Stanley-Clarke v Boyle[2012] QSC 196

SUPREME COURT OF QUEENSLAND

[1] McMEEKIN J: Ms Stanley-Clarke has brought proceedings claiming damages against the defendant Robert Boyle. The latter is a medical practitioner and specialist surgeon. He performed surgery on Ms Stanley-Clarke, described by Ms Stanley-Clarke in her Statement of Claim as an “S-Lift plus”, a form of face lift, on 29 August 2008. Ms Stanley-Clarke filed her claim in this Court on 31 May 2012.

[2] Both sides bring applications. I shall refer, at times, to Ms Stanley-Clarke as the applicant and Dr Boyle as the respondent. The issues to be resolved are:

(a) Have the proceedings been properly served – a conditional Notice of Intention to Defend has been filed asserting lack of compliance with the Service & Execution of Process Act 1992 (Cth)?

(b) Can the proceedings continue despite the applicant’s failure to comply with the pre-litigation requirements of the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”)?

(c) Are the proceedings out of time by virtue of s 11 of the Limitation of Actions Act 1974 (Qld) and, if so, should the limitation period be extended pursuant to s 31 of that Act?

[3] Ms Stanley-Clarke appears in person and has not had the benefit of legal training or, apparently, advice. Her submissions were not easy to follow.

Service

[4] It appears common ground that Ms Stanley-Clarke served the proceedings by mailing them to Dr Boyle’s address in Tasmania. Thus there was no personal service as required (see rr 104 to 106 Uniform Civil Procedure Rules 1999 (“UCPR”)). Because the proceedings were originating proceedings and because they were to be served out of the State Ms Stanley-Clarke was required to comply with the Service & Execution of Process Act 1992 (Cth) (see r 123 UCPR). She did not as the process was not endorsed as required (see s 16 Service & Execution of Process Act 1992 (Cth)). The defendant filed the conditional notice I have mentioned as he was entitled to do (r 144(1) UCPR) and brought an appropriate application under r 16 UCPR as required by r 144(3) UCPR.

[5] There is no doubt that Queensland is the appropriate forum for determining Ms Stanley-Clarke’s claim. The surgical procedure in question was carried out at Redcliffe and Ms Stanley-Clarke lives in the jurisdiction. And plainly the matter has come to the attention of Dr Boyle. An order directing proper service would cure these defects. The relevance for present purposes of Ms Stanley-Clarke’s failure to comply with the service procedures is that the Court’s jurisdiction to strike out the proceedings is enlivened (see r 16 UCPR). That is what the defendant seeks.

[6] I turn to the substantive issues.

PIPA

[7] Ms Stanley-Clarke disputes that PIPA applies to her claim. It plainly does. Her complaint essentially is that in the provision of medical services by the defendant she suffered personal injury.

[8] Section 6(1) of PIPA provides: “This Act applies in relation to all personal injury arising out of an incident whether happening before, on or after 18 June 2002.” The exclusions mentioned are not applicable here. Section 9A applies to medical negligence cases. It applies “to a claim based on a medical incident happening on or after the commencement of this section”.  The section was introduced in 2003 and so commenced long before August 2008. “Medical incident” is defined to mean “an accident, or other act, omission or circumstance involving a doctor happening during the provision of medical services” (s 9A(14)).

[9] It was not easy to follow Ms Stanley-Clarke’s submission but I think essentially it was that there was an element of deceit involved in the defendant’s conduct and this alters the nature of the case and takes it out of the PIPA regime. Ms Stanley-Clarke alleges that Dr Boyle misrepresented his abilities to her and attempted a procedure which could not be completed in the time for which the operating theatre had been booked. The latter fact, if true, only amounts to evidence and is not a material fact. It should not have been pleaded (see r 149(1)(b) UCPR). It is irrelevant to any assessment of the cause of action. The former fact does not seem to found any claim for loss. Why the fact is pleaded is not clear to me. Perhaps it goes to explain the applicant’s giving of consent to the procedure.[1] Again it seems likely that the assertion is no more than evidence rather than a material fact.

[10] Whatever be the explanation the nature of the case brought is clear enough. Ms Stanley-Clarke alleges, inter alia, that Dr Boyle carried out surgery on her and that as a result of that surgery she is left with scarring which itches incessantly, has constant physical pain and tenderness in these scars and underlying tissues, and has a dent in her forehead.[2] She suffers from stabbing pain in both eyes and eye sockets, is left with a fat deposit over one eye which partially obscures her vision, suffers from weeping of the eye and the area around the eye is delicate to the touch.[3] She alleges that she has difficulty eating, that her saliva glands have been damaged and that she cannot speak fluently as her mouth is now lop sided.[4] As a result of these many problems Ms Stanley-Clarke alleges that she has become depressed and has “entered a distressing psychological state”.[5] She concludes by seeking “damages … for personal injuries and consequential loss and damage”.[6]

[11] There are references in the Claim and in paragraph 33 of the Statement of Claim (which repeats the terms of the Claim) to various duties that the applicant says Dr Boyle owed her and that he breached. They include negligence. While they are cast widely that cannot matter – PIPA is cast very widely too and plainly catches the case. The reference in the definition of “medical incident” to “an accident, or other act, omission or circumstance involving a doctor” could hardly be wider. The undertaking of surgery that causes personal injury that the plaintiff alleges should not have been caused plainly involves an “act, omission or circumstance involving a doctor”. Similarly s 6 in its reference to “all personal injury arising out of an incident” is not restricted in any way by the cause of action that the pleader chooses to sue upon. Both provisions are sufficiently wide to encompass this case, as pleaded.

[12] Accepting that PIPA applies it has been breached in several respects. No initial written notice as required by s 9A(2) has been served. It was required within nine months of the medical incident (s 9A(4)(a)) or as soon as practicable after any “complaint is finalised under the … Health Quality and Complaints Commission Act 2006” (s 9A(6A)(a)(ii)). The applicant apparently made such a complaint on 17 April 2009 but withdrew from the process in June 2010.[7] If the initial notice is not provided within that time period then a reasonable excuse for the failure to comply is required (s 9A(6)). None is proffered, save perhaps ignorance. No part 1 notice has been served. So far as the evidence shows no “written report from a medical specialist, competent to assess the medical incident alleged to have given rise to the personal injury” expressing the required opinions (see s 9A(9)(d)) has ever been obtained by the applicant or served on the respondent.

[13] Proceedings commenced in breach of provisions of this nature are not nullities: Phipps v Australian Leisure and Hospitality Group Limited & Anor [2007] 2 Qd R 555. Unlike in Phipps the legislation in question here gives the Court power to assist the applicant. Section 18(1) provides that in the event of a claimant failing to give a complying part 1 notice of claim the claimant is prevented from proceeding further with the claim unless, pursuant to s 18(1)(c), “the court, on application by the claimant—

(i) declares that the claimant has remedied the noncompliance; or

(ii) authorises the claimant to proceed further with the claim despite the noncompliance.”

[14] PIPA gives no guidance as to the considerations that are relevant to the exercise of the discretion conferred. All that can be said is that plainly s 18(1)(c)(ii) requires that a discretion be exercised and of course it must be exercised judicially – the factors for and against balanced, and the decision made bearing in mind the purpose of the statute.

[15] In her application of 11 July 2012 the applicant makes reference to s 18(1)(b)(ii) of PIPA. There is no such provision. Presumably the intent was to engage s 18(1)(c)(ii). Accepting that the necessary application contemplated by the subsection has been made the issue is whether the Court ought to authorise the claimant to proceed further with the claim despite the noncompliance. The applicant makes two relevant submissions – first, that she was unaware of the requirements of PIPA and, secondly, that the respondent is not disadvantaged in any way by her noncompliance as she has forwarded to him “between September and November…all information and documentation provided to QCAT”. While not entirely clear I think the reference is to September and November 2010. What information and documentation was provided to QCAT is not clear. The content is not sworn to by the applicant.

[16] The following matters are relevant and against the applicant:

(a) prima facie, a failure to comply with PIPA should result in proceedings commenced in breach being struck out so as to enforce the clear intent of the legislature;[8]

(b) the onus is on the applicant to show why these proceedings should not be struck out;

(c) there is no suggestion that the medical report envisaged by s 9A(9)(d) has been obtained by the applicant;

(d) the defaults I have earlier identified are not minor. Early and precise notification of the claim ensures the preservation of evidence and encourages full understanding and hopefully prompt resolution. The obtaining of an expert report is obviously an important step in the resolution process contemplated by PIPA – an inability to obtain medical evidence to support a claim would effectively mean the end of the claim and the service of such a report should give any respondent practitioner cause to carefully consider their position;

(e) the Statement of Claim is poorly pleaded, replete with irrelevant allegations and deficient in several respects. The attempt to rectify the deficiencies with the so called and unasked for “Further Particulars” has not assisted.

[17] On the other hand these matters favour an exercise of the discretion in her favour:

(a) the failure to comply with PIPA was not deliberate;

(b) the respondent has not sought to lead any evidence of prejudice nor did I understand any allegation of prejudice caused by delay or noncompliance to be made;

(c) at least by 17 April 2009[9] it seems likely that the respondent was aware, generally at least, of the complaint about the surgery and that it related to his performance of it – within the nine month period contemplated for the initial notice under s 9A;

(d) it seems very likely that the respondent became aware of the applicant’s allegations as to the adverse effects of the surgery – an essential aspect of the initial written notice procedure – prior to or during the complaint process;

(e) despite the poor pleading, if the applicant’s complaints are accurate – and I make no comment one way or the other – prima facie she would seem to have a good cause of action, subject to the limitation point.

[18] I would be reluctant to prevent what might well be a worthwhile cause proceeding in circumstances where the failure to comply with PIPA has come about through a lay person’s ignorance of the correct procedures and where there is no prejudice to the respondent argued. With appropriate conditions his position can be protected. I would wish to hear the respondent on those conditions. There would need at least to be a stay of the present proceedings, compliance with s 9A(9)(d), an engagement with the resolution process envisaged in PIPA (s 36 - s 40), and, if the matter does not resolve, a re-pleading of the cause of action to ensure the Statement of Claim complies with the rules.

[19] However if the cause of action is now irretrievably barred by expiration of the limitation period then there is no point to exercising the discretion in the applicant’s favour. I turn then to the limitation point.

The Limitation of Actions Act

[20] The proceedings were filed nine months after the expiration of the limitation period laid down in s 11 of the Limitation of Actions Act 1974 (Qld). The applicant disputes the applicability of the three year limitation period arguing that s 38(1)(a) and (b) provide for an extended period. If that fails she seeks that time be extended pursuant to s 31 of that Act.

[21] Section 11 provides:

“Actions in respect of personal injury

(1) Notwithstanding any other Act or law or rule of law, an action for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) in which damages claimed by the plaintiff consist of or include  damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person shall not be brought after the expiration of 3 years from the date on which the cause of action arose.”

[22] As my earlier summary indicates it is beyond argument that the applicant’s case, as pleaded, seeks damages consisting of or including “damages in respect of personal injury”. To the extent that the applicant claims damages for personal injuries, and it is not evident from the Statement of Claim that she claims anything else, the three year limitation period applies.

[23] Section 38 provides:

Postponement in cases of fraud or mistake

(1) Where in an action for which a period of limitation is prescribed by this Act—

(a) the action is based upon the fraud of the defendant or the defendant’s agent or of a person through whom he or she claims or his or her agent; or

(b) the right of action is concealed by the fraud of a person referred to in paragraph (a); or

(c) the action is for relief from the consequences of mistake;

the period of limitation shall not begin to run until the plaintiff has discovered the fraud or, as the case may be, mistake or could with reasonable diligence have discovered it.”

[24] The Claim filed by the respondent is in these terms: “Damages and/or equitable and/or exemplary damages in an amount to be assessed … for personal injuries and consequential loss and damage suffered by the plaintiff in consequence of the negligence and/or breaches of fiduciary duty of the defendant and/or alternatively of the defendant’s failure to discharge his non delegable duty to the plaintiff.” The relevant point is that there is no hint of any action based on fraud.

[25] The Statement of Claim makes no reference to any duty or any breach of duty save in a claim for unquantified relief[10] in paragraph 33 where the applicant repeats the terms of the Claim that I have quoted. As a result the pleading is of course deficient and liable to be struck out as disclosing no cause of action. But again the point presently relevant is that there is no reference to fraud.

[26] This absence of any reference to an essential aspect of the cause of action - identification of the duty alleged to be owed and of the particulars of breach - was sought to be addressed in the so called “Further Particulars”. There is a veritable plethora of duties mentioned there.[11] Interestingly there is no mention of negligence, fiduciary duties or non delegable duties, at least in terms, the three duties expressly mentioned in the original pleading. There is mention of an action based on deceit.

[27] The status of the “Further Particulars” was not debated. This document was not forwarded in response to any request for particulars. I think that the approach of Mr Arnold, counsel for the respondent, was to ignore it. The applicant continuously referred to it, presumably as she considered it set out her case. It is plain that the “Further Particulars” involve a considerable departure from the pleaded case. And there has been no regard paid to r 382 UCPR if it was intended to amend the original pleading. In my view the document cannot be regarded as part of the pleaded case. Much of it has nothing to do with the surgery and its consequences.

[28] Given those considerations I do not intend to explore the case that might have been pleaded and was not. It is not fair to the respondent that he meet a case not squarely raised.

[29] The applicant argued that she was unable to discover the booking time sheets for the theatre until only recently. She contended, I think, that they were concealed from her by the respondent’s fraud. There is no evidence that is so. But assuming it to be accepted that there was fraudulent concealment it does not assist the applicant.

[30] I will deal with these submissions more fully below but at this point I observe, first, that the applicant’s material falls well short of demonstrating that “with reasonable diligence” she could not have discovered the theatre times long ago. Secondly, those records have, at most, only peripheral relevance to the case and nothing whatever to do with the pleaded cause of action. The applicant contended that those records would assist her in showing that the respondent never intended to perform a full face lift on her as there was insufficient time booked. If that is so, at best for the applicant, that is evidence aiding her in her proof of being misled which, as I have said, seems to go to the quality of her consent. But that does not change the nature of her case.

[31] So far as the pleaded case shows, in no relevant sense is the applicant’s material cause of action based on the fraud of the respondent and in no material way was her cause of action concealed from her by any alleged fraud of the respondent.

Extension of the Limitation Period

[32] Section 31 of the Limitation of Actions Act 1974 (Qld) (“the Act”) provides:

“(1)This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.

(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—

(a)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; and

(b)that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;

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.”

[33] It is necessary to refer to s 30 of the Act to comprehend s 31. It provides:

“(1)For the purposes of this section and sections 31…-

(a)the material facts relating to a right of action include the following—

(i)the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;

(ii)the identity of the person against whom the right of action lies;

(iii)the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;

(iv)the nature and extent of the personal injury so caused;

(v)the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;

(b)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—

(i)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

(ii)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;

(c)a fact is not within the means of knowledge of a person at a particular time if, but only if—

(i)the person does not know the fact at that time; and

(ii)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.

(2)In this section—

appropriate advice, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.

[34] Essential to the successful prosecution of an application under s 31 is identification of “a material fact of a decisive character relating to the right of action” (s 31(2)(a)). The applicant must show that such a fact was not within her means of knowledge as defined until after 31 May 2011. That is the critical date as the proceedings were commenced on 31 May 2012 and the Court has power to extend for only one year from the date of learning of the material fact. The applicant did not seek to identify any such fact or explain why the matters she pointed to satisfied the requirements of the statute.

[35] The applicant’s material, after referring to sections 31 and 38 of the Act, includes the following, which seems to be the entire content of her application: “In accordance with the above legislation the plaintiff states that the first possible date she was able to prove the plaintiff’s (sic) actions were unlawful and unethical was the 04.08.11 when her AHPRA file arrived (a reference to the Australian Health Practitioner Regulation Agency file) and the first possible date she was finally able to prove the defendant’s original offer to be deceitfully made was on the 20.10.11 with the arrival of actual theatre times.”[12]

[36] The significance of the receipt of the APHRA file is said to be that the applicant then first appreciated that the respondent gave an untruthful submission to AHPRA.[13] It is said that “as a direct result of his untruthful submission [the respondent] had obstructed the plaintiff’s right to natural justice with APHRA and invaded her civil rights to effective remedy”.[14]

[37] It can be immediately observed that this has nothing to do with the case as pleaded in the Statement of Claim. On its face it has nothing to do with any claim for personal injury at all. It may be that it is the applicant’s intention to abandon her case as pleaded and pursue a different case and one restricted to any loss she can show that follows from the respondent giving an untruthful submission to AHPRA but she did not say that. If the applicant intends to add this as a new and separate cause of action then she will need to amend her Statement of Claim accordingly and in the manner that the rules provide. In short the receipt of the APHRA file would appear to be entirely irrelevant to the application.

[38] As I have mentioned the theatre times seem to me to be peripheral to the issues. To understand the case that the applicant seeks to make out it is necessary to go to the “Further Particulars”. The applicant there asserts that when the document containing that information came into her possession she “was at last able to determine the full extent of the defendant’s deceit”.[15] What that deceit might be is not particularised but, after hearing the applicant it would seem to be a reference to the claim later made that “at second consult he made a deceitful offer he was incapable of providing in the given time frame”.[16] The offer is not there particularised but the thrust of the applicant’s case, as she has explained it to me, is that the respondent promised to perform a full face lift but performed only a partial one and that he could never do more because the theatre had not been booked for a sufficiently lengthy time to allow such surgery.

[39] There are many difficulties with the applicant’s submission.

[40] It is far from clear what the applicant alleges follows on from the claimed deceit. Without that being made clear it cannot be shown that the cause of action that the applicant wishes now to pursue has “a reasonable prospect … of resulting in an award of damages sufficient to justify the bringing of an action on the right of action” (s 30(1)(b)(i)). The premise may be that the applicant does not contend that the respondent’s performance of the surgery fell below the standard expected of a competent surgeon[17] in which case her argument presumably is that she was deceived into having only a half face lift when she expected a full face lift. The damages in that case would be restricted to the cost of further surgery and the extra pain and inconvenience associated with a second surgical procedure – one suspects a very limited claim.

[41] It may be that the applicant would assert that but for the respondent’s alleged deceit she would not have embarked upon the surgery at all and so avoided what she contends are its disastrous effects, but she has not yet said that.

[42] A further difficulty is that the applicant has not led any evidence to establish her premise, that is, that the respondent knew at the time of his consultation with her that the promised face lift that the respondent intended to perform could not be done within the time booked (to satisfy s 31(2)(b)).

[43] But the fundamental problem is that the pleaded case has nothing to do with deceit.

[44] In terms of her pleaded case the applicant does not address the requirements of s 31 of the Act. The applicant makes no effort to show how either of these “facts” that she points to could be “material facts” as defined. She does not even assert that it was reasonable for her not to prosecute her action until she learnt these “facts”. She does not show how these facts are in any way decisive.[18] Nor does she identify the steps that she did take to seek the evidence she needed. Nor does she demonstrate that she sought appropriate advice and so acted reasonably.

[45] The inference from the applicant’s material is that from a time very shortly after the surgery[19] the applicant has known the nature of the surgery performed and its effects. Her complaint is that she expected to have an improved appearance following the contemplated surgery but she has been left with a sadly damaged face which has impacted on her happiness and quality of life. There is no evidence that the applicant was unaware of any of these matters. She wants to claim damages for those adverse effects. Whether those adverse effects are said to be due to the respondent’s fraudulent acts or his negligent acts the respondent was well aware of them.

[46] The essential matters material to her prospective cause of action are – was there a duty owed by the respondent? If so, was that duty breached? If so, what harm resulted and do the prospective damages justify suit? The applicant’s material is silent as to her knowledge and understanding of these crucial maters.

[47] If the applicant was in doubt about any of those crucial matters it is incumbent on the applicant to show that she took “all reasonable steps to find out the fact” (s 30(1)(c)(2)). The applicant does not attempt that task. In fact the applicant’s material shows that she sought medical advice at one point from a specialist about further surgery, and intended to see a solicitor, but there is no evidence that the applicant in fact sought any advice concerning matters material to her present claim.

[48] It is not in dispute that the applicant was well aware of the limitation period and of the need to commence proceedings within it.[20] This is evidenced by certain emails.  On 30 December 2008 the applicant wrote an email to a Ms Pamela Noonan of the Cosmetic Surgery and Anti-aging Centre (a Centre to which I assume the respondent was in some way connected) advising that she would be “consulting a solicitor early in the New Year to commence a compensation/damages claim against the International Surgery Group” (again I assume that to be body that the applicant believed the respondent to be connected with).[21]

[49] In a further email dated 28 April 2011 written to an officer of AHPRA the applicant noted that she had to commence proceedings for a civil claim for damages within three years of the surgery.[22] On 30 May 2011 the applicant advised AHPRA that she had no intention of missing the 29 August deadline (presumably a reference to the expiration of the three year limitation period) and that her solicitors would be taking over the conduct of the matter.[23] On 1 June 2011 the applicant wrote to AHPRA advising that she would be giving information to her solicitor “tomorrow”.[24]

[50] So the application stands to be decided on the basis that the applicant was of the belief that she had a good cause of action years ago, that she knew of the limitation period, that she knew that she ought to be pursuing that cause of action, and that she had engaged a solicitor to act on her behalf prior to the critical date. There is no hint of any missing piece of evidence holding her up.

[51] It is incumbent on an applicant for an extension who has evidently formed a belief well within time that she has a good cause of action to provide an explanation as to why she did not proceed. The circumstances are akin to those in Castillon v P&O Ports Ltd (2008) 2 Qd R 219; [2007] QCA 364 where the applicant had commenced proceedings before learning of the claimed material fact. As Keane JA explained at [38]:

“Next, while it is true that the circumstances that the plaintiff had, in fact, commenced proceedings before the "new information" emerged, and, indeed, had decided to commence proceedings in June 2001, are not decisive of the question posed by s 31(2)(a) of the Act, those circumstances are relevant for two reasons. First, they are relevant to dispel any suggestion that there were circumstances which might reasonably have led to a view that it was not in the plaintiff's own interests to commence proceedings at the time which they were, in fact, commenced. Secondly, they demonstrate a ‘steady preponderance of opinion or belief’ on the part of the plaintiff and his advisers that the information in their possession concerning the extent of the plaintiff's loss was sufficient to warrant the commencement of proceedings. They are circumstances which, at least, call for a clear explanation as to why the "conjunction of circumstances", and the plaintiff's awareness of them, was not such as to justify and require the bringing of an action in the plaintiff's own interest.”

[52] The explanation proffered by the applicant is that she applied to QCAT to extend the limitation period. I am at a loss to understand why the applicant thought that QCAT had any jurisdiction over the matter. No explanation is proffered. It is well accepted that ignorance of the limitation period itself affords no justification for an extension[25] and it follows that ignorance of the procedures by which the period may be extended (if that was so) cannot provide such justification. I note that there is no statement as to whether the applicant did in fact consult a solicitor, and if she did not, why not, and if she did, what she was told.

Conclusion and Orders

[53] The applicant bore “the positive burden of demonstrating that the justice of the case” required the extension of time: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 554 per McHugh J. In the state of the evidence the applicant has not discharged the onus on her.  The application for extension of the limitation period is dismissed.

[54] Where proceedings face an insurmountable obstacle such as the expiration of a limitation period and so are bound to fail it is an abuse of the process of the Court to allow them to stand.[26] 

[55] I order that the Claim be dismissed.

[56] I order the applicant to pay the respondent’s costs.