Commonwealth of Australia v Winston

[2024] NSWCA 277

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Commonwealth of Australia v Winston [2024] NSWCA 277

Hearing dates:

6 November 2024

Decision date:

28 November 2024

Before:

Gleeson JA at [1];
Leeming JA at [2];
Adamson JA at [188]

Decision:

1. Grant leave to appeal.

2. Direct the Commonwealth to file within seven days a notice of appeal in accordance with the draft notice of appeal, and dispense with compliance with the rules as to service.

3. Appeal allowed.

4. Set aside the orders made on 26 April and 7 June 2024, and in lieu thereof order that the amended notice of motion dated 10 November 2023 be dismissed with costs.

5. Mr Winston to pay the Commonwealth’s costs of the application for leave to appeal and the appeal.

6. Direct Mr Winston to file and serve any amended statement of claim on or before 28 February 2025.

Catchwords:

CIVIL PROCEDURE – amendments – extension of time previously granted for statute-barred claim – whether proposed amendment pleaded the same cause of action – whether proposed amendment pleaded new cause of action arising out of the same or substantially the same facts – consideration of Civil Procedure Act 2005 (NSW), ss 64 and 65 – consideration of principles relevant to determining whether a proposed amendment arises out of substantially the same facts – whether further extension of time should be granted

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 64, 65

Common Law Procedure Act 1852 (UK), s 222

Common Law Procedure Act 1854 (UK), s 96

Common Law Procedure Act 1860 (UK), s 36

Constitution, s 75

International Organisations (Privileges and Immunities) Act 1963 (Cth)

Judicature Act 1875 (UK)

Judiciary Act 1903 (Cth), ss 39, 64, 79, 80

Limitation Act 1969 (NSW), Pt 3, Sch 5, ss 14, 15, 18A, 60G, 60I, 60M, 63

Rules of the Supreme Court 1883 (Eng)

South East Asia Treaty Organization (Privileges and Immunities) Regulations 1967 (Cth), r 9

Supreme Court Act 1970 (NSW), ss 101, 126, Sch 4

Uniform Civil Procedure Rules 2005 (NSW), r 51.53

Cases Cited:

Abdulla v Birmingham City Council [2012] UKSC 47; [2013] 1 All ER 649

Adam v Shiavon [1985] 1 Qd R 1

Air Link Pty Ltd v Paterson (2005) 223 CLR 283; [2005] HCA 39

Air Link Pty Ltd v Paterson (No 2) (2003) 58 NSWLR 388; [2003] NSWCA 251

Allonnor Pty Ltd v Doran [1998] QCA 372

Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136; [2000] HCA 39

Baldry v Jackson [1976] 2 NSWLR 415

Bebonis v Angelos (2002) 56 NSWLR 127

Black v The Mayor, Councillors and Citizens of the

City of South Melbourne (1964) 38 ALJR 309

Blunden v Commonwealth (2003) 218 CLR 330; [2003] HCA 73

Brickfield Properties Ltd v Newton [1971] 1 WLR 862

Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231; [1991] HCA 45

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25

British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30; [2003] HCA 47

Chief Executive Officer, Aboriginal Areas Protection Authority v Director of National Parks [2024] HCA 16

City of South Melbourne v Black [1964] VR 403

Clayton v Bant (2020) 272 CLR 1; [2020] HCA 44

Commonwealth of Australia v Smith [2007] NSWCA 168

Commonwealth v Dixon (1988) 13 NSWLR 601

Commonwealth v Mewett (1995) 59 FCR 391; 140 ALR 99

Commonwealth v Mewett (1997) 191 CLR 471; [1997] HCA 29

Commonwealth v Shaw (2006) 66 NSWLR 325; [2006] NSWCA 209

Commonwealth v Smith [2005] NSWCA 478

Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39

CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1

Dedousis v Water Board (1994) 181 CLR 171; [1994] HCA 57

Dornan v JW Ellis and Co Ltd [1962] 1 QB 583; [1962] 1 All ER 303

Fernance v Nominal Defendant (1989) 17 NSWLR 710

Garden Estate Hackham Pty Ltd v Angas Securities Ltd [2018] SASCFC 140

Gladstone Ports Corporation Limited v Murphy Operator Pty Ltd [2024] QCA 74

Golski v Kirk (1987) 14 FCR 143; 72 ALR 443

Greater Lithgow City Council v Wolfenden [2007] NSWCA 180

Groves v The Commonwealth (1982) 150 CLR 113; [1982] HCA 21

Horton v Jones (No 2) (1939) 39 SR (NSW) 305

House v The King (1936) 55 CLR 499; [1936] HCA 40

In re Westbourne Galleries [1973] AC 360

Jones v Corry (1840) 6 Bing NC 247; 133 ER 97

Lanai Unit Holdings Pty Ltd v Mallesons Stephen Jaques [2018] 3 Qd R 28; [2017] QSC 251

Lawson v Serco Ltd [2006] UKHL 3; [2006] 1 All ER 823

Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21

McGee v Yeomans [1977] 1 NSWLR 273

Minister for Home Affairs v DMA18 as litigation guardian for DLZ18 (2020) 270 CLR 372; [2020] HCA 43

Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102

Naidu v Fergusson (2013) 8 ACTLR 150; [2013] ACTSC 208

Parker v Commonwealth (1965) 112 CLR 295; [1965] HCA 12

Parkview Constructions Pty Ltd v The Owners – Strata Plan No 90018 [2023] NSWCA 66

Patterson v Richards [1963] VR 179

Penrith Municipal Council v Australian Blue Metal Ltd (1960) 60 SR (NSW) 608

Penrith Municipal Council v Australian Blue Metal Ltd may be contrasted with Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45

Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166

Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23

Robinson v Unicos Property Corporation Ltd [1962] 1 WLR 520; [1962] 2 All ER 24

Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd (No 3) (1999) 18 NSWCCR 396; [1999] NSWDDT 18

Shaw Savill and Albion Co Ltd v The Commonwealth (1940) 66 CLR 344; [1940] HCA 40

Sidaway v Bethlem Royal Hospital [1985] 1 AC 871

Smith v The Ministry of Defence [2014] 1 AC 52; [2013] UKSC 41

Smith v Wilkins and Davies Construction Co Ltd [1958] NZLR 958

State of New South Wales v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276

Sydney Trains v Argo Syndicate AMA 1200 [2024] NSWCA 101

THG PLC v Zedra Trust Company (Jersey) Ltd [2024] Ch 318; [2024] EWCA Civ 158

Thomas v State of Queensland [2001] QCA 336

Vadisanis & Vadisanis (2014) 53 Fam LR 345; [2014] FamCAFC 97

Vere v Glynn (1771) Dick 442; 21 ER 341

Weldon v Neal (1887) 19 QBD 394

Winston v Commonwealth of Australia [2021] NSWSC 62

Winston v Commonwealth of Australia [2024] NSWSC 464

Wolfe v State of Queensland [2009] 1 Qd R 97; [2008] QCA 113

WorkCover Queensland v Amaca Pty Ltd (2010) 241 CLR 420; [2010] HCA 34

Texts Cited:

J Basten, “Judiciary Act, Section 80 – A Special Statutory Provision?” (2024) 98 Australian Law Journal 727

S Campbell, “Amendments and Limitations: The Rule in Weldon v Neal” (1980) 54 Australian Law Journal 643

R Creyke, D Stephens and P Sutherland, Military Law in Australia (Federation Press, 2nd ed 2024)

J Day, The Common Law Procedure Acts (2nd ed 1863, Henry Sweet, London)

W Gummow and A Mohseni, “The Use and Misuse of Metaphors” (2024) 98 Australian Law Journal 738

Category:

Principal judgment

Parties:

Commonwealth of Australia (Applicant)
Robert Wilson Winston (Respondent)

Representation:

Counsel:
N Owens SC, A Lyons, A Khadra (Applicant)
AG Melick SC, C Thomson (Respondent)

Solicitors:
Australian Government Solicitor (Applicant)
Ken Cush and Associates (Respondent)

File Number(s):

2024/170885

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2024] NSWSC 464

Date of Decision:

26 April 2024

Before:

Schmidt AJ

File Number(s):

2019/339343

HEADNOTE

[This headnote is not to be read as part of the judgment]

In June 1969, the USS Frank E Evans collided with the HMAS Melbourne during a joint training exercise in the South China Sea. Mr Winston was on board the Melbourne, serving as a member of the Royal Australian Navy. In 2019, Mr Winston filed a statement of claim against the Commonwealth claiming damages for personal injuries as a consequence of the collision. The particulars of negligence in that statement of claim primarily concerned the conduct of the officers of the Melbourne in the minutes immediately preceding the collision, including the quality of the warning signals and transmission of messages. In 2021, Justice Harrison granted an extension of the limitation period in respect of that claim, under section 60G of the Limitation Act 1969 (NSW).

However, in 2023 and after several amendments, Mr Winston sought leave to file a further amended statement of claim which made further allegations that were not mentioned in the original statement of claim, including the orders made by Admiral Crabb after a near-collision a few days earlier during the same exercise (the ‘Larson Incident’) and the later rescission of those orders. Schmidt AJ granted Mr Winston leave to make those amendments.

On appeal, the Commonwealth argued that leave could not have been granted under section 65(2)(c) of the Civil Procedure Act 2005 (NSW) because the further amended statement of claim raised a “new cause of action” which did not arise “from the same (or substantially the same) facts” as those supporting the original cause of action. The new cause of action was barred by the Limitation Act. The Commonwealth also argued that leave could not be granted under section 64 and that a further extension of time should not be granted.

The Court (Leeming JA, Gleeson JA and Adamson JA agreeing) held, allowing the appeal:

1. The amended statement of claim includes allegations that are qualitatively different from the navigational failures which the original statement of claim alleged. In particular, the new claim is that the Commonwealth is vicariously liable for the tortious conduct of an officer not mentioned in the original pleadings, the particulars of breach relate to a period quite different to the original claim and relate to the positioning of the ships and the planning of the exercise rather than the conduct of officers in the minutes immediately preceding collision. For those reasons, the new statement of claim does not plead a cause of action arising out of the same or substantially the same facts for the purposes of s 65(2)(c): at [148]-[157], [191].

Thomas v State of Queensland [2001] QCA 336; Wolfe v State of Queensland [2009] 1 Qd R 97; [2008] QCA 113; Gladstone Ports Corporation Limited v Murphy Operator Pty Ltd [2024] QCA 74, considered and applied.

2. The prejudice to the Commonwealth means that an extension of the limitation period should not be granted. Events mentioned in the new statement of claim, including the Larson Incident, were not the subject of investigations or findings in contemporaneous reports: at [172]-[182], [192].

Commonwealth v Smith [2005] NSWCA 478; Commonwealth v Shaw (2006) 66 NSWLR 325; [2006] NSWCA 209, considered.

Discussion of:

3. The history of provisions allowing amendments to pleadings that disclose a “new cause of action”: at [102]-[147].

JUDGMENT

1. GLEESON JA: I agree with the orders proposed by Leeming JA for the reasons his Honour gives, save that it is not necessary for me to express a view on the matters discussed in pars [10]-[14] and the second sentence and subpars (1)-(6) of par [17], which were not in issue or the subject of submissions.

2. LEEMING JA: The Commonwealth of Australia seeks leave to appeal from orders made by Schmidt AJ in the Common Law Division permitting the respondent, Mr Robert Wilson Winston, to amend his statement of claim seeking damages for negligence based on the collision of HMAS Melbourne and USS Frank E Evans on 3 June 1969 in the South China Sea. Some 74 of the Evans’ crew died when their destroyer was cut in half after sailing under the bow of the Melbourne, the much larger aircraft carrier. Mr Winston was a member of the Royal Australian Navy serving on HMAS Melbourne who claims damages for personal injuries including Post-Traumatic Stress Disorder and Major Depressive Disorder as a consequence of the collision.

3. The appeal requires leave, because the order permitting the amendment is interlocutory: Supreme Court Act 1970 (NSW), s 101(2)(e). The proposed appeal concerns an amendment to add what the Commonwealth contends is a statute-barred claim to an extant pleading which has itself been granted an extension of time. The issue is relatively novel, having been considered (so far as the parties’ researches and my own disclose) in precisely one previous decision (Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd; Re Hay (No 3) (1999) 18 NSWCCR 396; [1999] NSWDDT 18), and that was far from comprehensively reasoned and was based on a superseded regime predating the Uniform Civil Procedure Rules 2005 (NSW). It gives rise to a number of questions of principle, and is a plain case for a grant of leave. There was a concurrent hearing, in which both parties were heard fully on the merits of the appeal.

4. For the reasons which follow, I have concluded that the appeal should be allowed and the orders made at first instance set aside. Mr Winston was granted an extension of time almost four years ago to bring proceedings against the Commonwealth, and despite his consenting to that statement of claim being struck out, he continues to enjoy the benefit of that grant. The orders I propose will permit him to file a pleading within the scope of that extant extension of time. The orders will also require this to be done in the next three months. It is to be doubted that there has been compliance with s 56 of the Civil Procedure Act 2005 (NSW) by some or all of Mr Winston and his former and current lawyers, bearing in mind that the litigation has been on foot for more than five years without Mr Winston having filed a statement of claim which he is content to take to trial, and despite his having served at least seven amendments in the meantime.

Background

May and June 1969 - Exercise Sea Spirit

5. At the heart of this appeal is a comparison between the claim in negligence, for which Mr Winston was granted an extension of time in 2021, and the most recent iteration of his statement of claim. In order to evaluate those documents, it is necessary to provide some factual background to the events culminating in the collision between the Melbourne and the Evans. I do not understand any of the following to be controversial, although I am certain it is a considerably simplified account of the circumstances confronting the task force commander of a multinational flotilla conducting exercises in simulated wartime conditions.

6. In May and June 1969, the Melbourne and the Evans were participating in a training exercise known as “Exercise Sea Spirit” in the South China Sea in which a simulated enemy force of submarines had been tasked with attacking the convoy. The Evans was one of some six destroyers accompanying the aircraft carrier to its destination. One of the concerns of the flotilla was the risk of “hostile” submarines, and one response was to proceed in a predesignated pattern of zig-zags. One of the roles of the destroyers was to detect submarines which might threaten the carrier and protect it from them, including by forming a screen around the carrier.

7. In addition, at least when aircraft operations were to occur on the carrier, one destroyer was to operate as “plane guard”. That involved a destroyer being stationed astern the carrier, to be available in the event that any airmen needed rescuing. A destroyer which had been stationed ahead of the carrier which was ordered to act as plane guard would turn so as to attain a position astern of the carrier.

8. At around 3.10am on 3 June 1969, the Evans was ordered to assume a position astern the carrier as plane guard. The Evans seems not to have been in its correct station relative to the carrier; Mr Winston alleges that it had strayed from its assigned position on the starboard side, and was on the port side of the carrier. In any event, in order to change its position, it turned to its starboard side. Had it been in correct position, a starboard turn would have caused it to turn away from the carrier, but from an incorrect station, the turn placed the Evans on a collision course with the carrier. What happened thereafter is central to the dispute, and I will not attempt to summarise it. However, it seems clear that Melbourne at least was aware of the collision course a few minutes in advance, and signalled Evans, which did not alter its course, and that both vessels executed sharp turns simultaneously seconds before impact, but failed to avoid it.

Claims in tort against the Commonwealth by members of the armed forces

9. Mr Winston’s claim is in federal jurisdiction, because the Commonwealth is a party: Constitution, s 75(iii). The Supreme Court and this Court have at all times been exercising federal jurisdiction invested by s 39(2) of the Judiciary Act 1903 (Cth).

10. Although the collision occurred when both Australia and the United States of America were participants in the Vietnam War, the claim is not one which is based on negligence based on things done in the course of actual operations of war. Such claims are not justiciable: Shaw Savill and Albion Co Ltd v The Commonwealth (1940) 66 CLR 344 at 361; [1940] HCA 40; CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1 at [368].

11. Windeyer J expressed a broad view in Parker v Commonwealth (1965) 112 CLR 295; [1965] HCA 12 to the effect that no claim could be made by a member of the armed forces based on the negligence of another member of the armed forces. If that were the law, it would be fatal to Mr Winston’s claim. However, Windeyer J’s views were disapproved in Groves v The Commonwealth (1982) 150 CLR 113; [1982] HCA 21, a case concerning the Commonwealth’s tortious liability in peacetime.

12. But as Dixon J plainly appreciated in Shaw Savill and Albion Co Ltd, the scope of “combat immunity” while extending to “all active operations” against the enemy is not unlimited. Dixon J said at 361-362:

The principle must extend to all active operations against the enemy. It must cover attack and resistance, advance and retreat, pursuit and avoidance, reconnaissance and engagement. But a real distinction does exist between actual operations against the enemy and other activities of the combatant services in time of war. For instance, a warship proceeding to her anchorage or manœuvring among other ships in a harbour, or acting as a patrol or even as a convoy must be navigated with due regard to the safety of other shipping and no reason is apparent for treating her officers as under no civil duty of care, remembering always that the standard of care is that which is reasonable in the circumstances.

13. Dixon J added that “[i]t may not be easy under conditions of modern warfare to say in a given case upon which side of the line it falls”: at 362. The differing views expressed in Smith v The Ministry of Defence [2014] 1 AC 52; [2013] UKSC 41 likewise illustrate the difficulty in identifying the limits of the immunity; see also the discussion in R Creyke and M Stubbs, “Administrative Law in the Defence Context” in R Creyke, D Stephens and P Sutherland, Military Law in Australia (Federation Press, 2^nd ed 2024) 138 at 144-148.

14. However, the defence which was filed by the Commonwealth so long ago as 10 July 2020 does not rely on any combat immunity, a stance which is consistent with the distinction drawn by Dixon J in the passage reproduced above. The argument in this Court did not address this point.

15. Separately from the above, and arising on the amendments now proposed by Mr Winston, the Commonwealth has flagged reliance on the immunity conferred by r 9 of the South East Asia Treaty Organization (Privileges and Immunities) Regulations 1967 (Cth), made pursuant to the International Organisations (Privileges and Immunities) Act 1963 (Cth), on the basis that one of the instructions issued by Admiral Crabb as to the positioning of the task force (“OPORD 1/69”) was issued in his capacity as task force commander on behalf of SEATO. Nothing in these reasons is intended to express any view one way or the other as to the availability of any immunity under that regulation.

13. Mr Winston’s claim is long out of time. The collision occurred in 1969. The damage which he claims to have sustained as a result of the collision includes having his career in the Navy cut short in 1972 by reason of his injuries, and thus the cause of action accrued more than 50 years ago.

14. It was common ground that Mr Winston’s claim was subject to the Limitation Act 1969 (NSW), despite most elements of the tort on which he sued occurring in international waters. Nonetheless, in part because it is foundational to the entirety of the proceedings to date including this appeal, it is desirable to explain why that common position was correct.

1. In Blunden v Commonwealth (2003) 218 CLR 330; [2003] HCA 73 at [35] it was held that the New South Wales statute applied to a similar claim by a former member of the Navy following a collision in international waters which had been brought in the Supreme Court of New South Wales because the Limitation Act is a modification of the common law picked up and made applicable by s 80 of the Judiciary Act. Blunden resolved an issue which had hitherto been the subject of a great range of views over many decades, which are concisely summarised by Lindgren J in Commonwealth v Mewett (1995) 59 FCR 391 at 416-418; 140 ALR 99 at 122-124. The complexity had two dimensions: there was the general question of how the Commonwealth was liable in tort, and there was the specific question of how a limitation statute became applicable to an action for a tort committed on the high seas in federal jurisdiction.

2. In the course of dismissing the Commonwealth’s further appeal in Commonwealth v Mewett (1997) 191 CLR 471; [1997] HCA 29, a majority expressed the view that the Commonwealth’s immunity from liability in tort was removed by s 75(iii) of the Constitution (Gummow and Kirby JJ at 550-551, with whom Brennan CJ and Gaudron J (at 491 and 531) agreed). That view has subsequently prevailed, in decisions including Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136; [2000] HCA 39 at [59], British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30; [2003] HCA 47 at [59] and [142] and Chief Executive Officer, Aboriginal Areas Protection Authority v Director of National Parks [2024] HCA 16 at [167].

3. However, a diversity of views was expressed as to the means by which a State limitation statute applied to an action for tort arising on the high seas: Brennan CJ favoured s 79 of the Judiciary Act and explained why s 80 did not have that effect (at 492-3); Dawson J, with whom McHugh J agreed in this respect, favoured s 64 of the Judiciary Act (at 502); Toohey J favoured a combination of ss 64 and 79 (at 514); Gaudron J favoured s 80 (at 528), while Gummow and Kirby JJ noted that there was “much to recommend” for Gaudron J’s view, “but it was not the subject of submissions” (at 554-555) and proceeded to deal with the matter on the basis that s 79 made the limitation statute applicable.

4. Blunden, where the means by which the State limitation statute was made applicable to a claim in tort based on events occurring on the high seas, which point was fully argued and resulted in a joint judgment, stands in stark contrast.

5. True it is that Blunden predates what was said of s 79 of the Judiciary Act in Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23 and Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21. However, the approach taken in Rizeq and Masson diminishing the need to rely on a law of the Commonwealth in order for a State law to be applicable to a matter in federal jurisdiction cannot assist Mr Winston (although those decisions may require aspects of the operation of s 80 to be revisited in the future: see J Basten, “Judiciary Act, Section 80 – A Special Statutory Provision?” (2024) 98 Australian Law Journal 727). While it is conceivable that at least parts of the Limitation Act (including s 63) apply of their own force in accordance with Rizeq and Masson, there is nothing to suggest that, in the event that all or part of the Limitation Act does not apply of its own force, it does not continue to be made applicable by s 80.

6. For those reasons, Mr Winston’s concession was appropriately made.

18. I shall return to the detail of the relevant provisions of the Limitation Act below. Suffice it to say that the statute applied to Mr Winston’s claim, which was long out of time, but the statute also contained provisions authorising a Court to extend time in certain circumstances – speaking generally, if the plaintiff was unaware of the existence, or nature and extent, of the personal injury or its connection with the breach of duty until no more than three years before proceedings were in fact commenced.

Mr Winston obtained an extension of time in 2021

19. Mr Winston filed a statement of claim on 29 October 2019. Following a contested hearing on 2 February 2021, Harrison J acceded to Mr Winston’s application for an extension of time under s 60G: Winston v Commonwealth of Australia [2021] NSWSC 62. His Honour made the following order on 17 February 2021:

Extend up to and including 29 October 2019 the limitation period for the cause of action upon which the plaintiff sues in these proceedings.

20. The extension of time was not unqualified. It was confined to “the cause of action upon which the plaintiff sues in these proceedings”. The scope of the order made on 17 February 2021 extends at least to the statement of claim which was extant on that date and which was filed on the date mentioned in the order. I shall return to the proper construction of the order made by Harrison J.

21. The statement of claim filed on 29 October 2019 is a short document of just over two pages excluding particulars of injuries. Paragraph 1 alleges that Mr Winston was a member of the Royal Australian Navy, paragraph 2 alleges that “whilst in the course of his employment” on 3 June 1969 he was upon HMAS Melbourne. Paragraph 3 refers to the collision with the Evans. Paragraphs 4 and 5 allege that the officers and crew of the Melbourne were officers and servants of the Commonwealth acting in the course of their services during the “Exercise Sea Spirit” joint exercise. Paragraph 6 alleges “The said collision was caused by the negligence of officers and crew of the said Melbourne” and 17 particulars of breach are given. Paragraph 7 alleges that Mr Winston was injured and has suffered loss and damage as a result of the collision, and particulars follow.

22. The particulars of breach directly bear on one of the issues in this appeal, which is whether the latest iteration of Mr Winston’s pleading propounds the same or substantially the same cause of action as that for which there has already been an extension of time. The particulars of negligence alleged in paragraph 6 of the statement of claim are:

(a) Failing to keep any or any proper lookout;

(b) Failing to cause any or any sufficient watch to be kept on other ships in the vicinity including the Evans;

(c) Failing to warn the crew of Evans sufficiently or at all of the possibility of a collision;

(d) Failing to avoid a collision;

(e) Failing to give warning siren blasts when it became apparent that a collision was possible in sufficient time for the collision to be avoided;

(f) Upon perceiving that Evans was adopting a course and speed that could lead to a collision, transmitting or causing to be transmitted a warning signal to Evans in code, known as a CORPEN Signal, instead of an opening warning message in plain language, which delayed the realisation by the crew of Evans that their ship was at risk of collision, and caused Evans to take a course and speed leading across and close to the bows of Melbourne;

(g) Failing to clearly and cogently warn Evans as early as possible in clear language that if it maintained its course and speed a collision with Melbourne was likely;

(h) Failing to observe that if the course and speed of both Melbourne and Evans remained constant a collision was likely to occur;

(i) Failing to adequately or at all monitor the direction and position of Evans relative to the direction and position of Melbourne;

(j) Failing to observe and bring to the attention of Evans that it was, on several occasions in the hours prior to the collision, out of its designated sailing range and section relative to Melbourne;

(k) Transmitting a signal to Evans to “Form Column” whilst the ships were still engaged in a zig zag manoeuvre;

(l) Failing to ensure that a steady flow of ranges and bearings was taken of the Evans’ movements to enable continuous timely and accurate formed observations of the relative positions of the ships during changes of position to “form column”, and particularly once the danger of a collision was detected;

(m) Failing to order the loudspeaker to be turned up so that the commanding officer of the Melbourne could hear directly messages being transmitted from Evans once the danger of a collision was detected;

(n) Failing to install and/or implement if available the means for the commanding officer of the Melbourne to directly transmit messages to the Evans, so reducing delay;

(o) Failing to slow the speed of the Melbourne in time to avoid the collision;

(p) Failing to exercise the authority of a task force unit Commander responsible for the safe operations of all ships in the task unit by more positively directing the movements of the Evans once the danger of a collision course was detected;

(q) Failing to modify the direction of the Melbourne in time to avoid the collision.

23. It will be seen that the large majority of these particulars concerns steps that should have been taken in the minutes before the collision. Exceptionally, particulars (i), (j) and (n) extend to steps that should have been taken earlier in time, extending to monitoring the location of the Evans, bringing to the attention of Evans that it was off-station, and improving communications between Melbourne and Evans.

24. Harrison J found, based on evidence that need not be summarised, that the preconditions to the exercise of the power in s 60I of the Limitation Act were satisfied. His Honour noted at [34] and [35], by reference to Commonwealth of Australia v Smith [2007] NSWCA 168, that Mr Winston bore the onus of satisfying the Court that it was just and reasonable to grant the extension, which would not be granted if it caused actual and significant prejudice. The dispositive paragraph on this issue, which appears to have been the principal issue before Harrison J, is [58]:

Taking as practical and as realistic an approach as I can, I anticipate that this litigation will principally involve an assessment of the legal liability of the Commonwealth by reference to the extensive, not to say exhaustive, accounts of what occurred on 3 June 1969 and what should have been done to avoid the collision. My expectation is that experts for both sides will be able without too much difficulty to consider this material and express opinions, to the extent that it is legitimate for them to do so, about Mr Winston’s allegations of negligence by the Commonwealth. The Commonwealth’s avowed concern that Mr Winston has failed to identify the particular individuals who might have been involved in these alleged errors on the night itself fails properly to take account of the responsibility that the Commonwealth undoubtedly bears for the acts or omissions of these men and women. They will have already taken part in the earlier investigations and recorded proceedings to which I have referred. The Commonwealth’s protestations of significant prejudice, as distinct from senior counsel’s helpful submissions on the Commonwealth’s behalf, could on one view be considered to be a touch disingenuous. I consider that the Commonwealth will be able to receive a fair trial, even if not necessarily a perfect one.

25. The Commonwealth filed a defence to the statement of claim. However, despite the pleadings having closed, it appears that now, more than 3½ years later, the litigation is still not ready for trial. Indeed, Mr Winston’s claim was struck out by consent on 29 November 2022, whilst in the preceding and ensuing months no fewer than six proposed amended statements of claim were served.

The motion to amend and MFI 10

26. The motion which came before Schmidt AJ was an amended notice of motion dated 10 November 2023 seeking the following substantive orders:

The plaintiff have leave to file and serve an Amended Statement of Claim in the form set out in the draft amended statement of claim annexed at “SAT1” to the affidavit of Samuel Alexander Tierney filed on 6 October 2023.

If required extend up to and including 29 February 2023 or such other date as the Court orders the limitation period for the cause of action upon which the plaintiff sues in the proceedings as set out in the draft amended statement of claim annexed at “SAT1” to the affidavit of Samuel Alexander Tierney filed on 6 October 2023.

27. The motion made reference to a proposed pleading attached to an affidavit filed on 6 October 2023. However, on 15 April 2024, when the motion was heard by the primary judge, Mr Winston’s counsel supplied a further amended pleading which became MFI 10. This was a proposed pleading of 14 pages, although during the course of argument Mr Winston abandoned approximately one quarter of it (namely, the whole of paragraphs 33-47, three particulars of negligence and two particulars of duty of care) in circumstances to which it will be necessary to return.

28. It is necessary to summarise MFI 10 so as to be able to compare and contrast it with the original statement of claim, in order to address the submissions which were at the forefront of the appeal, namely, that the primary judge had erred in concluding that MFI 10 was within the existing grant of leave.

29. The injuries said to have been sustained from the collision, and the damage claimed, were identical to the original pleading (including typographical errors). The pleading incorporated in substance the entirety of the allegations in paragraphs 1-6 of the original statement of claim. But it added much more.

30. There were new introductory paragraphs concerning Melbourne and Evans being within the Australian and United States navies, and that Exercise Sea Spirit was divided into two phases, including the “Transit phase” conducted between 30 May and 6 June 1969. Paragraphs 9-15 introduced a case based on the Commonwealth being vicariously liable for the actions and inaction of Rear Admiral Gordon John Crabb, who was the task force commander of the Transit phase and who (it was common ground when the appeal was heard) was not a member of the crew of the Melbourne. These paragraphs were directed to the power of Admiral Crabb to control the locations of the ships in the convoy. It was alleged that he was a representative of the Commonwealth with power to issue orders and commands controlling the method of travel of the convoy ships during the Transit phase, and that he was invested with responsibility for controlling the overall operation of ships in the convoy. It was alleged that:

As such, Admiral Crabb was the Officer in Tactical Command (OTC) and the Officer Conducting the Exercise (OEC) [sic, scil OCE] for purposes of the RAN Regulations issued by the Australian Commonwealth Naval Board, particularly Article 2704 thereof, and invested thereby with authority and the responsibility to issue orders for the exercise to ensure that safety precautions were observed and that the exercise was properly conducted. [As] OTC he was by the Regulations made responsible for the safe conduct of the fleet, squadron, ships or ship present with him and acting in concert under his orders. He could delegate these duties but would not thereby be absolved from the responsibility of exercising an overriding control of the ships under his orders should he observe a situation which so demands.

The OTC was further enjoined by Article 2704 of the RAN Regulations to be “particularly attentive [in] observing that the ship which carries his flag ... and all the ships under his orders, preserve correctly their station in whatever formation the fleet may be. When any evolution is being performed he is to be attentive to the manner in which the ships under his orders carry it out, always correcting immediately every apparent want of activity and exertion and every mistake or appearance of neglect or mistake.”

31. On that basis, it was alleged that it was “appropriate” that the Commonwealth be vicariously liable for the actions of all officers and seamen aboard the Melbourne including Admiral Crabb, and that in the premises, they owed a duty of care to adopt a safe system of work which included a duty to “adjust any exercise instructions to reduce the risk of collision once becoming aware of any serious incidents including near collisions” and “maintain any amended exercise instructions introduced following any near collisions”.

32. Paragraphs 16-20 made allegations about the collision between Melbourne and HMAS Voyager on 10 February 1964, alleging that:

1. a major contributing factor was the requirement for the destroyer to move from a position forward of the Melbourne to a plane guard position astern of the carrier;

2. Admiral Crabb had given an order (“OPORD 1/69”) that all precautions necessary to [maintain] safety be taken, including switching on radar or navigation lights if any doubt of the safety of a ship, submarine or plane, existed;

3. Captain Stevenson, the captain of the Melbourne, had specifically warned all captains to take precautions to avoid a repeat of the Voyager collision by ensuring that any destroyer ordered to take up plane guard station was to turn his ship away from the carrier, and

4. Captain Stevenson had prepared an Escort Handout stating that “the main consideration in the control and operation of rescue destroyers is that they should remain abaft the beam of Melbourne whenever possible…”.

33. Paragraph 21 introduced “The Larson Incident”. That was a near miss between USS Larson and Melbourne while the former was moving to take up a plane guard station, at about 3am on 31 May 1969. Paragraph 22 alleged that, following the Larson Incident, it was foreseeable to Admiral Crabb and Captain Stevenson that requiring ships to move from a position forward of the carrier to a position astern the carrier in order to act as Plane Guard “would substantially increase the risk of a collision, especially at night in conditions of reduced visibility”.

34. Paragraph 23 alleged that Admiral Crabb instructed Captain Stevenson to station the plane guard destroyer astern of the carrier from dusk to dawn following the Larson Incident.

35. Paragraph 24 alleged that on 2 June 1969, Admiral Crabb rescinded his order, in a meeting with “US Squadron Commander 23” (it is uncontroversial this was Captain Doak), replacing it with an order that instructed the designated plane guard destroyer to be positioned ahead of the carrier, until ordered to take up plane guard position astern of the carrier, including at night.

36. Paragraphs 25 and 26 alleged that it was known, or should have been known, to Admiral Crabb that the US Navy practice was to station designated plane guard destroyers astern of the carrier, and that there had been no substantial increase in the training or experience of the US Navy personnel since the Larson Incident. Paragraph 27 alleged that Admiral Crabb and Captain Stevenson knew that all personnel involved in Exercise Sea Spirit were exposed to a substantial risk of harm when a plane guard destroyer was transitioning from a position ahead of Melbourne to a position astern of it.

37. Paragraphs 28-31 return to the minutes prior to the collision on 3 June 1969, and allege that at around 3.10am when Evans was given the signal to move to plane guard station, it had strayed from its position ahead of and on the starboard of Melbourne and in fact was on port side, that no action or no adequate action was taken by Melbourne to alert Evans that it was out of position, and that in the course of assuming position to the rear of the Melbourne, the Evans proceeded to turn to its starboard side, taking it across the path of the Melbourne.

33. Paragraph 32 elaborated on the allegation of breach in the original statement of claim by including the words underlined below:

The Collision was caused by the negligence and/or breach of duty of the Defendant, its servants or agents, including Admiral Crabb, Captain Stevenson and the officers and crew of the Melbourne.

39. There followed a repeat of most of the particulars of breach of duty in the original statement of claim, but with four wholly new particulars:

(a) Changing the exercise procedures by both Admiral Crabb and Captain Stevenson that were instigated after the Larson incident, for the plane guard vessel to always remain astern of the aircraft carrier during night hours, by instead directing that the destroyer which was to be plane guard should first sail on the forward wing until ordered to make the plane guard manoeuvre;

(b) Failing, on the part of Admiral Crabb as OTC or on the part of the commanding officer of the Melbourne, to adhere to the safety procedures detailed in the Maritime Operating Procedures for Exercise Sea Spirit Annex A by not placing the plane guard destroyer in a position abaft of Melbourne;

…

(f) Failing, on the part of the commanding officer of Melbourne to alert the Evans that it had strayed out of its designated position on the starboard bow of Melbourne onto the port side before ordering that ship to take plane guard position;

…

(l) Failing, on the part of Admiral Crabb as OTC or on the part of the commanding officer of the Melbourne, to establish a dedicated exercise safety radio circuit.

40. The first two of those paragraphs of new particulars were paragraphs 32(a) and (b) in MFI 10.

41. It will be noted that, in contrast with MFI 10, there was no mention of Admiral Crabb, or the Voyager collision, or the Larson Incident, or the new orders issued after the Larson Incident, or their rescission on 2 June 1969 in the original statement of claim.

Applicable legislative provisions

Limitation Act

42. The Limitation Act has for many years imposed a limitation period of three years for causes of action founded on negligence for damages for personal injury: s 18A. That section does not apply to causes of action that accrued before 1 September 1990 (s 18A(1)(b)), such as that alleged by Mr Winston, which is subject to the six year period for causes of action founded on tort imposed by s 14(1)(b). Even so, the proceedings commenced by Mr Winston in 2019 are many years out of time.

(a) Not merely barring the remedy, but extinguishing the cause of action

43. Limitation statutes in the traditional form do not extinguish a cause of action; instead, they merely bar the remedy and not the right, thereby creating a defence which must be pleaded, and until and unless that occurs, the statutory bar does not arise for consideration by the court: see Commonwealth v Verwayen (1990) 170 CLR 394 at 405; [1990] HCA 39, WorkCover Queensland v Amaca Pty Ltd (2010) 241 CLR 420; [2010] HCA 34 at [30] and Minister for Home Affairs v DMA18 as litigation guardian for DLZ18 (2020) 270 CLR 372; [2020] HCA 43 at [31]. However, the Limitation Act goes further. It does not merely provide a defence which may be pleaded. Speaking generally, upon the expiration of the limitation period the “right and title” of the person who formerly had the cause of action is extinguished: s 63.

44. However, the “extinction” of a cause of action does not prevent the application for an extension of time pursuant to Subdivision 2 or 3 of Division 3 of Part 3 of the Act. That is because of at least one and probably both of ss 60M and 61. Section 60M disapplies s 63 when an application is made for an extension of time after the expiry of a limitation period:

60M Prior expiry of limitation period or extinction of right

(1) Applications and orders may be made under Subdivision 2 or 3 as if Division 1 of Part 4 had never been in force.

(2) An order for the extension of a limitation period, and an application for such an order, may be made under Subdivision 2 or 3 even though the limitation period has already expired.

45. It may be noted that s 63 is within Division 1 of Part 4, and applications for extension of time are made under, relevantly, s 60G, which is within Subdivision 3 of Division 3 of Part 3.

46. Section 61 provides that where after the expiration of a limitation period, the limitation period is extended by an order [under, inter alia, s 60G], “the prior expiration of the limitation period has no effect for the purposes of this Act”.

47. Thus when in 2019 Mr Winston filed his statement of claim, he was decades out of time, and s 63 had extinguished right and title to the cause of action which it pleaded. However, s 60M permitted him to make application for an order under s 60G. If such an order has been obtained, s 61 will have the effect that the erstwhile extinction effected by s 63 has no effect, with the result that a limitation defence is no longer available to the Commonwealth.

(b) Extensions of time after the expiry of limitation period

48. The limitation period imposed by the Limitation Act may be extended in a variety of circumstances. The only provisions presently relevant are those within Subdivision 3 of Division 3 of Part 3, notably, ss 60G-60I, which provide as follows:

60G Ordinary action (including surviving action)

(1) This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.

(2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines.

60H [Section 60H deals with claims under the Compensation to Relatives Act 1897 (NSW)].

60I Matters to be considered by court

(1) A court may not make an order under section 60G or 60H unless it is satisfied that—

(a) the plaintiff—

(i) did not know that personal injury had been suffered, or

(ii) was unaware of the nature or extent of personal injury suffered, or

(iii) was unaware of the connection between the personal injury and the defendant’s act or omission,

at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and

(b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)–(iii).

(2) Subsections (2), (3) and (4) of section 60E apply, with any necessary adaptations, in relation to applications for orders under this Subdivision.

49. Section 60G is expressed only to apply to a cause of action that accrues on or after 1 September 1990, but by dint of cl 4 of Schedule 5, s 60G also applies to a cause of action that accrued or would have accrued before 1 September 1990, in accordance with what was held in Dedousis v Water Board (1994) 181 CLR 171; [1994] HCA 57. It has been held that the effect of the grant of an extension of time is that “the earlier extinguishment of the right is annulled, and the right is to be treated as though it had never been extinguished at some earlier point in time”: Commonwealth v Dixon (1988) 13 NSWLR 601 at 610, approved in Commonwealth v Mewett at 516 (Toohey J), 533 (McHugh J); cf at 509-510 (Dawson J).

50. In an appeal where much was in dispute, the principles governing the granting of an extension of time were not in issue. I shall return to them at the end of these reasons.

The powers to amend a pleading

51. Sections 64 and 65 of the Civil Procedure Act 2005 (NSW) confer two powers of amendment:

64 Amendment of documents generally (cf SCR Part 20, rules 1 and 4; DCR Part 17, rules 1 and 4)

(1) At any stage of proceedings, the court may order—

(a) that any document in the proceedings be amended, or

(b) that leave be granted to a party to amend any document in the proceedings.

(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.

(3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made.

(4) If there has been a mistake in the name of a party, this section applies to the person intended to be made a party as if he or she were a party.

(5) This section does not apply to the amendment of a judgment, order or certificate.

65 Amendment of originating process after expiry of limitation period (cf SCR Part 20, rule 4; DCR Part 17, rule 4)

(1) This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings.

(2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64 (1) (b), amend the originating process so as—

(a) to enable the plaintiff to maintain the proceedings in a capacity in which he or she has, since the proceedings were commenced, become entitled to bring and maintain the proceedings, or

(b) to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the court’s opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, or

(c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court’s opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process.

(3) Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced.

(4) This section does not limit the powers of the court under section 64.

(5) This section has effect despite anything to the contrary in the Limitation Act 1969.

(6) In this section, originating process, in relation to any proceedings, includes any pleading subsequently filed in the proceedings.

52. Although (as disclosed in the section headings) ss 64 and 65 draw upon the powers formerly conferred in Pt 20 rr 1 and 4 of the rules contained in the Fourth Schedule to the Supreme Court Act 1970 (NSW), their history is much longer, and in order to understand both their terms and their structure, it is necessary to take an historical perspective. They are much more complex than they may first appear.

53. The following propositions emerge directly from the text:

1. First, subsections 64(1) and (2) confer a broadly worded power, coupled with a broadly worded duty, to grant leave to make all necessary amendments so as, relevantly, to determine the real issues.

2. Secondly, s 65 is only applicable to proceedings that have been commenced before the expiration of any relevant limitation period. Special provision is made to grant amendments in such proceedings the effect of which will, by reason of s 65(3), be from the date the proceedings were commenced, unless the Court orders otherwise. Paragraphs (a), (b) and (c) identify three types of amendments within the scope of the section.

3. The power conferred by s 65 is only available with leave granted pursuant to s 64(1).

4. Section 65 has effect notwithstanding anything to the contrary in the Limitation Act, including the limits in s 15, and the extinction effected by s 63.

5. Centrally relevant to the present appeal is s 65(2)(c), which requires a consideration of whether the amendment has the effect of adding or substituting a new “cause of action” and claim for relief, and if so, is it a cause of action which arises from the same or substantially the same facts as those giving rise to the existing cause of action and claim for relief.

54. What is less obvious emerges from the background to the sections and their predecessors which is summarised below. By way of overview, the position is as follows:

1. There are quite numerous examples of decisions on contested applications to amend a statement of claim, after the expiry of a limitation period, and the issue has turned on whether the same or substantially similar cause of action is disclosed by the new pleading. Those examples are very useful to the present appeal, because some are relatively comparable to what Mr Winston seeks to do. A number of the decisions are English or Victorian from the 1950s and 1960s and early 1970s. It needs to be borne steadily in mind that new rules were made in England in 1965 which in large measure were adopted in New South Wales in 1972, which confer more generous powers to permit amendments.

2. The regime in New South Wales departs from the English rules of 1965 by preserving (in what is now s 64) a general power to grant an amendment even if the particular circumstances of s 65(2)(c) are not made out. The novel question presented in this appeal is whether Mr Winston can avail himself of that power in the event that MFI 10 does not propound the same cause of action, or a sufficiently similar cause of action so as to fall within s 65(2)(c).

3. The consequence of the above is that it is settled law in New South Wales that the so-called “rule” in Weldon v Neal (1887) 19 QBD 394 has been abrogated. That “rule” was a response to the general power to authorise the making of “all necessary amendments”. But that does not mean that decisions enunciating or applying the “rule” cannot assist in analysing the issues which arise under the current New South Wales regime. Many of those decisions are expressed in terms of whether the pleading contains a new “cause of action”. The current New South Wales regime while broader is also expressed in the language of “cause of action”. Recourse to those decisions is unavoidable because “cause of action” is a highly chameleonic term which takes colour from its context.

4. One commentator – to whose nuanced account I am considerably indebted – has classified the decisions as falling into two broad classes, which she labelled “change of facts” amendments and “change of legal category” amendments: S Campbell, “Amendments and Limitations: The Rule in Weldon v Neal” (1980) 54 Australian Law Journal 643 at 645. Those categories were apt to regimes prior to the changes introduced in England in 1965 and New South Wales in 1972 (to which the article was directed). But under the regime applicable in New South Wales now, a somewhat different approach is required.

(d) Historical overview of powers to amend

55. Courts have always had the power to permit amendments. One of the mid-nineteenth century English procedural reforms was to confirm that the power was subject to a duty that “all such amendments shall be made as may be necessary for the purpose of determining the real questions or question in controversy between the parties”. That was the form of rule 1 of Order XXVII annexed to the Judicature Act 1875, which had antecedents in s 222 of the Common Law Procedure Act 1852, s 96 of the Common Law Procedure Act 1854 and s 36 of the Common Law Procedure Act 1860. One contemporary commentator observed that “It is difficult to exaggerate the importance of this section, especially the last clause of it”: J Day, The Common Law Procedure Acts (2^nd ed 1863, Henry Sweet, London) at 163.

56. The Rules of the Supreme Court 1883 (Eng) introduced the formulation “all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings” (O XXVIII r 12) which today finds expression in s 64(2) of the Civil Procedure Act 2005 (NSW). (The power is now subject to the “overriding purpose” in s 56 and the principles stated in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 but that is outside the scope of this appeal.)

57. Ordinarily “an amendment, duly made, takes effect, not from the date when the amendment is made, but from the date of the original document which it amends”: Baldry v Jackson [1976] 2 NSWLR 415 at 419; Air Link Pty Ltd v Paterson (No 2) (2003) 58 NSWLR 388; [2003] NSWCA 251 at [47]-[50]. We have it on the dubious authority of Bathurst C that “the original and amended bill are but one record: the time of filing the original bill is not altered; and it is only amended, and written on”: Vere v Glynn (1771) Dick 441; 21 ER 341. The 1875 rules required the amendment ordinarily to be effected “by written alterations in the pleading which has been delivered”, and “by additions on paper to be interleaved therewith if necessary” (Order XXVII r 8); it may be seen that in those circumstances, there remained a single document, and it is readily explicable why the amended form was taken to have been filed when the unamended original had been filed.

58. The retrospective effect of an amendment gave rise to a problem if it were to operate to deny a limitation defence to a defendant. Hence Lord Esher MR’s statement in Weldon v Neal that there was a “settled rule of practice” against permitting any such amendment. But in fact the position was by no means so settled as Lord Esher’s emphatic, ex tempore judgment refusing an unrepresented plaintiff leave to amend in a very clear case. For Ms Weldon had sought to amend, out of time, by adding to her claim for slander fresh claims for assault and false imprisonment.

59. Three observations may be made immediately about what was said in Weldon v Neal.

60. First, Lord Esher MR expressed the rule as applying to amendments “setting up a cause of action” which would otherwise be statute-barred. Lopes LJ also referred to “the amending paragraphs set up causes of action which were not in the original claim and which are now barred”: at 396. In light of the new claims for assault and false imprisonment, that language was natural. However, it has led to a deal of authority in more contestable cases, many of which distinguish a new cause of action in negligence from further particulars of the same cause of action in negligence.

61. Secondly, it is tolerably clear that to describe the practice as “settled” was an overstatement. Chief Justice Jordan’s nuanced account in Horton v Jones (No 2) (1939) 39 SR (NSW) 305 at 313-314 is more accurate, observing (by reference to the cases) that the “rule” reflected in Weldon v Neal in fact represented the pre-Judicature practice of the Court of King’s Bench, which had prevailed after 1875, although the Courts of Exchequer and Common Pleas had permitted amendments which introduced new causes of action which would have been statute-barred. One of the examples given was Jones v Corry (1840) 6 Bing NC 247; 133 ER 97, where the Court of Common Pleas (Tindal CJ, Bosanquet, Erskine and Maule JJ) upheld an order made by Lord Denman permitting a plaintiff to add further particulars of damage in a building claim after the expiry of the limitation period, facts which as it happens are not dissimilar to those in Parkview Constructions Pty Ltd v The Owners – Strata Plan No 90018 [2023] NSWCA 66.

62. Thirdly, Lord Esher had himself stated that the rule admitted of exceptions. “Under very peculiar circumstances the Court might perhaps have power to allow such an amendment, but certainly as a general rule it will not do so”. Even so, amendments were generally not permitted if, by dint of the fact that they related back to the time when the originating process was filed, they would disentitle a defendant from reliance on a limitation period: see Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 at 236-237; [1991] HCA 45.

55. Weldon v Neal is no longer good law in New South Wales. Amendments in substantially similar terms to what is now s 65(2) were introduced in England in 1965, and were later enacted, with some modifications, in New South Wales in 1972, as Pt 20 r 4 (which was the form of the rules made when the Supreme Court Act 1970 commenced and which expressly had effect notwithstanding anything in any earlier legislation: see s 126), which then became ss 64 and 65 of the Civil Procedure Act 2005 (NSW).

56. The 1965 English provisions are reproduced in Glass JA’s judgment in McGee v Yeomans [1977] 1 NSWLR 273 at 278. Relevantly, they included O 20 r 5(2) and (5) as follows:

(2) Where an application to the Court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so.

[subrules (3) and (4) related to changes in names and capacities of parties]

(5) An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.

65. It will be seen that the rules authorising a more liberal test, extending to new causes of action arising out of the same facts or substantially the same facts, is likewise expressed in terms of “cause of action”.

66. After 1965, it was clear in England that, at least in the circumstances stated in O 20 r 5(5), amendments introducing statute-barred causes of action were permissible. But there was still dispute, noted by Glass JA in McGee v Yeomans at 278-279, as to whether the power was available in cases which fell outside r 5(5). His Honour identified six English decisions between 1969 and 1971 in which the judiciary had expressed different views on that issue. Glass JA proceeded to observe that the provisions of Pt 20 r 1, the rules which had come into force in New South Wales in 1972, drew upon the 1965 English amendments, but with two important differences: (1) the general power of amendment in Pt 20 r 1(1) was not subject to the specific rules in Pt 20 r 4 (which included the provisions for granting amendments after a limitation period had expired where there had been a mistake in the name of a party, or a change in capacity, or there was a “new cause of action aris[ing] out of the same or substantially the same facts”), and (2) r 4(7) stated that Pt 20 r 4 “does not limit the powers of the Court under rule 1”. It will be seen that substantially the same regime is today found in the general power under s 64(1), the specific power to add new causes of action in s 65(2), and the provision in s 65(4) that s 65 does not limit the powers in s 64.

67. It is clear that the general provisions of Pt 20 rr 1 and 4 reflected a decision to follow the approach in the 1965 English rules (cross-references to which are given in the Law Reform Commission’s Report which includes the draft rules: NSWLRC 7, pp 301-304), and it may be inferred that there was a conscious decision when r 4(7) was included to avoid the conflict in decisions which the 1965 English rules had engendered.

68. Glass JA then wrote, emphatically, that the rule in Weldon v Neal had been destroyed and replaced by a general discretion:

By providing in r 4 (3)-(5) that an amendment may be authorized which allows the substitution of a new party, the suing by the plaintiff in a new capacity and the substitution of a new cause of action, the rule was, in those circumstances, totally destroyed. I am unable to accept that it continued, nonetheless, to operate in circumstances outside their terms with undiminished vigour. When it is further provided that the abrogation of the settled rule of practice in certain defined situations shall not in any way abridge the width of the general power to amend there is in my view an implication that other amendments might in the exercise of discretion be properly allowed in situations not expressly dealt with by the rule, notwithstanding that they introduce causes of action then barred by the expiry of a period of limitation

I am driven to the conclusion that the Supreme Court Rules, upon their proper construction, displace the settled rule of practice laid down in Weldon v Neal and all the finespun distinctions which it engendered. In its place there has been substituted a general discretion to allow an amendment, notwithstanding that it raises a barred cause of action whenever justice so requires. The exercise of the discretion is unfettered by any rules of practice. It is not possible by judicial decision to establish in advance categories of amendments which it would be just or unjust to allow: cf Sophron v Nominal Defendant. The discretion, having been set free, should not again be confined by rigid technicalities. The Court hearing the application will necessarily have regard to the hardship of the plaintiff, if the amendment is refused and the prejudice to the defendant, if it is granted. It must also consider all other relevant circumstances, such as the fault of the plaintiff or his advisers, the period of time since the limitation has expired, and the defendant's knowledge of the new cause of action or the new capacity. In my opinion, it follows that his Honour applied a rule of practice which has been superseded and that his exercise of discretion is liable on that account to be set aside.

69. Moffitt P agreed with Glass JA on this issue. Mahoney JA wrote narrowly, to the effect that the amendment fell within the power to amend where the cause of action arose out of “substantially the same facts”.

70. It was sought to reopen this decision in Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166, the principal significance of which, for present purposes, is the recognition that the new Pt 20 being as it (save for r 4(7)) was contained in the Schedule to the Supreme Court Act 1970 prevailed over the Limitation Act, as noted in Air Link Pty Ltd v Paterson (2005) 223 CLR 283; [2005] HCA 39 at [16].

71. It is now well settled that s 65 of the Civil Procedure Act (and the earlier rules of court which preceded it) overturned the rule in Weldon v Neal. The more recent history of how that occurred is charted by Handley AJA writing for this Court in Greater Lithgow City Council v Wolfenden [2007] NSWCA 180 at [13]-[19].

(e) The relationship between sections 64 and 65

72. It is convenient immediately to address the following submission made by the Commonwealth concerning the operation of ss 64 and 65:

… it is foundational to our argument that s 64 does not in itself provide an independent pathway to overcoming a limitation problem in circumstances where the cause of action sought to be introduced would still have been out of time even if it had been raised in the original version of the pleading.

So, in other words, we accept that the relation back doctrine, as it’s described, through the operation of s 64 allows you to treat by way of amendment of a document a cause of action as if it had been raised at the time the document was first created, but it doesn’t allow you to, as it were, achieve more than you could have achieved if you had failed the document in that amended form on day 1. So fundamentally, of course, s 64 is a power of amendment. You can’t be in any better position by the exercise of the power in s 64 than you would have been if you’d served the document in its primary form on that day.

73. Mr Winston relied on s 64 if s 65 were not available. He advanced the following submission in writing:

Further or in the alternative, the respondent relies upon s 64 CPA which provides a broad power of amendment. As noted by his Honour Handley AJA, Campbell JA and Young CJ In Eq agreeing, in Greater Lithgow City Council v Wolfenden [2007] NSWCA 180 at [12]:

Kearns DCJ held that the provisions of s 65(4) displaced any rule of construction which would have treated s 65 as a special provision in the nature of a code displacing the general provisions in s 64 so that the only power to allow a statute-barred cause of action to be added would be that conferred by s 65. As a matter of statutory construction that view seems to me to be clearly correct. Mr King SC …failed to persuade me that the subsection did not have the operation that it clearly appears to have.

While Wolfenden was commenced within the primary limitation period without the need for an extension, there is no reason to import into the CPA some exclusionary factor which is not there. The Court is given a broad power to amend to allow the real question raised by the proceedings to be determined: CPA s 64(2). Nothing that the Court there said could or should be construed as limiting the application of ss 64 or 65 to a case which had been commenced within the primary, non-extended, limitation period.

74. To some extent, I think that both parties have been distracted from the real question, and the issue posed by these submissions is a false one. I think the position is as follows.

75. First, it must be regarded as settled law in New South Wales that s 65 does not curtail the general power conferred by s 64. That is so notwithstanding the superficial attraction of the principle in Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9. Save for two things, s 65 looks like a specific provision dealing with a specific subject matter (amendments to add out-of-time causes of action) and doing so on specific terms, while s 64 is a general provision. The first qualification is the text of s 65(4), which by providing that “This section does not limit the powers of the court under section 64” unmistakably displaces the Anthony Hordern principle of construction. The second qualification is a long line of decisions of this Court upholding that approach under the current and former versions of the rules: McGee v Yeomans; Proctor v Jetway Aviation Pty Ltd; Fernance v Nominal Defendant (1989) 17 NSWLR 710 at 719; Bebonis v Angelos (2003) 56 NSWLR 127; [2003] NSWCA 13. In Greater Lithgow City Council v Wolfenden this Court held that the same applied when the powers formerly conferred by Pt 20 r 4 were re-enacted as ss 64 and 65 of the Civil Procedure Act.

76. However, although that accords with Mr Winston’s submissions, it does not much assist him. Save for and to the extent that he has the benefit of an extension of time, the cause or causes of action upon which he sues are decades out of time and have been extinguished. If MFI 10 falls wholly within the scope of the extension of time granted on 17 February 2021, then s 65 will be available and it does not matter that s 64 is also available. On the other hand, if and to the extent that MFI 10 does not fall wholly within the extant extension of time, then to that the Commonwealth will have a good limitation defence. While s 64 is a separate potential source of power, there is no reason to exercise that power to permit a statute-barred, extinguished cause of action to be included in amended pleadings, and even if that were done, the Commonwealth would plead the Limitation Act in its defence, and the real issue will be whether Mr Winston seeks, and is able to obtain, a further extension of time.

77. That conclusion accords with Curtis J’s ex tempore reasons in Rolls Royce Industrial Power (Pacific) Ltd, rejecting an out of time amendment to a cross-claim by an employer against the supplier of asbestos products, seeking to add new particulars of breach of contract. It seems to have been common ground that the new allegations for breach of an express term and of a collateral contract gave rise to a new cause of action distinct from the breaches of the implied terms originally pleaded that the asbestos products were suitable and safe for use, were reasonably fit for purpose and of merchantable quality. Curtis J expressly proceeded on the basis that Pt 20 r 1 conferred a separate power of amendment, but because his Honour found that Rolls Royce did not even have an arguable case for an extension of time, leave would not be granted.

78. Separately from the above, there is a question of construction of the order made by Harrison J. The extension of time is expressed by reference to “the cause of action upon which the plaintiff sues in these proceedings”. At the time that order was made, that cause of action was contained in the original statement of claim, a document of seven paragraphs. However, the pleading was amenable to amendment. Did the grant of an extension of time comprehend any and all causes of action which the plaintiff might bring in the proceedings including after amending his claim? In other words, was the order’s effect ambulatory? Or was it confined to the cause of action in the unamended statement of claim?

79. Neither party addressed this point in terms. Instead, so far as I can see the Commonwealth has proceeded on the basis that to the extent that s 65 authorised an amendment, it would be caught by the existing order, and not require a further extension of time. In particular, by letter dated 5 October 2023 responding to an earlier iteration of the amended pleading, its solicitors wrote:

On 17 February 2021, the Court ‘extended up to and including 29 October 2019 the limitation period for the cause of action upon which the plaintiff sues in these proceedings’. Subject to the Court granting leave to amend, by reason of s 65(2)(c) of the Civil Procedure Act 2005 (NSW) (CPA), that order may enable the plaintiff to amend the originating process so as to add or substitute a new cause of action based upon the same or substantially the same facts.

However, the Proposed ASOC introduces numerous new allegations which cannot properly be considered to be either part of the cause of action pleaded in the original SOC, nor one which arises out of the same or substantially the same facts.

80. On a narrower approach, the Commonwealth might have maintained that the grant of leave in February 2021 was not ambulatory but was confined to the cause of action in the original statement of claim, such that even if an amendment fell within the scope of s 65(2)(c) it would still require a separate extension of time to the extent it pleaded a new cause of action, albeit one which arose out of the same or substantially the same facts.

81. In the absence of argument, it is not appropriate to express any view as to the correct construction of the order. Instead, I shall adopt the same approach, which is favourable to Mr Winston, as that on which the parties have proceeded, both at first instance and on appeal.

The hearing and decision at first instance

82. It was on that basis that the principal issues debated by the parties were:

1. Does MFI 10 plead the same cause of action as the original statement of claim?

2. Does MFI 10 plead a “new” cause of action (as compared to that pleaded in the original statement of claim) being one which “arises from the same (or substantially the same) facts” as were originally pleaded?

83. Mr Winston submitted that MFI 10 pleaded the same cause of action, alternatively one which arose out of the same or substantially the same facts as in the original statement of claim. If he were wrong about both those points, he sought an extension of time under s 60G.

84. Conversely, the Commonwealth said that MFI 10 raised a new cause of action, that s 64 of the Civil Procedure Act was not available to raise a new cause of action which would be statute barred, that s 65 of the Civil Procedure Act likewise was not available because the new pleading did not arise out of substantially the same facts, and that the application under s 60G of the Limitation Act should be refused.

Reasons of the primary judge

85. The primary judge reserved, and published a judgment, promptly, on 26 April 2024, granting “leave to proceed on the pleading marked MFI 10”: Winston v Commonwealth of Australia [2024] NSWSC 464. It is from that order that this appeal is brought.

86. The primary judge explained the procedural background summarised above, and the parties’ submissions in support of and opposing the grant of leave at [1]-[45]. Her Honour stated that she was satisfied, considering what was finally pressed on behalf of Mr Winston (ie MFI 10), that “he does not require a further extension of time in order to advance what he finally sought to plead”: at [50]. Her Honour explained why at [51]-[53]:

51 That follows from what was before Harrison J; how Mr Winston then pleaded his case; how he finally sought to plead his claim for damages for the injuries which he suffered as the result of the Melbourne collision, it being the result of the negligence which he claims the Commonwealth was vicariously liable for; and his abandonment of the additional claims of negligence he had proposed to advance in relation to the planning of the SEATO exercise.

52 True it is that before Harrison J the claims Mr Winston advanced were concerned with the negligence of the officers and crew of the Melbourne of whom Rear Admiral Crabb was not one and his proposed claim includes the claimed negligence of the Admiral, which also contributed to the materialisation of the risk of collision with which his claim is concerned.

53 But given all the evidence that his Honour had to consider and the conclusions which he arrived at about prejudice and a fair trial, I consider that extending the claims of negligence advanced to include those of Rear Admiral Crabb does not go beyond the extension granted. His involvement in the events which led to the collision appear to have been examined during the investigations on which Harrison J’s conclusions turned and the additional claim sought to be advanced about his contribution to the materialisation of the risk of prejudice does not seem to me to raise additional prejudice, or the result that the trial cannot be a fair one, if the common law rights on which Mr Winston’s claims depend are found to exist.

87. It is convenient to note that the Commonwealth maintained that the primary judge had erred at [53] when stating that Admiral Crabb’s involvement had been examined in the investigation, and when stating that the new claims did not raise any additional prejudice.

88. The primary judge proceeded to state at [54] that “were it necessary to grant any further leave, given what the Commonwealth accepted in relation to his Honour’s conclusions about prejudice and the fairness of any hearing of Mr Winston’s claims, I would have granted a further extension”.

89. On the view adopted by the primary judge, no order extending the time for Mr Winston to bring his amended pleading was granted. In their written submissions supplied in advance of the hearing, the Commonwealth made it plain that it challenged that contingent reasoning, and Mr Winston sought by way of fallback to defend it. Strictly speaking, there should perhaps have been a defensive cross-summons seeking orders extending time in the event that such orders were needed. But both parties were prepared to proceed in a relatively informal way in this respect, and I shall take the same course.

90. When this was raised by all members of this Court, Mr Winston first said that if the Court reached that stage, the preferable course was for the application for an extension to be remitted to Schmidt AJ. However, when it was pointed out that the motion before her Honour had extended to an extension of time, and the parties had exchanged evidence and submissions on the point, and counsel for Mr Winston noted that it was not intended to put on more evidence or different evidence, it was conceded that this Court could address it, although the preference of Mr Winston’s counsel, Mr Melick, remained for the matter to be remitted to the primary judge. That approach is distinctly unpalatable. It would result in a bifurcation of issues, and the possibility of a further interlocutory appeal, notwithstanding that this Court had heard and determined the Commonwealth’s submissions that her Honour’s contingent extension of time had miscarried and Mr Winston’s submissions that it had not. There was no suggestion that any aspect of the materials going to a further extension of time turned on cross-examination (and indeed, there was no cross-examination of any of the deponents who prepared affidavits on which the Commonwealth relied before either Harrison J in 2021 or the primary judge in 2024). The obligations on this Court and the litigants and their lawyers in s 56 of the Civil Procedure Act, and the precondition in r 51.53 of the Uniform Civil Procedure Rules that there be some substantial wrong or miscarriage before a new trial is ordered stand in the way of Mr Winston’s preferred course.

133. However, suppose an original pleading is prolix and extremely broad. Does that mean that when one undertakes the comparison stated in Brickfield Properties and Radford, the plaintiff who applies for an amendment is in a better position than would be the case if the pleading had been more focussed? This point was considered in Naidu v Fergusson (2013) 8 ACTLR 150; [2013] ACTSC 208 at [44]-[48]. It seems odd that that the defective imprecision of the earlier drafter (aspects of whose pleading were apt to be struck out) should result in advantage when it comes to putting forward an out-of-time amendment. But it is unnecessary to consider that class of case in this appeal.

Application of principle

148. I turn to apply these principles to MFI 10.

149. First, I would accept the Commonwealth’s submission that the reasoning of the primary judge at [52] and [53], reproduced above, elides the distinction between whether the rule against amending to introduce a statute-barred cause of action is engaged, and whether the limited power to do so should be exercised. Paragraphs [52] and [53] concern whether the additional claims based on Admiral Crabb gave rise to prejudice to the Commonwealth. But that analysis assumes in Mr Winston’s favour whether s 65(2)(c) is available to support the amendment.

150. These issues need to be addressed directly, and, to be fair, her Honour did so at [75] and [82]. But I am unable to agree that MFI 10 does not “stray beyond [Mr Winston’s] claims in relation to the collision”.

151. On the original statement of claim, the reason the Evans was stationed where it was when it altered course to assume plane guard was irrelevant. Essentially all that was alleged is that different steps should have taken place in the minutes before 3.15am on 3 June 1969 to avoid a collision. It is quite plain that questions of causation, in response to the various steps, will loom large.

152. The claim pleaded in MFI 10 introduces a host of new issues, arising out of the events of the preceding days, notably, the Larson Incident, the orders made in consequence of that incident, and the rescission of those orders.

153. The new issues may fairly be described as not arising out of substantially the same facts. This appears in a number of ways:

1. The new allegations are temporally earlier.

2. They involve different people, notably Admiral Crabb.

3. They include how to balance the considerations of verisimilitude with wartime operations with orders stationing destroyers so that they could never turn into the bow of the Melbourne.

4. They are relatively extensive compared to the concision of the original statement of claim.

5. The factual matters in controversy extend to what happened in the Larson Incident, and what matters informed the decisions to reposition the destroyers, and then rescind that order. Those matters were apt to include the desire to simulate hostile conditions as closely as possible, and balancing the desire to take reasonable steps to avoid a recurrence of the Larson Incident with the desire to position the destroyers in a formation which was best able to detect and take action against “hostile” submarines. It is easy to see that these areas could be, and in all probability would be, highly controversial between the parties. They were not issues at all on the original statement of claim.

154. But most importantly, they are qualitatively different from the navigational issues to which the original statement of claim was confined. That is so despite the new allegations in MFI 10 continuing to advance a claim against the Commonwealth in tort, for loss suffered by reason of the collision of the Melbourne and the Evans. In at least the following respects the claim is qualitatively different:

1. A principal aspect of the new claim is that the Commonwealth is vicariously liable for the tortious conduct of Admiral Crabb, a person not mentioned in the original pleading, and who if sued personally would have a limitation defence;

2. The breaches of Admiral Crabb relate to the days prior to 3 June 1969, rather than the minutes before 3.15 am on 3 June 1969 (at which time he was off-duty).

3. The breaches of Admiral Crabb relate to the positioning of the ships in the convoy, such that no destroyers which were directed to assume plane guard could possibly pass under the bow of the Melbourne.

155. The position is not remotely like Allonnor Pty Ltd v Doran where the different events on the same day and of the same character (delivering a different item of furniture) are said to have caused the injury. This is a case where what matters is not so much that the events were a few days earlier in time, but that the issues are qualitatively different. It is one thing to determine how to steer a large vessel in convoy while simulating warlike conditions at night. It is another thing entirely to determine how to position the destroyers whose roles include both protecting the carrier from submarines and rescuing aviators who end up in the sea, involving the balancing of questions of safety with the desire to simulate a hostile environment.

156. There is force in the Commonwealth’s submission that the conceptual difference between the new allegations resembles the difference between the failure to advise amendments sought to be introduced in addition to the deficient surgery claim in Golski v Kirk. But because Golski was decided under the unamended rules then applicable, care must be taken in drawing too much from the analogy. Safer analogies may be taken from Thomas and Wolfe and Gladstone Ports Corporation Ltd concerning amendments introducing allegations which were not only earlier in time, but conceptually different (failures in design rather than failures in maintenance). But that said, what matters is not whether MFI 10 falls into any particular category, but the straightforward conclusion that the large majority of the issues introduced are new, and factually and conceptually different from, what had previously been pleaded, such that it cannot fairly be said that it arises from substantially the same facts.

157. For those reasons, MFI 10 is not pleading the same cause of action as the original statement of claim. Nor is it pleading a cause of action which arises out of the same or substantially the same facts. In the circumstances of this case, the expansion of the claim to the days prior to the collision, the introduction of new actors including Admiral Crabb, and new issues concerning the stationing of the destroyers, result in such a change that s 65(2)(c) is not engaged.

158. Section 64 is available in exceptional cases to which s 65(2)(c) does not extend. However, there is nothing exceptional about this case. And further, as the Commonwealth points out, even if an amendment were permitted under s 64, it would go nowhere unless an extension of time were granted.

No extension of time should be given

159. In order to address this, it is necessary to return to the procedural history of the application.

160. Mr Winston’s amended notice of motion sought, if required, a further extension of time for the cause of action sued in a further iteration of the pleading. The parties exchanged affidavits in advance of the hearing. Mr Winston gave evidence that, until the receipt of reports from Commander Whitehouse, he was unaware that the new proposed allegations in the pleading were arguably causes of the collision. The Commonwealth served evidence pointing to the prejudice it claimed if the amended pleading were permitted. In essence, its point was that the proposed amendment introduced a host of issues, which had not been addressed in detail or at all in the Board of Inquiry or the Court Martial, concerning which all of the participants had long since died.

161. A joint Board of Inquiry had been convened, comprising equal numbers of United States and Australian flag officers, but presided over by a United States admiral, with two counsel assisting, one of whom was Harold Glass QC but the senior of whom was a United States Navy officer. The Board took evidence in the immediate aftermath, in June and July 1969. Some of the evidence (including details of the zig-zag manoeuvre pattern) was confidential. Subsequently Captain Stevenson was charged with two counts of negligence, but a court martial resulted in a verdict of “honourably acquitted”. The commander of the Evans, and the two lieutenants in command at the time, were all found guilty of dereliction of duty.

162. The Commonwealth’s evidence outlined the nature of the material available from the joint Board of Inquiry and the courts martial, as well as other (voluminous) archival material, in light of which the Commonwealth identified as issues arising on MFI 10 the following:

1. The usual practice of the United States Navy in 1969 concerning the placement of plane guard destroyers;

2. Admiral Crabb’s knowledge of any differences between Australian and United States navy practices concerning the placement of anti-submarine destroyers;

3. whether departures from those practices were reasonable having regard to the military objectives of the exercise;

4. whether any changes to the exercise procedures after the Larson Incident relating to the placement of the plane guard destroyer in an antisubmarine screen were reasonable having regard to the military objectives being pursued through the exercise;

5. the understanding of Admiral Crabb and Captain Stevenson of zig-zag manoeuvres including whether they failed to appreciate that Evans may not always remain in a starboard wing position in relation to the Melbourne while zig-zagging;

6. whether it was reasonable for portions of applicable zig-zag doctrine to not be included in the Operation Order 1/69 for the transit phase of Exercise Sea Spirit having regard to, for example, the classified nature of such doctrine;

7. the extent to which Crabb and other Commonwealth entities had control over the contents of the Operation Order 1/69 for the transit phase of Exercise Sea Spirit, and any other relevant orders, in circumstances where ultimate control lay with the Exercise Director who was an officer of the USN, whether the USN officers in command of Evans at the time of the collision (who were two junior lieutenants) had some subjective misunderstanding about applicable zig-zag doctrine and, if so, whether that misunderstanding arose from zig-zag doctrine not being included in Operation Order 1/69 for the transit phase of Exercise Sea Spirit;

8. the extent to which Admiral Crabb and other Commonwealth officers could direct the US Navy and other nations’ military forces during Exercise Sea Spirit; and

9. the design of the Royal Australian Navy and United States Navy warships, including why certain communication systems were available and others were not.

163. The Commonwealth summarised that the Larson Incident was investigated by the joint Board of Inquiry only by way of “background”, and noted that Captain Stevenson was of the view that the board had clearly avoided exploring it. Captain Doak, who was the United States Navy screen commander, gave evidence that the changes to the screen after the Larson Incident were not made with a view to avoiding a collision, but instead for tactical reasons related to information suggesting submarines might be encountered.

164. In his written submissions supplied in advance of the hearing, Mr Winston referred to the new evidence, and then developed his submission that if necessary an extension should be granted by adopting the submissions he had earlier made before Harrison J. In those submissions, Mr Winston had accepted that in addition to establishing the matters in s 60I, he also bore the onus of establishing it was just and reasonable to extend time, and that the application should be refused if there were significant prejudice to the defendant, such as would make the chances of a fair trial unlikely. He added that a fair trial “need not be perfect or ideal”. He contended that “the objections and difficulties raised by the respondent are the same as, or similar to, those unsuccessfully raised in EOT applications for cases arising from the Melbourne/Voyager collision”. He said that the material relied on by the Commonwealth, including the statement of Captain Stevenson, established that any prejudice to the Commonwealth would not be significant.

165. Of course, the submissions made in support of the application before Harrison J were in relation to the original statement of claim, based on action taken or not taken in the minutes immediately preceding the collision, rather than in the days beforehand, and not extending to Admiral Crabb.

166. The Commonwealth’s written submissions in advance of the hearing substantially agreed with the legal principles, including that the plaintiff bore the onus of showing that an extension would be just and reasonable, and that an extension will not be given if it would cause the defendant actual and significant prejudice, referring to Commonwealth v Smith [2005] NSWCA 478 at [127] and Commonwealth v Shaw (2006) 66 NSWLR 325; [2006] NSWCA 209 at [36]. The submissions pointed at length to the unavailability of witnesses, and the impossibility of investigating the Larson Incident, the reasons for changes to the anti-submarine screen, the non-inclusion of the zig-zag doctrine in OPORD 1/69. They noted that the Larson Incident was not the subject of investigation or finding by the Board or the Court Martial, nor were changes to the anti-submarine screen. The submissions explaining the prejudice it would suffer were extensively advanced over some seven pages between paragraphs 103-127 of its submissions dated 4 April 2023.

167. Mr Winston served submissions in reply dated 11 April 2024. The final paragraph asserted that the Commonwealth would not suffer significant prejudice. None of the submissions engaged with what had been advanced at length by the Commonwealth as to prejudice.

168. In oral address before the primary judge, the parties’ submissions and those of her Honour referred to a “planning case” and a “collision case”. Senior counsel then appearing for the Commonwealth developed his case on prejudice, with emphasis on the “planning case”, and finished before lunch. After the luncheon adjournment, Mr Winston’s counsel supplied the document which became MFI 10, which he said addressed “the difficulties claimed by my learned friend”, and the following exchange ensued:

HER HONOUR: I’m just looking at MFI 10. What you’ve done, as I am seeing, is strike out some of the particulars of paragraph 32, struck out 33, 34 – what does that do? Abandons the claim –

MELICK: It abandons the planning stage, so to speak.

HER HONOUR: It abandons the planning point.

MELICK: Except for immediately prior to the collision. The only thing we seek to keep from the planning stage is what was in the original statement of claim about the communications and then immediately prior to the collision the positioning of the Evans.

169. After a short adjournment so that the new document could be considered, counsel for the Commonwealth confirmed that its opposition was pressed. He said, speaking of paragraph 32, that “the new A and B remain planning issues, which is the new cause of action that we say your Honour shouldn’t give leave about because I can’t obtain instructions”. He added:

FORDHAM: No [part of] the original statement of claim had anything to do with the positioning of the Evans and its movement. The plans for its movement from the front to the rear of the Melbourne, other than the fact that once it was occurring people should have recognised and done certain things.

HER HONOUR: All right. Yes.

FORDHAM: When you go back to 32, as it now stands in MFI 10, A and B, in my respectful submission, remain effectively planning allegations.

170. Counsel for Mr Winston said that the amendment to the orders, and the rescission of the amendment, concerning the placement of destroyers, was not in the planning stage. Instead, “That’s a stage immediately prior to the collision”.

171. He confirmed, in answer to her Honour’s question, that the new amendments were abandoning the planning claim, and were effectively providing further particulars of the collision claim.

Consideration

172. At no stage was there any challenge to the accuracy of what had been said months in advance of the hearing, as to the prejudice put forward on behalf of the Commonwealth if the reasons for orders following the Larson Incident, and the considerations which informed the positioning of the destroyer screen, became an issue in the case. What the Commonwealth put forward is inherently plausible. It need not be summarised in exhaustive detail.

173. All persons with any authority over the way in which the ships were positioned are dead. The contemporaneous investigations disclose a different approach to the investigation of the events in the minutes prior to the collision as opposed to the Larson Incident. This may most easily be seen from the way in which evidence bearing upon the Larson incident was treated by the (United States) Senior Member who interrupted when Admiral Crabb gave evidence about it:

Questions by the Senior Member: Excuse me Admiral. To clarify this matter. The name of LARSON has not previously arisen in this board’s proceedings. First, of all, when you say the matter of LARSON, do you refer to the occurrence which you mentioned in your earlier open testimony?

A. In open testimony sir I referred to the occurrence. That occurrence was concerning the LARSON and the MELBOURNE.

Q. Would you say now how the matter of the LARSON came to your attention?

A. Yes, it was reported to me by my Duty Staff Officer. I did not see the occurrence at all.

…

Q. I think it would be helpful Admiral if you could explain to the board at this time the details that you know of this occurrence so that we can visualise what it is about it that distressed you?

A. As long as it’s understood that I did not see it.

Q. Yes, perhaps you would care to inform us at this time of the details of the matter as they were reported to you, sir.

A. I was informed that the USS LARSON being one of the screen destroyers for MELBOURNE had been instructed to take a station astern in formation ONE on the MELBOURNE, preparatory to becoming the rescue destroyer. It was routine for the captain of the MELBOURNE when ordering a rescue destroyer to first of all go into formation ONE. That is, the MELBOURNE placed the rescue destroyer astern of him 1000 yards. When he had that destroyer there and he was ready to fly, he then told the destroyer to take up the rescue station which was on the port quarter, 1500 yards. LARSON was detailed to do this. I was told that LARSON turned toward the carrier and came extremely close to him the extent MELBOURNE was embarrassed. The Captain of the MELBOURNE without referring to me communicated to the Captain of the LARSON, pointed out his mistakes and called for a report. The Captain of the MELBOURNE received this report and this was shown to me. With due respect at this time I do say because of the foreign flag officer having been embarrassed by a USN ship, I sent what I considered to be a mild rebuke. The last paragraph of my signal said, “Subject closed”. In other words I did not want this to go any further. Once again with due respect it was difficult to do this because, well, I was a foreign flag officer and giving a rebuke. This is a little difficult. Is that sufficient?

Q. Yes, thank you sir. With respect to information just given to the board by Admiral Crabb describing the occurrence involving the LARSON and MELBOURNE, I believe the information we now have is useful to us from the background standpoint and this need not be further elaborated for the purposes of this investigation.

174. It was not suggested that anything else in the hundreds of pages of testimony and evidence of the board of inquiry bore upon the Larson Incident. There is no reason to doubt the accuracy of what was put forward on behalf of the Commonwealth, none of which was called into question in any way by Mr Winston.

174. Contrary to the submissions advanced by Mr Winston after lunch on the day of the hearing when MFI 10 was first served, this latest iteration of his proposed pleading is not confined to the “collision case” in the original statement of claim. It extends to the decisions taken in the preceding days, before and after the Larson Incident, as to the location of the destroyer screen. Those decisions occurred during the “Transit Phase” of the exercise, but that does not mean that they are not qualitatively different from the statement of claim in respect of which Harrison J granted an extension of time.

175. It is not to the point that the events were only a day or so earlier in time. What matters is that they are qualitatively different. It is one thing to recreate how those charged with commanding naval ships ought to respond when faced with imminent collision. It is another thing entirely to bring to mind the various considerations facing Admiral Crabb and Captain Stevenson when formulating the positioning of the ships in the task force in the previous days, bearing in mind the objectives of the exercise and their perceptions of the competence of the various crews in command of the destroyers. It is to be firmly borne in mind that the point of the exercise was to train against the possibility of warfare. That was the reason aircraft were taking off and landing on the Melbourne in the early hours of the morning. The collision would of course have been avoided had there been no night-time air operations, but that would have defeated the purpose of exercise. The prejudice to the Commonwealth is significant, and Mr Winston made no submission to the contrary beyond bare assertion.

176. Mr Winston submitted that military historians were constantly engaged in determining whether manoeuvres or other conduct in military campaigns decades or centuries or even millennia ago were right or wrong. That no doubt is so. But it does not greatly assist. Determining whether a military commander made the “right” or “wrong” decision is very different from determining whether the commander failed to take a reasonable precaution which a reasonable person in that commander’s position would have taken.

177. The primary judge said she was “not persuaded that the prejudice which the Commonwealth relied on is any greater than at the time Harrison J granted Mr Winston the extension which he required to pursue his claims in respect of the collision”: at [72]. For the reasons given above, that finding cannot be sustained.

178. The primary judge also said at [75] that:

I am also not satisfied that the pleading which Mr Winston finally pressed still strayed beyond his claims in relation to the collision, into what he had earlier sought to pursue, but finally abandoned in relation to the planning of the SEATO exercise. If what he pursues by way of evidence proves not to be relevant to the narrower claim, no doubt it will be successfully objected to.

180. That paragraph perhaps reflects an acceptance of one submission advanced on Mr Winston’s behalf, namely, that MFI 10 abandoned the “planning case”. But it is quite plain from the summary of the new allegations of MFI 10, as the Commonwealth submitted at the time, that a claim that Admiral Crabb’s negligent positioning of the destroyers, and more precisely failing to keep in place the new stationing immediately after the Larson Incident, goes beyond the collision case originally pleaded, and is qualitatively different from that case.

181. Thus her Honour’s notional exercise of discretion has miscarried. For the reasons given above, Mr Winston has failed to discharge his onus of establishing that the amendment is just and reasonable.

182. It is true that some of the amendments reflected in MFI 10 might be added, and indeed there were some to which I did not understand the Commonwealth to object. But that was not how the matter was argued, either before the primary judge or in this Court. Mr Winston did not advance any intermediate case by which some of the amendments reflected in MFI 10 should be permitted if the allegations based on the Larson Incident and Admiral Crabb and the orders made and rescinded in early June 1969 did not survive. In those circumstances, it is unnecessary to say anything about the relatively uncontroversial new allegations at the beginning of MFI 10.

Conclusion and orders

183. For those reasons, the appeal must be allowed, the orders made on 26 April 2024 (and consequential costs orders made on 7 June 2024) set aside, and in lieu thereof Mr Winston’s amended notice of motion dated 10 November 2023 must be dismissed. There is no reason to depart from the rule that costs must follow the event; the primary judge was led into error by accepting the submissions made on behalf of Mr Winston.

184. If (as appears to have been the case in 2022) Mr Winston does not wish to proceed on the original statement of claim, then if he nonetheless wishes to go to trial, then he should file a pleading pursuant to the extension of time granted to him in 2021. Consistently with the overriding purpose in s 56 of the Civil Procedure Act, he must do so within a reasonable period of time. It cannot be in anyone’s interest for this proceeding, commenced in 2019, to drift aimlessly into the indefinite future.

185. The Commonwealth submitted, but only perfunctorily, that Mr Winston had been given enough opportunities to replead. I do not consider that the position has reached that stage. However, the orders proposed below are intended to grant Mr Winston a final opportunity to plead his case. If that does not occur, he should anticipate that the Court might look favourably upon an application by the Commonwealth for the proceedings to be summarily dismissed.

186. In light of the time of year, the possibility that Mr Winston’s lawyers have other commitments, and the importance of the pleading to be filed, the orders I propose will grant three months to Mr Winston to file any amended statement of claim.

187. I propose the following orders:

1. Grant leave to appeal.

2. Direct the Commonwealth to file within seven days a notice of appeal in accordance with the draft notice of appeal, and dispense with compliance with the rules as to service.

3. Appeal allowed.

4. Set aside the orders made on 26 April and 7 June 2024, and in lieu thereof order that the amended notice of motion dated 10 November 2023 be dismissed with costs.

5. Mr Winston to pay the Commonwealth’s costs of the application for leave to appeal and the appeal.

6. Direct Mr Winston to file and serve any amended statement of claim on or before 28 February 2025.

188. ADAMSON JA: I have had the benefit of reading the draft reasons of Leeming JA. With one qualification referred to below, I agree with the orders proposed by his Honour and, substantially, with his reasons. I would prefer not to express a view about the matters about which Leeming JA has written in [9]-[15] and [17] as these were neither the subject of dispute nor submissions. My reasons for agreeing with the orders proposed by Leeming JA are as follows.

189. The extension of time granted by Harrison J on 17 February 2021 was confined to Mr Winston’s cause of action “upon which [he] sues in these proceedings”, being that as alleged in the original statement of claim. The original cause of action alleged that the Commonwealth was negligent in the operation of the training exercise immediately prior to the collision between the HMAS Melbourne and the USS Frank E Evans. I accept the Commonwealth’s submission that this cause of action is relevantly analogous to a claim for damages arising from motor vehicle accident where a passenger injured by the impact between two vehicles alleges that the impact was caused by the negligence of one or both drivers.

190. The cause of action in the proposed further amended statement of claim (MFI 10) alleges negligence in the overall plan for the training exercise, including having regard to what occurred on 31 May 1969 in the Larson incident, an earlier training exercise in which two vessels narrowly avoided collision. The new cause of action alleged negligence by, and sought to implicate, those who were responsible at a high-level for the planning of the exercise, but who did not actually carry out or direct the manoeuvres themselves. It is not necessary to say more about the meaning of “cause of action” in this context in the Limitation Act 1969 (NSW) since it is plain that the respective causes of action in the original pleading and the proposed amended pleading are quite different and do not rely on the same facts or circumstances, except in a very broad sense that they both relate to the same naval training exercise.

191. Schmidt AJ (the primary judge) was in error in allowing the amendment. Section 65 of the Civil Procedure Act 2005 (NSW) did not apply as the new cause of action was statute-barred before the proceedings were commenced. Section 64 of the Civil Procedure Act was not an appropriate source of power since the proposed amendment would be futile. It would only take the filing date of the proposed further amended statement of claim back to the date of the filing of the original statement of claim (29 October 2019), at which date the new cause of action was out of time because it did not fall within the scope of the extension granted by Harrison J. Thus, the Commonwealth would have a complete defence to that cause of action.

192. Further, for the reasons given by Leeming JA, the primary judge was in error in the alternative finding that an extension of time pursuant to s 60G of the Limitation Act ought be granted for the proposed amendment. The prejudice to the Commonwealth was such that it was not “just and reasonable” within the meaning of s 60G(2) to grant an extension of time under s 60G. The immediate causes of the actual collision, judged from an operational perspective, had been, as Harrison J found, the subject of extensive investigation and analysis by the Commonwealth. By contrast, the Commonwealth established, in opposing the extension of time for the new cause of action, that it would be irreparably prejudiced if the proposed amendment were allowed because all relevant actors (the officers who planned the exercise) were dead and documents which might have shed light on the rationale behind the positioning of the vessels for the exercise were no longer available.

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Amendments

26 May 2025 - added ‘Re Hay’ in case name in [3]

26 May 2025 – replaced colon with semicolon in [22](f) and (m)

26 May 2025 – replaced ‘in’ with ‘any’ in [32](2)

26 May 2025 – placed bracket before “under inter alia” in [46]

26 May 2025 – replaced ‘with’ with ‘within’ in [48]

26 May 2025 – replaced 609 with 610 in [49]

26 May 2025 – inserted ‘when’ after ‘date’ in [57]

26 May 2025 – replaced 442 with 441 in [57]

26 May 2025 – replaced ‘arising’ with ‘aris[ing]’ in [66]

26 May 2025 – inserted ‘liable’ in last sentence of quote in [68]

26 May 2025 – inserted ‘s’ in quote in [72] so that it reads ‘s 64’

26 May 2025 – corrected ‘Wolfenden’ in [73]

26 May 2025 – corrected citation of Bebonis in [75]

26 May 2025 – replaced ‘than’ with ‘that’ in [76] so that it reads ‘does not matter that’

26 May 2025 – added ‘of the Uniform Civil Procedure Rules’ after ‘r 51.53’ in [90]

26 May 2025 – added ‘(Fatal Accidents Act 1846, 9 & 10 Vict c 93)’ after ‘Lord Campbell’s Act’ in [105]

26 May 2025 – inserted ‘and’ before ‘City’ in [106]

26 May 2025 – replaced ‘negligence’ with ‘negligent’ in [110], [113] and [127]

26 May 2025 – replaced ‘or’ by ‘of’ in [112] so that it reads ‘warn of improper’

26 May 2025 – inserted ‘(No 2)’ in case name for Lanai in [131]

26 May 2025 – replaced ‘of’ with ‘or’ in quote in [132]

26 May 2025 – ‘It’ changed to ‘They’ so that it reads ‘They noted’ in [166]

26 May 2025 – replaced ‘When’ with ‘when’ and inserted ‘[to]’ in [173]

Decision last updated: 26 May 2025