Borden v Walters & Ors [1999] QSC 226

~ 369(0 IN THE SUPREME COURT OF QUEENSLAND Brisbane No. 1160 of 1999 Before the Hon. Mr Justice Mackenzie [Re: Borden v Walters & Ors] BETWEEN: GYONGYIBORDEN Applicant AND: KAREN WALTERS First Respondent AND: CHARLIE POWELL Second Respondent AND: COOK-FREEZE PTY LTD Third Respondent AND: ANTONIUS J URSELMANN Fourth Respondent JUDGMENT - MACKENZIE J. Judgment delivered 17 September 1999 CATCHWORDS: ADMINISTRATIVE LAW - PRACTICE AND PROCEDURE - Judicial Review - whether judicial review is appropriate in the given circumstances - whether good cause was shown by the applicant in arguing that the matter should have been investigated out of time - whether Commissioner took all relevant facts into consideration in reaching that decision. Flannery v O'Sullivan (No 1) 1 QADR 3 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Heatley v Tasmanian Racing & Gaming Commission (1977) 137 CLR 487 Local Government Board v Arlidge (1915) AC 120 McAuliffe v Puplick (1996) EOC 92 - 800 Sullivan v Department of Transport (1978) 20 ALR 323 Chen v Minister for Immigration & Ethnic Affairs (1994) 121 ALR 83 -- 1 of 19 -- Counsel: Solicitors: Hearing date: Anti-Discrimination Act 1991 Judicial Review Act Qld Anti-Discrimination Act 1991 The applicant appeared on her own behalf Ms S Booth (solicitor) for the first respondent Mr R Oliver for the second respondent Mr K Watson (solicitor) for the third respondent No appearance on behalf of the fourth respondent The applicant appeared on her own behalf The Anti-Discrimination Commission for the first respondent Walker Pender for the second respondent Freehill Hollingdale & Page for the third respondent No appearance on behalf of the fourth respondent 6 September 1999 -- 2 of 19 -- IN THE SUPREME COURT OF QUEENSLAND Brisbane Before the Hon. Mr Justice Mackenzie [Re: Borden v Walters & Ors] BETWEEN: GYONGYI BORDEN AND: KAREN WALTERS AND: CHARLIE POWELL AND: COOK-FREEZE PTY LTD AND: ANTONIUS J URSELMANN JUDGMENT - MACKENZIE J. Judgment delivered 17 September 1999 No, 1160 of 1999 Applicant First Respondent Second Respondent Third Respondent Fourth Respondent The applicant has applied for review of a decision of the Anti-Discrimination Commissioner (the first respondent) not to accept a complaint made by her in connection with a chain of events which she says are connected with her initial allegation of sexual harassment in the work place. To understand the nature of the complaint it is necessary to traverse the history of the matter in some detail. -- 3 of 19 -- 2 The applicant commenced work in the food processing factory of the third respondent in March 1990. She ceased her employment about the end of October 1993. The second respondent was a production manager, employed by the third respondent until he resigned in August 1991 and moved to Canada. The fourth respondent was the general manager of the third respondent. Each of the second, third and fourth respondents were added as respondents by order of Byrne Jon 23 February 1999. The matter came to the notice of the Anti-Discrimination Commission of Queensland on or about 16 December 1998, when the Attorney-General, Minister for Justice and Arts ("the Attorney- General") referred to the Commissioner the applicant's request for his assistance which was , accompanied by a large volume of documents. The letter to the Attorney-General, which was accompanied by three annexures explained that the problems started with sexual harassment (explained in Annexure A - Exhibit KGEW1), continued with discrimination and personal. persecution (explained in Annexure B - Exhibit KGEW1) and was continued as a conspiracy against her and her husband (explained in Annexure C - Exhibit KGEW1). She said that she did not know in 1993 that she had the opportunity to commence legal action against her employer for sexual harassment and discrimination matters and she had only, two weeks before, learnt of the possibility. On that occasion she was made aware of the 12 month limitation period and the possibility of extension of time for which she applied. Section 138 of the Anti-Discrimination Act provides as follows: "Time limit on making complaints 138.(1) Subject to subsection (2), a person is only entitled to make a complaint within 1 year of the alleged contravention of the Act. (2) The commissioner has a discretion to accept a complaint after 1 year has expired if the complainant shows good cause." She said that she believed that all her problems began with the sexual harassment and discrimination and that the conspiracy was a consequence of them. -- 4 of 19 -- 3 In the course of the analysis that follows references will be made to a variety of allegations and denials. For the purpose of considering whether the process of considering whether to investigate the applicant's complaint miscarried and should be reviewed it is unnecessary to make findings whether the allegations and denials are true or not. The fact that the appiicant's allegations have been made is the basis upon which the matter must be considered. The applicant complained in Annexure A about a number of incidents fitting the description.of sexual harassment by the second respondent during the period when they worked together. There is no complaint of acts of that description occurring after he left the employment of the third respondent in August 1991. (I interpolate that the allegations are denied by the second respondent. This denial was not before the Anti-Discrimination Commissioner). The relevant provisions of the Anti-Discrimination Act 1991 came into force on 30 June 1992. There is nothing in the Act to confer retrospectivity upon its powers. That view has been acted on in the Anti-Discrimination Tribunal (e.g. Flannery v O'Sullivan (No 1) 1 QADR 3, Atkinson P). In Annexure B there is an allegation that in March or April 1991, before the Act came into force, the plant manager spoke to the applicant and her husband in terms which conveyed to her that he preferred the attitude of Asian workers to theirs. She also complained that supervisors found fault with her work. In particular from December 1992 until mid-October 1993 written records of allegedly unsatisfactory work practices were kept. Specific instances referred to elsewhere concerned complaints that she had left chicken bone fragments in prepared food; that she had taken a 16 minute smoko instead of the permitted 10 minutes which caused overtime to be worked; she had packed damaged trays offood, although it appears she was subsequently exonerated of at least one of those allegations. There is also evidence that she was suffering from stress over an extended period in 1993 which she attributed to her work. -- 5 of 19 -- 4 In Annexure C (which is a copy of a letter sent to the then chairman of the CJC) she sets out a variety of events which she describes as IIconspiracy, discrimination and personal harassment II . They include: • problems associated with migration to Australia (in connection with which she corresponded with Sallyanne Atkinson, then Lord Mayor of Brisbane); • treatment at work, the allegations being similar to those in Annexure B; • injury to her husband by deliberately overworking him; • difficulties in obtaining social security; • her husband's problem in obtaining work from the CES; • delay by TAFE in providing a child care certificate to which she was entitled; • difficulty in getting work in child care centres despite her qualifications in Hungary and Australia; • problems with Legal Aid; • deliberate interference with telephone calls from their residence, particularly when speaking to Hungarian friends. (Correspondence indicates that Telecom said it was due to an exchange based fault); • being accosted by security officers after leaving Coles; • theft of their motor vehicle; • two separate occasions when copying of documents was interrupted, apparently by the machine breaking down, leading to the suspicion that someone was trying to find out what was being copied; • interference with the waiting list for public dental treatment; • three separate instances of damage to their motor vehicle; -- 6 of 19 -- 5 • the fact that soon after they contacted their F ederallVfP with a view to having their difficulties raised in Parliament, she and her husband got jobs; • harassment in connection with the method of collecting payments for overseas telephone calls; • observations that people had been watching and following them and signs that people knew of their private conversations and the location of their car at any time; • concealment of the outcome of debugging which was carried out. The applicant summed up her request for the CJC to take action by stating the following: "We believe that all the incidents happened and happening against us are organised by a group of people who has enough power to keep an eye on our life and use innocent people in the middle line to do the dirty job, mix our matters, create holdup and cause stresful situation for us (sic)." At the time when the complaint was sent to the Anti-Discrimination Commissioner, she had delegated her powers to a person who was acting in that office. On 23 December 1998 the Acting Anti-Discrimination Commissioner wrote to the applicant after considering the complaint. Her letter contains the following elements: 1. The only issues within jurisdiction were allegations of sexual harassment and discrimination while she was working for the third respondent. Based on the information provided, the issues alleging various conspiracies and difficulties in numerous areas of her life did not appear to be linked with alleged sexual harassment. As there was certainly no evidence that it was linked the Commission was unable to address the issues. 2. Because s l38 contains a limitation period of 12 months, the complaint could not be accepted unless.good cause was shown. She accepted that. in the material forwarded to the Attomey- General, a request to exercise the discretion under s l38(2) to investigate the matter out oftime had been made. -- 7 of 19 -- ( ( ( 2 6 3. . In reliance on McAuliffe v Puplick (1996) EOe 92 - 800, she said that the matters to be taken into account in deciding whether to exercise the discretion were the reasons for and justification for the delay, and whether acceptance of the complaint out of time would prejudice the respondents' defence. 4. More than five years had elapsed since the complainant left the third respondent's employment and that it was more than seven years since the alleged harasser had left his employment. There was no information linking the alleged conspiracies with inability to complain earlier. 5. She expressed the provisional view that the applicant had not shown good cause that the matter should be investigated out of time but said that she was prepared to consider the matter further if the applicant wished to provide any further relevant information. 6. She then listed in non-exclusive terms, matters which would assist her to determine the issue. She said they would include medical incapacity to the extent that she was unable to exercise her rights in the matter; whether she had been pursuing other avenues in an attempt to redress the sexual harassment; whether union assistance had been sought; why legal advice had only recently been sought; and evidence of consultation with medical or psychological practitioners regarding the effects of the harassment at any time. She restated the need to consider the possible prejudice to the respondents. The applicant was given 28 days to respond. The following comments may be made about the letter of23 December 1998. The first is that the applicant was given ample assistance and time for the purpose of justifying why the discretion should be exercised in her favour. The second is that it was not wrong for the writer of the letter to form a prima facie opinion that there was not evidence to link the later incidents to any sexual harassment or discrimination which may have occurred in the workplace. It has been previously noted that the Anti-Discrimination Act relevantly came into force on 30 June 1992, after the incidents involving the second respondent had -- 8 of 19 -- 7 occurred. This was not specifically referred to by the Commissioner in correspondence. However, that fact illustrates the importance of demonstrating that what was allegedly occurring after the Act came into force should be interpreted in the light of what had occurred previously, in a case of the present kind. 3 The third comment is that the scope of the Anti-Discrimination Act is carefully defined. It does no! extend to all conduct which person may feel is discriminatory. The preamble which describes the legislation as "an Act to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain, areas qf activity and from sexual harassment and certain associated objectionable conduct". The limitations are made even plainer by reading specific provisions of the ( \. Act. The first respondent was alluding to this in the letter of23 December 1998. In her response of 8 January 1999 the applicant said that until told of the limitation period on 25 November, 1998 she believed that "sexual harassment never lapsed". She had not complained to the Commissioner earlier because she did not know to whom to tum. The solicitor conducting the personal injuries action had been aware of her belief that she had suffered discrimination when working for the first respondent and that, thereafter, someone was ruining her efforts to find employment. However he had not advised the applicant of the right to complain to the Anti- Discrimination Commissioner. She said that coming from Hungary, she was not aware of her human rights and civil liberties. She recited a list of people to whom she had complained but said that no-one had directed her to the Anti-Discrimination Commission. She then addressed the specific factors said in the letter of 23 December, 1998 to be relevant. She said she suffered stress in 1993, and that even if she had known of her rights she was not in a state of health to endure legal proceedings. With respect to other avenues of redressing the sexual harassment she replied that she believed that all of the incidents were organised to provoke her to complain widely to create the impression that she was not to be believed. She did not go to the union -- 9 of 19 -- 8 because she had raised the matter with the general manager of the company and because her experience of unions in Hungary was such that she had no faith in them. 6 She sought legal advice only recently because the past had become unsettled when she believed ( 18 she had seen the second respondent in the neighbourhood on three occasions in July 1998, apparently trying to contact her. (l interpolate that there is substantial evidence that the second respondent was not in Australia in that period). She said that she had been trying to get help by writing to VariOllS people whom she thought would help, but had taken her complaints to the wrong places. On 13 January 1999 the first respondent, who had by then resumed duties as the Anti- Discrimination Commissioner, advised the applicant that she was not exercising her discretion to accept the complaint out of time because she had not shown good cause. She repeated that the Commission was unable to deal with all of the issues except for the allegations of sexual harassment against the second and third respondents. She noted that the applicant and her husband had taken legal action against the employer for other matters which demonstrated that they were in a position to, and were able to exercise legal rights. The fact that she had recently seen the second respondent in her street was not good enough reason to lodge a complaint some seven years since the last allegation of sexual harassment. She said that no evidence of medical incapacity had been provided. She said that the fact that Sallyanne Atkinson did not advise her to complain to the Anti- Discrimination Commission was not good cause. She expressed the view that there was disadvantage to potential respondents because of the length of time before the complaint was made. She questioned whether the recollection of witnesses would be affected by the passage of time. She questioned whether relevant people employed by the third respondent and records would be available after the period of time which had passed. She declined on the basis of these considerations to exercise her discretion and advised the applicant accordingly. This is the decision which the applicant seeks to review. -- 10 of 19 -- 9 The application for review sets out a number of grounds. They are the following: (a) Breach of Natural Justice The applicant complained that the first respondent did not enquire of the other respondents whether prejudice would actually occur. The first respondent, it was claimed, did not give due weight to the disadvantaged situation of the applicant in 1991 as a migrant who did not speak English well. Nor did she give weight to the fact that she had not been advised by those to whom she wrote of her rights concerning the complaint. In written and oral submissions a ( proposition was advanced that the rules of natural justice required the Commissioner to ( conduct a personal interview with the applicant before declining to act on the complaint. (b) Improper Exercise of Power Conferred by the Enactment under which the decision purported to be made The basis of this ground was said to be that the correspondence from the first respondent demonstrated that she had considered only the sexual harassment and had overlooked the complaints of discrimination, personal persecution and victimisation occurring in 1993. It also - . included a complaint that the first respondent did not give appropriate weight to the fact that the applicant had lived under a repressive and different system before coming to Australia and to the fact that she was not advised as to her rights when she complained to the people to whom she had written. In her written submissions she argued that the first respondent had taken irrelevant considerations into account by wrongly assuming potential prejUdice to the other respondents and by ignoring the discrimination and victimisation in 1993 and her efforts to get help from several people. She also argued that the first respondent had not taken relevant considerations into account because she had not acted on the applicant's complaint of discrimination in 1993 and the subsequent stress related illness. -- 11 of 19 -- ( \ 10 ( c) Error of Law It was argued that the first respondent did not give due regard to the evidence presented to her by the applicant. It was also submitted that it was wrong to decide not to investigate the complaint because of perceived difficulties in investigating it after the lapse of time and the possible disadvantage to the respondents. (d) There was no evidence or other material to justify the Commissioner's decision The argument advanced on this ground was that the first respondent failed to provide any evidence or material to justify the decision. In written and oral submissions this was developed to encompass a need for the first respondent to make enquiries of the other respondents to prove positively that they would have been prejudiced. (e) The decision was otherwise contrary to law This was based on the premise that lithe Qld Anti-Discrimination Act 1991 was brought to life to protect those people who were sexually harassed, discriminated, victimised etc. and to represent their rights against the other side". It was alleged that the Commissioner's decision failed to protect the complainant's interests and favoured the other side. It was also alleged in the application that focusing on the sexual harassment in 1991 overlooked the discrimination, personal persecution and victimisation which occurred in 1993 which continued after she left the work place. She referred in this connection to a number of incidents listed earlier in these reasons. In her written submissions she addressed the additional matter of procedures required by law not being observed, the specific complaint being that the first respondent had not considered whether it was appropriate or practicable to consult with her prior to making the" decision. ~l The questions raised by the applicant may be summarised as follows: (a) was there an obligation to interview the applicant personally? -- 12 of 19 -- 11 (b) was due consideration given to the 1993 events? ( c) was it necessary to make enquiries for the purpose of ascertaining whether there was actual prejudice to any of the second to fourth respondents? The issues whether the first respondent should have demonstrated to the applicant that there was possible prejudice to them and whether the first respondent favoured ~e other respondents over the complainant by assuming that there was a risk of prejudice and thereby failed to carry out the purpose of the Act can be considered in conjunction with this question. ( The success of the individual grounds depends on the answers to these questions. Personal Hearing? ( Section 20(2)(a) of the Judicial Review Act permits an application for a statutory order of review to be applied for on the ground that a breach of the rules of natural justice happened in relation to the making of the decision. The relevant aspect of the concept of natural justice for present purposes is that which requires a party to be given a reasonable opportunity to present her case before a decision that may adversely impact on her is made. This includes notice of adverse matters which may have a bearing on the decision. There is no universal standard to be complied with. What is the minimum standard of procedural fairness in a particular case is the question. The framework of the legislation under which the decision is to be made has an influence on the way in which the decision maker must exercise the power. There is nothing in the Anti- Discrimination Act which makes it a necessity for the Commissioner to receive oral submissions from a person applying for an exercise of discretion to accept a complaint out of time. There is a well established principle that it is not an essential element of the rules of natural justice that a decision maker must always allow a person who would be affected by the decision to have an oral hearing (Local Government Board v Arlidge (1915) AC 120; Heatley v Tasmanian RaCing & Gaming -- 13 of 19 -- 4 ( ( , ( i < 12 Commission (1977) 137 CLR 487). Arecent reaffirmation of the principle may be found in Chen v Minister for Immigration & Ethnic Affairs (1994) 121 ALR 83, 89-90, where it is said: "It is beyond argument that the rules· of natural justice do not mandate in all cases an oral hearing for the person affected. This was recognised by the House of Lords in Local Government Board v Arlidge (1915) AC 129 at 133. There have been many developments of the law in this area since Arlidge but it remains clear that an oral hearing is not necessary in every case. " The principle stated in the cases recognises that individual circumstances of a case may require a personal hearing if procedural fairness is to be afforded. In the present case there was a large volume of detailed information from the applicant concerning the nature of the complaint before the decision maker. The applicant was told in the letter of23 December 1998 of the preliminary view that good cause had not been shown as to why the complaint should be accepted out of time. The same letter invited her to place before the decision maker any further information or submissions bearing on the reasons for the delay in complaining. It was not a case where there were any apparent reasons on the face of the material why a personal interview was necessary to enable the decision maker to make the decision. I am satisfied that in those circumstances the decision was made with proper procedural fairness and that there was no breach of natural justice involved in the way in which the matter was dealt with. Was due consideration given to the 1993 events? In the applicant's written and oral submissions an argument was developed that the first respondent had not fully appreciated the nature of her complaint. The submission was to the effect that, firstly, the letter of23 December 1998 only concerned itselfwith allegations of sexual harassment in 1991. The first respondent had apparently forgotten about the 1993 incidents and the stress illness which was alleged to be caused by pressure put on the applicant at work. Secondly, it was complained that the five matters listed in the letter of 23 December 1998 as ones which might assist in resolving the issue of whether good cause had been shown did not "cover her .... case". I have -- 14 of 19 -- 13 previously observed that they were stated in non-exclusive terms, and therefore did not preclude the applicant from raising other matters if she wished. She also submitted that the letter dated 13 January 1999 rejecting her application for an extension of time proved, by its terms, that the first respondent had misunderstood the full nature of the complaint in that it referred only to sexual harassment and did not refer to the 1993 events and their consequences. 7 In my view, it is incorrect to interpret the letter in that way. The letter of23 December 1998 ( " refers initially to allegations of sexual harassment and discrimination concerning the applicant whilst employed by the third respondent between March 1990 and October 1993 as being the only matters ( within the Commission's jurisdiction. It is plain from that that the first respondent fully appreciated that allegations of sexual harassment and discrimination during the period nominated were being made. The letter then went on to refer to the allegations of various conspiracies and difficulties experienced in numerous areas of the applicant's life. The writer of the letter expressed the view that based on the information provided they did not appear to be linked to the alleged sexual harassment ( and there was no evidence that it was the case. The Anti-Discrimination Act does not provide a remedy for events in the workplace which are not capable of being related to, firstly, one of the attributes in s 7(1) and secondly, to circumstances defined in s 15. Although it is not expressly said, it is plain that the letter of23 December 1998 was intended to convey that what were on the face ofit reprimands for unsatisfactory work practices were not within the scope of the Act. 9 There are references in Annexure B - Exhibit KGEWI to a meeting in March or April 1991 instigated by a supervisor whom the applicant believed subsequently orchestrated a scrutiny of her work and that that meeting occurred in proximity to the time when the complaint was made to the general manager about sexual harassment. It will be noted that the meeting occurred before the Act -- 15 of 19 -- b i ( ( \ 14 relevantly came into force. Further, there was no evidence that the supervisor knew that the complaint of sexual harassment had been made. There were also vague allegations of being put under pressure and generalised assertions of discrimination and victimisation. Apart from the alleged temporal connection there was nothing in the account of the conversation linking the reprimand implicit in it with sexual harassment. It is plain from the evidence of the first respondent, who was called for cross-examination on her affidavit, (T35-37) that she did not consider that there was sufficient linkage between the allegations of sexual harassment and the complaints about the applicant's work. The applicant's response in her letter of 8 January 1999 did not attempt to elaborate on the alleged link between the allegations of sexual harassment and her subsequent problems. On the material before the first respondent, I am satisfied she did not fail to have regard to the allegations of discrimination in the work place. It was ~ot unreasonable for her to come to the conclusion to which she came on the material before her. There was a complaint by the applicant that she was alleging a link between the sexual harassment and the subsequent events in the work place. She cross-examined the first respondent to the effect that if that was unclear to her, extending to her the opportunity to explain her complaint personally would have cleared up any misunderstanding. At the time the applicant responded to the letter of 23 December 1998, she was aware of its contents. It was clear that the allegations of sexual harassment were being focused on, as those with which the Commission could deal. It was open to the applicant to make it plain what the nature of her complaint was if she believed that it had been misunderstood. She did not raise the issue in her letter of 8 January 1999. In this connection it is apt to refer to the dictum of Deane J in Sullivan v Department of Transport (1978) 20 ALR 323, 343 which is as follows: -- 16 of 19 -- ( \ 15 11 _____ it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled. II Good Cause - Reliance on Prejudice Section 138 places an onus on a complainant to show good cause why the Commissioner should accept a complaint made out of time. The reason for the delay in making the complaint is a relevant factor. The applicant says she did not know to whom to complain. She says that she had written to a variety of public figures but was not advised by them of the existence of the Anti- Discrimination Commission. She also said that the fact that she was a migrant to this country and the ( experiences in her country of birth contributed to the delay. As against that she did not seek legal advice about avenues for complaint until just before the documents were sent to the Attorney-General despite contact with a solicitor in connection with litigation in which her husband was involved some time prior to that. Indeed, she stated in her letter of 8' January 1999, in dealing with the first respondent's enquiry why legal advice had only recently been sought, that she had sought advice ( because she believed she had seen the person who had allegedly sexually harassed her in 1991 in her neighbourhood in July 1998, unsettling the past. That, in reality, seems to be why she revived her efforts to seek a remedy for the matters of which she complained. The terms of the first respondent's letter of 13 January 1999 show that she found the explanation inadequate. It was open to her to do so. Another relevant factor in relation to good cause is the risk of prejudice to a respondent if the complaint is accepted. The applicant's complaint in this regard is that the first respondent did not make enquiries of potential respondents to ascertain the level of actual prejudice they would suffer. It is true, as she says that the third respondent was still in existence and that the whereabouts of the second respondent was known, albeit in Canada. The fourth respondent did not appear at the hearing. -- 17 of 19 -- ( , '" 7 16 His availability is not clear. There was no evidence as to the availability or otherwise of other potential witnesses or of records in the event that the matter proceeded to a hearing. In the first respondent's letter of 13 January 1999, she stated that because of the "extremely long time" that had elapsed since the last of the allegations of sexual harassment, she considered the availability and recollection of witnesses and the availability of records may be affected by the passage of time. In cross-examination she said that she felt that she could draw a reasonable inference. of detriment to the respondent because of the lapse of time. This is consistent with the contents of the letter refusing to accept the complaint out of time. Although the first respondent said that she had not specifically adverted to Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, her approach is consistent with the principles discussed by McHugh J with whom Dawson J agreed. At 551 the following appears: "The enactment of time limitations has been driven by the general perception that ,[w]here there is delay the whole quality of justice deteriorates'. (R v Lawrence [1982] AC 510 at 517 per Lord Hailsham of St Marylebone LC). Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Baker v Wingo «1972) 407 US 514 at 532). 'What has been forgotten can rarely be shown'. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever-existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose. " Then at 555 he said the following: "Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termiriation of the plaintiff s right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one -- 18 of 19 -- 18 17 of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiffs action. II In light of these statements of principle the applicant's propositions that it was incumbent upon the first respondent to establish that there was actual prejudice and that by failing to enquire as to whether there was likely to be actual prejudice, she favoured the respondent's interests over hers are misconceived. The weight to be given to presumptive prejudice will be influenced by the other fact in the case. In the present case there was no error in principle on the part of the first respondent in ( not making enquiries of potential respondents with a view to ascertaining the extent of actual prejudice which may exist. ( \ Conclusion Each of the propositions upon which the applicant's specific heads of complaint are based fails. It was open to the first respondent to find that good cause had not been shown why she should accept the complaint after the limitation period had expired. Accordingly, the application for a statutory order of review is refused. As an application under s 49 for a special costs order was made by the ( applicant, I will hear the parties as to costs. -- 19 of 19 --