Kermode v Commonwealth of Australia

[2000] NSWSC 758

CITATION:	Kermode v Commonwealth of Australia [2000] NSWSC 758
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 21252 of 1995
HEARING DATE(S):	21 July 2000
JUDGMENT DATE:	2 August 2000
PARTIES :	Nicholas William Kermode v The Commonwealth of Australia
JUDGMENT OF:	Master Malpass

COUNSEL :	Mr M Joseph SC/Mr I Butcher (Plaintiff) Mr G Rundle (Defendant)
SOLICITORS:	James Taylor & Co (Plaintiff) Australian Government Solicitor (Defendant)
CATCHWORDS:	Voyager/Melbourne collision - extension of relevant limitation period - no question of principle.
LEGISLATION CITED:	Limitation Act 1969, s 60G, s 60I.
CASES CITED:	Follent v The Commonwealth of Australia [2000] NSWSC 674. Stankowski v The Commonwealth of Australia [1999] NSWSC 1258.
DECISION:	See paragraph 14.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

WEDNESDAY 2 AUGUST 2000

21252 of 1995 NICHOLAS WILLIAM KERMODE v THE COMMONWEALTH OF AUSTRALIA

JUDGMENT


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

2 The Statement of Claim was filed on 29 November 1995. A Notice of Motion seeking an extension of time pursuant to s 60G of the Limitation Act 1969 (the Act) was filed on 6 December 1995. A supporting affidavit was filed on 27 January 1999.

3   On 14 July 2000, I delivered judgment in another Melbourne/Voyager matter ( Follent v The Commonwealth of Australia [2000] NSWSC 674). These proceedings have had a similar recent history to Follent . I do not propose to repeat what has been recorded in the judgment in that case.

4   The brief hearing of the Notice of Motion in these proceedings took place on 21 July 2000. The affidavit of the plaintiff was read. The exhibits to that affidavit were tendered (including a copy of a report from Dr Wu dated 1 February 1996). The plaintiff was cross-examined. The defendant did not lead any evidence.

5 Relief is sought pursuant to s 60G of the Limitation Act 1969. Section 60I prohibits the making of an order under s 60G unless the court is satisfied of the matters set forth in paragraphs (a) and (b) of subsection (1) thereof. These are threshold requirements to the making of an order. When the threshold requirements have been satisfied, there is a discretionary power to grant relief if the court is satisfied that it is just and reasonable to do so.

6   Whilst the granting of relief has been opposed, apart from brief reference to what has been said in other Voyager/Melbourne cases, no submissions were in fact made by the defendant.

7   It is not necessary to recite the detail that appears in the affidavit, the oral evidence and the documentation. It suffices to merely refer to some of that material. This reference is not intended to be exhaustive as a statement of relevant matters.

8   The plaintiff was born on 27 November 1944. He enlisted in the Royal Australian Navy on 4 June 1962. He was granted a free discharge on 24 September 1969. His rank was then that of leading steward.

9   At the time of the collision the plaintiff was a member of the crew of HMAS Melbourne. There was evidence as to the experiences had by the plaintiff in relation to the collision. There was evidence relating to subsequent naval service. There was evidence dealing with both his personal and employment history after leaving the Navy.

10   There have been problems since the collision (including difficulty being indoors, being nervous and anxious and heaving drinking). From about 1993 onwards his condition seemed to deteriorate. In 1996, he stopped work (because of a back condition which was unrelated to his navy service). He responded to an advertisement and came to instruct his present solicitor. He was referred to Dr Wu. He saw Dr Wu on or about 1 February 1996. He then became aware that he was suffering from psychiatric disorder. Dr Wu diagnosed post traumatic stress disorder. Prior to that time, the only medical problem of which he was aware was the back condition. He now receives a Comcare pension (which has been back dated to 1996) because of the disorder.

11   Accordingly, I am satisfied that the plaintiff has met the relevant threshold requirements. Similar considerations have been addressed in other cases dealt with by this Court (see inter alia Stankowski v The Commonwealth of Australia [1999] NSWSC 1258). It is unnecessary to repeat once again what has been said many times in the earlier cases.

12   The plaintiff bears the onus of satisfying the court that he has an entitlement to relief. In the relevant circumstances of this case, I am satisfied that the onus has been discharged.

13   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.

14   I extend the limitation period for the cause of action pleaded in the Statement of Claim up to and including 29 November 1995. I reserve the question of costs. The exhibits may be returned.
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Last Modified: 09/26/2000