Switzer v Qantas Airways Ltd[2011] QDC 52

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   By application filed 10 February 2011 the applicant/plaintiff seeks that the court make orders that, pursuant to s 31(2) of the Limitation of Actions Act 1974 (the Act), the limitation period for the proceeding in question be extended until 10 February 2010, as well as such further or other orders as the court deems appropriate, including costs. The extension sought is in relation to a claim for damages for personal injuries arising out of the applicant’s employment with the respondent/defendant concerning an incident that is alleged to have occurred on 17 January 2006.

2. [2]
   The applicant and his instructing solicitor both swore affidavits (the latter deposing twice). Further, the respondent sought, and was granted, leave to cross-examine the applicant. In its case, the respondent relied upon an affidavit of a solicitor in the employ of the solicitor for the defendant. The deponent was Kyle John Norton.

3. [3]
   The Claim and Statement of Claim were filed 28 January 2011. The solicitors’ affidavits exhibited relevant claims, letters and medical reports.

Issues

4. [4]
   While the applicant’s examination of the issues ranged much wider, the respondent’s primary approach was to identify the “critical question” as being: whether or not the applicant was in “possession” of a “critical mass of information” more than one year “prior to” 10 February 2010. That question relied upon an examination of the use of that term in Castillon v P&O Ports Ltd (No. 2) [2008] 2 Qd R 219, particularly in the decision of Keane JA, with whom Holmes JA and Margaret Wilson J (as she then was) agreed. It is clear from a close analysis of the reasoning (concerning the court’s need to consider whether the particular applicant “was in possession of a critical mass of information prior to” the relevant 12 months’ period) that the term was used in a composite sense. That is, relevantly for here, “unless the material facts assume a decisive character in the assessment of a reasonable person before the critical date”, the one year period referred to in s 31(2) of the Act will not have begun to run before that date:  at 234 [41] – [42].

5. [5]
   The respondent’s supplementary argument was that if the discretion was to be otherwise capable of being exercised, then the respondent would be prejudiced, such that a fair trial of the action could not be conducted.

6. [6]
   The issues addressed by the applicant were that:

1. (a)
   there were material facts of a decisive character;

2. (b)
   those facts were unknown to the applicant, or not within his means of knowledge, until some time after the commencement of the last year of the limitation period which began on 18 January 2008;

3. (c)
   there was a prima facie case;

4. (d)
   not more than 12 months had elapsed between the ascertainment by the applicant of the material facts and the (potential) commencement of this proceeding; and

5. (e)
   there was no significant prejudice to the respondent in any exercise of a discretion to extend a time.

7. [7]
   It is not intended to recite the full terms of s 30, s 31 and s 32 of the Act. The parties were fully cognisant of the exact terms of those provisions and their references to authority implicitly recognised such terms without the need for any further detailed recitation of them.

Issues not for consideration

8. [8]
   A Notice of Claim for Damages was served on the respondent on 30 June 2009, pursuant to s 276 of the Workers’ Compensation and Rehabilitation Act 2003. The respondent waived compliance and imposed conditions on the applicant by letter dated 22 July 2009. It thereby stopped the limitation period running from that date by reason of s 302(1)(a)(ii) of that Act, provided the limitation period is extended past that date. But there was no issue raised about any adverse consequence to the applicant because of those facts, or about whether some date other than 10 February 2010 should be the appropriate extension date.

Background

9. [9]
   It is not disputed that:

1. (a)
   the applicant was born on 12 December 1971 and is now 39 years old;

2. (b)
   the applicant commenced employment with the respondent on 24 November 1999, and remains in its employ;

3. (c)
   as at 17 January 2006, the applicant was employed as an airline services operator, performing baggage handling duties;

4. (d)
   on that day the applicant was, in the course of his employment duties, unloading baggage from one of the respondent’s aircraft;

5. (e)
   the plaintiff now claims that he suffered an injury to his cervical spine when performing those duties when, in the course of lifting a telescopic pole when in a bent but extended position in the baggage compartment of that aircraft, he twisted his neck;

6. (f)
   the respondent consulted Dr Michael Weidmann, a neurosurgeon, on 26 February 2006;

7. (g)
   the applicant received advice from Dr Weidmann (whose report is dated 28 February 2007);

8. (h)
   the applicant continued to experience symptoms of neck, left arm and leg pain from February 2006 and the symptoms increased in severity;

1. (i)
   in about August 2007, the applicant successfully applied for a position as a compliance officer with the defendant, being a mainly sedentary occupation, so that he “could avoid the heavy duties of baggage handling”;

10. (j)
    in August 2008, the applicant successfully applied for a position as a resource allocator, which was a sedentary position;

10. (k)
    on or about 16 January 2009, the applicant requested the respondent to re-open his original workers’ compensation claim (it being first made on 20 January 2006);

10. (l)
    after consulting with the general practitioner, Dr Thomas Rolley, the applicant consulted Dr Paul Licina, an orthopaedic surgeon, on 10 February 2009 (which doctor prepared reports dated 11 February 2009, 12 February 2009, 17 March 2009, 5 May 2009, 3 September 2009, 10 March 2010 and 7 May 2010);

10. (m)
    the applicant claims that he was advised by Dr Licina (presumably, on 10 February 2009) that he had suffered spinal cord damage as a result of a disc prolapse suffered in the incident of 17 February 2006 and that spinal surgery was recommended as a matter of priority (this being the first time that the applicant had been advised that he would require surgery);

10. (n)
    Dr Licina performed a spinal fusion on 9 March 2009; and

10. (o)
    the applicant claims that, up until he was discharged from hospital after that spinal fusion on 12 May 2009, he never considered pursuing any legal action.

Content of medical reports

10. [10]
    In considering the various medical reports, only those aspects relevant to the issues in contention have been identified. Further, given the multiple reports of Dr Licina, I have not identified for each conclusion which he reached the particular report from which it originated.

11. [11]
    Additionally, it has been unnecessary to consider the reports of Dr Rolley, or Dr Terry Coyne, a neurosurgeon, who saw the applicant on 13 August 2010 and prepared a report dated 6 September 2010 (apart from matters raised, concerning that examination, in cross-examination of the applicant).

12. [12]
    Additionally, although a report of Dr Redmond, a neurosurgeon, is referred to in one of the reports of Dr Licina, that specialist’s report dated 28 February 2006 for Work Cover was not exhibited to any affidavit and the applicant was not cross-examined on it at all.

13. [13]
    Starting with the report of Dr Weidmann, it should be noted that its content is consistent with what the applicant says was his understanding of that report. According to the applicant’s affidavit, he was advised by Dr Weidmann that:

1. (a)
   his injury was a disc herniation;

2. (b)
   his injury was caused by degeneration over time;

3. (c)
   his symptoms would likely subside within one or two months;

4. (d)
   his prognosis was very good;

5. (e)
   his symptoms would resolve in two months;

6. (f)
   he was likely to return to working normal duties;

7. (g)
   any recurrence of his symptoms would be due to the underlying degenerative condition;

8. (h)
   at the time of the examination, he did not require surgery, rehabilitation or treatment; and

1. (i)
   he was not told to report any ongoing symptoms in his neck, left arm or leg.

14. [14]
    Dr Weidmann’s report of 28 February 2006, relevantly, states that:

1. (a)
   he said to the applicant that, if the applicant had not suffered this injury, some other similar episode would have resulted in a similar outcome within the next couple of months;

2. (b)
   the applicant’s prognosis should be very good;

3. (c)
   it was likely that the applicant will be able to continue normal activities at work;

4. (d)
   it was likely that the applicant’s residual symptoms will subside over the next one to two months, although this could vary;

5. (e)
   the applicant “may suffer a recurrence of symptoms in the future” but that this would be “a result of his degenerative condition and not the single injury” of 18 January 2006; and

6. (f)
   at that time, he did not require any further investigations or any additional treatment, therapy or rehabilitation and he was “not a candidate for any surgical intervention”.

15. [15]
    Dr Licina’s conclusions are that:

1. (a)
   the applicant’s MRI scan (apparently done for the purposes of the examination) showed a small right sided disc prolapse at C4-5 and a larger left sided prolapse at C5-6, with the spinal cord compressed between the two, particularly at C5-6, along with associated spinal cord damage as evidenced by minor myelomilacia;

2. (b)
   he explained to the applicant that he had a significant problem because the spinal cord was compressed and the spinal cord was beginning to be damaged, thus needing his spinal cord to be decompressed with an operation;

3. (c)
   it was his opinion that the applicant had persistent left arm pain after the work injury due to a disc prolapse, compounded by some spinal canal narrowing resulting in spinal cord damage;

4. (d)
   he was of the opinion that employment was a significant factor, being best considered as an acute event to which the applicant was predisposed by some pre-existing degeneration but was not an aggravation, since the disc prolapse was likely to have occurred at the time of injury;

5. (e)
   that his opinion was that the applicant was fit for sedentary duties;

6. (f)
   on further review of the applicant on 7 May 2010, he was of the opinion that the applicant had a technically successful spinal cord depression, that he had lost no further function, while making significant improvements, and that he still had some left sided symptoms (most likely due to the permanent spinal cord damage that was present before surgery although there may have been a contribution from some ongoing minor nerve compression); and

7. (g)
   overall, the applicant had reached a point of maximal medical improvement such that his condition was stable and stationary.

16. [16]
    Even though there is no evidence that the applicant was ever shown any specific report of Dr Licina, the applicant accepts that the relevant period of 12 months began on 10 February, 2009.

17. [17]
    As confirmation of the diagnosis and prognosis given by Dr Licina, the report of Dr Scott F Campbell, a neurosurgeon, dated 16 April 2010, shows that this specialist was of the opinion that the applicant was involved in a work accident on 17 January 2006 in which he sustained an injury to the cervical spine, with the diagnosis of being that he had suffered a left C5/6 disc protrusion requiring surgery and with the prognosis, with regard to performing his duties as a resource allocator, of being from satisfactory to guarded, with the possible need to reduce his work hours in the future and a likelihood to require time off work with any acute exacerbations of the injury. In more specific terms, he gave the opinion that the accident on 17 January 2006 was consistent with causing the disc protrusion that resulted in the fusion operation and which was the sole cause of the injury; and that, now, the applicant had reached the point of maximal medical improvement.

Cross-examination of the applicant

18. [18]
    Before cross-examination of the applicant began, his attention was drawn to paragraph 22 of his affidavit filed 10 February 2011 which dealt with the assertion of symptoms increasing in severity. The context of that statement was provided by reference to the advice of Dr Weidmann that any recurrence of his symptoms would be due to the underlying degenerative condition and the fact that he was not told to report any ongoing symptoms in his neck, left arm or leg. When, then, taken to paragraph 27 which asserted “continuing and worsening symptoms” which led to the request to the respondent to re-open his claim in January 2009, he elaborated on such worsening symptoms. These involved his left leg starting to jerk, a loss of sensation in his left leg (as well as a bit of movement), dribbling after he had been to the toilet, severe pain down his left side, and a lot stronger severe pain in his neck. He stated that those additional symptoms started near “the end of 2008”.

19. [19]
    During cross-examination, the applicant conceded that he decided to look for a more sedentary role with the respondent because he did not want to worsen his condition (which was that, as he had stated in paragraph 22 of his affidavit, from January 2006 he had increasing severity in his neck and the left side of his body). An elaboration of that pain was that it was dull with a bit of numbness in the left hand side of his body, and that he had always had pain in his neck that did not go away.

20. [20]
    Addressing 2008 in particular, even though he initially responded that when things got worse in 2008 it was “towards the end” of that year, he conceded that if Dr Coyne’s report referred to mid-2008 then he “must have” told Dr Coyne that. The applicant further acknowledged that the worsening symptoms created a “new and worsening problem”. When then asked whether he considered that he should go off and seek some further advice, the applicant responded that he did not “at that time” because he did not know that he could go back to Dr Weidmann, although he knew that he could have gone back to a general practitioner.

21. [21]
    With respect to applying for the position of resource allocator in August 2008 with the respondent, he stated that he made the application because he knew he could not do heavy manual handling duties “at that time”. With respect to the left arm problems that he mentioned to Dr Licina, the most that the applicant would concede was that the loss of power in his left hand was certainly evident “towards the end of 2008”.

22. [22]
    Concerning consulting with a solicitor, the applicant admitted that he supposed that he could have gone to see a solicitor in mid to late August 2008, or even when re-opening his claim in January 2009, but that he did not consider it necessary “at that time”.

23. [23]
    When asked whether he could have gone and seen Dr Campbell, or his present solicitors, in respect of his worsening neck, arm and left leg conditions at any time after the accident in January 2006, the applicant stated that he assumed that he could have but that the reason that he did not was that he did not think that it was necessary until he started feeling the really strong symptoms with his leg “jiggling around” and his problem with urination.

24. [24]
    Finally, when asked why he did not go and see a doctor or a lawyer when the symptoms got stronger in 2008, he stated that he did not even think of going to see a lawyer.

25. [25]
    The last part of the cross-examination was directed to an alleged version of the incident given by the applicant when speaking to Mr Lance Allan, whose duty it was to record an injury in the work place. The applicant denied that he said to Mr Allan that he had hurt his left shoulder, stating that he had hurt his “neck”. Further, with respect to whether he told Mr Allan that he was “doing up” the webbing, the applicant responded that he would have told him that he was “undoing” the webbing with the telescopic pole. When it was put to the applicant that he never said anything to Mr Allan about any difficulty with the telescopic pole, he stated that he did not know the answer as he did not recall the statement. In re-examination, the applicant’s attention was drawn to Exhibit “KJN1”, which contained the relevant Workers’ Compensation Claim of the respondent signed by the applicant on 20 January 2006. That statement, responding to a question about how the injury occurred and what the claimant was doing, recited:

“LIFTING WEBBING STAUNCHIN AND WEBBING GOT CAUGHT ON BAG. UNLOADING AFT HOLD 734”.

On his attention being specifically drawn to the “WEBBING STAUNCHIN”, he stated that that was the “telescopic pole”. It is sufficient to remark that I found the applicant to be a credible and reliable witness.

Right of action

26. [26]
    As observed by Macrossan CJ in Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, for this purpose an applicant must be able to point to the existence of evidence, which can reasonably be expected to be available at trial, as sufficient, if unopposed by other evidence, to prove the case: at 434-435.

27. [27]
    As noted above in the analysis of the cross-examination of the applicant, the applicant’s initial description of the injury (beyond that contained in the claim form dated 20 January 2006) was put to him as being inconsistent with his present version. Given the necessarily brief, and attenuated, description that appears in such relevant claim forms, an exact statement of the full details of what occurred is, as here, quite often not the way in which such a Claim is formulated. But given that the Australian Oxford Dictionary defines “stanchion” as including a “post” or “upright support”, it is difficult to see any significant inconsistency anyway, particularly given the applicant’s responses in cross-examination. Thus, given the consistent description between what is now asserted by the applicant and that briefly conveyed to Dr Weidmann on 28 February 2006, a very short time later, there is enough here to establish evidence to the appropriate standard, especially given the particulars identified by Mr McKenzie in his affidavit filed 10 February 2011: see paragraph 7.

Decisive Character

28. [28]
    In order to satisfy the court of this issue an applicant must show that, without the newly learned facts, the person would not, even with the benefit of appropriate advice, have previously appreciated that that person had a worthwhile action to pursue, and, importantly, should in his own interest pursue it: see Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325 at 333, per Macrossan J (as he then was).

29. [29]
    In a case somewhat analogous to that here, Mackenzie J in Weeks v Pioneer Building Products (Qld) Pty Ltd [2003] QSC 024 held that, even though the applicant did in fact become concerned about the state of his back after an operation that had been performed, had the medical evidence under consideration then consisted of a report by the initial treating specialist, it was by no means clear that a person giving proper advice to that applicant would have advised him at that time that he ought to take action – because it was by no means clear that he would suffer substantial economic loss. Further, it was only the intervention of the subsequent medical opinion which painted a more serious prognosis, in addition to implicating the original injury as a significant cause of the applicant’s problems, that led to the applicant’s knowledge of a material fact of a decisive character: at [28].

30. [30]
    In the present case, the applicant’s received advice, as given by Dr Weidmann, was both positive as to a prognosis of recovery and non-causal as to the association between any continuing difficulties and the original incident. The material facts became decisive when the requirement for serious and expensive spinal surgery arose, when the applicant’s neck condition became permanent and, probably most importantly, when there was an attribution of ongoing symptoms and restrictions, both personal and economic, to that incident (and its effects). Then, the applicant would have had, with the benefit of appropriate advice, appreciated that he both had a worthwhile action to pursue and should in his own interests pursue it. The next issue, therefore, is “when” the “critical mass of information” was in the applicant’s “possession”.

Means of knowledge

31. [31]
    As canvassed in NF v State of Queensland [2005] QCA 110 by Keane JA, with whom Williams JA, in general, and Holmes J (as she then was) expressly agreed, this requirement does not contemplate the state of knowledge of the material facts as attainable in the abstract, either by the exercise of “all reasonable steps”, or by the efforts of a reasonable person; but, rather, it speaks of a state of knowledge “attainable by an actual person who has taken all reasonable steps”, being the particular person “who has suffered particular personal injuries”: at [29]. Thus, 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 actual applicant: also at [29]. He noted that relevant authority – while not affording conclusive evidence for the view that, if that particular person has taken all reasonable steps that the person is able to take to find out the fact, and has not found it out, that fact is not within that person’s means of knowledge for the purpose of this provision of the Act – does not also foreclose its acceptance: also at [29].

32. [32]
    Here, the applicant was at all material times treated by medical practitioners who were retained by relevant workers’ compensation authorities. Some of them were orthopaedic surgeons, obviously skilled in their field. In such circumstances, despite the ongoing problems that the applicant continued to have, his knowledge at all times was significantly formed by the original advice given to him by Dr Weidmann and the lack of any medical advice to the contrary from such medical practitioners. Also, the applicant was finally driven to see Dr Licina, on referral by Dr Priest (again a general practitioner associated with relevant workers’ compensation authorities). As noted in the report of Dr Coyne, the additional symptoms of mid-2008 did lead to the applicant again seeing a “work-related” general practitioner (seemingly, Dr Rolley), itself leading to an MRI scan (apparently, on 2 February 2009) and “subsequently” to Dr Licina:  at p 2. This is consistent with the applicant’s “re-opening” statement of 20 January 2009 and the absence of any contradiction from any relevant GP. In such circumstances, this applicant did not fail to take all reasonable steps to find out the material facts (of a decisive character) referred to above and, therefore, those facts were not within his means of knowledge for the relevant purpose.

33. [33]
    Thus, while it is true that there were aspects of the original advice given by Dr Weidmann that were not proving to be borne out by the optimism of that advice as originally expressed, no medical practitioner disabused the applicant of the “knowledge” that any recurrence of symptoms he might suffer “in the future” would be as a “result of his degenerative condition” and “not the single injury” of January 2006. Even though the applicant himself asserts that he did not consider pursuing any legal action until May 2009, his means of knowledge dates from Dr Licina’s advice of 10 February 2009.

Worthwhile cause of action

34. [34]
    As is contended for by the applicant’s written Outline of Argument, this factor concerns the quantum of damages that the applicant would have been likely to obtain had he pursued an action before receiving the advice of Dr Licina in February 2009.

35. [35]
    This is, of course, an aspect of the determination of whether the material facts are of a decisive character and, if so, whether those issues of knowledge and means of knowledge lead to the conclusion that the applicant has established the requisite basis for an exercise of the discretion to extend the limitation period in his favour, acknowledging that the onus at all times remains on the applicant.

36. [36]
    Given that the essential basis of the applicant’s case for extension is that he was unaware of the causal relationship between the ongoing symptoms (and their effects) and the original incident of January 2006, absent an intervening contrary medical opinion such as that expressed by Dr Licina, there would be little basis for any award of any substance. This is because the applicant had lost little time off work, was continuing on another career path which was apparently viable, and was managing to endure the symptoms – although increasingly less so. It was only when he did consult a work-based GP (as was his previous practice) that he was presented with an apparent need for further significant medical inquiries.

37. [37]
    Accordingly, any action taking those facts into account would not have incorporated a claim for loss of earning capacity of significance for such worsening symptoms, because any significant economic loss did not then have an established causal relationship with the original incident in January 2006.

38. [38]
    Those particular facts would not have generated any worthwhile cause of action.

Conclusion

39. [39]
    Taking the “critical mass of information” approach, it was in the applicant’s “possession” in the present case only on and from 10 February 2009. Thus, subject to “prejudice” considerations, I conclude that the relevant empowerment of the court has occurred.

Prejudice

40. [40]
    This particular factor has come under detailed consideration in the recent decision of the Court of Appeal in Hertess v Adams [2011] QCA 73. Muir JA, with whom Margaret Wilson AJA and Martin J expressly agreed, analysed in considerable detail the High Court’s exposition of principle concerning prejudice in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. Muir JA, after noting that although the prejudice created by delay in commencing proceedings is relevant and may be a very significant consideration, Brisbane South makes it “plain” that the existence and extent of any prejudice to the respondent to such an application must be assessed as at the date of the application: at [12]. As Muir JA went on to hold, it is only by making that assessment then that due weight is given to the prejudice suffered by such a respondent, both presumptive and actual, and to the fact that an extension of time would operate to deprive the respondent of the protection of the Act: also at [12].

41. [41]
    The second issue raised in Hertess concerns the onus of proof in such an application. Muir JA, after extensive references to passages in Brisbane South Regional Health Authority, held that an approach which assumes that an applicant, having brought himself or herself within the limitation provisions, was entitled to an extension of time unless the respondent to the application established “some matter justifying the exercise for discretion against the granting of an extension” reversed the onus of proof: at [18]. The true position is that the ultimate onus of satisfying the court that time should be extended remains on the applicant, even though there is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of that discretion.

42. [42]
    The applicant contends, here, that there is no actual or presumptive prejudice to the defendant because the original incident was documented for the purpose of the initial claim for statutory compensation and investigated in a timely manner by medical practitioners. Furthermore, there is no suggestion of the destruction or loss of any relevant evidence or the absence through death or otherwise of any critical witness. In particular, no evidence was led as to any unavailability of Mr Allan. For its part, the respondent urges that it is proper to assume that, because of the passage of over five years since the alleged incident and because of the “differing” versions provided by the applicant, the task of determining the causation issues is “more difficult”.

43. [43]
    As I observed earlier, the differing versions are not so different – given the context of each – that they cannot be fully explored at trial, particularly when the applicant has shown that it is not open to be inferred from the respondent’s material that any particular fact leads to actual prejudice or even any specific possibility of presumptive prejudice from mere delay. The non-observance of the incident is no different now than it was then. After all, there was an original reporting to Mr Allan, there were ongoing medical examinations and the applicant was assessed twice for positions within the respondent’s employment structure. Even after the delay here, a fair trial can now be held.

44. [44]
    Thus, I conclude that the respondent, who has an evidentiary onus to raise the relevant considerations telling against the exercise of discretion, has not raised anything of sufficient substance which does gainsay the conclusion that the applicant has relevantly discharged his onus of satisfying the court that it is appropriate to exercise the discretion in the applicant’s favour.

Timing

45. [45]
    The applicant contends that the material facts of a decisive character came into the applicant’s “possession” when he received the advice of Dr Licina on 10 February 2009.

46. [46]
    As I have earlier observed, the Application in this proceeding seeks an extension of the limitation period until 10 February 2010. But this is in the context where the applicant’s Claim and Statement of Claim were filed on 28 January 2011 and where the limitation period stopped running on and from 22 July 2009 (provided the original period, as extended, were to extend beyond that date).

47. [47]
    Section 31(2) of the Act expressly refers to an order to the effect that the extension be made “so that it expires at the end of one year after the date when the material fact of a decisive character relating to the right of action was within the means of knowledge” of the applicant. Further, as the provision goes on to expressly state, the period of limitation “is extended accordingly” for “the purposes of the action brought by the applicant”. This raises the following interesting question. Were I to be wrong about 10 February 2009 and were I instead to accept the respondent’s submission, orally made at the hearing, that the date of relevant “possession” was “no later than the end of 2008”, would it still in the Court’s power to extend the period for 12 months from, say, 31 December 2008? If so, then, since that period would extend past 22 July 2009, the applicant would still be able to conduct the present proceeding without limitation defences being able to be successfully raised.

48. [48]
    But the order that I do intend to make here is in the form sought by the applicant/plaintiff.

Costs

49. [49]
    A not unusual order in a case such as this is to order that the costs of and incidental to the application be each party’s costs in the cause. This reflects both the factor that the court’s indulgence has been sought and the further factor that, at the end of the trial, either party could have judgment in his or its favour.

50. [50]
    Unless convinced to the contrary by sumbissions, I intend to make such an order when handing down this decision.