In Prince Alfred College Incorporated v ADC the High Court heard an appeal brought from a decision of the Full Court of the Supreme Court of South Australia.
The High Court was asked to consider and determine whether the respondent (plaintiff) should have been granted an extension of time to bring legal proceedings against the Prince Alfred College (PAC) for personal injuries suffered by him in 1962.
The High Court was also asked to consider whether the PAC should be held vicariously liable for an employee’s intentional criminal acts.
In 1962 the respondent was sexually abused by Dean Bain (Bain) whilst he was a 12 year old boarder at the PAC. Bain was employed by the PAC as a housemaster at the time.
He suffered psychological injury as a result of that abuse.
The respondent brought proceedings in the South Australia Supreme Court in December 2008. The respondent alleged that the PAC was vicariously liable for Bain’s misconduct.
Due to the amount of time which had passed since the acts of abuse occurred, the respondent was required to seek an extension of time from the court to bring proceedings pursuant to Section 48 of the Limitation of Actions Act 1936 (SA) (“the LAA”).
Her Honour Vanstone J dismissed the respondent’s action in the Supreme Court and stated that she would have refused an extension of time on the basis that the effluxion of time was so great that the PAC would be prejudiced in its defence of the claim.
The respondent appealed that decision to the Full Court of the Supreme Court of South Australia. The Full Court allowed the appeal on the basis that the PAC should be held vicariously liable and the respondent should have been granted an extension of time.
The PAC appealed that decision to the High Court.
EXTENSION OF TIME
Section 48(3) of the LAA gives the Court the discretion to grant an extension of time for proceedings to be commenced if:
- satisfied that facts material to the plaintiff’s claim were not ascertained by him or her after the end of the limitation period and proceedings were issued within 12 months of the new material facts being ascertained by the plaintiff; or
- the plaintiff’s failure to bring proceedings within the period of limitation was caused by representations or conduct of the defendant or someone acting on behalf of the defendant.
A majority of the High Court consisting of their Honours French CJ, Kiefel, Bell, Keane and Nettle JJ observed that even if one of the above two preconditions are met, in determining whether to exercise the discretion under s 48(3) the court must be satisfied that there is very good cause to exercise the discretion in favour of the plaintiff and grant the extension of time.
The majority observed that ‘an extension of time is not a presumptive entitlement which arises upon satisfaction of the preconditions that enliven the discretion’. The onus is upon the applicant to persuade the court that the extension should be granted.
The majority also stated that when determining whether to exercise the discretion, a court must consider whether in all the circumstances a fair and just trial is possible on the merits of the case if an extension is granted. 
The High Court unanimously held that the appeal should be allowed and found that the Full Court of the Supreme Court erred in granting the respondent an extension of time to bring proceedings against the PAC.
The High Court further held that the ‘extraordinary delay of over 11 years between the time of apparent resolution of any claim against the PAC and the commencement of proceedings was not justified by the circumstances of this case and meant that a fair trial on the merits was no longer possible’.
In South Australia plaintiffs generally have three years from the date of cause of action within which to bring proceedings for personal injury claims.
There are exceptions to this rule relating to children and others under a legal disability.
If a plaintiff fails to commence proceedings within time, and for whatever reason (even if valid), he or she is required to seek an extension of time from the court for the bringing of proceedings.
Section 48(3) of the LAA gives the Court discretion to grant an extension of time if certain preconditions are met.
In summary, the three critical questions to consider when determining whether an extension of time is likely to be granted are:
- Has the plaintiff commenced proceedings within 12 months of becoming aware of a material fact relevant to his or her claim (but after the expiration of the time limit) and/or has he or she failed to commence proceedings within time because of representations made by the defendant? If yes to either of these then:
- Is there good cause to exercise the discretion in favour of the plaintiff and grant an extension of time? If yes then:
- Is a fair and just trial possible?
The answer to these questions will determine whether an extension of time is likely to be granted by the Court.