The Court disallowed an application to extend the limitation period under s 23A of the Limitation of Actions Act 1958 (Vic) despite accepting that the plaintiff was misled by her former solicitor who failed to issue proceedings or lodge a serious injury application over approximately 19 years. The Court held that the inordinate delay of over 24 years caused both presumptive and specific prejudice to the defendant such that a fair trial could not be held, given the inability to locate witnesses, the loss of relevant documents including risk assessments and training records, and the closure of the relevant division. The availability of a strong professional negligence claim against the former solicitor was treated as a significant consideration weighing against the extension, with the Court accepting that while such a claim may yield reduced damages through a loss-of-opportunity assessment, it remained a viable alternative remedy.
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