Gregory v Commonwealth of Australia

[2006] NSWSC 82

CITATION:	Gregory v Commonwealth of Australia [2006] NSWSC 82
HEARING DATE(S):	6/2/06, 7/2/06, 17/2/06
JUDGMENT DATE :	27 February 2006
JUDGMENT OF:	Bell J at 1
DECISION:	Pursuant to s 60G(2) of the Limitation Act 1969 (NSW) the limitation period for the cause of action in this proceeding is extended to the date on which the statement of claim was filed.
LEGISLATION CITED:	Limitation Act 1969 Limitation Act 1985 (ACT) Limitation of Actions Act 1623 (Imp) Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES CITED:	Blunden v Commonwealth of Australia [2003] HCA 73; 218 CLR 330 Commonwealth of Australia v McLean (1996) 41 NSWLR 389 Commonwealth of Australia v Mewett (1994) 126 ALR 391 Commonwealth of Australia v Mewett (1995) 59 FCR 391 Commonwealth of Australia v Mewett (1997) 191 CLR 471 Commonwealth of Australia v Smith [2005] NSWCA 478 Holt v Wynter [2000] NSWCA 143; 49 NSWLR 128 McClean v Sydney Water Corp [2001] NSWCA 122
PARTIES:	Kevin John Gregory (Applicant) Commonwealth of Australia (Respondent)
FILE NUMBER(S):	SC 21233/95
COUNSEL:	G Melick SC (Applicant) C Barry QC / D Brogan (Respondent)
SOLICITORS:	James Taylor & Co (Applicant) Australian Government Solicitor (Respondent)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Monday 27 February 2006

21233/95 Kevin John Gregory v Commonwealth of Australia

JUDGMENT

1 BELL J: This is an application that the limitation period for the cause of action pleaded in the statement of claim filed on 29 November 1995 be extended for such period as the Court determines. The plaintiff was a member of the crew of HMAS Melbourne at the time of the collision with HMAS Voyager on 10 February 1964. His cause of action is in negligence, he pleads that as the result of the collision he has suffered loss and damage that are particularised in the statement of claim as being, “pain, suffering, shock and loss of enjoyment of life”. His claim for damages includes economic loss arising out of impairment of his capacity to earn income and the lost chance of obtaining Defence Force Retirement Death Benefit (DFRDB) entitlements.

2 The applicant’s notice of motion seeking the extension of the limitation period was filed on 6 December 1995. The applicant claims an order under s 60G of the Limitation Act 1969 (the Act). His application is subject to the threshold requirements of s 60I of the Act.

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

3 Section 60G(2) of the Act provides:

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.
The applicant bears the onus of establishing that it is just and reasonable for the court to grant the extension that is sought.

4 Personal injury is defined to include “any disease and any impairment of the physical or mental condition of a person” (s 11(1)).

5 The applicant was born on 7 January 1945. The six-year limitation period under the Limitation of Actions Act 1623 (Imp) that applied to his cause of action expired on 11 February 1970.

6 The first affidavit made by the applicant in support of the relief claimed in his motion was sworn on 17 April 2001. He swore a supplementary affidavit on 5 February 2005.

7 The applicant grew up in Western Australia. He was the youngest in a family of fourteen children. His childhood was unremarkable. He left school at the age of fifteen years. In evidence are copies of a number of newspaper articles recording his schoolboy success in athletics.

8 The applicant joined the Royal Australian Navy on 30 June 1962. At the date of joining he describes himself as being in good health physically and psychologically. He was discharged on 30 June 1971. At this time he had attained the rank of Leading Radio Operator.

9 On the night of the collision the applicant says that he was in his mess, which was below the waterline. He heard a loud noise and felt a violent shudder pass through the ship. The watertight hatch giving access to the mess slammed shut and the applicant and fellow sailors were locked inside the semi-dark mess for about 30 minutes before the hatch was opened. He did not know what had happened to the ship and he says that he was in great fear because he felt trapped (first affidavit, para [6]).

10 After the hatch was opened the applicant went to the upper deck and he learned of the collision. He went to one of the scrambling nets and assisted with pulling survivors on board. Later he was assigned to operate an Alvis light on the flight deck, which was trained on the stern section of the Voyager. He remembers this as a terrible sight and says that he felt overwhelming fear for the crew of the Voyager. He remained on the flight deck until the stern section of the Voyager sank.

11 The morning after the collision the applicant inspected damage to the forward section of the Melbourne. At the time of the collision he had been about to leave his mess to go to the heads, before retiring for the night. He saw the forward heads had been demolished and says that he felt a shiver up his spine as he realised how lucky he was to be alive.

12 In his first affidavit the applicant states that he was posted to HMAS Albatross on 17 November 1966 and that it was at this time that he noticed changes in his personality. He describes himself as having been an easygoing person. While at Albatross he was subject to sudden outbursts of anger and violent behaviour. On one occasion he kicked a shopfront window after flying into a rage over a minor incident. On another occasion he was thrown out of a club after drinking a bottle of spirits. On this occasion he understands that he ended up sitting in the roadway tempting cars to drive over him.

13 The applicant describes a history of heavy drinking in the years after the collision. He married in 1968, and had hopes that marriage would help him to stop drinking, but it did not. He says that he needed to drink in order to calm his nerves.

14 After leaving the Navy in 1971 the applicant worked for a brief period as a salesman selling cleaning products. He does not have records of his income for this period but believes that he was earning around $28 per week. Thereafter he worked with a firm that manufactured concrete products. He was paid in cash and does not have any record of his earnings in this period.

15 On 1 July 1972 the applicant commenced employment with Alcoa and remained in this employment until 30 June 1973. From 1 July 1974 until 1979 he worked for Alcoa at Pinjarra.

16 The applicant was an active member of his Church. In 1979 he felt himself called to become a minister. He left Alcoa and commenced fulltime study with the Alliance College of Theology, which was located in Canberra. The course was a three-year one. He worked on a part-time basis to maintain himself and his family while studying. Towards the end of the course he transferred to part-time study and obtained fulltime employment with Information Electronics Limited, a firm that manufactured printed circuit boards. He was a valued employee and was promoted to the position of supervisor in charge of production. He was offered the job of production manager but he did not accept it because he was unhappy with the salary that was proposed. He left Information Electronics in April 1982 and resumed employment with Alcoa on 11 May 1982. He remained with Alcoa until 1997. During this time he was promoted on several occasions. He attained the position of shift supervisor and was responsible for the supervision of a crew of 13 to 15 employees.

17 In his first affidavit the applicant gives an account that he almost succeeded in giving up drinking at the time of the spiritual experience that led to his decision to take up religious studies. He describes himself during this period as occasionally lapsing and engaging in binge drinking. He says that his drinking increased in the period 1988 to 1996 and became a problem both in his family life and in his role as an elder of his church. He describes himself as prone to upsetting people who sought to get close to him. He experienced recurring disturbing dreams. He says that he would burst into tears, prompted by relatively minor incidents.

18 In 1995 the applicant recalled that there had been considerable publicity about the Melbourne/Voyager collision and that this had disturbed him. His wife wrote to the Department of Defence on 19 June 1995. She described the collision as having been a trauma in her husband’s life for many years and that the effects of it appeared to be increasing. She sought any assistance that might be available for his recurring problems, which she said had become serious and were affecting his work. It appears that as the result of Mrs Gregory’s approaches to the Department of Veterans Affairs the applicant commenced counselling. His general practitioner referred him to Dr McCarthy, a psychiatrist.

19 The applicant first saw Dr McCarthy in August 1995 and he says that Dr McCarthy informed him that he was suffering from post-traumatic stress disorder (PTSD) and that his condition was a direct result of his experiences following the collision. Annexed to the applicant’s first affidavit are reports of Dr McCarthy dated 23 August 1995 and 30 July 1996. Dr McCarthy expresses the opinion that the applicant suffers from PTSD and that he satisfies the clinical, and DSM IV, criteria for dysthymic disorder and alcohol dependence. Dr McCarthy considers the PTSD to be attributable to the applicant’s experiences while serving with the Navy and, in particular, to his experience on the night of the collision. In Dr McCarthy’s opinion, the applicant’s alcohol dependence also developed out of this circumstance.

20 The applicant was dismissed from his employment with Alcoa in 1997. Prior to his dismissal the staff at Alcoa had come to know that he was receiving treatment from a psychiatrist. He says that some staff had taken to asking him how he was feeling and whether he had taken his “happy pill”. One day someone left an envelope containing material about the Melbourne/Voyager collision on his desk. This upset him considerably. Before this incident he said that he had felt able to cope but after it he was unable to do so. Following his dismissal the applicant applied for, and was granted, a pension by the Department of Veterans’ Affairs.

21 I accepted the applicant as a witness of truth. He appeared at times in the course of his evidence to be in a state of some distress and his tendency both to tearfulness and irritability was evident.

22 The applicant was cross-examined with a view to establishing his awareness at the time that a number of his symptoms had developed following the collision: heavy drinking; aggressiveness; emotional outbursts; difficulty socialising; and inability to allow others to be close to him. He acknowledged that after the collision, as the years progressed, he had seen himself as having these problems (T 9.53). It was put to him that he realised that they were not normal. To this he responded:

No, I realised sometimes they were not socially acceptable but other people were doing exactly like I was doing, getting drunk and that was it. That’s just how I was living my life.
Q. But did you realise during that time that your personality had changed as a result of the experiences in the collision?
A. I realised that I was becoming angry later as I was getting older. I realised I was getting worse as a drunk.
Q. What about depression?
A. No, I didn’t know what depression was actually, it was just me, it was my life, my way of coping (T 9-10).

23 In Commonwealth of Australia v Smith [2005] NSWCA 478 the Court of Appeal held that when an extension of the limitation period is sought in a case of mental injury the question is whether the victim was aware that he has suffered from a recognisable psychiatric illness (Handley JA para [7], Santow JA para [104], Basten JA para [181]).

24 The applicant said, and I accept, that he did not know that he suffered from a psychiatric illness until his consultation with Dr McCarthy in August 1995. I am satisfied that at the expiration of the limitation period the applicant did not know or was not aware of the matters set out in s 60I(1)(a)(i) – (iii).

25 I turn now to s 60I(b) and to a consideration of whether the applicant has established that the application is one made within three years after he ought to have become aware of all three matters set out in s 60I(1)(a)(i) – (iii). It was the respondent’s submission that given the applicant’s acknowledgement of his awareness of his symptoms he should have sought treatment at an earlier time, and had he done so, he would have become aware of the three matters set out in s 60I (a)(i) – (iii).

26 The applicant understood that he was a heavy drinker but he did not assess his drinking to be “out of control” and had not seen the occasion to seek treatment for it. He was aware that he had nightmares and that he tended to be aggressive and socially withdrawn but he saw these features as his lot in life. I am satisfied that he did not have insight into the need to seek psychiatric assistance for his condition and that although Mrs Gregory was aware that the collision appeared to have been a significant trauma in her husband’s life it was not until 1995 that she came to consider that his level of distress was a serious matter that called for treatment.

27 I am satisfied that the application for an extension of the limitation period was made within three years after the applicant became aware or ought to have become aware of the three matters to which s 60I(1)(a)(i) – (iii) directs attention.

28 It remains to consider whether the applicant has established that it is just and reasonable to extend the limitation period for his cause of action. Prominent in the consideration of this issue is the delay between the filing of the application and the matter being brought on for hearing. The statement of claim was filed on 29 November 1995 and the present application was filed on 6 December 1995. There was a delay of five and a half years before any evidence was filed in support of the application. From the date of filing of the applicant’s affidavit in April 2001 there was a further delay of some four and a half years before the matter was brought on for hearing. It is now forty-two years since the date of the collision. Approximately one quarter of the delay over this period is referable to the interval between the filing of the statement of claim and steps being taken to have the application to extend the limitation period determined.

29 The applicant was cross-examined concerning the delays that had attended his application. He was unable to give any reason, other than the fact that Mr Taylor must have been very busy. He said he had attended an interview with Mr Taylor seven years prior to the date of giving evidence. He had not spoken to him since, although they had communicated via email and letters. He was asked what, if any, steps he had taken to have Mr Taylor bring his application on at an earlier time. He said that he made inquiries about the progress of the matter. On several occasions Mr Taylor had notified him that the application would be listed for hearing and thereafter he had been advised by letter that the matter was held up because of another case. In light of Mr Taylor’s evidence, to which I refer below, I infer that these were occasions when the applicant’s matter was held in abeyance pending the resolution of a “test case” in the Melbourne/Voyager collision litigation. I am satisfied that the applicant is not at fault for the delays that have attended the preparation and listing of his application for hearing.

30 James Taylor affirmed three affidavits in the proceedings. Mr Taylor had the conduct of the applicant’s claim from about September 1995 until May 2003, when he transferred the applicant’s file to James Taylor & Co National Lawyers, the applicant’s current solicitors. At the time the applicant’s statement of claim was filed James Taylor was a sole practitioner who was acting on behalf of 65 prospective plaintiffs in litigation arising out of the Melbourne/Voyager collision.

31 As at the date of the filing of the applicant’s statement of claim it was the respondent’s position that any cause of action had been extinguished by the operation of ss 44(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Comcare Act) upon its commencement on 1 December 1988. The respondent filed a defence on 31 January 1996 pleading, inter alia, the provisions of s 44(1) of the Comcare Act. This defence had been pleaded by the respondent in other claims arising out of the collision. On 1 November 1994 Foster J dismissed a motion seeking to strike out proceedings brought by Robert John Mewett on the ground that his claim was extinguished by the operation of s 44(1) of the Comcare Act: Commonwealth of Australia v Mewett (1994) 126 ALR 391. An appeal against this determination was dismissed on 31 August 1995 by the Full Federal Court: Commonwealth of Australia v Mewett (1995) 59 FCR 391. The respondent applied for special leave to appeal from the decision of the Full Federal Court to the High Court.

32 Annexed to Mr Taylor’s first affidavit that was sworn on 14 February 2006 is a letter by the Australian Government Solicitor, who acts for the respondent, addressed to the Registrar of the Court dated 5 February 1996. In this letter reference is made to 22 claims by members of the crew of the Melbourne. It is noted that one claim, Syaranamual (a proceeding in which James Taylor was acting on behalf of the plaintiff) was part heard before Master Malpass. The writer went on to state:

In the Commonwealth’s view, directions in the extension of time applications in the other Melbourne claims should have careful regard to the progress in the Syaranamual extension of time application. … Also the Commonwealth maintains that the cause of action relied on by the HMAS Melbourne crew has been extinguished by section 44 of the Safety Rehabilitation and Compensation Act 1988 (the Comcare Act) as it was statute barred as at 1 December 1998, the commencement date of the Comcare Act.
On 31 August 1995, the Full Federal Court in a case of Mewett held that section 44 was unconstitutional as involving an acquisition of property on other than just terms contrary to section 51(xxxi) of the Constitution so far as it purported to extinguish a common law cause of action for damages, which was statute barred as at 1 December 1988. The Commonwealth, however, has applied for special leave to appeal to the High Court in Mewett.
The special leave application will be heard on 4 March 1996. If special leave is granted, the Commonwealth will be arguing that the extension of time application in the Melbourne claims should not be dealt with pending the appeal.

In the circumstances, the Commonwealth wishes to submit at least that directions in the extension of time applications in the twenty-two Melbourne claims are presently premature.

33 Special leave was granted to the respondent in Mewett. The appeal was determined on 31 July 1997: Commonwealth of Australia v Mewett (1997) 191 CLR 471.

34 In his affidavit Mr Taylor states that pending the determination of the appeal to the High Court in Mewett’s case “the matters” (which I take to be a reference to the claims brought by the crew of Melbourne) were put on hold (para [16]). (There was one exception to this approach: the claim of Mr McLean whose case was dealt with urgently because he was suffering from a terminal illness; Commonwealth of Australia v McLean (1996) 41 NSWLR 389.)

35 Shortly after the High Court delivered judgment in Mewett (upholding the decision of the Full Federal Court) Mr Taylor wrote to the Registrar of the Court referring to a number of claims by members of the crew of the Melbourne that were listed for mention before the Court on 3 October 1997. He supplied particulars of other applications for extension by members of the crew of the Melbourne, including this application, and asked that they also be listed for mention on 3 October 1997.

36 Mr Taylor says that in September 1997 this Court gave consideration to the transfer of all of the Melbourne/Voyager cases to the District Court. The respondent objected to the transfer asserting, inter alia, the District Court was without jurisdiction to entertain a claim against it in respect of an interstate tort (Affidavit affirmed 14 February, Exhibit JT3). Mr Taylor says that his attention was devoted to the proposed transfer of the Melbourne/Voyager litigation to the District Court and that this caused delay.

37 Mr Taylor gives an account in his affidavit of discussions that he had in late 1997 and early 1998 with Mr Ktenas, the solicitor with the conduct of the Melbourne/Voyager litigation with the Australian Government Solicitor at the time. He says that Mr Ktenas told him that he, Ktenas, had recommended to the respondent that the claims brought by the members of the crew of the Melbourne be mediated. During these discussions, in early 1998, Mr Ktenas said that he wanted to have Mr Taylor’s clients psychiatrically examined so that reports would be available for any mediation or in preparation for the trial, if necessary. Mr Taylor also says that during 1998 the parties agreed that if a mediation scheme could not be put in place that the matters should be prepared with a view to any extension of the limitation period being dealt with as a preliminary matter at trial.

38 Mr Taylor says that in the period between April and August 1998 he made several requests of Mr Ktenas concerning the progress of any mediation scheme.

39 In the period between August 1998 and February 1999 Mr Taylor was in contact with the Australian Government Solicitor concerning arrangements for the applicant to be psychiatrically assessed by Dr Phillips, a psychiatrist. Mr Taylor was at this time arranging for 17 claimants to undergo psychiatric examination at the request of the respondent. The applicant was examined by Dr Phillips on 25 February 1999.

40 Annexed to Mr Taylor’s affidavit is a letter sent by him to Registrar Haggett dated 7 May 1999. In that letter he asserted:

Despite my approaches to the Commonwealth (and I believe Mr Con Ktenas of the Australian Government Solicitor has also explored the prospects of mediation with his clients) to mediate these matters, that has been roundly rejected and I must now list each individual case for hearing.
There are some 65 cases that must be listed for hearing. If these cases proceed at the present rate of hearings, for example 10 cases per year at best, we are faced with the prospects of some 7 years elapsing before we even get through the Extension of Time Applications and then add to that the time for the actual trials. There is a real prospect that some of these litigants will die before their case concludes.
I am aware of the courts’ concern of being clogged up with these cases but as things stand they are required to be dealt with by way of hearing and so I seek the lifting the listing of as many cases as possible and I will retain a team of several barristers as has the Commonwealth.
I believe (and the Commonwealth agrees) that we could list 2 cases a day for hearing. I therefore request that a strategy be worked out to get these matters listed and heard as soon as possible.

41 On 13 August 1999 this application (and like applications in which Mr Taylor was acting) were before Master Harrison. She directed Mr Taylor to prepare a schedule setting out the readiness for hearing of each application. A copy of the schedule made in accordance with her Honour’s direction is in evidence (affidavit, affirmed 14 February 2006, JT15). This application was listed with an expected date of readiness for hearing on 31 October 1999.

42 Mr Taylor states that during September 1999 he had discussions with Registrar Haggett and Mr Ktenas about hearing dates for extension of time applications and that he was informed that not all applications could be heard in the balance of 1999. Throughout the latter part of 1999 he says that his time was completely taken up in preparing affidavits in support of other claimants’ applications.

43 Mr Taylor says that in or about late 2000 he became aware that the respondent was considering amending its defence to plead reliance on the Limitation Act 1985 (ACT). On 5 December 2000 the respondent filed an application for special leave to appeal to the High Court of Australia in proceedings brought by B T Blunden, a former member of the crew of the Melbourne. By letter dated 13 June 2001 the respondent gave formal notice to Mr Taylor of its intention to apply to amend its defence in relation to the claims for damages of a number of applicants for whom he was acting (James Taylor’s affidavit, 14 February 2006, JT 18). In that letter Mr Kathner, Senior Government Solicitor with the Australian Government Solicitor, advised:

The Commonwealth cannot rule out the possibility that the High Court will conclude that limitation legislation in the ACT rather than that in New South Wales would apply to these claims. Accordingly, pending resolution of that issue, the Commonwealth will seek to amend its defence in each of the remaining claims in the Supreme Court of New South Wales to plead, in the alternative, the limitation legislation applicable in the ACT.

44 Ms Robinson, a solicitor with the Australian Government Solicitor assumed the conduct of the Melbourne/Voyager litigation on behalf of the respondent in late 2001, recalled that there had been an agreement between the parties that any matter that already had an extension of time would not be affected by the decision in Blunden. Ms Robinson agreed there had been no hearings of applications for extension of time in this litigation in 2002 and 2003.

45 The High Court delivered its judgment in Blunden on 10 December 2003: Blunden v Commonwealth of Australia [2003] HCA 73; 218 CLR 330.

46 Mr Taylor says that he undertook work in preparation of the applicant’s affidavit in support of the present application pending the decision of the High Court in Blunden. He instances correspondence - in the period January to March 1999 - with the Freedom of Information Section of the Department of Veterans’ Affairs in an attempt to obtain copies of the applicant’s files. In evidence is a copy of his letter addressed to the Defence Legal Office, dated 25 November 1999, requesting copies of the personnel files of a number of his clients, including the applicant. Mr Taylor says that in about September 1999 he had a conversation with the Freedom of Information Officer at the Department of Veterans’ Affairs and that he was informed of a directive that the documents sought not be supplied. He asserts that thereafter he was “required to loop through the Department of Defence Legal Office and Australian Government Solicitor” (para [52]). Also in evidence is a copy of Mr Taylor’s letter, dated 27 June 2000, addressed to the Australian Government Solicitor in which he states:

We have made requests in November 1999 for the supplying of documents to this office. I enclose letter herewith. There has been an inordinate delay of more than six months. You have asked that requests be made through you for those documents so that is what I am now doing.
Please supply all Service documents, Navy Medical documents, Psychology documents, Comcare, Veterans’ Affairs, Navy personnel, Comsuper and any other files that you have or have control over.

47 Mr Taylor states that he had previously furnished authorities for the release of the files to the Freedom of Information Officer, Department of Defence, and that following his letter of 25 November 1999 he had been requested to supply a further authority directed to the Legal Officer, Department of Defence. An authority addressed to the Defence Legal Office and signed by the applicant was forwarded by letter dated 11 January 2000.

48 Mr Taylor states, and I accept, that pending the determination of the High Court in Mewett the applications on behalf of other applicants in the Melbourne/Voyager litigation were, with the agreement of the respondent, put on hold. There is some evidence that within a reasonable period following the judgment of the High Court in Mewett that Mr Taylor moved to have this application, among other applications, listed so that a hearing date for the extension application might be appointed. I accept that an amount of time was lost thereafter in connection with consideration of whether this application and the associated Melbourne/Voyager litigation were to be transferred to the District Court. There remains the delay throughout 1998 and continuing into 1999 when little in the way of preparation seems to have taken place (apart from some arrangements being set in train for the defendant to have various of the applicants psychiatrically examined).

49 Ms Robinson, in an affidavit sworn on 16 February 2006, deposed to her examination of the Australian Government Solicitor’s files relating to this claim and to the Melbourne/Voyager claims generally. She has not located any file notes, correspondence or other document concerning a proposal for mediation of the claims of the crew of the Melbourne in or about 1997 and 1998. She annexes to her affidavit a copy of a letter sent by James Taylor & Co to the Honourable Daryl Williams QC, Attorney General, dated 1 May 2000 requesting the mediation of matters in which extensions of time had been granted. Ms Robinson deposes to inquiries made by her of Greg Kathner, a Senior Executive Lawyer with the Australian Government Solicitor, who was at the relevant time Mr Ktenas’ supervisor. Mr Kathner informed her that there had been no recommendation by the Australian Government Solicitor to the respondent for mediation of the claims made by the crew of the Melbourne and of his belief that he would have known of any proposal for mediation of those matters.

50 Mr Taylor was not required for cross-examination and I proceed on an acceptance that he had the discussions with Mr Ktenas to which he refers in paragraph [24] and following of his affidavit. It is clear, in light of events and the contents of Ms Robinson’s affidavit, that any hopes that Mr Ktenas may have had that the claims brought on behalf of the crew of the Melbourne might be mediated were without substance. The respondent submits that the prospect that proceedings may be mediated provides no excuse for the failure to prepare litigation. I accept that is so.

51 Mr Barry QC, who appeared with Mr Brogan on the respondent’s behalf, drew attention to the contents of the applicant’s affidavit filed on 27 April 2001. He observed that it did not refer to material that was not available to James Taylor & Co upon reasonable inquiry at a time well in advance of April 2001. In this regard I note the contents of para [22] of Ms Robinson’s affidavit, sworn on 16 February, which suggests that Mr Taylor had access to at least some documents held by the Department of Veterans’ Affairs by April 1999.

52 As earlier noted, James Taylor was a sole practitioner who had the conduct of 65 cases on behalf of former members of the crew of the Melbourne arising out the collision. The steps taken by him from the time of the determination in Mewett, at least until he became aware of the respondent’s intention to amend its defence in light of the point being taken in Blunden were limited. Some of the want of attention to the timely preparation of the matter may be explained on the basis that he did not have the capacity to efficiently conduct all the cases that he had agreed to take on. It seems likely that when it became clear that not all the applications would come on for hearing in 1999 Mr Taylor concentrated his attention on those with hearing dates.

53 I accept that from the date Mr Taylor became aware of the respondent’s intention to amend its defence so as to rely on the Limitation Act 1985 (ACT) until the determination of the High Court in Blunden, Mr Taylor understood that should the Commonwealth’s primary submission succeed (that the Australian Capital Territory as the seat of the administration and operation of the Royal Australian Navy was the law area within Australia with which the events of the Melbourne/Voyager collision had the closest relevant connection) that it would be necessary for him to “start this matter again in the ACT” (affidavit affirmed 14 February 2006, para [44]).

54 In or about May 2003 the conduct of the present application was taken over by James Taylor National Lawyers. Renishka Naidoo, an employed solicitor with that firm, in an affidavit that was sworn on 13 February 2006, deposed to the steps that had been taken to prepare the application after the publication of the High Court’s judgment in Blunden. She refers to the preparation of answers to the respondent’s various requests for further and better particulars. She says that this was difficult since there were multiple requests from the respondent and that there was an issue between the parties as to whether some of the requests were for proper particulars.

55 In early 2004 the Court established a “Voyager list” and Hislop J was appointed to case manage the litigation arising out of the collision. Ms Naidoo deposes to a meeting that was conducted on 24 May 2004 by his Honour and which was attended by the solicitors acting on behalf of the plaintiffs and the respondent. Ms Naidoo describes the purpose of the meeting as being “to explore options to expedite these Melbourne/Voyager matters and, in particular, dealt with the extent to which the plaintiffs were required to provide answers to the defendants various requests for further and better particulars” (para [9]). She says the timetable for the supply of answers to the respondent’s request for further and better particulars was extended in light of a further request for particulars. Replies to the requests for further and better particulars were provided by 28 June 2004. These were the subject of complaint as to their adequacy.

56 Ms Naidoo refers to a further meeting conducted by Hislop J on 30 July 2004 at which counsel for the applicants and the respondent were invited to prepare submissions concerning the respondent’s consolidated requests for particulars. Ms Naidoo says that the application of Schofield was selected as a “test matter” and the issue between the parties concerning the scope of the respondent’s request for particulars was the subject of arbitration before Hislop J on 11 February 2005. Ms Naidoo states that the provision of answers to the respondent’s consolidated request for further and better particulars was put on hold in all matters pending the outcome of the Schofield arbitration.

57 The applicant responded to the respondent’s consolidated request for further and better particulars on 18 July 2005.

58 While there is an amount of delay that is not referable to the present application being held in abeyance pending the determination of a relevant test case arising out of the Melbourne/Voyager litigation much of the delay is referable to that circumstance. The respondent acquiesced in applications for extension not being listed for hearing pending the outcome of the decisions of the High Court in Mewett and Blunden and at no time complained that it was subject to any additional prejudice arising out of the failure to bring the application on. The respondent had the applicant psychiatrically assessed in February 1999 and was I infer in a position at that time to assess in a general way the case that he would seek to make. I do not find the very long delay between filing the application and it coming on for hearing to lead to a conclusion that it should be refused on this account.

59 It is necessary for the applicant to persuade the Court that it is just and reasonable to order that the limitation period for his cause of action be extended. The principles that are to be applied in determining whether it is just and reasonable to make such an order are discussed in Commonwealth of Australia v Smith [2005] NSWCA 478 by Santow JA (with whose judgment Handley JA substantially agreed) at [121] – [129]. I approach the application upon the basis that it should be refused if to grant it would result in significant prejudice to the respondent. Significant prejudice is such prejudice as would make the chances of a fair trial unlikely.

60 As I understand it, at any trial the respondent will not put negligence in issue. The prejudice that the respondent identifies is its ability to test the cause of any psychiatric illness from which the applicant may suffer and the extent of his damages.

61 The applicant filed a statement pursuant to Pt 33 r 8A of the Supreme Court Rules 1970 on 24 May 2005. He has supplied details of the medical practitioners he has seen in the period from the collision to date together with brief particulars of the nature of the consultation. His naval medical file is available for the entire period of his service.

62 Particulars are also supplied of the applicant’s employment from July 1971 until he ceased employment with Alcoa on or about 30 April 1997. From that date the applicant has supplied details of the pension that he has received from the Department of Veterans’ Affairs. He has furnished documentary evidence of his income (group certificates and/or notices of assessment and/or income tax returns) in the years since he left the Navy for each financial year save the years ending 30 June 1972, 1974, 1975, 1976. His oral evidence enables some reasonable estimate to be made of his earnings in the latter three years.

63 A great deal of documentary material has been produced by Alcoa Australia Ltd relating to the applicant’s wages, career progress and the courses that he undertook while in its employ. The applicant has furnished the names of several supervisors to whom he answered while he was employed by Alcoa. The respondent has made contact with some of these and has access to persons able to comment on the applicant’s performance in the workplace dating back to his first engagement with Alcoa in the 1970’s.

64 The respondent has obtained a reference concerning the applicant’s performance in the period of his employment with Information Electronics Limited.

65 The respondent has not been able to locate persons who worked with the applicant during his brief period working as a salesman for Golden Products, or during the period when he was working with Grano, doing concreting jobs.

66 Taking into account the applicant’s lengthy period of employment with Alcoa, and the material that is available to the respondent in this respect, it seems to me that the respondent does not face significant prejudice in testing the applicant’s case on economic loss.

67 There is some material concerning the applicant’s life before he joined the Navy: the newspaper articles and the assessment made at the time he joined the Navy including the results of his examinations at school.

68 The matters that Mr Barry placed particular emphasis on as giving rise to prejudice included the absence of witnesses able to comment on any change in the applicant’s conduct and personality in the period following the collision. The applicant gave evidence that he had been charged with three disciplinary offences, culminating in the loss of his good conduct badge, in the period following the collision. He said that his disciplinary record led to his promotion being delayed. He had been eligible for promotion in 1966 but he was not promoted until 1968. Mr Barry pointed to the difficulty in testing these aspects of the applicant’s claim since his disciplinary file and promotion file are no longer available.

69 The applicant’s Certificate of Service records each of his postings from the date of commencement to completion together with details of compassionate and other leave. It also records the annual assessment of the applicant’s character and efficiency. Brief details of his duties and remarks as to his performance are included in the Employment record. The results of professional examinations undertaken in the Radio Communication Branch in the period between 24 August 1962 and July 1964 (when he was recommended for advancement to Radio Communication Operator) are set out. The Certificate includes the date of the grant, deprivation and restoration of good conduct badges. Relevantly, the grant of a good conduct badge on 30 June 1966 is recorded together with its deprivation as at July 1968 and restoration in January 1969. The Certificate also includes the results of the applicant’s examinations undertaken for the position of Leading Rate in 1969.

70 It seems to me that the respondent has the opportunity to assess the applicant’s evidence of his interrupted progress in the Navy in the period after the Collison by reference to the character and efficiency assessments, the history of the grant, loss and restoration of the good conduct badge and his Employment record. An appropriately qualified person may be able to comment on his claim to have been held back from promotion following the loss of the good conduct badge and on the significance of the assessments of his conduct and efficiency.

71 Annexed to Ms Robinson’s affidavit is a report prepared by an investigator, dated 27 August 2003, outlining the results of inquiries made of persons identified as members of the applicant’s mess at the date of the collision. A number are deceased and a number when contacted had no recall of the applicant. Two persons appear to have reported some recall of the applicant. A further report prepared by the investigator, dated 18 November 2003, includes details of an interview with Murray Ross Higgins, who was a Radio Officer on board the Melbourne at the time of the collision. Mr Higgins recalled the applicant, saying, “Yes, I knew him. I recall meeting him at Comms School years later. He was a quiet, articulate person and an all round guy”. Mr Higgins went on to inform the investigator that he had not socialised with the applicant and could not recall working with him. When asked if he could recall any change in the applicant over the period that he knew him he said, “I could not really tell”.

72 In the answer to the respondent’s consolidated request for particulars, dated 18 July 2005, the applicant named two leading hands who had supervised him during his service: Mr Jeffrey (who appears to have retired holding the rank of Lieutenant Commander) and Mr Caine. Ms Robinson said that the respondent has been able to contact each of these persons and obtain statements from them.

73 Ms Robinson refers in her first affidavit to the Diagnostic Criteria for PTSD and annexes a copy of the relevant entry in the Diagnostic and Statistical Manual of Mental Disorders, 4th ed at pp 463 – 468. She notes that the diagnosis requires that a person be exposed to a traumatic event, involving actual or threatened death or serious injury, or a threat of physical injury to self or others. It also requires that the individual’s response be one of intense fear, helplessness or horror. Ms Robinson observes that in the course of recounting his recollection of the collision the applicant appears to have told Dr McCarthy that he was involved in retrieving the dead bodies of sailors whom he knew. In this respect it is necessary to refer to the contents of the applicant’s supplementary affidavit sworn on 5 February 2006 (para [12]):

I note paragraph 19 of my First Affidavit in which I confirm that what I told Dr Peter McCarthy was true and correct. I note that Dr McCarthy recalls me telling him that I was involved in retrieving the dead bodies of sailors I “ knew ”. What I recall telling Dr McCarthy was that I assisted in bringing some HMAS Voyager sailors who were on Neil Robertson stretchers on board HMAS Melbourne but that I did not know whether they were dead or not. I also assisted in bringing Voyager survivors who were not in stretchers but were attempting to get on board Melbourne via the scrambling nets.

74 The evidence does not suggest that the respondent does not have available to it witnesses, and other evidence, as to the course of the rescue operation, including the numbers, if any, of dead bodies recovered, and whether use was made of Neil Robertson stretchers to carry survivors of the Voyager’s crew.

75 The applicant gives an account of being locked down in his mess below the waterline at the time of the collision and of the feelings he experienced at that time in addition to the observations that he made when he later went onto the flight deck. I do not understand the respondent to put in issue the applicant’s account that he was in his mess, 5 Delta Port, at the time of the collision. Exhibited to Ms Naidoo’s affidavit is a copy of the questionnaire for submission to the Royal Commission into the loss of HMAS Voyager, which was completed by the applicant and is dated 4 March 1964. This includes the following question and answer:

Where were you at the time of the collision? – “In the communications mess – 5d port”

The applicant recorded the part that he played in rescue operations as follows:

As I was not required in the L.R.R. I went to the flight deck and trained a ten signal lamp on the after section until it sank.

76 In the circumstances that prevailed on board the Melbourne in the aftermath of the collision, it may be thought unlikely that any of the applicant’s shipmates or superiors had occasion to take particular note of him or of his reaction to the disaster. I do not consider that the respondent faces significant prejudice by reason of the absence of witnesses able to comment on his conduct and appearance in the period immediately following the collision.

77 Central to Mr Barry’s submissions was the difficulty that the respondent faces in dealing with causation. He pointed to the applicant’s first affidavit with the account of his outbursts of anger and violent behaviour when he was stationed at HMAS Albatross. This was at a time after the applicant had seen active service during the Indonesian confrontation. His ship had been under fire on two occasions. He acknowledged that on the second of these occasions he believed himself to have been in danger. These events predate the disciplinary breaches and disturbed behaviour when he was stationed at Albatross. Mr Barry asked rhetorically how, after an interval of so many years, might the trier of fact untangle the various stressors that had operated on the applicant leading him to drink to excess and experience other of the symptoms that he reported?

78 Mr Barry pointed to evidence that the applicant gave:

Q. Could it be that the experience in the Indonesian conflict either caused a change in personality or worsened whatever changes might have been present?
A. I don’t know. I don’t know. I don’t know. I don’t know what – I don’t know. I don’t know whether that caused me to be worse or not, I don’t know. (T 25.40-45).

79 In Mr Barry’s submission, ultimately in a claim for personal injuries arising out of a psychiatric injury, the credit of the applicant is central. No challenge was advanced to this applicant’s credit, but rather the point was made that now, after some forty years, he is unable to give an account of relevant history. In submissions, Mr Barry put it this way:

As your Honour observed in relation to Mr Gregory he has obviously had a decent hardworking life. But if he doesn’t know, and he can’t provide any relevant history, how can there be any fair trial of issues such as causation and the relative effect of the Indonesian confrontation in 1966 when someone is trying to do an assessment thirty or forty years later of his mental state? (17/02/06 T18.4-10).

80 This submission, and the submissions arising out of the applicant’s stable marriage and long and creditable employment history, seemed to me to be directed in some degree to the merits of his claim and not to the discretionary considerations under s 60G(2). The significance of the applicant’s service history, including during the Indonesian confrontation, seems to me to be a matter that the respondent can address by expert evidence. Dr McCarthy arrived at his opinion on the strength of a history that included the applicant’s service during the Indonesian confrontation (and that his ship had been under fire). The circumstance that the applicant acknowledges his inability to comment on whether he underwent a personality change following the Indonesian confrontation does not deprive the respondent of the ability to test the claim that he now brings.

81 I have concluded that to grant the applicant the extension that he seeks will not occasion significant prejudice to the respondent. For a trial to be fair it need not be perfect or ideal: Holt v Wynter (2000) 49 NSWLR 128 per Priestley JA at [142]; McClean v Sydney Water Corp [2001] NSWCA 122; Smith per Santow JA at [129].

ORDER

82 Pursuant to s 60G(2) of the Limitation Act 1969 (NSW) the limitation period for the cause of action in this proceeding is extended to the date on which the statement of claim was filed.

**********