Brandon, Mark John and Ors Commonwealth of Australia
[1998] FCA 676
•12 JUNE 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 374 of 1994
MARK JOHN BRANDON
APPLICANTCOMMONWEALTH OF AUSTRALIA
RESPONDENT
JUDGE:
WHITLAM J
DATE OF ORDER:
12 JUNE 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The respondent’s motion seeking an order for particulars is refused.
The costs of the motion are to be each party’s costs in the cause.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 529 of 1994
WARREN ANDREW HEIGH
APPLICANTCOMMONWEALTH OF AUSTRALIA
RESPONDENT
JUDGE:
WHITLAM J
DATE OF ORDER:
12 JUNE 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The respondent’s motion seeking an order for particulars is refused.
The costs of the motion are to be each party’s costs in the cause.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 375 of 1994
MICHAEL JOHN ROCK
APPLICANTCOMMONWEALTH OF AUSTRALIA
RESPONDENT
JUDGE:
WHITLAM J
DATE OF ORDER:
12 JUNE 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The respondent’s motion seeking an order for particulars is refused.
The costs of the motion are to be each party’s costs in the cause.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 376 of 1994
ROBERT JOHN MEWETT
APPLICANTCOMMONWEALTH OF AUSTRALIA
RESPONDENT
JUDGE:
WHITLAM J
DATE OF ORDER:
12 JUNE 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The respondent’s motion seeking an order for particulars is refused.
The applicant’s motion, notice of which was filed in Court on 15 May 1998, is refused.
The costs of the motions are to be each party’s costs in the cause.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 374 of 1994
MARK JOHN BRANDON
APPLICANTCOMMONWEALTH OF AUSTRALIA
RESPONDENTNG 375 of 1994
MICHAEL JOHN ROCK
APPLICANTCOMMONWEALTH OF AUSTRALIA
RESPONDENTNG 376 of 1994
ROBERT JOHN MEWETT
APPLICANTCOMMONWEALTH OF AUSTRALIA
RESPONDENTNG 529 of 1994
WARREN ANDREW HEIGH
APPLICANTCOMMONWEALTH OF AUSTRALIA
RESPONDENT
JUDGE:
WHITLAM J
DATE:
12 JUNE 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The motions before the Court require initially an explanation of the background to these proceedings. In each matter the applicant claims against the same respondent (“the Commonwealth”) in respect of personal injuries suffered whilst serving in the Royal Australian Navy. Mr Mewett claims to have suffered his injury on 31 August 1979 on board HMAS “Kimbla” whilst that vessel was proceeding out of Port Phillip Bay in Victoria. The other applicants claim to have been injured on 22 October 1985 on board HMAS “Stalwart”, which at the time was on the high seas en route from Sydney to Surabaya in Indonesia.
All the actions, except that of Mr Heigh, were commenced on 20 June 1994. Mr Heigh’s action was commenced on 29 July 1994. In each matter the Commonwealth pleaded by way of defence that the limitation period fixed by the Limitation Act 1969 (NSW) (“the NSW Act”) had expired and that the causes of action were extinguished. Each applicant then applied for an order of extension under s 60G of the NSW Act. The applications for extension were stood over pending the determination of an application by the Commonwealth to strike out the proceedings on other grounds. That application was ultimately unsuccessful: Commonwealth v Mewett (1997) 71 ALJR 1102.
The matters were listed for directions for the first time before me on 22 August 1997. The Commonwealth was given leave to amend its defences.
In Mr Mewett’s action, the Commonwealth amended its defence to plead that his action was barred by virtue of s 5(1) of the Limitation of Actions Act 1958 (Vic) (“the Victorian Act”). Mr Mewett had earlier filed, on 5 September 1994, an affidavit stating that “at no stage prior to August 1990” was he aware either that he suffered from post-traumatic stress disorder or that such disorder was caused by the incident on HMAS “Kimbla”. Nonetheless, and somewhat curiously in view of the comments of Dawson J in Mewett (at 1115), he has not filed a reply to the Commonwealth’s amended defence, alleging that his claims in tort may be brought under subs (1A) of s 5 of the Victorian Act. Nor has Mr Mewett made application for an order under s 23A of the Victorian Act.
The pending applications for extension were listed for directions on 19 September 1997. In each matter the applicant had previously, in 1994, filed in support of his application copies of medical reports and (as I have already mentioned in the case of Mr Mewett) a short affidavit as to when he first became aware that (a) he had suffered his injuries, and (b) they were caused by the relevant incident. I fixed a timetable for the filing of affidavits to be used on the hearing of the extension applications.
No affidavits were filed. A fresh timetable was fixed, by consent, on 6 February 1998. At a directions hearing, on 1 May 1998, the parties agreed that the applications, other than that of Mr Mewett, should be fixed for hearing on 6 July 1998. This was done, by consent, although the applicants still had not filed any further affidavits. No mention was made at that directions hearing that any request by the Commonwealth for particulars remained unanswered.
In fact, the Commonwealth had written on 28 April 1998 seeking particulars in all four matters. The applicants declined to answer those requests, and on 15 May 1998 the Commonwealth applied for an order that the requested particulars be furnished. I shall now deal with these motions.
In each matter Commonwealth requested the following particulars:
“1. State the nature and extent of all injuries and disabilities allegedly resulting from the respondent’s alleged negligence.
2. Identify all treating Doctors, Hospitals, and other personnel who have treated the applicant from [1979 or 1985] to date.
3. Identify the dates upon which the applicant received such treatment.
4. Identify with as much precision as possible when is it alleged that the plaintiff first commenced to have sustained physical injury and psychological trauma, including post traumatic stress disorder.
5. Identify with as much precision as possible when it is alleged that the applicant was first advised by any person(s) that he had developed physical injury, acute psychological injury and post traumatic stress disorder.
6. Identify the person(s) who so advised the applicant of the above.
7. Identify with as much precision as possible when the applicant first complained of acute psychological injury resulting in post traumatic stress disorder.
8. Identify with as much particularity as possible when the plaintiff first knew that he first suffered from:
[List of injuries and disabilities particularized in relevant statement of
claim.]
9. When is it alleged that the applicant first reported that he suffered from:-
[List of injuries and disabilities particularized in relevant statement of
claim.]
10. When is it alleged that the applicant was first aware that the injuries and disabilities referred to in the previous paragraph were caused by the acts or omission of the Commonwealth, its servants or agents?
11. Has the applicant ever smoked or drunk alcohol?
12. If so, in what quantities did the applicant smoke and drink and for what periods of time?
13. If so, over what period has the plaintiff smoked:-
a) cigarettes;
b) cigars;
c) a pipe; or
d) tobacco and/or drunk alcohol.
14. Identify with precision the types of alcohol eg. beer, spirits, liqueurs etc consumed by the applicant and over what periods.
15. Has the applicant ever asked any medical practitioner as to whether any of his injuries pleaded in paragraph 10 of the Statement of Claim could have been caused as a result of the alleged negligence of the respondent?
16. If so, when was the first occasion the applicant so asked and who did the applicant ask?
17. If so, when did the applicant subsequently ask those persons?
18. State the name and location of Hospital (if any) to which the applicant was admitted.
19. State the period during which the applicant was hospitalised and the nature of any operative treatment received by the applicant.”
Between 6-11 May 1998 each applicant filed a substantial affidavit in support of his extension application. Having regard to that fact and to the medical reports filed back in 1994, the applicants declined to answer the Commonwealth’s requests.
The facts, of which s 60I of the NSW Act requires proof, have been explained by Sperling J in McLean v Commonwealth (unreported, Supreme Court of NSW, 28 June 1996). His analysis has been approved by the Court of Appeal of New South Wales: 41 NSWLR 389 at 394-395. There are clearly questions of degree in respect of a plaintiff’s ignorance or awareness of the matters listed in s 60I(1)(a), which may be taken into account in exercising the discretion under s 60G(2) of the NSW Act.
The discretion under s 23A of the Victorian Act is quite different. The list of factors set out in s 23A(3) is not exhaustive and something else may be of relevance. Yet a claimant’s conduct will be measured according to what he has learned: Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614.
Bearing in mind those matters which will need to be addressed on the hearing of the extension applications, I can now turn to the terms of the request. In the event, items 11-15 were not pressed at this stage and counsel for the applicants conceded that an answer should, and would, be provided in respect of item 4. The debate between counsel did not descend to the detail of the material that has been filed. Counsel for the Commonwealth contended for a general entitlement to further and better particulars of the injuries and disabilities given in the statement of claim. He also emphasized the importance of knowing ahead of the hearing what and when the applicant says that he knew of the nature and extent of his injuries. On the other hand, counsel for the applicants submitted that many of the requests resembled interrogatories or questions in cross-examination. In my view, there is a good deal of force in that point. However, counsel completely overreached himself with a bold submission that a court would never make an order for particulars specifically for the purposes of an application for the extension of a limitation period. Quite apart from the provisions of the Federal Court Rules, the implied power of the Court extends to such an order: Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 at 231.
I have now looked at the material filed by the applicants. I think that it is quite sufficient to give the Commonwealth a clear idea of the facts sought to be proved in support of the present applications and, more importantly, of the basis of each applicant’s case for an extension. The Commonwealth’s motions will accordingly be refused. The costs of each motion will be each party’s costs in the cause.
The foreshadowed application for an order of extension under the Victorian Act by Mr Mewett is complicated by the fact that he now resides in England. This has prompted a motion by him, to which I now turn. Mr Mewett seeks an order that the judge to hear his extension application be appointed as examiner to take his testimony in England on terms that the Commonwealth bear the costs of the examination, the expenses of the examiner, and the legal costs and disbursements of Mr Mewett, including the travel expenses of his counsel and solicitor. The motion is opposed by the Commonwealth.
Mr Mewett has experienced gender dysphoria since childhood. He separated from his wife in 1990, and he says that by the end of 1992 he was aware of the “dominating effect” of his stress disorder and “had to contend with intrusive thinking about my gender dysphoria”. Mr Mewett was discharged from the Navy in January 1993, and since October 1993 he has lived and dressed as a woman. He does not say when he went to live in England, but I have been told that it was in 1995. Mr Mewett describes himself as being severely depressed, as having experienced transient suicidal thoughts and as taking anti-depressant medication.
Mr Mewett’s solicitor says that his client is not fit to travel to Australia. For that proposition he relies on two reports of Dr Michael Bowman, a consultant psychiatrist in London. Dr Bowman expressed the following opinion:
“I do think that on balance it would be more desirable for Romana [Mr Mewett] to remain in the United Kingdom and not to have to travel to Australia for any hearing but that the alternative of dealing with Romana’s case by video conferencing could be considered although whether Romana would come across satisfactorily I cannot say. If she has to ultimately travel to Australia she would need to be accompanied throughout the journey and have access to tranquillising medication. If the issue is dealt with in Britain I don’t consider that she would need any treatment as such but would need support and debriefing.”
Dr Bowman’s first report is dated 26 February 1998. It contains further history about Mr Mewett to the effect that he had gender realignment surgery in Sydney in October 1994, that he has had a series of subsequent operations on his urogenital system, and that he lives in his native town of Torquay with a female partner and a teenage son from his marriage. Dr Bowman was consulted about Mr Mewett’s medication in May/June 1997 during a brief period of hospitalization and has seen him five times, most recently in February 1998. Dr Bowman is not, however, a treating doctor and expressly eschews any specialist expertise in post-traumatic stress disorder. Dr Bowman’s diagnosis of depression, anxiety and agoraphobia is based on his clinical findings at interview.
The Commonwealth tendered a report dated 27 April 1998 by Dr David Bell, a Mosman psychiatrist employed by Anbel Services Pty Ltd. Dr Bell apparently examined Mr Mewett in London and prepared a report dated 5 December 1997 for the Commonwealth. That report has not been tendered. In his report that was tendered, Dr Bell comments on Dr Bowman’s earlier report. That is not a helpful approach. I am not assisted at all by Dr Bell’s views about “compensation neurosis” or his selective bibliography. In the absence of his earlier report, I attach no weight at all to his expressed view that there is no “clinical reason” to accede to a request that Mr Mewett’s evidence be taken in England.
Counsel for Mr Mewett framed his submissions on the assumption that, if an order for examination in England were not made, Mr Mewett’s evidence would have to be taken by video link. But counsel for the Commonwealth questioned that assumption and drew particular attention to the precise terms of the opinion expressed by Dr Bowman. He said, unsurprisingly without contradiction, that it would be far less expensive to have Mr Mewett and a companion travel to Australia than to have a judge conduct his examination in London. Mr Mewett is, after all, not a disinterested witness. He is an applicant who has chosen to go and live outside the jurisdiction. I am not satisfied that Mr Mewett is unable to travel to Australia to give evidence.
It may be accepted that, upon the hearing of any application for an extension of the limitation period, the cross-examination of Mr Mewett on the issue of ignorance or awareness will be, to apply Sperling J’s label, “liberal”. Findings as to credit may well become important. They may be influenced by the demeanour of Mr Mewett in giving his evidence. The High Court has again emphasized the advantage of hearing and observing witnesses: Zuvela v Cosmarnan Concrete Pty Ltd (1996) 71 ALJR 29.
In the light of the comparative costs, the Commonwealth would clearly prefer to have Mr Mewett’s evidence taken by video link from London, rather than upon examination in London. Neither party has, however, applied to have the evidence taken by video link. If such an application is made, that will be the time to consider whether Mr Mewett should be allowed to give his testimony by video link. At this stage I should only make two observations. First, there may be perceptual distortions in the appearance of witnesses on video conferencing monitors. These may affect the perceived demeanour of a witness. See Loretta Re, Oral v Written Evidence: The Myth of the “Impressive Witness”, (1983) 57 ALJ 679 at 687. Secondly, findings on credit are, however, not made “in a vacuum” without relating a witness’s evidence, demeanour and particular circumstances to the other material evidence in the case: NRMA Insurance Ltd v Tatt (1989) 94 FLR 339 per Samuels JA at 352-353.
Mr Mewett’s motion will also be refused. The costs of his motion will be each party’s costs in the cause.
I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam
Associate:
Dated: 12 June 1998
Counsel for the applicants: M L Brabazon Solicitors for the applicants: Szekely & Associates Counsel for the respondent: M S Joseph SC Solicitor for the respondent: Australian Government Solicitor Date of hearing: 15 May 1998 Date of judgment: 12 June 1998
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