By Stuart Eustice, Partner and Ross Agelopoulos, Clerk
Executive summary
On 22 November 2024, the Victorian Supreme Court of Appeal (VSCA) handed down its decision in relation to an application for leave to appeal from the County Court of Victoria by Mr Antonio Basile (Basile). The application was for leave to appeal was refused. Basile failed to establish that the County Court judge erred in law in finding that it was not ‘just and reasonable’ to grant a time extension to commence proceedings to recover damages.
Facts / Procedural background
On 23 November 2022, Basile commenced proceedings by writ filed in the County Court of Victoria. Basile claimed damages against the respondent, Mr Leslie Pugh (Pugh), for injuries he sustained from an incident that occurred in 1998 where he was riding a motor bike and collided with a car driven by the respondent, Pugh (incident).
The key facts were as follows:
In October 2018, Basile was referred to an orthopaedic surgeon who confirmed he had he had post-traumatic osteoarthritis in his right ankle and was told he would eventually need an ankle arthrodesis surgery.
Basile first sought legal advice in relation to the injuries sustained in the accident on 30 April 2021. On 7 May 2021, his solicitors sought leave to commence proceedings for the recovery of damages with the TAC.
The TAC contended that Basile should have made an application to it for its consent to the commencement of proceedings for the recovery of damages. On 22 May 2022, Basile made an application to the TAC for its consent to his bringing a proceeding for the recovery of damages.
On 23 November 2022 Basile filed a writ in the County Court of Victoria.
Under the Limitation of Actions Act 1958 (the Act), Basile was required to commence any proceeding for damages against Pugh by 6 November 2004. He did not commence a proceeding until some 24 years after the collision.
Basile applied under s 23A(2) of the Act for an extension of time to commence his proceeding in order retrospectively to validate it.
On 13 February 2024, a judge of the County Court of Victoria dismissed his application. Basile applied for leave to appeal against that decision.
Alleged Errors of Law of the County Court Judge
In hearing the application under s 23A(2) of the Act, the judge was required to form a view on whether it was ‘just and reasonable’ to extend time having regard to ‘all the circumstances of the case’.
Basile relied on three grounds of appeal. They are that the judge erred in law in finding:
By challenging, as errors of law, the above conclusions, Basile needed to establish that the judge made findings of fact that were not open on the evidence or applied incorrect legal principles in making those findings.
‘Acceptably Fair Trial No Longer Possible’
The VSCA found difficulties with Basile’s appeal on this ground.
The Court noted that the statement was not a finding that the proceeding would be so unfair as to amount to an abuse of process. Rather, it was a descriptor used to emphasise that there would be real and significant prejudice to Pugh if the trial were to go ahead.
This was but one factor that had to be weighed with other factors in determining whether it was just and reasonable to extend time.
While there are contemporaneous records that supported Basile’s version of events, the accuracy of this evidence is uncertain. Due to the years that have passed, memories have been lost, records have been destroyed, and the only known independent witness has passed away.
Further, The VSCA emphasised that a fair trial should be in relation to all significant issues that arise. While Basile might have argued that a fair trial is possible because there are contemporaneous documents that support his case, ‘the unfairness arises because those documents exist, whereas others do not’, and these surviving documents cannot now be effectively challenged in circumstances where Pugh contends that their contents are erroneous.
The VSCA leant on observations previously made by the High Court that “The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.”[1]
Finally, the VSCA put this observation of unfairness in the context of an application to extend a period of limitation. VSCA noted that a claim brought outside of the applicable limitation period is prima facie prohibited because it reflects the legislature’s judgement that ‘the welfare of society is best preserved by causes of action being litigated within the applicable limitation period.’
Should the Plaintiff have Acted Sooner?
While the VSCA accepted that Basile acted reasonably in not taking any steps until October 2018. But once he was refereed to an orthopaedic surgeon who confirmed his osteoarthritis and the eventual need for surgery, the VSCA found that it was at least open to conclude that a ‘reasonable person’ would have taken steps and would have done so promptly.
Instead, Basile did nothing to pursue his claim until September 2021 and therefore the VSCA concluded that it was open for the Country Court judge to find that this was not prompt or reasonable.
The ‘Clock Continued to Tick’ After 7 May 2021
During the course of the application, Basile did not press this ground further than what was in the written submissions, the VSCA thus dealt with this ground very briefly.
The VSCA found that this was merely an observation made by the judge emphasising that time continued to pass. The judge was not referring to a clock in the sense of time continuing to progress towards the expiration of a limitation period – that period had expired 18 years prior.
This was an ‘unremarkable and correct observation and did not amount to an error of law.’
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[1] Brisbane South Regional Health Authority v Taylor [1996]
186 CLR 541.
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