to the merits “is a reference to the overall merits of the litigation, and not to the matter in issue in the interlocutory application itself”. He also said that: “The legislative context, which creates a right to bring an appeal by way of re-hearing [in s 75A(5)], suggests to me that no great stringency ought to be required in permitting further evidence to be brought forward at a re-hearing after an earlier hearing by the Master.” Not only does the conclusion of Bryson J on the construction of s 75A(8) tend to support the conclusion of Charles JA as to the readiness to admit new evidence on interlocutory appeals, but his rejection of stringency in deciding whether to admit particular evidence corresponds with Charles JA’s view. Wickstead v Browne compared with Langdale v Danby

Another possible difficulty arising from Wickstead v Browne is the question of whether it accords with Langdale v Danby [1982] 1 WLR 1123; [1982] 3 All ER 129. That decision of the House of Lords was delivered on 29 July 1982, which was before the date of argument (27 August 1982) and the date of judgment (24 December 1982) in Wickstead v Browne . The House of Lords considered the meaning of Ord 59 r 10(2) of the Rules of the Supreme Court, which provided: “The Court of Appeal shall have power to receive further evidence on questions of fact …, but, in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merits, no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.” The House held that an appeal against a summary judgment given under Ord 14 or Ord 86 was an appeal from a judgment after trial or hearing of any cause or matter on the merits. Order 86 relevantly provided: “1.-(1) In any action in the Chancery Division begun by writ indorsed with a claim - (a) for specific performance of an agreement … for the sale, purchase or exchange of any property … the plaintiff may, on the ground that the defendant has no defence to the action, apply to the Court for judgment … 2.-(1) An application under rule 1 shall be made by summons supported by an affidavit verifying the facts on which the cause of action is based and stating that in the deponent’s belief there is no defence to the action … 4. Unless on the hearing of an application under rule 1 either the Court dismisses the application or the defendant satisfies the Court that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of the action, the Court may give judgment for the plaintiff in the action. 5.-(1) A defendant may show cause against an application under rule 1 by affidavit or otherwise to the satisfaction of the Court. (2) The Court may give a defendant against whom such an application is made leave to defend the action either unconditionally or on such terms as to giving security or time or mode of trial or otherwise as it thinks fit …”. These rules correspond to some extent with Pt 13 r 2(1) of the Rules of the Supreme Court of New South Wales, which provides: “Where, on application by the plaintiff in relation to any claim for relief or any part of any claim for relief of the plaintiff - (a) there is evidence of the facts on which the claim or part is based; and (b) there is evidence given by the plaintiff or by some responsible person that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part, or no defence except as to the amount of any damages claimed, the Court may, by order, on terms, give such judgment for the plaintiff on that claim or part as the nature of the case requires.”

Lord Bridge of Harwich, with whom Lords Diplock, Fraser of Tullybelton, Roskill and Brightman agreed, said at 1132-1133 and 137: “When judgment given for a plaintiff under Ord 86, r 4, is under appeal, is this ‘an appeal from a judgment after trial or hearing of any cause or matter on the merits’? These are the critical words to be construed. There is plainly ‘an appeal from a judgment’. In the light of the distinction drawn in Ord 86, r 4, between ‘the hearing of [the] application’ and ‘a trial of the action’, the judgment is not ‘after trial’; but I can see no plausible argument that it is not ‘after [the] hearing of any cause’. ‘Cause’, by definition, includes an action, and since a summary judgment for the plaintiff under Ord 86, r 4, disposes of the action it can only result from a hearing of the action. The only point of construction which, at first blush, might seem debatable is whether the hearing is ‘on the merits’. But, on analysis, it seems to me that these words are as clearly apt to embrace a hearing under Ord 86 which results in judgment for the plaintiff as the trial of an action. What the judge must do before he gives judgment for the plaintiff under r 4 is to be satisfied that the merits of the plaintiff’s claim are duly verified as required by r 2, and, more importantly, that the defendant has failed to mount a sufficient challenge to those merits on the law or on the facts to show that there is any issue or question in dispute which ought to be tried. In other words, the judge can only give judgment for the plaintiff if satisfied that there are no such merits on the defendant’s side as to warrant giving leave to defend. In the ordinary use of language, a hearing leading to the conclusion that there are no merits to be tried is just as much a hearing ‘on the merits’ as a full scale trial of disputed issues. I accordingly reach the conclusion that the language of Ord 59, r 10(2), which excludes the admission of further evidence on appeal to the Court of Appeal except on special grounds is, in its ordinary meaning, applicable to appeals against summary judgments given for plaintiffs under Ord 14 or Ord 86. But I am powerfully reinforced in this construction of the rule by the consideration that the principle underlying this restrictive provision applies with at least equal, if not indeed greater, force to a summary judgment as to judgment after trial. In Brown v Dean [1910] AC 373 at 374, [1908-10] All ER Rep 661 at 662 Lord Loreburn LC said: ‘My Lords, the chief effect of the argument which your Lordships have heard is to confirm in my mind the extreme value of the old doctrine ‘Interest reipublicae ut sit finis litium’, remembering as we should that people who have means at their command are easily able to exhaust the resources of a poor antagonist … When a litigant has obtained a judgment in the Court of justice … he is by law entitled not to be deprived of that judgment without very solid grounds …’ I would paraphrase the first part of this quotation, to bring it up to date, by saying that ‘people who have the legal aid fund at their command are easily able to exhaust the resources of an antagonist who does not qualify for legal aid’. But, leaving that aside, the principle that a successful litigant is not lightly to be deprived of his judgment seems to me of particular importance to a plaintiff, frequently pursuing a recalcitrant and obstructive defendant, who has secured a judgment by showing that the defendant has no defence.”

Langdale v Danby was assumed, without recorded argument on the point, to be correct in Manjian v Frisina (1988) 5 SR (WA) 36 and Sunbird Plaza Pty Ltd v Aurisch Investments Pty Ltd (No 2) [1983] 2 Qd R 383.

If the effect of the reasoning set out by Lord Bridge of Harwich is that the hearing of a plaintiff’s application for summary judgment under Pt 13 r 2 is a “hearing on the merits”, presumably the hearing of a defendant’s application under Pt 13 r 5 for dismissal of the proceedings on the ground that no reasonable cause of action was disclosed is also a “hearing on the merits”. Yet Wickstead v Browne held the contrary.

The English Rules and the New South Wales Rules are partly, but not wholly, comparable. The reasoning of Lord Bridge of Harwich turned to some extent on the references in Ord 86 to “trial” which are missing from Pt 13 r 2, and on the references in Ord 59 r 10(2) to “of any cause or matter”, which are missing from s 75A(8). Accordingly, the reasoning in Langdale v Danby may not apply so as to place Wickstead v Browne in question.

But even if it does, Langdale v Danby still contemplates that no interlocutory hearing is a hearing on the merits unless it concludes in a final disposition of the proceedings. It says nothing about proceedings otherwise than for summary judgment, like the first interlocutory decision in this case, preventing the plaintiff from even instituting proceedings. Whether “there are no such merits on the defendant’s side as to warrant granting leave to defend” is vital under Ord 86; it is only one factor among several under s 59(4). Langdale v Danby does not support Martin v Abbott Australasia Pty Ltd , and it leaves open a substantial area in which there exist interlocutory appeals which are otherwise than “from a judgment after a trial or hearing on the merits”. Discretion issues

The approach of Charles JA in D A Christie Pty Ltd v Baker and Bryson J in Hartigan v International Society for Krishna Consciousness Inc is not one which inevitably creates the dangers which the stricter approach urged by counsel for the Nominal Defendant would preclude. A second application without additional evidence would smack of judge-shopping and be unlikely to succeed. If at a second interlocutory hearing new evidence is called which could have been called earlier, the absence of a satisfactory explanation for the failure to do so is a factor increasing the risk of dismissal. Another relevant matter would be whether in the second hearing the court was invited to revisit questions of law which had been fully argued. Yet another relevant matter would be whether in the second hearing the court was being invited to re-open factual matters investigated in and decided after cross-examination in the first. However, in Hartigan v International Society for Krishna Consciousness Inc at para 9 Bryson J said: “The need for maintaining finality and preserving the understanding of litigants that there is finality of hearings at which the merits are determined and a judgment is given is less pressing in interlocutory appeals.” That point of view in relation to appeals is preferable to the position enunciated thus by Hayne JA in relation to interlocutory hearings at the primary level in D A Christie Pty Ltd v Baker [1996] 2 VR 582 at 602: “Respondents to applications under s 23A are as entitled to the final and certain determination of questions relating to extension of time for commencing proceedings as they are to the final and certain disposition of any action that may be instituted against them.” Respondents have a very strong entitlement to finality once a trial on the merits has occurred and all appellate processes are exhausted, and their entitlement is protected by the various doctrines related to res judicata . But their entitlement to finality is less compelling in relation to applications to extend time with a view to ensuring a trial on the merits in due course.

Bryson J noted in the case before him that the plaintiff had not filed any affidavit in the hearing before the master. He continued in paragraph 11: “Where something of such glaring and primary importance as the plaintiff’s own account of her use of time has been omitted, confidence that the proceedings have been disposed of on a just basis cannot be very strong. The sense that there may well have been a miscarriage of the proceedings, even one for which the Plaintiff or those advising her are the only persons who bear responsibility, appears so strong as to favour admitting her evidence now that it is belatedly brought forward. It is not appropriate to allow procedural mismanagement to have unduly serious consequences, although finally they can be so extreme as to merit closing out a party from consideration.” The same principles are applicable where the question is whether a second interlocutory application should be permitted after the first one has failed.

In Meddings v The Council of the City of Gold Coast [1988] 1 Qd R 528 at 529 Macrossan J said there was a right to make a second application to extend limitation periods, but did not say what discretionary factors were relevant, and at 536 McPherson J said of the applicant in that case: “There is in theory nothing to prevent her from making another such application on the same or similar material, even if in practice such an application would almost certainly fail.” Conclusion

The assumptions made by Charles JA in D A Christie Pty Ltd v Baker [1996] 2 VR 582 as to the construction of the New South Wales legislation and the likelihood of evidence being received on interlocutory appeals appear to correspond with the approach of New South Wales courts. In these circumstances it cannot be said that the majority reasoning in D A Christie Pty Ltd v Baker should, as a matter of comity or otherwise, be followed. Rather, the position in New South Wales is such that the principles propounded by Charles JA should be applied in order to avoid an anomalous difference arising between the relative liberality with which evidence is admitted on interlocutory appeals and the extremely restrictive approach to permitting second interlocutory hearings based on additional (but not fresh) evidence urged by the Nominal Defendant. Whether Charles JA is, or the majority in D A Christie Pty Ltd v Baker are, correct on the true view of the Victorian legislation is not a matter that need be commented on.

For present purposes it is not necessary to go further than to reject the test proposed by the Nominal Defendant, and to decline to apply the view of the majority in D A Christie Pty Ltd v Baker that the applicant making a second interlocutory application is guilty of an abuse of process unless the other party is guilty of fraud or the application rests on evidence which could not reasonably have been relied on before. It is not necessary, and it is probably undesirable, to seek to define a test capable of application to all cases involving statutory extensions of time to start proceedings, or even all cases arising out of s 52(4) of the Motor Accidents Act 1988 (NSW). The Nominal Defendant did not submit that if the test contended for did not exist, the conduct of the respondent constituted an abuse of process on any other basis.

Nothing in the above reasoning rejecting the Nominal Defendant’s submission is intended to encourage litigants to avoid putting their best cases forward in any interlocutory application. The deliberate non-tender of evidence for use in a second interlocutory application should the first fail, or for use in an interlocutory appeal from the interlocutory application, might of itself be fatal to success; and even the non-deliberate non-deliberate failure to tender evidence is extremely risky. The Nominal Defendant’s proposition that no second interlocutory application can be entertained unless there is a change of circumstances or unless evidence is relied on which could not reasonably have been obtained earlier is too extreme, but a litigant bringing a second application where circumstances have not changed on evidence available earlier is facing serious and self-created risks of an adverse exercise of judicial discretion. The real evils to which Hayne JA referred in D A Christie Pty Ltd v Baker [1996] 2 VR 582 at 602-3 - the risk of conflicting decisions, the unnecessary vexing of respondents, judge-shopping and the diminution of certainty in the conduct by respondents of their affairs - and others - damaging public confidence in the integrity of judicial decisions, expending time and money on litigation unnecessarily - are evils which each court in its individual discretion will rightly strain to avoid.

But the risk of the evils must be balanced against all the circumstances of the case relevant to whether it is fair and just that leave should be granted, and in particular whether a trial which is just and fair for all parties can be held. It must be remembered that the present context concerns the issue of whether an applicant for an extension of a limitation period will ever be able to have the case considered on the merits: failure in the application will prevent any judicial examination of the applicant’s substantive claim, which may in turn have catastrophic consequences for the applicant and the applicant’s family. The Nominal Defendant’s contention would bind the court to reject the second interlocutory application in limine unless the circumstances had changed or there was fresh evidence. Hayne JA in D A Christie Pty Ltd v Baker [1996] 2 VR 582 at 605 would add one further gateway, namely the fraud of the respondent, and Brooking JA would add the circumstance that the first application had only been dismissed “on a technicality” (at 595). But justice could be thwarted if there were not more gateways. If the conduct of the respondent of which the applicant was complaining had so badly injured the applicant in body, mind or pocket as to explain why the first interlocutory application was conducted defectively, it would seem wrong that when the applicant, alone or with assistance, overcame these disabling factors sufficiently to mount a properly organised second application, the respondent should be able to debar it merely because the first application had been made and failed in circumstances where the respondent’s allegedly unlawful conduct was the cause of the failure. It would not be possible to limit this gateway to cases where the respondent had plainly caused the applicant’s condition: that question is the very matter for determination at the trial of the proceedings if leave to extend the limitation period were granted, and it would be similarly invidious to distinguish between respondents who had caused the condition of the applicant lawfully from those who had done so unlawfully. Nor would it seem right to limit the gateway to incapacities on the part of the applicant stemming from the events in issue: if there is a good reason unarguably flowing from a cause other than the respondent’s conduct why the applicant failed properly to prepare and conduct the first application, it may not be just, as between the applicant and the respondent, to shut the applicant out from a second attempt to demonstrate that despite the lapse of time making it necessary to apply to extend the limitation period, a fair and just trial could still be held. Further, while in Henricks v Agnew (1997) 26 MVR 277 at 286 this Court questioned whether the applicant’s blamelessness for delay was relevant on the issue whether a just and fair trial was possible, it would appear to be relevant to whether a second application to extend time should be permitted in the sense that blameworthiness would tell against the applicant and blamelessness may tell in favour of the applicant. Thus the reasons why the first application failed may have nothing to do with the applicant personally: the applicant’s legal representative may have been incompetent, or may have been ill or unavoidably absent; a vital witness may have been prevented from attending or may, contrary to all legitimate expectations, have failed to attend or to come up to proof; evidence may have been rejected because of defective service which was not the fault of either the applicant or the applicant’s legal representative. The possible factors which might cause failure in the first application but which might be capable of remedy in a second are wide in range. The position for which the Nominal Defendant contends must be rejected because it does not allow for an evaluation of any of them.

FOSTER AJA : This is an appeal from a decision of Williams DCJ given on 11 December 1998. His Honour's decision was interlocutory. Leave to appeal has already been granted. By his decision the primary judge gave leave to the respondent to commence proceedings against the appellant pursuant to s 52(4) of the Motor Accidents Act (the Act), as it applied on 14 August 1989, the date when the accident in question occurred.

Section 52(4) of the Act provides as follows: "(4) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after the date on which the claim must be made in accordance with section 43 except with the leave of the court in which the proceedings are to be taken."

The application to his Honour was made by Notice of Motion dated 28 September 1998. Not all the relief sought was granted. It was limited in terms of the respondent's injuries as particularised in the proposed Statement of Claim annexed to the affidavit of 10 June 1997 of his solicitor, Mr Gorrie. Specifically, leave was refused in respect of claims for an injury to the right hip, any injury to the cervical spine or any injury to the lumbar/thoracic spine as appears at Particulars 4, 5 and 6 of the Statement of Claim. Also leave was refused in respect of disabilities (i), (ii), (iv) and any related disabilities.

The respondent sought to sue the nominal defendant to recover damages for injuries, disabilities and losses arising from the motor vehicle accident referred to above, which occurred when the vehicle he was driving to work hit a telegraph pole. His case was that he was forced to swerve to avoid an unidentified motor vehicle which was being driven negligently. His injuries were serious and included head injuries, requiring hospitalisation for a significant period of time. On discharge he made enquiries at all the houses along the street where the accident occurred and his then solicitor placed the usual type of advertisement in a local paper, seeking information relating to the accident.

On 8 January 1990 his solicitor served an appropriate notice of claim, which was within the prescribed time.

On 21 February 1990 the relevant insurer, AAMI Limited, denied liability. It had obtained a statement from a driver proceeding in the opposite direction, who asserted that the respondent had lost control coming around a corner and had hit the pole, in circumstances where no other vehicle had been involved.

The respondent's solicitors were already acting for him in respect of a Workers' Compensation claim for an injury suffered at work in July 1984, which was an ongoing claim. This claim was finalised in 1996. On 5 August 1993 they were instructed to take Workers' Compensation proceedings in respect of the subject accident. They had already advised the respondent that he must commence proceedings under the Act by 30 June 1990. It appears that this advice was confirmed in a telephone conversation on 19 June 1990, when the applicant said he would decide whether to go ahead. However, nothing was done in respect of that claim until Mr Gorrie, who now acts for him, joined the solicitors' firm on 29 May 1995. He discovered that those proceedings had not been commenced and were out of time. He was unable to obtain information from the solicitors who had been acting previously. There was inactivity in respect of the claim from the earlier acts of compliance with the Act in 1990 until 1996. The Workers' Compensation claim in respect of the accident was still current.

On 16 April 1996 that Workers' Compensation claim was disposed of by an approved redemption. On 16 July 1996, Mr Gorrie served a further Notice of Claim under the Act, in circumstances where he was, at that time, unaware of the previous 1990 notice. He then waited six months (because he mistakenly believed that he was so required) until 6 January 1997, when proceedings were brought for leave to commence the action out of time. They were heard and dismissed by George ADCJ on 15 September 1997, who found that no sufficient explanation of delay had been given. There was no appeal against this dismissal, but the respondent made another application by Notice of Motion dated 28 September 1998. It came before Williams DCJ. It was supported by additional evidence, not before George ADCJ. His Honour gave the decision, the subject of this appeal on 11 December 1998. The Decision at First Instance

Williams DCJ considered the question whether the respondent should be permitted to make a second application for leave, after the dismissal of the previous application.

He considered authorities bearing upon the question, to which reference will be made later in these reasons. He accepted that the application before him could not be treated as if it were an appeal from George ADCJ. He expressed the view that applications for leave to commence proceedings, "cannot be looked at in the same light as interlocutory orders made during the currency of proceedings."

He decided that the question of jurisdiction to entertain a second application should not be dealt with as submitted by the appellant; i.e. that it could only be brought if "(a) new evidence is put forward and (b) that evidence could not have been put forward with due diligence on the part of the applicant and his legal advisers in the preceding application".

His Honour observed: "I certainly think it is desirable that applications such as this should be presented to the fullest extent possible at the time of the initial application, because it is the applicant or his solicitors who are going to have to bear the cost of a failed application. It would seem somewhat illogical to further penalise an applicant for what will usually be defects in his legal representative's preparation of the matter by not reconsidering the application when renewed, because it contains material that should have been in the initial application."

His Honour accepted that additional material was being presented to him that was not before George ADCJ and that it could have been presented then. His Honour held that "The fact that this application contains material that was not before his Honour Judge George, but which could have been before his Honour, should not affect the issue to be decided, especially where a costs order can be formulated to discourage such piecemeal preparation of an application in the future."

His Honour then considered the second application on the merits. He had regard to the plaintiff's medical condition occasioned by the accident and its effect upon his capacity to look after his own interests. He expressed the view that "…if any blame attaches in regard to the delay between 1990 and 1996, the plaintiff is blameless and the responsibility lies with the plaintiff's solicitors and that is a material matter which I can take into account." However, he considered that only minimal weight should be attached to the existence of a right of action against the solicitors.

His Honour was satisfied that a full and satisfactory explanation had been given for the delay. He then turned to consider whether, pursuant to the principles enunciated in Salido v The Nominal Defendant (1993) 32 NSWLR 524, it was fair and just that the leave sought by the respondent be granted. He considered authorities bearing on the question whether delay had prejudiced a fair trial and whether prejudice to a potential defendant should, in any event, be determinative of the matter. He obtained guidance (inter alia) from the following statement made by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866 at 873: "When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once a defendant has proved the fact or the real possibility of significant prejudice."

He found that the appellant had suffered no prejudice in relation to the issue of liability. The evidence before him indicated that the witness previously referred to was still available to the appellant. There was a clear justiciable issue as to the presence of an unidentified motor vehicle which was better decided by a Court in a final hearing than in an interlocutory setting.

There was, however, prejudice in relation to the issue of damages. The appellant had had no medical examination of the respondent over the last nine years. In these circumstances, it was contended that he would be at an unacceptable disadvantage in assessing the claim. Having regard to the long delay he had been entitled to regard the matter as closed.

Reference has already been made to claims for injury and disability not mentioned in the 1989 claim. His Honour found that the appellant would suffer " very real and significant prejudice " in relation to these claims, in particular because of the prohibitive cost of investigating them.

Accordingly, he granted leave, but excluded claims in respect of those injuries and disabilities. The Appeal

His Honour's decision was interlocutory and discretionary. It must be shown by the appellant that he has erred in principle. In this regard the appellant contends that error occurred in a number of ways.

Counsel for the Nominal Defendant, in the first place, repeated the submission which he had previously made to the primary judge. He contended that, in principle, the application should have been dismissed on the basis that the previous application had been refused by George ADCJ and the present application was supported by new evidence which, with due diligence, could have been put before the judge in the first application. Also, there was no evidence of any relevant change in circumstances between the making of the two applications. These two defects were, it was put, fatal to the application and should have resulted in its being rejected in limine. His Honour's failure to take this course was an error of principle resulting in the miscarriage of his discretion.

Counsel relied upon the reasoning of Sperling J in Wentworth v Rogers & Anor No. 19228 of 1982, unreported, 28 April 1995. In that case, his Honour had undertaken an extensive review of authority bearing upon this topic. On the basis of this review, his Honour had made the following statement of principle: "I hold that, as a general rule, an interlocutory order made after a hearing at which each side has the opportunity to put its case should not be set aside, varied or discharged, except to accommodate a change of circumstances or where evidence has become available which was not available at the earlier time. By the same token, where an application for interlocutory relief has failed, a further application for the same relief should, as a general rule, not be entertained, subject to the same qualifications, at least after a hearing on the merits, particularly where the application is designed to finalise the principal proceedings, such as an application for summary judgment or for a permanent stay."

In his review of authority, Sperling J had referred to the statement of principle enunciated by Gibbs CJ, Aickin, Wilson and BrennanJJ in Adam P. Brown Male Fashions Pty Limited v Philip Morris Inc . (1981) 148 CLR 170 at 178, as follows: "A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust: cf. Woods v Sheriff of Queensland (1895) Q.L.J. 163 at 165 ; Hutchinson v Nominal Defendant [1972] 1 NSWLR 443 at 447 ; Chanel Ltd v F.W. Woolworth & Co Ltd [1981] 1 WLR 485 at 492. Of course, the changed circumstances must be established by evidence : Cutler v Wandsworth Stadium Ltd [1945] 1 All E.R. 103."

Reference was also made to statements of principle from decisions of McLelland CJ in Eq. In Brimaud v Honeysett Instant Print Pty Limited (19 September 1988, unreported), his Honour had by a previous order appointed a provisional liquidator of the defendant company, in proceedings in which the company had produced little evidence in opposition. A later application was made to set aside the order, the applicant company adducing significant additional evidence which could have been presented at the original hearing. A motion to strike out the new application as being vexatious and an abuse of process was successful, his Honour saying: "The private injustice and public undesirability of permitting the relitigation of matters already litigated once is recognised in a number of principles of law, notably the rules relating to res judicata and issue estoppel, the more flexible rules under the rubric of vexation and abuse of process illustrated in Stephenson v Garrett [1898] 1 QB 677 and Hunter v Chief Constable [1982] AC 529, and the restrictive provisions governing the adducing of further evidence on the hearing of an appeal even by way of rehearing (see eg s 75A(8) of the Supreme Court Act 1970). Interlocutory orders, of their very nature, create no res judicata or estoppel, and the Court retains jurisdiction to set aside, vary or discharge an interlocutory order up to the time of the final disposition of the proceedings. However the general rationale of the principles last referred to applies even in the case of interlocutory orders. It would be conducive to great injustice and enormous waste of judicial time and resources if there were no limit on the power of a party to have any interlocutory application or order relitigated at will. The over-riding principle governing the approach of the Court to interlocutory applications is that the Court should do whatever the interests of justice require in the particular circumstances of the case. In giving effect to that general principle and in recognition of the public and private interests earlier referred to, rules of practice have been developed in accordance with which the discretionary power of the Court to set aside, vary or discharge interlocutory orders will ordinarily be exercised.… In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the Court on the hearing of the original application (see Woods v Sheriff of Queensland (1895) 6 QLJ 163 at 164-5; Hutchinson v Nominal Defendant (1972) 1 NSWLR 443 at 447-8; Chanel v Woolworth & Co (1981) 1 WLR 485 at 492-3; Adam P. Brown Male Fashions v Philip Morris 148 CLR 170 at 177-8; Butt v Butt [1987] 1 WLR 1351 at 1353; Gordano v Burgess [1988] 1 WLR 890 at 894)."

His Honour confirmed these observations in Danieletto v Khera (1 September 1994, unreported).

In a cogent argument, counsel for the Nominal Defendant relied upon these statements of principle. He also claimed support in related areas, such as the rules relating to the admission of fresh evidence on appeal. In effect, he submitted that the rules were the same; a second interlocutory application seeking the same orders could not be entertained unless it was based on changed circumstances or evidence which could not previously have been adduced with due diligence. In so doing he also referred to the undoubted public interest in forensic efficiency and the early finalisation of litigation.

This proposition had been put to Williams DCJ and rejected. His Honour had, accordingly, received and acted upon evidence explaining the delays which had occurred, which evidence had been available and should have been adduced before George ADCJ in the first application. Counsel submitted that this was an error which vitiated his Honour's exercise of discretion in favour of the applicant.

As will appear, I am not persuaded that counsel's submission, in this regard, is correct. The circumstances that the previous application had failed for want of evidence explaining the delay and that the second application was brought, in effect, to remedy that deficiency by the adduction of evidence which should have been presented in the first application was a matter to be considered in determining how the discretion should be exercised in the second application. I am not prepared, however, to hold that the applicant was precluded, as a matter of principle, from bringing the evidence forward in the second application or that its reception and acceptance inevitably resulted in the miscarriage of discretion.

The problem is a difficult one. It has been considered in depth by the Court of Appeal of the Supreme Court of Victoria in D A Christie Pty Limited v Baker (1996) 2 VR 582, a decision on s 23A of the Limitation of Actions Act 1958 (Vic). That section provided for applications to extend the time for the bringing of an action after the expiry of a limitation period prescribed by that Act. I have, with respect, obtained considerable assistance from the reasoning of their Honours, the decision not having been unanimous.

Before turning to a consideration of that case I should indicate that, in my opinion, the learned primary judge, in the present case, was clearly correct in treating the decision of George ADCJ as being interlocutory only. This was clearly established by the decision of the High Court in Hall v Nominal Defendant (1966) 117 CLR 423. Accordingly, the previous decision, in itself, was no bar to the making of a second application, seeking again the relief previously refused. ( Forbes v Lindop , Court of Appeal, unreported 17 July 1995) This was so, even if the previous application had lead to a dismissal on the merits, after a hearing on the evidence adduced in it. Hall's case, however, did not involve such a second application, nor was the point that was relied upon by counsel for the Nominal Defendant in the present application, considered by the Court.

In Baker's case, however, the point arose squarely. The County Court had refused an application under s 23A for an extension of time within which to bring an action for an injury suffered in 1979. The application was brought in 1993 and, as in the present case, was rejected because of failure to explain the delay in the bringing of the action. A second application was made in 1995 to a different judge. It was made with further evidence explaining the delay. The explanation was accepted and the application was granted.

The respondent appealed. It was held by Brooking and Hayne JJA that, as the new material had been available at the time of the first application and there was no explanation for its not then being adduced, the second application should have been stayed as an abuse of process. The decisions of Brooking and Hayne JJA exhibit a divergence in reasoning. Charles JA dissented.

Brooking JA after considerable discussion of authority expressed the view that the second application should necessarily fail. The previous application had failed on the issue whether it was just and reasonable to extend time. The second application raised the same issue and should fail on the basis of issue estoppel. It may be noted that the present case was not argued on the basis of issue estoppel. For my part, I am, with respect, satisfied that, the first application being interlocutory only, the doctrine of issue estoppel can have no relevance, other than as providing the type of analogy referred to in the passages cited from the decisions of McLelland CJ in Eq. in Brimaud.

Hayne JA was of the view that the case could not be determined on the basis of issue estoppel. However, the appeal should succeed as the second application was clearly an abuse of the Court's process.

I should add that Brooking JA had also expressed the view that if the principle of issue estoppel was inapplicable, then the decisions which he had cited raised the question whether the bringing of the second application was, relevantly, an abuse of process. Thus two members of the Court were of the opinion that the bringing of the second application in the circumstances amounted to such an abuse.

Hayne JA was of the view that the decisions of the High Court in Hall's case and also in Carr v Finance Corporation of Australia Limited No. 1 (1981) 147 CLR 246, required the conclusion that a second application could be made under s 23A notwithstanding the dismissal of an earlier application. It necessarily followed that the decision in the first application could not be viewed as a final determination of any matter between the parties. In these circumstances the principles of res judicata, issue estoppel, and "extended" issue estoppel arising from decisions in Henderson v Henderson (1843) 3 Hare 100; 67 E.R. 313 and Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 could have no application. His Honour's reasons are set out at pages 599-602. I respectfully agree with them.

However, Hayne JA held that the appeal should succeed on the basis that, in the circumstances, the second application was an abuse of process. His Honour made the following observations (pages 602-603): The prospect of there being successive applications under s 23A suggests not only the possibility that there may be conflicting decisions given with the inevitable harm that follows from that but also that a respondent to such an application may be vexed by successive applications until the applicant either produces sufficient material to warrant the grant of an extension of time or tires of the task. It is not fanciful to conclude that the making of successive applications may well engender a belief in a respondent that the applicant had, in effect, hawked the application from judge to judge until a judge had been found who was willing to accede to the applicant's arguments. The vice of such a result is apparent. Further, although it may be said that the awarding of costs on an indemnity basis may prove a sufficient deterrent to the making of repeated applications and may offer considerable protection to a respondent, I am of the view that it is not a complete protection. Respondents to applications under s 23A are as entitled to the final and certain determination of questions relating to extension of time for commencing proceedings as they are to the final and certain disposition of any action that may be instituted against them. They, or in many cases their insurers, must be in a position where they may order their affairs with as much certainty as can be obtained. These considerations tend to suggest the adoption of a rule which could preclude the making of a second application for extension of time."

His Honour further said (at pages 603-04): "It is clear that a court may stay its proceedings for abuse of process. There can be an abuse of process if proceedings are initiated for an ulterior and improper purpose. (See e.g. Williams v Spautz (1992) 174 CLR 509.) But it is also clear that there can be an abuse if "notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which had already been disposed of by earlier proceedings": Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ.; see also Rogers v R ., supra; Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536; Moevao v Department of Labour [1980] 1 NZLR 464 at 481. If an applicant for an extension of time were to fail in one application but then at once institute a second application relying on precisely the same material, there would appear to be powerful reasons to conclude that the second application was vexatious. On its face the application would be no more than an attempt to re-litigate a matter that had already been determined once. Of course, that is not the present case. The applicant in this matter, Baker, filed further material intended to deal with a gap in the material that had been identified by the judge in his reasons for judgment dismissing the first application. Nevertheless, I am of the view that the second application was properly classed as an abuse of process. The additional material which it was sought to put forward was all material which was available to Baker at the time of the first application. No explanation was proffered for why that material was not put forward at the time of the first application and for present purposes I assume that it was omitted through oversight or neglect. Thus, the 1994 application required Christie to meet precisely the same kind of application that it had succeeded in resisting in 1993. Christie had succeeded in 1993 because Baker had not satisfactorily explained the delay that had occurred. The new material was all directed to explaining that delay."

As can be seen from this passage, the circumstances in question were directly analogous to those in the present case.

Later his Honour said (at p. 605): "Consideration of the private interest of a respondent to an application under s 23A in having certainty on the question whether action may be brought against it notwithstanding the expiration of the relevant limitation period, together with consideration of the important public interest in ensuring that judicial determinations are binding, final and conclusive and that there should not be conflicting decisions on the same issue lead me to the view that the circumstances in which second applications under s 23A may be made after dismissal of an earlier application are limited. So far as presently relevant that limitation is to be imposed by an application of principles concerned with abuse of process and in at least most cases may be resolved by concluding that a second application is an abuse unless there is proof of fraud or it is sought to adduce fresh evidence, "fresh", that is, in the sense in which that expression is used in connection with the admission of evidence on appeals."

His Honour, accordingly, held that the second application was an abuse of process and should have been dismissed.

Charles JA dissented. He agreed that " principles of abuse of process, rather than principles of issue estoppel, should determine whether this appeal should succeed. " The question was, however, " whether it is open to this Court, as the law now stands, to adopt a rule which could preclude the making of a second application for an extension of time."

His Honour, after consideration of authority, observed that there could be no question that the County Court had the power to prevent an abuse of its process but that the question was whether " the line of authority beginning with Hall and Carr leaves it open to this Court to adopt a preclusive rule which could prevent successive applications under s 23A". He referred to a passage from the judgment of Taylor J in Hall (at 440-1), where his Honour had said: "The order in the present case was made in proceedings preliminary to the bringing of an action and although it deprived the appellant of the benefit of the order of the learned judge of first instance, it did not operate to prevent him from making a further application for an extension of time. No doubt its practical effect was that any further application would have been fruitless unless supported by additional relevant facts but the order made by the Full Court did not of its own force conclude his right to bring an action." He noted that Owen J had agreed with Taylor J. His Honour was satisfied that there had been no departure from or qualification of anything said in Hall in subsequent decisions. After further reference to authority he said (at 608): "A decision by a court in an interlocutory matter on a question of law, or on an issue of fact squarely raised and argued after cross-examination of witnesses would not readily be departed from by the same court differently constituted in a subsequent application. ………But rather different considerations are involved where an applicant for extension of time has left unexplained delay in making the first application. There was no relevant question of law to be decided in the 1993 application, nor had there been cross-examination of any of the applicant's deponents."

His Honour then considered what the situation would have been if the applicant had sought to appeal from the decision on the first application rather than to bring a second application. After consideration of the relevant Victorian legislation and rules and referring to the equivalent position in New South Wales, to which I shall shortly make reference, his Honour said (at 610): "Accordingly, in my view it is by no means established that the additional evidence brought forward by the applicant to support the 1993 application would have been excluded if the applicant had sought leave to appeal from the dismissal of the 1993 application and had tendered this evidence on the appeal. The better view is, I think, that the Court of Appeal could have given leave for such evidence to be adduced, although the discretion to give leave would be exercised with caution."

His Honour then expressed the following opinion (at 610-611): "I do not think it is open to this court to adopt a rule which would preclude, as an abuse of process, the making of a second application for an extension of time simply because the applicant seeks to bring forward additional relevant facts which would not satisfy the "fresh evidence" rule. My reasons are as follows: 1. Hall stands as authority for the proposition that if the first order was interlocutory, rather than final, a second application may be made. Taylor and Owen JJ. expressly said so. Carr does not depart from, indeed accepts, this proposition. 2. The underlying logic of Barwick CJ's dissent (in Hall ), which seems to me unanswerable, is that all relevant facts must have been known or in posse at the time of the making of the first application under s 23A. In his view, no additional facts could satisfy the fresh evidence rule after a first application had been dismissed. Accordingly, the view of Barwick CJ was that a second such application could not be permitted to occur. However his view was not accepted by the court. 3. In Hall , Taylor and Owen JJ. took the position that an unsuccessful applicant for an extension of time to bring proceedings, could make a further application supported by additional relevant facts. Their rejection of the argument propounded by Barwick CJ, leads inevitably to the conclusion that, when Taylor J used the phrase "additional relevant facts", his Honour was referring to facts which did not amount to "fresh evidence". In Carr, Gibbs and Mason JJ accepted, in my view, the position stated by Taylor J and agreed in by Owen J. 4. Hall and Carr both stand for the proposition that what differentiates an interlocutory from a final order, is that the unsuccessful applicant is in a position to make a further application. 5. The proposition that an unsuccessful applicant under s23A can only make a second application on the basis of fraud or additional facts that satisfy the rules relating to "fresh evidence": (a) treats the order on a first application under s 23A on the same footing as if it were a final decision on the merits, removes the element which the High Court has said established the interlocutory nature of the order and is, I think, therefore inconsistent with Hall and Carr . (b) not only effectively deprives the applicant of any right to make a second application save on the basis of fraud or additional facts which amount to fresh evidence, but in so doing makes it more difficult for the applicant to bring forward additional facts on the second application than if the applicant had simply appealed the dismissal of the first application, and had sought to adduce that evidence on the appeal with leave of the court."

The situation in this State with regard to the adducing of additional evidence on appeal is governed by s 75A subs 7. 8 and 9 of the Supreme Court Act 1970. These provide that in an appeal to the Court, "(7) The Court may receive further evidence. (8) Notwithstanding subsection (7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds. (9) Subsection (8) does not apply to evidence concerning matters occurring after the trial or hearing."

As the hearing before George ADCJ was interlocutory only and, consequently, not a hearing on the merits, it would not have been necessary for the respondent to establish " special grounds" for the reception of further evidence explaining delay, had he chosen to appeal. This question was considered by the Court of Appeal in Wickstead v Browne (1992) 30 NSWLR 1 where, in the judgment of Handley and Cripps JJA (at p. 11) the following statement appears: "In our opinion this Court should receive the further evidence. This is not an appeal following a trial on the merits but an appeal from an interlocutory order for summary dismissal on the ground that the plaintiffs have failed to show any triable issue. The case falls within s 75A (7) of the Supreme Court Act 1970 and there is no requirement for the party tendering the further evidence to establish special grounds as is the case pursuant to s 75A (8) where the appeal is from a judgment after a trial or hearing on the merits: see Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR 430 at 436-437."

In my opinion the reasoning of Charles JA in paragraph 5 (b) of the passage cited above may be applied in the present case because the statutory provisions referred to produce the same result as the equivalent Victorian legislation considered by his Honour.

With respect, I have found the reasoning of Charles JA more persuasive than that of the majority. His Honour reached the following conclusions, with which I respectfully agree and which I adopt for present purposes (at 611): "For these reasons I conclude that it is not possible for this court to adopt a rule which would preclude an unsuccessful applicant for interlocutory orders from repeating the application, on the ground of abuse of process, simply because the applicant sought to rely on additional relevant facts which did not amount to fresh evidence. Some other factor must, in my view, be present before an abuse of process is established, although, since the respondent is being faced a second time with an application for extension of time to bring proceedings, the potential for the second application to amount to an abuse is readily apparent."

In the present case, although the failure of the respondent's legal advisers to produce the evidence explaining delay in the first application must necessarily be severely criticised, I, for my part, do not regard the making of the second application, with the inclusion of that material, as constituting, relevantly, an abuse of the Court's process. The exercise by the primary judge of a discretion to admit and consider this evidence was not flawed. It was not necessary, for its admission, that it be established that it was, despite due diligence, unavailable for the first hearing. The fact that the appellant was subjected to a second application and hearing because of default in relation to the first hearing was, of course, a matter to be taken into account in the exercise of his Honour's discretion. The weight to be attributed to that fact was a matter for his Honour. It is, in my view, sufficiently apparent from the passage already cited, that it was taken into account in circumstances where his Honour attributed little significance to it. He considered that the appellant's interests could be protected by an appropriate cost order. In my opinion no miscarriage of discretion has been shown in his Honour adopting this course.

I should add that, in my opinion, no additional factor was demonstrated in the present case which could cause the second application to be an abuse of process. It was not simply a repetition of the previously failed application. It was, quite clearly, a genuine endeavour to repair the deficiencies in the first application. It was not a case of "hawking" the application from judge to judge in a search for a successful outcome. It may be noted, of course, that it was only a second application. A third application following upon two previous failures might well enter the area of abuse of process.

The next attack made by counsel for the Nominal Defendant was to the effect that Williams DCJ had, in reaching his decision, failed to apply principles enunciated by the High Court of Australia in Brisbane South Regional Health Authority v Taylor (1996-1997) 186 CLR 541 and subsequent decisions of this Court applying it. It was also submitted that his Honour had erred in failing to apply the principles enunciated by this Court in Salido v Nominal Defendant (1993) 32 NSWLR 524. It is convenient to refer to the latter decision first.

In Salido a District Court judge had refused to grant leave to the appellant to commence proceedings out of time. In doing so he had expressed the view " that leave of the Court should not be given lightly and that claimants must show something truly special or extraordinary before leave should be given." This construction of the section was rejected. Gleeson CJ (at 532) said that " the proposition that an applicant 'must show something truly special or extraordinary ' adds a gloss to the statute which alters its meaning and effect ." He further said " I see no reason to characterise the circumstances that might, in a given case, justify leave under s 52(4) as necessarily extraordinary or truly special. The question is what is fair and just." His Honour further said: "It is true that the exercise of the discretion is to be approached on the basis that the onus is on the applicant to show why it is fair and just that in his or her case there should be a dispensation from a general rule established by the statute. Nevertheless, the statute recognises that there may be cases where it is fair and just to grant such a dispensation, and the applicant should not be required to bear some additional forensic burden of indeterminate nature and unquantified weight. To take up the words of Glass JA in McGee v Yeomans , it is not possible by judicial decision to establish in advance categories of case in which it would be fair and just to grant leave to commence proceedings out of time under s 52(4). However the following guidelines may be of assistance in obtaining consistency of decision-making: 1. Section 52(4) confers a discretion which is to be exercised judicially, in a manner that furthers the purposes of the statutory context in which it appears. The immediate purpose, as with any limitation period, is to protect defendants against the injustice of stale claims; the statute is also aimed at promoting forensic diligence. 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. 3. The diligence, or lack of diligence, shown by a plaintiff or a plaintiff's representatives, in ascertaining and asserting his or her rights will ordinarily be a material factor, as will the extent of the relevant delay, and the reason for it. 4. The nature and extent of any forensic disadvantage to a defendant resulting from a plaintiff's delay will also be material. The effect, if any, of the delay upon the defendant's ability to defend an action is a matter to be taken into account, and may in some cases be of decisive importance. 5. Leave under s 52(4) may be refused if it would be plainly futile to grant it, and in that connection an applicant's willingness and ability to give a full and satisfactory explanation of any delays in reporting to police, notifying claims and commencing proceedings will be material."

Kirby P, in discussing the effect of the section said (at 536): "Thus, in effect, the maximum period within which the claim must be made is of the order of three years and six months. This is a period considerably shorter than that which formerly existed by successive limitation statutes applicable in this State to actions of an analogous kind. To this extent, s 52(4) is a clearly deliberate provision of the legislature which cuts down valuable rights which formerly existed. However, at the same time as the period for the commencement of proceedings has been reduced, a very large discretion has been conferred by which to permit proceedings to be taken outside that time. No express statutory guidance is given, by the terms of s 52(4), as to how the discretion is to be conferred. It is simply left to the court to decide whether "leave" should be granted or not."

Taylor's case involved a consideration by the High Court of s 31(2) of the Limitation of Actions Act 1974 (Q), which was quite different in its terms from s 52(4) of the Act. However, the principles relating to an application for extension of time enunciated in the judgments have been applied to other limitation sections. They were applied to s 52(4) of the Act in Henricks v Agnew (1997) 26 MVR 277 where they were considered in conjunction with the statements in Salido . After referring to the formulation in Salido Cole JA, with whom the other members of the Court agreed, made the following observations (at 284): "In Brisbane South Regional Health Authority v Taylor , Toohey and Gummow JJ enunciated a not dissimilar test. Their Honours said, dealing with a different statutory provision: It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant. Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission of Victoria in passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd : "It is for the respondent to place in evidence sufficient facts to lead the court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice."" Later their Honours said at ALJR 869; ALR 6: "Once an applicant satisfies paras (a) and (b), the Court has a discretion to extend the time for the bringing of an action. A material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is possible. Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application. It is no sufficient answer to a claim of prejudice to say that, in any event, the defendant might have suffered some prejudice if the application had not begun proceedings until just before the limitation period had expired." In discussing prejudice, their Honours said at ALJR 869-70; ALR 6-7: "In this regard we have difficulty with the notion of weighing prejudice to an applicant against prejudice to the respondent. In one obvious sense the prejudice to the present respondent is absolute if her application is refused. She can never litigate her claim. But that cannot be enough itself to warrant an extension of time; in truth there would be no discretion to be exercised. For that reason we do not accept the respondent's argument that the District Court fell into error in failing to balance the prejudice to the appellant against the prejudice against the respondent. It may be appropriate to temper that approach and to say that because the respondent has satisfied para (b) of subs(2), there is therefore evidence to establish her right of action. Even then, a weighing process is not called for. The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion would not be exercised in favour of the respondent. McHugh J, with whom Dawson J agreed adopted, in some respects, a slightly different approach. His Honour said at ALJR 872; ALR 9-10: In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced". [25] [ Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 635]. But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the state is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension."

Cole JA noted that a previous legislative requirement that an applicant give " a full and satisfactory explanation of the delay " had been repealed. He said, however, (at 285): "Nonetheless the applicant bore the onus of establishing that it was fair and just that a discretion be exercised in his favour to extend the time for bringing an action having retard to the background reasons for limitation periods as noted by McHugh J, the ultimate test being whether the applicant had satisfied the court that, notwithstanding the delay, and its effects, a just and fair trial could still be held."

In Sydney City Council v Zegarac (1998) 43 NSWLR 195, a case involving the provisions of s 60E (1)(b) of the Limitation Act 1969, Mason P considered the judgments in Taylor's case and their relevance to the section under consideration. The section was concerned with prejudice to a defendant in losing evidence which would have been available had the applicant not delayed in bringing the proceedings. He said (at 197): "Persuasive dicta in Brisbane South indicate that it is for the party opposing the application to adduce evidence of facts suggesting particular prejudice if the discretion were exercised in the applicant's favour: see (at 547), per Toohey J and Gummow J citing Cowie v State Electricity Commission (Vic) [1964] VR 788 at 793 and Campbell v United Pacific Transport Pty Ltd [1966] Qd R 465 at 474; see also Kirby J (at 566-567). Failure to adduce such evidence may draw the unfavourable inference that specific prejudice is absent, due to the fact that it is very much in that party's camp to know of the existence, impact and "extent" of such prejudice. However, McHugh J's judgment in Brisbane South (at 551) correctly reminds that time may "sometimes, perhaps more often than we realise" cause the deterioration in quality of evidence that is not recognisable even by the parties. The capacity of a key witness to give a credible account and to defend it under cross-examination may be undermined by the lapse of time, especially if he or she did not make a contemporaneous written statement. While a tribunal of fact should be able to assess the disadvantage, this too can be difficult; and it may not be fair to the defendant to be put at peril of losing such a case when it has been commenced out of time."

After making reference to a portion of the judgment of Dawson J in Taylor's case Mason P made the following observations (at 198-199): It could therefore be seen that Dawson J and McHugh J appear to indicate that it is mandatory that an applicant negate "significant prejudice" before the discretion could be exercised in his or her favour. What is "significant" will depend on the particular case and the "extent" and impact of the delay. But two things should be said about any test of "significant prejudice" before it is imported into s 60E. First, it is not at all clear that Toohey J and Gummow J suggest any such brightline test in their joint judgment. They joined with Dawson J and McHugh J to decide that the Queensland Court of Appeal erred. But, on the matter presently at hand, it is possible to detect possible points of difference between the joint judgment and the judgments of Dawson J and McHugh J. The joint judgment relevantly expressed itself in the following terms (at 550): "The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent." I perceive that there may be a distinction between the notion of "significant prejudice" and the notion of delay that makes "the chances of a fair trial unlikely. What further suggests that there is a distinction of importance between the two sets of judgments is the fact that Toohey J and Gummow J were in no doubt that the lapse of time had definitely caused "some prejudice" to the appellant in Brisbane South , if only because of the extent to which the missing witness (Dr Chang) would have to rely on his notes in view of the lapse of time involved: see at 550. The concluding paragraphs of the joint judgment (at 550) also contain an express acknowledgment that different conclusions were open on the question of prejudice to the judge at first instance in Brisbane South, and that it was not open for an appellate court to substitute its own discretion even were it of different view to that of the trial judge. Now obviously these remarks are to be read in the context of the case before the High Court. Nevertheless they represent a clear indication that mere proof of actual prejudice will not dictate the rejection of an application to extend time. I do no more than note this possible gulf between the obiter views of the justices in Brisbane South: it would be presumptuous for me to go further in an attempt to exegete the dicta in a very recent High Court decision."

Later his Honour said (at 199): "Evidence of actual or significant prejudice may lead to refusal of the application, depending on the particular circumstances of the case. In weighing prejudice, its impact upon a fair trial is the primary focus, as Toohey J and Gummow J emphasise in Brisbane South ."

In my view, having regard to Salido and Taylor , a primary judge has a wide discretion under s 52(4) of the Act. He or she must determine on the material adduced by both sides whether it is " fair and just " that time for bringing the proceedings be extended. Obviously, a major consideration is whether the passage of time has prejudiced the potential defendant and whether such prejudice can reasonably be seen as likely to prevent a fair trial. Delay itself, especially a lengthy delay, can raise the presumption of prejudice, for the reasons stated by McHugh J in Taylor . However, the absence of proof of specific prejudice may obviously incline a judge to the view that presumptive prejudice on its own is not sufficient in the circumstances to establish the likelihood of unfairness in the ultimate hearing. Also, although there is no legislative requirement to provide a full and satisfactory explanation of delay, such an explanation or its absence must play a role in determining where the justice of the case lies.

The appellant asserts that the primary judge erred in the exercise of his discretion, having regard to the principles referred to above. It cannot be said that his Honour failed to advert to the principles when reaching his decision. Indeed, he makes specific reference to the cases and to relevant passages from the judgments. The appellant's argument really, as I see it, amounts to a contention that his Honour's decision was so patently wrong as to point to the existence of undisclosed error. It is put, in effect, that the prejudice to the appellant, occasioned by the extensive delay in bringing the application, was so obvious and overwhelming that his Honour could reasonably have reached only one decision, namely that there was no likelihood of a fair trial.

His Honour rejected this proposition. I do not consider that in so doing he exceeded the reasonable bounds of his discretion. The respondent now, as in 1990, bears the onus of establishing negligence on the part of the driver of an unidentified vehicle. He gave evidence before George ADCJ as to his recollection of events leading up to the accident. He was cross-examined about these matters and the appellant has the benefit of the answers that he gave. This cross-examination was, apparently, directed to the issue of " futility ". It did not succeed in establishing this basis for rejection of the application but, quite clearly, the appellant was able to use the occasion to further the case on liability. Moreover, there has been no suggestion that the witness referred to before is no longer available. Although the witness' recollection may not now be as vivid as it was in 1990, the statement that he made shortly after the accident is still available to refresh his memory or to be used as primary evidence. Moreover, no evidence was put before his Honour on behalf of the appellant to suggest that the witness, a relatively young man, has, at this stage, a significantly diminished recollection of the accident. In my view, it was reasonably open to his Honour to find that there was no significant prejudice to the appellant in relation to liability. There was, consequently no miscarriage of his discretion in this regard.

It was next submitted on behalf of the appellant that there was " irremediable prejudice " in relation to the issue of damages. Because the Nominal Defendant and/or his insurer had heard nothing from the respondent since the Nominal Defendant's letter denying liability in June 1990, no medical examinations of the respondent had been undertaken on their behalf. The respondent's claim was potentially a very high one, it being asserted that he had, as a result of the accident, suffered significant brain damage with serious adverse consequences to his enjoyment of life and employability. The nature of his injuries and their consequences were set out in the claim form forwarded on his behalf in 1990. The potential of the claim was, therefore, made known to the appellant at an early date. It could have organised medical examinations at that point of time if it had chosen to do so. However, it denied liability specifically on the basis of the witness statement it had obtained and, presumably, waited to see whether any proceedings would eventuate.

In fact, as appears from the evidence, the respondent and his solicitors pursued a Workers' Compensation claim, which involved another insurer. That insurer undertook extensive medical examinations relating to the plaintiff's head injury and its consequences. It was not suggested that this evidence would not be available to the Nominal Defendant and its insurer. Although the Workers' Compensation insurer would seek to recover the amount ultimately paid to the respondent from the Nominal Defendant's insurer, there was nothing to suggest to his Honour or to this Court that the reports obtained by the Workers' Compensation insurer would do other than conscientiously and professionally define the injuries and their effects present and future. No evidence was placed before his Honour to suggest the contrary. In these circumstances it was, in my opinion, open to his Honour to find that, despite the lengthy period of delay, no significant prejudice had accrued to the appellant in respect of the issue of damages. In my view, no miscarriage of discretion has been demonstrated in this regard.

The next issue posed for his Honour's determination was whether the extension of time should be refused because no satisfactory explanation had been given for the extensive delay in bringing the application. As has already been indicated, there was no statutory requirement to explain delay. Nevertheless, as appears from Salido, delay and its explanation are factors to be taken into account. In this regard, it would appear that the ultimate question is whether the delay, explained or not, has diminished the likelihood of a fair trial.

His Honour had before him the additional material filed in the second application. He also had the transcript of the oral evidence given in the first application. He expressed the view that " clearly from the affidavit material before me the possibility exists that the plaintiff's firm of solicitors have not been diligent in their prosecution of his motor accident claim." He expressed the view that " if any blame attaches in regard to the delay between 1990 and 1996 the plaintiff is blameless and the responsibility lies with the plaintiff's solicitors and that is a material matter which I can take into account."

Counsel for the Nominal Defendant has submitted that this finding of blamelessness on the part of the respondent is clearly wrong and amounts to a miscarriage of discretion. This submission is founded on the letter and telephone conversation between the respondent's solicitors and the respondent in 1990, to which reference has already been made. The letter spoke of a necessity to commence proceedings by 30 June 1990. The evidence of the telephone conversation comes from a file note made by the solicitor then acting for the respondent which indicates that the respondent was to decide whether he wished to proceed with his motor vehicle claim. It does not appear that the respondent was cross-examined about this telephone conversation when giving evidence before George ADCJ. It is a question, in all the circumstances, what significance can reasonably be attributed to it. The respondent has suffered the effects of his closed head injury since the time of the accident. This has affected his memory and concentration. These effects would have been present in June 1990. It was well open to his Honour to find that at all times the respondent attributed blame for the accident to the driver of the unidentified motor vehicle. There was also evidence in the affidavits of the respondent and in his oral testimony before George ADCJ that he wanted to take proceedings to recover damages, as he was well aware of the serious effects that the accident had produced. It was clearly open to his Honour to find that at all times the respondent relied upon his solicitors to prosecute his common law claim. It was his contention that he had been told that his Workers' Compensation proceedings should be finalised before the motor vehicle claim was brought and that he was, at all relevant times, unaware of the existence of any time limit in that regard. In my opinion, on the reading of the whole of the material placed before his Honour, it was quite open for his Honour to find that the plaintiff was " blameless". In this regard, no relevant miscarriage of discretion has been demonstrated.

There is no doubt that there have been extensive periods of delay in this matter. Appropriate steps were taken shortly after the accident by way of investigations, advertisement, and the serving of notice of claim on the Motor Accidents Authority. These steps resulted in a denial of liability by the insurer on 21 February 1990. At that point of time, pursuant to the legislation, proceedings could have been commenced against the Nominal Defendant. However, nothing further was done by the respondent's solicitors until 5 July 1996 when an unnecessary second notice of claim was served on the Motor Accidents Authority resulting in a further denial of liability by the insurer. Thereafter a further period elapsed before the first notice of motion for extension of time was filed on 24 July 1997, resulting in the rejection of the application by George ADCJ on 15 September 1997. The next notice of motion, the commencing point of these present proceedings, was filed on 28 September 1998. It is the contention of counsel for the Nominal Defendant that no satisfactory explanation for the delay was provided in the evidence before the primary judge. Consequently, when finding, as he did, that such an explanation had been given, he was so plainly wrong as to lead to the necessary conclusion that his exercise of discretion had miscarried.

His Honour did not undertake any analysis of the facts relating to the individual periods of delay. However, his observations as to lack of diligence on the part of the respondent's solicitors are clearly supported by the material that was before him. Mr Gorrie indicated, that he commenced to act for the plaintiff in May 1995. Before that the respondent had been represented consecutively by two solicitors who had left the firm. Mr Gorrie's evidence indicates that an approach was made to each of them to obtain information bearing upon the delay in commencing proceedings. One had no recollection. The other had left the firm in acrimonious circumstances and was uncooperative. It is clear that one or both of these solicitors had been acting for the respondent in Workers' Compensation proceedings relating to a right knee injury suffered in his employment. An extensive chronology of the steps taken in these proceedings was provided as an annexure to an affidavit of Mr Gorrie. These proceedings were finally disposed of in November 1996. It appears that proceedings for Workers' Compensation in respect of the subject accident were commenced on 3 March 1994. It appears to have been accepted that, the same insurer being involved, these proceedings were joined with the previous proceedings and were also finally disposed of in 1996. Mr Gorrie acted in these proceedings. The respondent's evidence establishes that he was in fairly regular contact with the solicitors who were acting for him and had conversations with them, not only in respect of the Workers' Compensation proceedings but also his motor vehicle claim. He thought that all proceedings were going ahead. He said " I was originally told we had to finish the Workers' Compensation before you did the motor vehicle accident, otherwise it created a lot of work which doubled up or something." He further said that in relation to the motor vehicle accident proceedings he relied upon his solicitor's advice "in terms of what to do and when to bring proceedings." He said he " asked a number of times how long it is going to take" and was told " it was proceeding on schedule." He remembered talking to the solicitor " about the third party somewhere near when the Workers' Compensation was getting close" and recalling that " he reaffirmed that we needed to know what the Workers' Compensation outcome was first."

The strong impression gained from the reading of the whole of the material is that the solicitors who acted for the respondent, including, in the later stages, Mr Gorrie, concentrated upon his Workers' Compensation proceedings and neglected to advance the proceedings against the Nominal Defendant. His enquiries about progress of that action were brushed aside. Even after Mr Gorrie commenced to act for the respondent, there was clearly no adequate focus upon the third party proceedings. The preparation of the application to extend time was conducted at a fairly leisurely pace. The respondent had moved to Queensland and, as indicated by a chronology placed before his Honour, there was some delay in obtaining the return of affidavits from him. Mr Gorrie agreed that about three months of the relevant period of delay could be attributed to the respondent's slow return of affidavits but that the rest of the period of delay was attributable to himself and to counsel. The deficiencies in the first application were similarly attributable to the legal advisers.

His Honour also had before him considerable and significant evidence of the effect of the head injuries upon the respondent's organisational capacities. The respondent was, to a large extent, focusing his diminished capacities upon retaining his job and, when that was lost to him, obtaining other work within his diminished ability. He was also occupied for some time in caring for his wife who was in ill health.

His Honour had before him material which established that during the periods of delay, the respondent was relying upon his solicitors, who clearly let him down. He bore no personal responsibility for the delay.

His Honour did not accept that, in the circumstances of the case, the sins of the solicitors should be visited upon the respondent. In circumstances where no significant prejudice to the Nominal Defendant had been established this would be unfair to him. He would be debarred from bringing his action based on the negligence of the unidentified driver and would have, in substitution, a right of action against his solicitors for professional negligence. In this regard his Honour made the following observations: "For the reasons stated in Forbes v Davies & Anor (1994) Aust. Torts Reports 81-279 at pg. 61404 and 61405, if the plaintiff has a relevant action against his instructing solicitors in regard to this matter, in my view the weight that should be attached to it should be minimal and the matter ought proceed in accordance with the normal way such matters are considered and assessed."

In the case cited in this passage reference is made to decided cases in which it has been held that an applicant for extension of a limitation period should not be " bound" by negligent delays on the part of the solicitor. In my view, there can be no hard and fast rule that a solicitor's mistakes will necessarily act as a bar to his client obtaining an extension of time, particularly where the Court hearing the relevant application has been provided with a discretion as wide as that accorded by s 52(4) of the Act. Salido does not establish such a rule. Moreover, it by no means follows that an action brought by the respondent against his solicitors would necessarily succeed or be productive of an award of damages of the size that might be obtained in the claim against the Nominal Defendant, should it succeed.

I am not prepared to hold that his Honour was in error, in the passage cited above.

The appellant's final submission is that his Honour fell into appellable error when he excluded from the respondent's permitted claim the heads of damage already referred to. I am not persuaded that this is so. It would always have been open to the respondent to abandon these aspects of his claim for damage without, thereby, destroying his cause of action. It may be noted that there has been no cross-appeal in respect of this part of his Honour's decision.

In my view, the appellant's attacks upon his Honour's decision have failed. Accordingly, the appeal should be dismissed with costs.