McNulty v State of Queensland[2001] QDC 82

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 22 April 1987 the plaintiff was a patient in the Princess Alexandra Hospital where her gall bladder and appendix were removed. The plaintiff subsequently contracted an infection in the wound of golden staph or MRSA which took some months to resolve. On 31 March 2000 the plaintiff underwent further surgery, this time at the Queen Elizabeth II Jubilee Hospital, where an abscess was found surrounding some suture material which had presumably been inserted in the course of closing the wound in connection with the operation in 1987.

2. [2]
   On 5 July 2000 the plaintiff filed a claim in this court seeking damages for negligence or breach of contract against the defendant as operator of the Princess Alexandra Hospital. Negligence is alleged in relation to the conduct of the surgery when the gall bladder was removed, which is alleged in para. 3 (indirectly) to have occurred in 1992. Various particulars of negligence are pleaded, most of which assume that the suture material which was found in 2000 ought not to have been in or left in the plaintiff’s abdomen; it is unnecessary to deal with the details of these particulars. What matters for present purposes is that they allege negligence in relation to the operation. It is unnecessary to consider separately the issue of breach of contract.

3. [3]
   On 26 October 2000 the plaintiff filed an application seeking an extension of the limitation period pursuant to s. 31 of the Limitation of Actions Act 1974. No notice of intention to defend has been filed on behalf of the defendant, apparently by arrangement since it is recognised by both parties that it is appropriate to make this application. I will deal with the application on its merits, although I suspect the preferable course would have been for the defendant to file a Notice of Intention to Defend with a defence which pleaded that the cause of action was barred by the Act, in order to demonstrate conclusively that the application was necessary.

4. [4]
   The application came on before me on 29 January 2001. At that time it appeared to me that there was no evidence of negligence on the part of the defendant, and I adjourned the application to 9 April 2001 in order to give the plaintiff a further opportunity to obtain such evidence. An order may be made under s. 31 only where it appears to the court “that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation”: s. 31(2)(b).

5. [5]
   The position remains that there is no evidence that there was any negligence in the operation performed in 1987, nor is there any evidence that there was any negligence associated with the contraction by the plaintiff of MRSA. A report obtained on behalf of the plaintiff from Dr. Goldie, dated 20 March 2001, states that MRSA infection is a recognised complication of a surgical procedure. Dr. Goldie also states that the use of non-absorbable suture was correct surgical technique for the operation which was performed in 1987. That is consistent with a good deal of medical evidence put forward on behalf of the defendant. There is no evidence to contradict these propositions, or to suggest that there was anything found in the plaintiff which ought not to have been there.

6. [6]
   Apparently what happened after the surgery in 1987 is that some of the infection became associated with some suture material which had been used internally as part of the process of repairing the wound. This led to a continuing area of infection around the suture material which in time formed a cyst containing localised infection. The suture material was the focus of the infection, but all of the medical evidence, including that of Dr. Goldie, was that the suture material that was used on this occasion was the sort of material that was routinely used then, and now, and is regarded as superior to alternatives including dissolving sutures, for various reasons which it is not necessary for me to go into. There is certainly no evidence of negligence in the use of this material, which is intended to remain permanently in the body. The possibility of the wound becoming infected was regarded as an accepted complication by Dr. Goldie; it is evidently one of the risks of surgery and there is no evidence that there was negligence associated with the development of the infection.

Basis of the claim

7. [7]
   In these circumstances, counsel for the plaintiff did not seek to support the application on the basis of a claim for negligence in respect of the conduct of the operation in 1987; the submission was that there was negligence in a failure to diagnose subsequently the continuation of the infection. It was the opinion of Dr. Goldie and the defendant’s witnesses that the infection had developed around the suture material and a pocket of infection had remained in the plaintiff’s body from the infection subsequent to the operation in 1987 until the operation in 2000. The significance of this is that the abscess found by the surgery in 2000, or something leading to it, was there to be found the whole time from 1987.

8. [8]
   The application was argued on that basis, although it seems to me that strictly speaking the pleadings ought to be amended to raise this additional matter. It was submitted that such an argument was open on the basis of para. 13(5) or (6) of the Statement of Claim; the latter paragraph in particular is in very general terms, although the former in my opinion read in context is a reference to a failure alleged to have occurred prior to the surgery, in informing the plaintiff about the risks of surgery. (There was no evidence to support this allegation.) Counsel for the plaintiff identified the negligence relied on as having occurred when the plaintiff was seen again at the Princess Alexandra Hospital in May 1987, and it is convenient to deal with the question of whether there is any cause of action for negligence because of a failure to diagnose earlier the plaintiff’s continuing problem of infection.

9. [9]
   The plaintiff relies on the report of Dr. Goldie, who was asked a number of specific questions. One of these was: “In your opinion, should our client’s symptoms have alerted the hospital to the presence of the cyst or the presence of some other problem sooner than 30 March 2000?” The response given by Dr. Goldie was “Yes. The continuing symptoms and the possible appearance of a swelling in the wound area (difficult to diagnose due to obesity) could have suggested that there were problems with the wound.” It will be immediately apparent that there is nothing in this material to indicate that Dr. Goldie is expressing the view that this was the situation which should have prevailed as at 13 May 1987.

Examinations in 1987 and subsequently

10. [10]
    Exhibited to Mr. Anderssen’s affidavit filed 29 January 2001 is a copy of a note by a surgical registrar on 13 May 1987 which was provided to the plaintiff by way of freedom of information disclosure. The note is not quite complete since apparently the last line (or possibly more) was cut off in copying. Unfortunately the original note is one of some documents which have subsequently been lost, so the copy provided in this way is the only available copy. So far as I can interpret the note, (with the assistance of a medical dictionary) it says:

“A febrile [without a fever] and not tachycardic [pulse not elevated] wound inspected – some induration [hardening] and tenderness in ?, just lateral to the deepest part of the opened area – opened further with drainage of purulent [containing pus] fluid – minimal cellulitis [acute, diffuse, spreading, suppurative inflammation of the deep subcutaneous tissue which may be associated with  abscess formation, usually caused by infection of a wound]. No evidence intra-abdominal problem. I think pain is related to the wound infection, may well be further collection of pus/fluid deep in fat but am unable to …”

The rest of that page is missing, although it seems to me that the next word may have been “locate” or “confirm”. On the next page is written:

“Suggest – normal diet – panadeine for pain.”

The following day she was reviewed by Dr. Whitby, an infectious disease specialist.

11. [11]
    A copy of this note was provided to Dr. Goldie. He mentions the admission into hospital in May 1987, but does not say that in the light of the indications recorded in that note, surgery was appropriate or was indicated, let alone that any reasonably competent doctor would have operated at that point. At this stage there were still known difficulties with the wound associated with the MRSA infection, and the hospital were concerned to treat that condition. There is no evidence that the treatment then offered was not appropriate. The plaintiff saw her general practitioner, Dr. Armitage^[1], later in May on at least 2 occasions after this hospital admission, and subsequently did not attend the hospital out-patients department where she was due to be seen on 28 May.

12. [12]
    The hospital did not see her again in relation to this matter until August 1990. (She attended in June 1988 with pain in the left foot). On this occasion she was seen in the out-patients department by Dr. Bell, a general surgeon. Dr. Bell’s notes record a complaint of soreness in the wound for five weeks, the pain being constant with no particular precipitating factor, and “? small lump felt”.

13. [13]
    The results of the examination were set out in a letter from Dr. Bell to Dr. Armitage dated 23 August 1990:

“To clinical examination she is very obese. The scar of the previous surgery is well healed apart from the mid portion of the wound where the scar is a little wide following the infection. I can palpate no lump here, but she does appear to be tender particularly superiorly. … I can not explain her symptoms at the moment, but I think it is most likely that she has got a small incisional hernia. Her weight will be exacerbating this and making it difficult to assess moreover. I have recommended to her that she lose a considerable amount of weight and that we will review her again in 8 weeks time. If her symptoms fail to settle it would be most appropriate to explore the wound, but in doing so with as much weight as she is now carrying, any repair of an incisional hernia is fraught with difficulties.”

The plaintiff was supposed to see Dr. Bell again after 8 weeks but did not attend her appointment on 8 October 1990.

14. [14]
    Although Dr. Bell did not identify the problem as one of a deep pocket of infection, he did consider the possibility of surgical exploration, although he was concerned about the risk of surgery in view of obesity. There is no suggestion that that was not reasonable; indeed, Dr. Goldie in his report acknowledges the difficulties associated with obesity, and there had been a reference earlier to her appendix having been removed in surgery in 1987 simply to avoid the risk of a further operation, because she was regarded as such a significant anaesthetic risk. Dr. Bell thought the appropriate course was to wait and see what happened and encourage the plaintiff to lose some weight in order to reduce the risk of surgery, but the plaintiff did not attend the hospital again. The plaintiff’s general practitioner had been informed of the situation by Dr. Bell, by a letter of 23 August 1990, and that general practitioner saw the plaintiff three more times in 1990, once in 1991 and three times in 1992, but there is apparently no record of any continuing complaint of pain at this site until later.

15. [15]
    The next occasion when the plaintiff was seen by the hospital was in September 1994. During 1994 there had been various complaints of abdominal pain sometimes associated with vomiting, after a visit on 1 March 1993 to Dr. Del Mar. On 25 August 1994 a Dr. Brum found a small painful nodule in the mid line below the medial end of the scar which he thought was probably a ventral hernia. On 19 September 1994 she was seen by Dr. McLeod, a general surgeon, at the hospital. The doctor’s notes were “I cannot be certain she has a ventral hernia, but in view of history it seems likely. Operative risk is very high. The pain and vomiting seem unusual for a ventral hernia but could possibly be related to entrapped extraperitoneal fat.” He recommended consideration of gastroduodenoscopy and reduction in consumption of pain killers. In November 1994 she apparently reported to Dr. Armitage that the hospital had refused to operate because of her obesity. Dr. Goldie was told of this visit, and provided with this material.

16. [16]
    There were further complaints to Dr. Armitage of this pain in January and March 1996, and as a result there was an abdominal ultrasound which did not detect any abnormality; Dr. Goldie referred to ultrasound examination as not being particularly effective, although it is not clear whether he is commenting on what occurred here or making a more general statement. He did say that other investigations were unlikely to have assisted her diagnosis.

17. [17]
    There were further complaints to Dr. Armitage of abdominal pain in December 1996. The plaintiff was at the Princess Alexandra Hospital on 7 May 1997 but for the purpose of a review of her left ankle; she attended the QEII Emergency Department on May 1998 in connection with back pain, for which she had seen Dr. Armitage earlier in May 1998. She was at the QEII Hospital again in May 1999 (influenza and asthma), July 1999 (arthroscopy of the right knee) and February 2000 (asthma) before she was admitted in March 2000 for investigation of a lump at the site of the previous operation and scar. This was the first time since 1994 that this matter had been raised with the hospital. The plaintiff was seen on admission by Dr. Garland who was then principal house officer in general surgery. Dr. Garland recalls that the plaintiff was a very large woman which made it difficult to examine her abdomen with palpation. According to Dr. Garland, the plaintiff’s account at that stage was that the lump was not normally tender but had become so over the past two days with increasing pain associated with vomiting and loose bowel motions. The wound appeared to be well healed, with no external signs of infection. She concluded that the plaintiff had a hernia from the previous operation, although she relied heavily on the plaintiff’s statement that this had been confirmed on ultrasound, something which is not clear from the other material I have seen.

18. [18]
    Dr. Garland was present during the surgery performed the following day by Dr. Lacey, when the abscess containing pus was found in the middle of the wound. Her comment was that this came as a surprise, because it was unusual for infection to persist over such a long period, particularly in the absence of any external signs of infection. Subsequently the plaintiff’s recovery was uneventful, although she was readmitted in July 2000 because of a further problem with the wound.

Other considerations

19. [19]
    There are some features of the chronology given in the letter from the plaintiff’s solicitors to Dr. Goldie which are potentially misleading; there is a reference to the large quantity of analgesia being provided to the plaintiff, including 53 prescriptions for Pandeine Forte between July 1989 and January 2000, without referring to the various other conditions from which the plaintiff was suffering during this period. The plaintiff’s attendances on Dr. Armitage are not always regular, but there were certainly a large number of them and most of them dealt with something other than abdominal pain.

20. [20]
    In June 1987 she had pain in the left foot, and the following month there was epigastric pain. The problems in the left foot persisted for some months. In July 1989 she was given Panadeine Forte for headaches, and in 1990 there were further problems with her left foot. In September 1995 she had an ankle oedema and a neuroma in the left forearm. In 1996 there were certainly scripts for Panadeine Forte for the abdominal pain, and the scripts in 1997 may well have been associated with that, although by 1998 there were notes about back pain as well. The back pain was described as chronic in August 1998 by Dr. Armitage. In 1999 there was severe back pain and problems with the right knee as well, for which she was given Endone in January 2000. Part of the problem for the plaintiff may have been that she has had a large number of other things wrong with her which have, from time to time, distracted attention from her abdominal condition, and painkillers given for other things might well mask to some extent the pain associated with the continuing infection. This is not a matter discussed by Dr. Goldie, apparently because he was unaware of it.

21. [21]
    Dr. Goldie referred to a possible appearance of swelling in the wound area, but it is not clear whether this is a conclusion drawn from something written in one of the examination notes, or whether it is simply an assumption that there ought to have been visible swelling because there was a pocket of infection. The reference to the appearance of swelling being possible indicated that there may not have been swelling, and Dr. Goldie acknowledges that in any case swelling would have been difficult to diagnose because of her obesity. But even when seen in May 2000 the plaintiff did not have symptoms of infection obvious on external examination, and there is nothing to suggest that there was any other sign of swelling observable earlier. There is nothing in the plaintiff’s affidavit which suggests that she was conscious of any swelling associated with the pain in the abdomen.

22. [22]
    The only issue is whether there was negligence in failing to diagnose the condition earlier. In this regard I think it relevant to note the views of Dr. Whitby, the specialist in infections, including wound infections, that the most probable explanation for the condition was that a small number of MRSA organisms became attached to the suture material and remained present without producing any significant observable clinical symptoms. He said it is not unusual for organisms to become associated with suture material in this way, but in these circumstances the wound usually shows obvious signs of infection including, if no action is taken, the discharge of pus from the wound. He has never previously seen an example of a situation such as this where the infection persisted but remained buried.

23. [23]
    Dr. Whitby was asked whether the infection could have been recognised earlier than 2000 and expressed the opinion that in the absence of clinical features of ongoing infection it is difficult to surmise that infection is present. There was no evidence of inflammation in the form of redness, tenderness, systemic symptoms including temperature or discharge of pus from the wound at any of the subsequent examinations. He described the persistence of the infection for that length of time as “an extremely unusual occurrence and one which I have never come across before”. His view is that the longer the period since the operation the less likely an infection will be. A copy of this report was provided by the plaintiff’s solicitors to Dr. Goldie but he does not express any opinion to the contrary.

Authorities

24. [24]
    The approach to be adopted in relation to the requirement in s. 31(2)(b) was discussed by Thomas J (as his Honour then was) in Dawn v. Farquhar [1988] 1 Qd.R. 234 at 239:

“An applicant is not required fully to prove his case in order to obtain an extension of time, but he must make it appear to the court that there is evidence to establish his right of action. The nature of the evidence needed to establish this has been expressed in different ways in a number of cases, and although the following views emphasise different aspects of the way in which material should be presented and considered upon such applications, they are in my view consistent. Firstly it is not necessary that the evidence should be the actual evidence to be adduced at the trial, or that it be in admissible form. … Hearsay evidence may be used. … At the same time it is not right for the court on such an application to imagine circumstances or put together a case which is not justified by evidence or apparent evidence. Guesses (as distinct from proper inferences) are no more permissible on these applications than they are upon a trial.”

There was then some discussion about the facts of that particular case before His Honour continued at p. 241:

“To make out a case of negligence or breach of contract against a medical practitioner it is necessary to show a departure by the defendant from the standards of the ordinary skilled practitioner. The test whether a surgeon has been negligent is whether he has failed to measure up in any respect, whether in clinical judgment or otherwise, to the standard of the ordinary skilled surgeon exercising and professing to have the special skill of a surgeon. …  It is important that  a man’s conduct be not judged on the basis of hindsight or of knowledge which the community obtains after the time when his conduct is to be judged. It is significant in the present case that there is no evidence from any expert source suggesting a failure on the part of the surgeon to act in the way he would then have been expected to act. Nothing suggests that anyone else would have done anything differently. It may not always be necessary for expert evidence to be produced before a case of medical negligence may be made out;  but as a practical matter it would be difficult to establish without expert evidence that certain precautions ought to have been taken that would probably have avoided the particular result, or that prevailing medical standards were not observed. Here no such evidence was produced or foreshadowed.”

His Honour also said at p. 242:

“It seems to me that it was necessary for his Honour to consider the material as to the state of medical knowledge in 1983 to decide whether that material was capable of raising a duty on the part of any of the defendants to have acted differently. … (p. 243) … There will be cases  … where the presentation of facts that the applicant cannot hope to controvert demonstrates that the proposed claim must fail. In such cases the may exercise its discretion against the applicant.”

The other members of the court delivered judgments to similar effect.

25. [25]
    The question was further considered by the Court of Appeal in Wood v. Glaxo Australia Pty Ltd [1994] 2 Qd.R. 431. Macrossan CJ at p. 434 noted that:

“The court should be cautious in shutting out a party from the opportunity to make his case at the appropriate time. In any situation where proof of the case is difficult and very far from straightforward, it would be very expensive to require a party applying to extend time to demonstrate his case with any high degree of elaboration. Fundamentally, the standard required on an application for extension of time under the Act comes from the literal words of s. 31(2)(b): ‘Evidence to establish the right of action’”

His Honour then referred to certain authorities including Dawn, and continued:

“One way in which the onus has been expressed is that the applicant must demonstrate something like a prima facie case. The evidence need not at the stage at which the application is brought be in a form which would be admissible at trial and it may indeed be hearsay. … An applicant will meet the requirement imposed by s. 31(2)(b) if he can point to the existence of evidence which it can reasonably be expected will be available at the trial and which will, if unopposed by other evidence, be sufficient to prove his case.”

Davies JA at p. 444 formulated the particular test concerned in that case for the purpose of s. 31(2)(b) as whether:

“There was some evidence that in 1972 the respondent knew or ought to have known that the risk involved in the use of myodil necessitated its withdrawal from sale or a more specific warning than that which was given in the printed information supplied by the respondent with myodil. For reasons which I have already mentioned, the appellant has, I think, failed to satisfy the court that there is evidence that the risks should have resulted in its withdrawal from sale. However, I am inclined to think that the appellant established a right of action based on the inadequacy of the warning … in the printed information which accompanied the myodil.”

The third member of the court, Ambrose J, dissented.

Analysis

26. [26]
    This is not a case where it can be said that there is simply no evidence available in support of a case of negligence on the part of the defendant. Given the way in which the matter has been argued, what is relevant is whether there was negligence on the part of one of the doctors who examined the plaintiff from time to time in failing to detect the presence of some persisting infection. The evidence of Dr. Goldie taken at face value is an opinion that the symptoms should have alerted “the hospital” to the presence of some problem sooner than 30 March 2000, although he immediately went on to express the view that the continuing symptoms “could have suggested” that there were problems with the wound. The question is whether that evidence, if uncontradicted, would be sufficient to establish a prima facie case of negligence on the part of someone for whom the respondent is responsible, or would indicate that the applicant is likely to be able at the trial to produce evidence of negligence.

27. [27]
    In my opinion, this report is inadequate for that purpose, when it is seen in the context of the actual history of the plaintiff. Such examinations as were undertaken did indicate the presence of some problem, and did indicate that the next step was exploratory surgery, but there were particular difficulties with surgery for the plaintiff because of her obesity and her asthma. In these circumstances it was appropriate, indeed it was almost obligatory, for the treating doctors to want to avoid surgery unless it was really necessary. One way to test whether it was really necessary was to see whether the problem persisted, and that in essence was what was done at the hospital on each of the three occasions where this matter was considered, in 1987, 1990 and 1994. In 1987 and 1990, a proposed follow-up was not pursued by the plaintiff.

28. [28]
    On each occasion the hospital doctor thought that there was something wrong with the plaintiff, although the explanation was thought to be a hernia rather than an infection. Accordingly, it is unhelpful to have a medical opinion that the plaintiff’s symptoms should have alerted the hospital to the presence of the cyst or the presence of some other problems sooner than 30 March 2000, because the symptoms did alert the hospital to the presence of a problem at an earlier stage. Dr. Goldie’s qualification, that various things could have suggested that there were problems with the wound, is also unhelpful, because the existence of some problem was identified, although the problem was thought to be a hernia rather than infection. Dr. Goldie does not say that someone ought to have identified the problem as infection sooner than 2000, nor does he say that the response, waiting to see what happened in the hope that the condition would abate without the necessity for surgery, was inappropriate given the particular risks associated with surgery for this plaintiff.

29. [29]
    In my opinion, the opinion of Dr. Goldie, although it would be some evidence which would be directed towards establishing a case of negligence, falls short of doing so even on a prima facie basis and even assuming it was uncontested. It does not, in my opinion, either meet the test for negligence on the part of a medical practitioner as formulated by Thomas J in Dawn, or give reason to think that at a trial the plaintiff would be able to lead evidence which would meet that requirement. In my opinion, the evidence is simply not sufficient for it to appear that there is evidence to establish the right of action apart from a defence founded on the expiration of the period of limitation.

Material fact

30. [30]
    In these circumstances it is unnecessary to consider whether there was a material fact of a decisive character relating to the right of action 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 of the action, although in my opinion plainly there was. The material fact is that the plaintiff was suffering from persistent infection, which was not within her knowledge or means of knowledge until the operation in March 2000. In my opinion, it is the existence of the persistent infection, rather than the presence of the suture material, which is the decisive material fact. She knew she had undergone surgery to remove the gall bladder, and had she asked, she could have been told at the time that this involved the use of nylon sutures. But that was of no consequence; what was important in the present case was not that the nylon sutures were used, as they always were. It was that the suture had become the focus of a persisting infection, and that was something that neither she nor anyone else discovered until surgery in 2000. If there was negligence in failing to detect the presence of this infection sooner, that negligence was the very thing which prevented her from having knowledge of the material fact. It seems to me that it was clearly of a decisive character. Indeed, there was no real argument about this aspect.

Discretion

31. [31]
    In these circumstances the discretion does not arise, nevertheless I should say something about the situation, had I been persuaded that the evidence available from Dr. Goldie was sufficient to get over the relatively low threshold established by the Court of Appeal in Wood v. Glaxo (supra). In those circumstances, in my opinion, the lack of strength of the plaintiff’s case would still be a relevant factor to take into account when determining whether to exercise the discretion. The nature of the matter in issue is also a relevant consideration when determining the significance of the delay. In a case such as this, it would be necessary to investigate whether the presence of infection ought to have been apparent on an examination conducted many years ago, when the only really useful material available would be the notes of the examination prepared by the examining doctor. None of the doctors who saw the plaintiff for the defendant earlier than 2000 retained any independent recollection of her. In these circumstances the difficulty revealed by delay is particularly acute.

32. [32]
    If the surgery in 2000 had revealed the presence inside the plaintiff of something which ought not to have been left there in the operation in 1987, the position in relation to negligence would have been quite different, and the case would have been a classic example of a situation with which this part of the Limitation of Actions Act was intended to deal. But what has happened here is that the plaintiff has suffered an extremely unusual complication from this surgery, and investigating whether that was associated with negligence in conducting examinations of the plaintiff, particularly as far back as 1987, would in my opinion now be a very difficult thing to do in a way which would be fair to the parties.

33. [33]
    The fact that there is a discretion available under s. 31 does not necessarily mean that that discretion is to be exercised in favour of an applicant: South Brisbane Regional Health Authority v. Taylor (1996) 186 CLR 541. In that case, Toohey & Gummow JJ said at p. 548:

“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.” 

At p. 549, their Honours expressed the view that it was not a question of balancing the prejudice to the applicant against the prejudice to the respondent. At p. 550 they said that the real question was whether the delay had made the chances of a fair trial unlikely.

34. [34]
    In the present case the respondent’s solicitors have gone to considerable trouble to locate potential witnesses, although there is apparently a difficulty in identifying the doctor who would be, on the applicant’s current argument, the crucial witness for the defendant; the surgical registrar who examined the plaintiff on 13 May 1997. Not only has that doctor not been identified, but part of the notes are now missing. There is also the significance associated with long delay which was discussed in the judgment of McHugh J in Taylor, particularly at p. 551 which I need not quote. In my opinion in the present case the delay has made the chance of a fair trial unlikely. Accordingly, in such circumstances I would have exercised my discretion against granting an extension.

35. [35]
    Accordingly the application for extension of time is dismissed. I will circulate these reasons and invite submissions as to the appropriate consequential orders.