Grapes v AAI Limited[2025] QCA 60

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  I agree with the reasons for judgment of Bradley JA and with the orders proposed by his Honour.
2. [2]
   BRADLEY JA:  The appellant was a paramedic with the Queensland Ambulance Service (QAS).  On 2 September 2018, she attended the scene of a motor vehicle accident at Mount Tamborine.  A single vehicle was involved.  The first respondent was the driver.  The second respondent (the CTP insurer) was the insurer, covering the driver’s liability for personal injury caused by, through or in connection with the use of the vehicle.^[1]
3. [3]
   The appellant remained at the scene of the accident for about an hour with an injured passenger.  The passenger’s arm had been almost completely amputated in the accident.  The appellant retrieved the passenger’s humerus bone from where it was lodged in a tree several metres from the vehicle.
4. [4]
   Over September and October 2018, the appellant’s ability to cope with her work as a paramedic deteriorated.  It never improved.  Within 12 months of the accident, she had ceased full-time work.  After December 2020, she could not work at all.  In January 2021, she had been diagnosed with post-traumatic stress disorder (PTSD) caused by her exposure to trauma, including the accident.
5. [5]
   In Queensland, a person may not bring an action claiming damages that include personal injury^[2] after the expiration of three years from the date the cause of action arose.^[3]  The appellant did not bring an action claiming such damages from the driver and the CTP insurer in respect of the accident (an MVA claim) before that period (the limitation period) had expired.
6. [6]
   On 21 August 2024, the appellant filed an originating application seeking an order extending the limitation period to 9 November 2024.^[4]  It was heard before the learned primary judge on 4 October 2024.  On 6 November 2024, his Honour dismissed the application.
7. [7]
   On 3 December 2024, the appellant commenced an appeal from that decision.

The relevant statutory provisions

8. [8]
   By s 31(2) of the Act, Parliament authorised the Court to order an extension of a limitation period in certain circumstances, relevantly:

1. “(2)
   Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court—

1. that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; …

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.”

9. [9]
   Section 30(1) of the Act defines some of the concepts in s 31(2)(a), relevantly:

1. “(1)
   For the purposes of this section and sections 31, 32, 33 and 34—

1. the material facts relating to a right of action include the following—

1. …

2. the identity of the person against whom the right of action lies;

3. …

2. material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing—

1. that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and

2. that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action;

3. a fact is not within the means of knowledge of a person at a particular time if, but only if—

1. the person does not know the fact at that time; and

2. as far as the fact is able to be found out by the person—the person has taken all reasonable steps to find out the fact before that time.”

The nub of the dispute (and the appeal)

10. [10]
    The following matters were not contested before the primary judge:

    1. The identities of the driver and the CTP insurer were material facts relating to the appellant’s right of action against them.
    2. Those identities were facts of a decisive character.
    3. The identities were not within the appellant’s means of knowledge until a date after September or October 2020, being the commencement of the year last preceding the expiration of the limitation period for an MVA claim.
    4. The appellant did not know the identity of the driver before 15 September 2023, when Crown Law provided an unredacted copy of the QAS Incident Detail Report to the appellant’s solicitor.
    5. The appellant did not know the registration number of the vehicle involved in the accident (from which the CTP insurer could be identified) before 6 November 2023, when Crown Law provided Queensland Police Service (QPS) records identifying those details to the appellant’s solicitors.
    6. The appellant did not know the identity of the CTP insurer, until 8 November 2023, when the appellant’s solicitor received the results of a public search she caused to be conducted that day using the vehicle registration number.
    7. The appellant had shown she had a right of action in negligence, at least to the extent of a prima facie case, against the driver and the CTP insurer.
    8. Neither the driver nor the CTP insurer asserted any significant prejudice would flow from an extension of the limitation period or that an MVA claim could not be fairly litigated.
11. [11]
    It was not necessary to revisit these matters.
12. [12]
    The appellant contended that the identities of the driver and the CTP insurer were not within her means of knowledge until a date on or after 8 November 2023.  Assuming they could be found out by the appellant, the identities could be not within her means of knowledge only if she had taken all reasonable steps to find out the identities before 8 November 2023.^[5]
13. [13]
    In their outline of submissions, the driver and CTP insurer had contended that:

    1. before the limitation period expired, the appellant was “armed with the facts giving rise to the right of action” against the driver and CTP insurer, but “did not take any, let alone any reasonable steps” to identify the driver and CTP insurer; and
    2. by at least May 2022, the appellant had been advised of a potential MVA claim and did nothing to identify the driver and the CTP insurer until about October 2023.
14. [14]
    These contentions about reasonable steps were broadly expressed.  They seemed pregnant with the suggestion that there was a particular reasonable step (or steps) the appellant had failed to take.  The appellant did not seek particulars.  For these contentions, the CTP insurer had relied on two affidavits of the appellant and an affidavit of her solicitor, Ms Denning.  In these, neither deponent gave evidence of any step taken to identify the driver or the CTP insurer before about October 2023.
15. [15]
    The appellant filed another affidavit of the appellant and another of Ms Denning.  Neither affidavit identified any earlier or other step taken by the appellant, but Ms Denning gave evidence of a request she had made in August 2023, which might have identified the driver and CTP insurer: see [58](c) below.
16. [16]
    In an outline of submissions in reply, the appellant submitted that “without the aid and researches of solicitors” she could not establish the identities of the driver and the CTP insurer, and that, “once psychologically well enough”, she had “retained solicitors and followed them up.”^[6]  When and if the appellant retained solicitors to find out the identities is considered later in these reasons.  See [59] below.
17. [17]
    It transpired that the respondents’ real contention was that the appellant had failed to engage solicitors to find out the registration details of the vehicle involved in the accident, with which information a free public search would have revealed the identity of the driver and the CTP insurer.  The appellant had anticipated this in her reply outline.
18. [18]
    It appeared to be common ground between the parties that the appellant could not reasonably have been expected to do anything more than consult a solicitor, keep in touch with the solicitor, and act according to the solicitor’s advice given from time to time.^[7]  Nor was there dispute that, if the appellant needed the help of a solicitor to find out the identities, then those facts would not have been within her means of knowledge until the time it would reasonably take for a solicitor to make the necessary inquiries had elapsed.^[8]
19. [19]
    The real issue between the parties was quite narrow: namely, whether, before 8 November 2023, the appellant had taken all reasonable steps to ascertain the identity of the driver and the CTP insurer.
20. [20]
    The appellant failed before the primary judge on this point.  His Honour reasoned:

“A reasonable step would have been to have instructed solicitors to pursue this information with a view to making a claim, as consulting a solicitor would have resulted in the applicant being informed about the possibility of pursuing a CTP claim. Even allowing for the hurdles Ms Denning encountered in ascertaining the identity of the [driver] and [CTP insurer] it would have been within the means of the applicant’s knowledge if assisted by a solicitor to have discovered their identity by early 2022.”^[9]

The grounds of appeal

21. [21]
    At the appeal hearing on 10 April 2025, this Court gave the appellant leave to proceed on an amended notice of appeal raising three grounds.  It is convenient to deal with each ground of appeal in turn.

Ground 1

22. [22]
    By the first ground of appeal the appellant contended the primary judge made two erroneous findings.

The first alleged error

23. [23]
    The first alleged error was a finding that the appellant was obliged by about the middle of 2021 to take reasonable steps to find out the identity of the driver and the CTP insurer.  This finding is said to have been made in this passage in paragraph [56] of his Honour’s reasons:

“… in view of my conclusions about what was within the means of the applicant’s knowledge by about the middle of 2021, I consider that it was then that the applicant was obliged to take reasonable steps to find out the identity of the [driver] and [the CTP insurer].”

24. [24]
    To the extent that the appellant challenged the primary judge’s expression, it may be accepted that the Act did not oblige the appellant to take reasonable steps at any time.  Rather, for the appellant to prove that the identities were not within her means of knowledge on 8 November 2023,^[10] the Act required the appellant to prove she had taken all reasonable steps to find out the identities before that time.  This second proposition is the point his Honour was seeking to make.
25. [25]
    The primary judge’s “conclusions”, referred to in this part of paragraph [56], included the following:

    1. By April 2021 the appellant knew she had a right of action against the driver and the CTP insurer.^[11]
    2. By mid-2021, a reasonable step for the appellant to take was instructing a solicitor to find out their identities with a view to pursuing an MVA claim.^[12]
26. [26]
    Read in the context of the reasons, including the statutory provisions, which the primary judge had set out, it is apparent that in paragraph [56] his Honour was conveying no more than a summary of the effect of the factual conclusions made earlier, namely that by mid-2021 it was reasonable for the appellant to take the step of engaging solicitors to find out the identities.
27. [27]
    When it was reasonable for the appellant to engage solicitors for this purpose was important to the appellant’s case for an extension of the limitation period.  However, the success of her application did not depend upon whether that time was or was not in mid-2021.  The appellant had set out to prove that it was reasonable for her to take that step only when she did so, which she contended was in about 2023.
28. [28]
    In any event, the appellant’s challenge to the expression used in paragraph [56] of the reasons is not a basis to set aside the primary judge’s findings and conclusions relevant to the outcome.  Relevantly, these included the finding that was the subject of the second error alleged by Ground 1.

The second alleged error

29. [29]
    The second alleged error was said to be his Honour’s finding that it was within the appellant’s means of knowledge, if assisted by a solicitor, to ascertain the identities of the driver and the CTP insurer by early 2022.
30. [30]
    For the appellant, it was submitted that this finding was erroneous because the identities could not be found out by early 2022 even with the assistance of a solicitor.
31. [31]
    This surprising submission was based on an assertion that the only means by which the appellant could discover these identities was to pursue a claim for damages against her former employer, in which Crown Law (acting for the former employer) could use a memorandum of understanding between Crown Law and the QPS to obtain the identity information.
32. [32]
    These submissions and assertions were unsupported by evidence or legal argument.
33. [33]
    The Court raised with the parties a statutory means to secure the missing information about the prospective defendants, such as r 208C of the Uniform Civil Procedure Rules 1999 (Qld).  In light of this, and perhaps other means of pre-litigation discovery, the appellant could not maintain these submissions.
34. [34]
    In any event, the primary judge’s conclusion was consistent with the evidence.  Ms Denning had obtained the identity information in about eight months, using the means the appellant’s submissions identified.  Had the appellant set out in mid-2021 to find the information by that means, with a solicitor’s assistance, it seemed likely she could have obtained it by March 2022.^[13]
35. [35]
    This, like the first alleged “error”, was not a proper basis to set aside his Honour’s order.

Ground 2

36. [36]
    By the second ground, the appellant contended that the primary judge made an error in failing to exercise the Court’s discretion to extend the limitation period in light of the evidence accepted and findings made by the Court.^[14]
37. [37]
    The primary judge dismissed the appellant’s application finding the appellant had not been able to show that she had taken all reasonable steps to find out the identities before 8 November 2023.  On the primary judge’s findings, the Court could not have made the order the appellant sought.  It was not simply a matter of discretion.
38. [38]
    The appellant submitted that the second ground “merged with” the first ground.  In explanation of this “merge”, it was submitted that “a correct application of the principle discussed in NF [v State of Queensland] ought to have led to a finding that the appellant did not have” the identity of the CTP insurer “within her means of knowledge”.
39. [39]
    So, the contention was that, in her state of health, the appellant was not able to engage a solicitor to assist her to find the missing identity information until the time she actually did so.
40. [40]
    In NF, Keane JA explained:

“Whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably be expected from the actual person in the circumstances of the applicant.  It seems to me that, if that person has taken all the reasonable steps that she is able to take to find out the fact, and has not found it out, that fact is not within her means of knowledge …”^[15]

41. [41]
    The primary judge cited this passage as authority for an acknowledgement that:

“The issue of knowledge, or whether a person has taken all reasonable steps to find out a fact, is not to be considered from the perspective of a reasonable person but from the perspective of the applicant, a person who was dealing with PTSD and its impact on her personal and professional life.”^[16]

42. [42]
    In the next paragraph of the reasons, his Honour concluded:

“I accept the applicant’s evidence that it was beyond her capacity to discover the identity of the first and third respondents. A reasonable step to take to discover their identity would have been to instruct solicitors to pursue the issue with a view to commencing an action.”^[17]

43. [43]
    The primary judge reached this conclusion from the finding that by mid-2021, the appellant knew she had suffered a serious, permanent, and financially damaging injury, linked to the accident, diagnosed as PTSD,^[18] and the appellant’s unchallenged evidence that:

    1. Between January 2021 and March 2023, the effects of her PTSD symptoms were ongoing.  She continued to experience anxiety and low mood.  She had difficulty with thinking functions and energy levels.  She struggled to complete tasks and household chores.  She had poor attention and concentration.
    2. In January 2021, she had commenced regular psychological treatment, and continued with the same psychologist into the first half of 2022.  In 2022 she was treated by another psychologist.  In February 2021, she had commenced 13 sessions of treatment with a psychiatrist.  From about then until late 2022, she took prescribed antidepressant medications.  From 31 May 2022 to 24 February 2023, she had continued to have psychiatric and psychological treatment, about once a fortnight.
44. [44]
    Despite these significant impediments, on 20 January 2021 the appellant had initiated a WorkCover claim.  She had continued to pursue it, without assistance, until placing it in the hands of Ms Denning on 27 March 2023.  Over those two years and two months, the following had happened.
45. [45]
    On 6 April 2021, the appellant had sought to change the date for calculation of Normal Weekly Earning (NWE), which affected the rate of her weekly compensation payment under her WorkCover claim.  She had asked to change the date from 20 January 2021, when she had ceased work, to September 2018, when she had attended the accident.^[19]  On 28 April 2021, WorkCover had refused to change the date.  On 9 July 2021, the appellant had applied to the Workers’ Compensation Regulator for a review of WorkCover’s refusal.  On 5 November 2021, the Regulator had directed WorkCover to conduct investigations and make a fresh decision on the appellant’s change of date request.
46. [46]
    By May 2022, the appellant had been told by her healthcare providers and other ambulance officers that she should seek legal advice, including about “any common law claim.”  On 5 May 2022, the appellant had contacted her union’s solicitors for advice about the still outstanding decision from WorkCover.  On 9 May 2022, the appellant had spoken with the union’s solicitors.  She said, they told her they could not help, and she had to wait for WorkCover to make a fresh decision.
47. [47]
    That same day, the union’s solicitor had sent the appellant an email.  The appellant said the email explained that:

1. “(a)
   by law, I had three (3) years from the date I sustained an injury to formally commence legal proceedings and that if I did not do so, my right to recover damages may be lost;

2. where my injury occurred over a period of time, the entire period in which the injury had occurred must be within the three (3) [year] time limit;

3. a Court has discretionary power to extend a limitation period to one (1) year from the date of knowledge of a material fact of a decisive character;

4. if I intended to pursue a common law claim for damages, I should seek further legal advice.”

48. [48]
    On 26 May 2022, the appellant had contacted Ms Denning’s firm and made an appointment to speak with Ms Denning.  On 31 May 2022, the appellant and Ms Denning spoke for about an hour by telephone.  The appellant had asked Ms Denning for legal advice “with respect to my workers’ compensation claim.”  Ms Denning had said the firm would charge for any work on the review by the Regulator; so, it would be “most appropriate” for her union’s solicitors “to consider both my common law options, as well as my ongoing [WorkCover] Review”.  Under cross-examination, Ms Denning said she also suggested the appellant take the MVA claim up with the union’s solicitors.
49. [49]
    In this consultation, Ms Denning had also advised the appellant:

    1. a general three-year limitation period applied to any potential common law claim the appellant had, and it would be necessary for her WorkCover claim file and her history of events to be considered as a matter of priority to understand the time from which any limitation period would begin to run;
    2. as well as a common law claim against her employer, it would be necessary to consider whether the appellant had a potential claim against the CTP insurer of the vehicle involved in the accident; and
    3. it may be possible to use the appellant’s photographs of the accident and her knowledge of the date and location of the accident to identify the police report number and the registration number of the vehicle.
50. [50]
    On 1 June 2022, Ms Denning’s firm wrote to the appellant, confirming the advice given in the telephone consultation.  The letter also confirmed the firm had declined to act for her, and recommended she seek further legal advice with respect to any entitlement she may have “to pursue the compulsory third party insurer of the vehicle involved in the accident”.
51. [51]
    On 31 May 2022, after speaking with Ms Denning, the appellant had again contacted the union’s solicitors.  On 8 June 2022, she had spoken with them by telephone.  They had also advised her that a three-year limitation period applied to “common law claims in workers’ compensation matters.”  The appellant said the union’s solicitors declined to act for her.
52. [52]
    In her second affidavit, the appellant affirmed that in 2022 she “did not feel mentally equipped to seek further legal advice, beyond speaking with [Ms Denning’s firm] and [the union’s solicitors], in May and June 2022.”  When cross-examined, the appellant said that, after speaking with Ms Denning and the union’s solicitors in mid-2022, she did not take any step to consult another solicitor until she consulted Ms Denning again in February 2023.
53. [53]
    On 30 May 2022, WorkCover had made the fresh decision, again refusing the appellant’s request to change the date for her NWE calculation.  On 16 June 2022, the appellant had applied to the Regulator to review WorkCover’s second decision.  On 11 November 2022, the Regulator set aside the WorkCover decision and substituted a decision calculating the appellant’s Normal Weekly Earnings from 7 May 2019.
54. [54]
    On 9 November 2022, at the request of WorkCover, the appellant had been assessed by a consultant psychiatrist.  The consultant had prepared an independent medical examination report the same day, in which he expressed the following opinion.  The appellant had sustained a PTSD and major depressive disorder due to her employment as a paramedic.  She had an ongoing incapacity for work due to her psychological injury and ongoing symptoms.  She also had an incapacity to work in alternative roles, or participate in other duties, employment or retraining at that time.  Further treatment was unlikely to lead to a substantial improvement or any functional gains in the next 12 months.  Her injury had reached maximum medical improvement and was stable and stationary.  On 6 December 2022, the appellant was told of the consultant psychiatrist’s opinion.
55. [55]
    On 27 February 2023, the appellant had again spoken with Ms Denning.  The appellant had told her that the union’s solicitors were unwilling to act for her.  Ms Denning had agreed to request a copy of the appellant’s WorkCover file and consider whether the firm would be willing to act.
56. [56]
    By 24 March 2023, Ms Denning had obtained and read the WorkCover file and sent the appellant a costs agreement to consider.  When the two spoke about the costs agreement, the appellant had asked Ms Denning about any potential CTP claim in respect of the accident.  Ms Denning had advised her that the limitation period had expired, and that she would need to make an application to the Court to extend the limitation period.  Ms Denning had said she could not recommend a CTP claim be started because she had insufficient information, and, according to the appellant, Ms Denning advised:

“it would be necessary to obtain expert medical evidence weighing up the cause of my injury and what contribution the motor vehicle accident made to my injury versus the over a period of time conduct of the QAS [and] once a common law claim was started, WorkCover could join the relevant compulsory third-party insurer to the claim.”

57. [57]
    On 27 March 2023, the appellant had instructed Ms Denning’s firm to act on her behalf in respect of her WorkCover entitlements and a related common law claim against her former employer (the Employee claim).
58. [58]
    The appellant and Ms Denning gave evidence before the primary judge of the following events between 24 March and 29 November 2023:

    1. On 22 June 2023, Ms Denning’s firm had delivered to WorkCover the appellant’s Notice of Claim for Damages in relation the Employee claim.  Ms Denning had requested disclosure of all documents held by WorkCover or QAS “that relate to the circumstances of the event resulting in the injury” the subject of the Employee claim.
    2. On 23 June 2023, Crown Law had advised Ms Denning that the Crown Solicitor acted for WorkCover and the QAS in respect of the Employee claim.  Crown Law had stated that part of the Employee claim was barred by s 11 of the Act and s 275 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).
    3. On 2 August 2023, Ms Denning had written to Crown Law, requiring the QAS to disclose all documents regarding the accident which identified the driver and the passenger as well as details of the vehicle.^[20]
    4. On 6 September 2023, Ms Denning had informed Crown Law that the appellant had a “potential compulsory third party (CTP) claim” against a CTP insurer and that the CTP insurer was “a potential contributor” to the Employee claim.  Ms Denning had asked Crown Law to advise “whether WorkCover intends to serve the CTP insurer” and claim “an indemnity from or contribution towards WorkCover of the employer’s liability” to the appellant for the Employee claim.  Ms Denning had requested “the driver’s details and any traffic incident report number.”
    5. On 15 September 2023, Crown Law had provided Ms Denning with “audio recordings of the event” on the day of the accident, and extracts of the QAS operations brief from the day after the accident.  These materials appear to have disclosed the name of the driver.  They did not disclose the registration number of the vehicle involved in the accident.
    6. On 6 September 2023, Ms Denning had also made a Right to Information Request of the Queensland Police Service for access to the Traffic Incident Report for the accident.
    7. On 12 October 2023, the QPS had disclosed records to Ms Denning that included the QPS number for the accident, but redacted the registration number of the vehicle, and did not include a copy of the Traffic Incident Report.
    8. On 30 October 2023, Ms Denning had written to Crown Law asking that WorkCover request directly from QPS “information about the accident”, including “the vehicle involved, the driver’s details and any matters relevant to our client’s potential CTP claim.”
    9. On 6 November 2023, Crown Law had provided Ms Denning with a copy of the QPS records in relation to the accident, including the vehicle registration number and the driver’s details.
    10. On 8 November 2023, Ms Denning had received the result of a CITEC search of the vehicle registration number, revealing the name of the CTP insurer.  That day, Ms Denning had informed Crown Law of the search results.
    11. On 9 November 2023, Crown Law had put the CTP insurer on notice that WorkCover intended to seek contribution and indemnity from the CTP insurer in respect of the Employee claim on the grounds that the driver was wholly at fault for the accident and the appellant’s injury was caused or contributed to by her attendance as a first responder to the accident.
    12. On 29 November 2023, Ms Denning had advised the CTP insurer that she acted for the appellant in relation to a MVA claim and provided a Notice of Accident Claim Form and associated documents.
59. [59]
    In their respective affidavits, neither the appellant nor Ms Denning identified when the appellant had provided instructions to Ms Denning’s firm to act for the appellant in relation to the MVA claim or when the firm accepted those instructions.  In cross-examination, Ms Denning was asked whether she recalled when the appellant gave her those instructions.  She said, it would have been when her firm wrote to the appellant and identified the CTP insurer, and when the appellant instructed her firm to submit the notice of accident claim form.  From the evidence summarised at [58] above, the first of these things could not have happened before 8 November 2023 and the second had happened by 29 November 2023.
60. [60]
    Between 6 September and 8 November 2023, Ms Denning took steps to find out the identity information.  She did so without receiving or accepting instructions to act for the appellant in respect of an MVA claim against the driver and the CTP insurer.  Only after the identities of the driver and the CTP insurer were known, did the appellant instruct Ms Denning to act for her on the MVA claim.  There was no evidence of any “follow up” by the appellant before the information became known.  Given the appellant’s recollection of Ms Denning’s advice (see [56] above), there was no reason for the appellant to do so.
61. [61]
    The appellant's reply submission that she had “retained solicitors and followed them up once psychologically well enough” is unsupported by evidence.  The primary judge was mistaken in assuming that in March 2023 the appellant had instructed solicitors to discover the identities with a view to commencing an MVA claim,^[21] which seemed to be the inference of the appellant’s submission.
62. [62]
    The appellant gave no direct explanation for her failure to instruct a solicitor at any earlier time to find out these key pieces of missing information for her MVA claim.  The submission that she was unable to do so, due to the state of her health during the relevant period, has some force.  It does not withstand consideration of the appellant’s other conduct over the period from 30 May 2022 to October 2023.
63. [63]
    The appellant had sought to engage solicitors in May 2022 and again in February 2023.
64. [64]
    In her circumstances, by June 2022, and certainly by April 2023, the appellant could reasonably have retained a solicitor to identify the driver and CTP insurer, notwithstanding the state of her health.  Her failure to do so, had the consequence that she was unable to show that the identities were facts not within her means of knowledge before November 2023.
65. [65]
    It followed that the primary judge could not extend the limitation period, as the appellant had requested.  His Honour did not err in failing to exercise the discretion to extend the limitation period.
66. [66]
    The second ground, whether merged with the first or not, fails.

Ground 3

67. [67]
    By ground 3, the appellant contended that the primary judge failed to accord the appellant natural justice in respect of an alleged finding that “the appellant ought to have instructed solicitors by mid-2021 to pursue the making of a claim”.^[22]  The ground included the contention that the hearing was procedurally unfair because the primary judge did not put that finding to the appellant in cross-examination, or raised it with her during her oral evidence, or directly raised it with her counsel during oral submissions.
68. [68]
    For the reasons at [23] to [26] above, his Honour’s finding was that in mid-2021 a reasonable step would have been to instruct solicitors to pursue the identity information with a view to making a claim.  This finding was open on the evidence of the appellant and Ms Denning (summarised at [43] to [58] above).  This was so, notwithstanding the contrary submissions put to the primary judge by counsel for the appellant.  It seemed unusual to assert that his Honour ought to have warned the appellant, directly or through her counsel, that her opponent’s case might be accepted, her submissions rejected, and her application dismissed.
69. [69]
    The appellant’s written outline did not address Ground 3.  At the appeal hearing, counsel for the appellant conceded that the relevant evidence for the appellant had been adduced before the primary judge.  Counsel accepted that any lack of procedural fairness at that hearing would be cured by the opportunity to make submissions at the appeal hearing.
70. [70]
    When invited to do so, it became apparent that the relevant submissions were those already advanced in support of grounds 1 and 2.  For the reasons above, those submissions did not establish that the primary judge’s order was affected by error.

Final disposition

71. [71]
    For the above reasons, the Court should order:

1. The appeal is dismissed.
2. The appellant pay the respondents’ costs of the appeal.

72. [72]
    RYAN J:  I agree with the reasons for judgment of Bradley JA and with the orders proposed by his Honour.