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In light of the recent decision of Griffiths v Nillumbuk Shire Council, we must all ask ourselves how substantial is the hurdle for the plaintiff to persuade a court to exercise its discretion to extend the time period to bring a claim.

The Statute of Limitations Act 1958 (Vic) provides the Court with the discretion to extend the time period in which a claim can be made if it is “just and reasonable” to do so. In exercising its discretion, the Court shall have regard to all the circumstances of the case, including:

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

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

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

(d) the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;

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

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

The High Court case of Brisbane South Regional Health Authority v Taylor[1]  establishes that there are four broad rationales for the enactment of limitation periods. Firstly, as time passes, relevant evidence is likely to be lost. Secondly, it is oppressive, even “cruel” to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Thirdly, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be brought against them, and finally, it is in the public interest to have disputes settled as quickly as possible.

The following principles apply:

• It is for the plaintiff to show that the discretion ought to be enlivened;[2]
• A claim that proceeds outside the limitation period is, prima facie, prejudicial to the defendant (“presumptive prejudice”);[3]
• Presumptive prejudice is to be taken into account but may not, of itself, disentitle a plaintiff. However, if there is “significant” prejudice, an extension should not be granted.[4] Even without significant prejudice, the plaintiff must discharge the persuasive onus;[5]
• In determining whether there is significant prejudice, one must consider whether there can be a fair trial. A fair trial is not a perfect trial.[6] The key factor in determining the question of significant prejudice is that of an acceptably fair trial;[7]
• Whether the asserted prejudice will prevent an acceptably fair trial is to be determined by the prejudice that exists at the time of the application, not the prejudice that existed at the time the limitation period expired. The prejudice caused by the whole of the period of time, from the date of the accrual of the cause of action, is relevant to the exercise of the discretion;[8]
• The existence of a cause of action by the plaintiff against their solicitors by reason of the conduct of the claim is a matter to be taken into consideration.[9]

In Griffiths v. Nillumbik Shire Council[10] the Court of Appeal held that “…… the statements of principle of the High Court in Brisbane South Regional Health Authority v. Taylor remain the yardstick”. ”.  The Court made it clear that a limitation period in a personal injuries claim “….is not just some easily movable line in the sand. Rather, it is a formidable hurdle which can only be overcome by the applicant satisfying the test laid down by the relevant extension of time provisions”.

Taken in combination, Brisbane South, Prince Alfred and Griffiths could not make it clearer that the “fair trial” analysis must be seen in context. In Prince Alfred, the High Court said that the purpose of the conferring of the discretion is to “ensure a fair trial on the merits”. Therefore, on the hearing of an application for extension, if a fair trial cannot be established by the Plaintiff, the discretion should not be exercised. The starting point is that the limitation period has expired, and Parliament has enacted this legislation in accordance with the rationale set out in Brisbane South as endorsed by superior Courts on many occasions

[1] (1996) 186 CLR 541

[2] (Ibid) at 554; Prince Alfred College Incorporated v ADC (2016) 258 CLR 134 at paragraph [99]

[3] Brisbane South Regional Health Authority v Taylor (supra) at 554; Commonwealth of Australia v Smith [2005] NSWCA 478 at paragraph [123]

[4] Holt v Wynter (2000) 49 NSWLR 128 at paragraph [116]

[5] Commonwealth of Australia v Smith (supra) at paragraph [129]

[6] South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 at paragraph [33]

[7] Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517 (“Gordon”) at paragraph [79]

[8] Welsh v Adecco & Ors [2017] VSC 44; Brisbane South Regional Health Authority v Taylor (supra) at 548

[9] Tsiadis v Patterson (2001) 4 VR 114 at paragraph [28]; Gordon v Norwegian Capricorn Line (Australia) Pty Ltd (supra) at paragraph [82]; Morrison & Anor v Judd [1995] NSWCA 300

[10] Griffiths v. Nillumbik Shire Council [2022] VSCA 212

If you have any further queries please contact Rachel Rooney 03 9612 319.