Francis Jordon Simmonds v Commonwealth of Australia

[2005] NSWSC 290

CITATION:	Francis Jordon Simmonds v Commonwealth of Australia [2005] NSWSC 290
HEARING DATE(S):	5 & 6 April 2005
JUDGMENT DATE :	8 April 2005
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Malpass at 1
DECISION:	1. The limitation period for the cause of action pleaded in the statement of claim is extended up to and including 17 September 2001; 2. The costs of the application are reserved; 3. The exhibits may be returned.

CATCHWORDS:	Delay of 41 years - alleged significant prejudice - fair trial.
LEGISLATION CITED:	Limitation Act 1969, ss60G, 60I
CASES CITED:	Brisbane Regional Health Authority v Taylor (1996) 186 CLR 541 McLean v Sydney Water Corporation [2001] NSWCA 122
PARTIES:	Francis Jordon Simmonds (Plaintiff) Commonwealth of Australia (Defendant)
FILE NUMBER(S):	SC 20781/01
COUNSEL:	Mr J L Sharpe (Plaintiff) Mr P S Jones & Mr S Woods (Defendant)
SOLICITORS:	Hollows (Victoria) (Plaintiff) Blake Dawson Waldron (Defendant)

LOWER COURT JURISDICTION:

- 9 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

8 April 2005

20781 of 2001 Francis Jordon Simmonds v Commonwealth of Australia

JUDGMENT

1 Master: This is another of the many proceedings brought before this Court arising out of the collision between the HMAS Melbourne and the HMAS Voyager on 10 February 1964.

2 The statement of claim was filed on 17 September 2001. A notice of motion was filed on the same day. It sought an extension of the relevant limitation period pursuant to s60G of the Limitation Act 1969 (the Act). Breach of duty has been admitted by the defendant.

3 The hearing commenced on Tuesday 5 April 2005. It occupied two days. A number of affidavits were read.

4 The plaintiff was subjected to a very lengthy and detailed cross-examination concerning, inter alia, the collision and minutiae of his life history (including what appeared to be totally unnecessary personal questioning, whilst his wife was in court, concerning a broken engagement which preceded the plaintiff meeting her in 1963).

5 He was born at Salisbury in England on 30 September 1942. He came to Australia in 1951. In 1958 he gained entry to the Naval Apprentices Establishment. On 2 January 1959, he joined the Navy as an apprentice shipwright. He became a member of the crew of HMAS Melbourne on 14 January 1963 as a shipwright. He remained on the ship until 4 January 1965.

6 In an affidavit sworn on 26 February 2002, he deposed to, inter alia, the following:-

7. In early February 1964 the Melbourne sailed from Sydney for exercises with HMAS Voyager at and near Jervis Bay, as a preliminary to a five month tour of the far east. During the day of the 10th February I performed a normal day’s work of ship’s maintenance. In the evening I went to watch the flying exercises. I could see Voyager nearby. I looked to the sky for the next aircraft and heard a horrendous noise. We were enveloped in sparks and flames. I thought at first we had hit a reef, but knew that was impossible as we were in deep water. Then I thought it was a submarine. I ran to the starboard side and saw the rear section of the Voyager lying right over on its beam ends, I could see its painted bottom and the propeller thrashing the water. On realising we had hit Voyager I immediately headed down to my control position. Part of the way down I stopped at an open space and could see the rear section of Voyager which had righted itself and was drifting past the Melbourne. I saw terrified crew members gripping on to the rail and staring at us. They were as horrified as we were. I only looked at them for the briefest of time because it was cruel. I felt numbed and shocked. I continued on to my damage control station. There was pandemonium with few knowing what had happened. Although only 21 I was seen as a reasonably senior officer and I had appreciated what had occurred. Everyone was in a state of disbelief and shock. No-one could believe that we had collided with Voyager.
8. With a gang of some six or so other people I undertook a check of the ship’s hull for damage and cracked pipes and the like. I was then assigned to shoring up work. We took turns cutting timber baulks with a handsaw, measuring the lengths required and installing them. The ship had a double bottom, between the two bottoms were air tight compartments about one metre high with webbing and struts for strength. Ordinarily we had to obtain permission from damage control to inspect in these areas, and fans would be activated every 24 hours to vent them. We did not have time for these precautions and had to go in with our torches. Throughout the early period I did not know if the ship would be likely to sink. I knew I had no chance of getting out in time if it did, it was a maze down below. I had inspected some three or four compartments, each taking some 10 to 20 minutes. The ship was all the time creaking and groaning whilst I undertook a thorough inspection for cracks and leaks. All the time I was aware that, even if the ship sank slowly, I would not know unless someone warned me. When in the front, the likelihood was that bulk heads would cave in from pressure of the water and they would engulf us. It was not for some hours after the collision that I was assured that the vessel had been declared safe and was not in danger of sinking. It was a terribly uncertain and anxious time.
9. We worked through the night to ensure the ship was safe, apart from being relieved for a time at midnight, when I saw the rear section of the Voyager sinking.
10. I later learned that three very good friends of mine had been on Voyager and had died in the collision, Nuss, Leeson and Perrett. I glimpsed some survivors passing the cafeteria, and noted some facial and body lacerations and that they were all very white and shocked. I tried to put them out of my mind as well as putting out of my mind the danger from the possibility of sinking, in order to concentrate on our work of making the Melbourne safe. We took turns keeping watch on the shoring and repairs during the return trip to ensure it did not move or collapse.
… … …
14. Also, immediately after the collision I found it difficult to get to sleep or to remain asleep. Initially after working all through the night following the collision to make the ship safe, although I was exhausted I still found it difficult to get much sleep because of the mental strain and from the day time noise coming from the Petty Officer’s mess. After we reached Sydney I remained quartered onboard the ship whilst the repairs were being undertaken, and this helped to bring back the events, from reminders which were around me all the time. I found it took me an hour or more to get to sleep, I might only sleep for what seemed like 20 minutes then would typically dream I was on a ship and the lights went out, I reached for my torch in my pocket but it wasn’t there, I would then panic and jerk awake. I would awake sweating, and believe I was twitching and kicking my legs. I then would lie awake thinking and finding it very difficult to get to sleep again. Most nights, ever since the collision, I have found it difficult to get to sleep and have tended to wake several times during the night. I believe this has led to me feeling tired during the day and also unhappy and miserable. I have found that alcohol makes it easier to get to sleep, and I think perhaps it helped me to stay asleep for longer. However, I was not aware of the cause and effect. I think I simply recognised that, perhaps intuitively, after drinking I had fewer of the bad dreams and did not think so much about the event. These thoughts preoccupied me after the collision, that so many young men had been deprived of their lives and their families had lost them, and all had died pointlessly. Sometimes I would have a run of these thoughts, particularly in the early days they were very frequent each week, then they might only be monthly until they were triggered by some event such as a movie, or publicity about a calamity causing loss of life. Although I managed to not let the alcohol interfere with my work, I did drink too much whenever I was off duty and feared I would be left to my thoughts.

7 For many years following the collision, he smoked heavily and abused alcohol to excess. In the mid 1980s, he reduced his alcohol consumption. In the early 1990s, he stopped smoking.

8 On 1 January 1971, the plaintiff was discharged from the Navy. Initially, he had various jobs. On 29 May 1975, he joined the Australian Merchant Navy. He stayed in that service until 8 July 1987 (when he took redundancy).

9 He moved to Western Australia. The aim was to have a fresh start. He has continued to live in that State. Largely, such work as he did thereafter was of a self-employed nature using his carpentry skills. He now has a pension.

10 There were two children of his marriage. In 1997, his son was killed in an accident. Shortly before that event, his daughter separated from her husband.

11 In the said affidavit, he further deposed to the following:-

21. It was in about May or June 2000 that I met by chance a former shipmate of the HMAS Melbourne, one Trevor Robbins. He commented that I was not looking too flash, and he suggested I should seek some assistance. I did approach Vietnam Veterans and was referred to the Department of Veterans Affairs, and first consulted my Solicitors in about October of 2000. My Solicitors referred me to a psychiatrist, Dr. William Glaser in February of 2001, and he after consultation informed me that he believed I was suffering from what was described as a post-traumatic stress disorder resulting from my experience in the collision. There is now produced and shown to me and marked with the letters “FJS2” a copy of the report by Dr. William Glaser, consultant psychiatrist, dated 6th February, 2001.

He has not had any treatment for such a condition.

12 I now turn to the relevant statutory requirements. Section 60I of the Act prohibits the making of an order under s60G unless the court is satisfied of the matters set forth in paragraphs (a) and (b) of subsection (1) thereof. These provisions have been seen as imposing threshold requirements to the making of an order.

13 When these matters have been satisfied, the court may grant relief if it also decides that it is just and reasonable to do so. The plaintiff bears the onus of demonstrating an entitlement to the relief sought.

14 Despite his long session in the witness box, the plaintiff emerged unscathed. He was an impressive witness. As I understand the position, the defendant does not suggest otherwise.

15 The consequence was a limiting of the issues. During submissions, the defendant did not put in issue the question of the satisfying of the threshold requirements of s60I. The issue that remained was whether or not the delay had visited serious prejudice upon the defendant and so preventing a fair trial. The defendant relies on the 41 years that have elapsed since the collision. It submits that there has been both actual and presumptive prejudice.

16 The defendant stresses that these collision cases are concerned with the perception and presentation of the plaintiff. It further says that the delay and loss of witnesses and documentation deprives it of its capacity to test the case presented by the plaintiff.

17 The defendant has also placed stress on what was said in Brisbane Regional Health Authority v Taylor (1996) 186 CLR 541 (inter alia, in relation to matters such as onus).

18 The first observation to be made on this issue is that this is not a case where the plaintiff falls into the category of persons who cannot be relied on to give a true account of relevant events (see Commonwealth v Diston [2003] NSWCA 51).

19 The defendant has sought and been provided with extensive further and better particulars of the plaintiff’s claim.

20 The defendant has prepared a document which was described as a schedule of prejudice (the schedule). It purports to cover a period commencing with the date of birth of the plaintiff.

21 This case can be contrasted to the case of Evans v Commonwealth of Australia [2005] NSWSC 280. The plaintiff has been able to identify (and in many cases give the whereabouts of) numerous persons who may have been in a position to give relevant evidence concerning events in his personal history.

22 The schedule directs its attention to the material that has been supplied by the plaintiff and what is said to be the result of enquiries and investigations made by the defendant in relation to the various persons and documents.

23 The defendant looks to the affidavits sworn by Mr Emmerig (a partner in the firm of solicitors having the conduct of the case on behalf of the defendant). Apart from the argumentative material contained therein, it sets out, inter alia, what is said to be the result of the enquiries and investigations.

24 The schedule is used as part of a submission intended to demonstrate that despite the volume of information offered by the plaintiff, it can be regarded as “illusory” by reason of the unavailability of either so many of the witnesses or the documents.

25 Generally speaking, in relation to potential witnesses, they are placed in the categories of either being “not located”, “located” but have no recollection of the plaintiff, “deceased” or are other plaintiffs in proceedings brought against the defendant arising out of the collision.

26 In the case of the documentation, there is, inter alia, documentation that has been destroyed by the defendant (by archives) and medical and other records which are said not to be available.

27 The defendant contends that there are what has been described as numerous gaps in the plaintiff’s life history. One particular gap that has been identified is the period of 12 years when the plaintiff was in the merchant navy. The Western Australian Coastal Shipping Commission has produced documents in response to a subpoena. The defendant sees this documentation as falling short of what it needs to defend the case. Whilst there are limitations as to what that material deals with, it does furnish information which tends to corroborate evidence given by the plaintiff.

28 The reliability of the schedule is attacked by the plaintiff. One potential witness was chosen as an illustration (the plaintiff’s immediate superior at the time of the collision, Chief Shipwright Stafford). He has died since the proceedings were brought by the plaintiff. The plaintiff criticises the delay of the defendant in making enquiry of him and says that if the defendant had acted promptly, a statement may have been obtained from him prior to his death.

29 It seems to me, that the approach taken by the defendant on the question of prejudice is unrealistic.

30 The defendant says that the prejudice is significant and that a fair trial can not now take place. I do not accept those submissions.

31 This issue of prejudice needs to be considered in the context of the litigation before the Court. It must also be borne in mind that fairness is a matter of degree and that the concept of a fair trial is a relative one. It need not be ideal (McLean v Sydney Water Corporation [2001] NSWCA 122).

32 The collision itself is a well-investigated incident. The existence of potential claims has been known for a long period. Numerous claims have been brought before the Court by crew of either the Voyager or the Melbourne and this has become a well-litigated area.

33 In the circumstances of this case, it seems to me that whilst there may be certain actual prejudice, as well as presumptive prejudice, I consider that a fair trial is still possible.

34 When regard is had to all of the relevant circumstances of this particular case, I am satisfied that the plaintiff has discharged the onus borne by him.

35 Accordingly, I have reached the decision that it is just and reasonable to make the order sought and that such an order should be made in this case.

36 I extend the limitation period for the cause of action pleaded in the statement of claim up to and including 17 September 2001.

37 There has been some limited argument concerning the appropriate order to be made as to costs. It seems to me that justice is best served if the costs of the application are reserved at this stage.

38 The exhibits may be returned.

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