Lewis v Commonwealth of Australia

[2005] NSWSC 959

CITATION:	Lewis v Commonwealth of Australia [2005] NSWSC 959
HEARING DATE(S):	16 March 2005, 17 March 2005, 18 March 2005
JUDGMENT DATE :	23 September 2005
JUDGMENT OF:	Johnson J at 1
DECISION:	1. Pursuant to s.60G(2) Limitation Act 1969, the limitation period for the cause of action in this proceeding is extended to the date on which the Statement of Claim was filed, being 18 October 2001; 2. The question of costs is reserved.

CATCHWORDS:	LIMITATION OF ACTIONS - extension of time - HMAS Voyager - HMAS Melbourne collision - construction and application of ss.60G and 60I Limitation Act 1969
LEGISLATION CITED:	Limitation Act 1969 Supreme Court Rules
CASES CITED:	Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Gretton v The Commonwealth [2005] NSWSC 437 Holt v Wynter (2000) 49 NSWLR 128 McLean v Sydney Water Corporation [2001] NSWCA 122 Commonwealth of Australia v Diston [2003] NSWCA 51 CRA Limited v Martignago (1995) 39 NSWLR 13 State of New South Wales v Judd [2003] NSWCA 355 Harris v Commercial Minerals Limited (1996) 186 CLR 1 Commonwealth of Australia v McLean (1997) 41 NSWLR 389 Aussems v Commonwealth of Australia [2005] NSWSC 217 Hill v Commonwealth of Australia [2005] NSWCA 94 Smith v The Commonwealth of Australia [2004] NSWSC 873
PARTIES:	Leonard Lewis (Plaintiff) The Commonwealth of Australia (Defendant)
FILE NUMBER(S):	SC 20839/01
COUNSEL:	Mr J L Sharpe (Plaintiff) Mr C Barry QC and Mr D Brogan (Defendant)
SOLICITORS:	Hollows (Plaintiff) Australian Government Solicitor (Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CIVIL LIST

23 September 2005

20839/2001 Leonard Lewis v Commonwealth of Australia

JUDGMENT

1 JOHNSON J: The Plaintiff, Leonard Lewis, applies for an extension of time pursuant to the Limitation Act 1969 to bring proceedings against the Commonwealth of Australia for damages in negligence arising from the collision on 10 February 1964 between HMAS Melbourne and HMAS Voyager. At the time of the collision, the Plaintiff, then 17 years old, was an aircraft handler attached to HMAS Melbourne. Having been struck by HMAS Melbourne, HMAS Voyager was cut in two and sank with the loss of 82 lives.

The Plaintiff’s Claim

2 On 18 October 2001, the Plaintiff filed a Statement of Claim alleging negligence on the part of the Commonwealth and claiming that, as a result of the collision, he was injured and suffered loss and damage. On the same day, the Plaintiff filed a Notice of Motion claiming an order under s.60G Limitation Act 1969 that the limitation period for the cause of action be extended.

3 The limitation period applicable to the Plaintiff’s claim expired on 30 March 1970.

4 In his Statement of Claim, the Plaintiff alleges that, as a result of the collision, he was injured and has suffered loss and damage. The particulars of injuries which are provided allege the causing, aggravating, accelerating, exacerbating and/or resulting in the future deterioration of the following conditions:

(a) post-traumatic stress disorder;

(b) stress, anxiety, nervousness and psychological reaction resulting in alcohol and cigarette addiction;

(c) depression;

(d) development of acid reflux and indigestion;

(e) severe shock;

(f) ulcers;

(g) anxiety disorder;

(h) diverticulitis.

5 At the time of the hearing before me, the Commonwealth had not filed a Defence in the matter. However, Mr Barry QC, for the Commonwealth, said (T8.13):

“BARRY: The Commonwealth’s position is that a breach of duty occurred in the sense that I have indicated, that namely someone, a servant or agent of the Commonwealth, failed to keep a proper lookout or failed to keep one or other ship under proper control, is conceded.
What is disputed is that Mr Lewis sustained any injury, let alone post traumatic stress disorder, or any other kind of condition of the kind he particularises in the statement of claim, and what is disputed is, if he has any medical conditions at present, that there is any causal nexus between those conditions and the fact that he was on the Melbourne at the time that it collided with the Voyager on 10 February 1964.”

Applicable Legal Principles

6 To succeed in the present application, the Plaintiff bears the onus, on the balance of probabilities, of bringing himself within ss.60G and 60I Limitation Act 1969. Section 60G provides 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.”

Section 60I is in the following terms:


“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.” (emphasis added)

“Personal injury” is defined in s.11 of the Act as follows:

“ Personal injury includes any disease and any impairment of the physical or mental condition of a person”.

7 A body of case law has developed concerning the proper construction and application of ss.60G and 60I Limitation Act 1969. Relevant principles have been applied repeatedly in recent years in the context of limitation extension applications by other former crew members of HMAS Melbourne in actions for damages brought by them against the Commonwealth. I adopt gratefully a summary of these principles set out by McDougall J in Gretton v The Commonwealth [2005] NSWSC 437 at paragraphs 9-16:

“9 It is clear that a plaintiff seeking an order under s 60G must satisfy the requirements of s 60I. This burden requires the plaintiff:


(1) To show that one or more of sub-paras (i)-(iii) of s 60(1)(a) applies; and

(2) To show that the application is made within a time defined by reference to s 60I(1)(b).


10 Where those requirements are met, the Court turns to the question whether, in all the circumstances, it is just and reasonable to extend the limitation period; and, if satisfied that it is, the period of extension.

11 The following principles have been stated as relevant to the discretion conferred by s 60G and the ‘gateway’ thereto found in s 60I:


(1) An application for extension should be refused if to grant it would cause significant prejudice to the defendant: Holt v Wynter (2000) 49 NSWLR 128.

(2) However, it is not the case that, absent a finding of significant prejudice, the court must grant an extension: Parsons v Doukas (2001) 52 NSWLR 163.

(3) The discretion conferred is one to grant, not to refuse, an extension; and the plaintiff carries the onus of satisfying the court that an extension should be granted: Parsons .

(4) Although s 60I(1)(a) requires proof (on the balance of probabilities) that the plaintiff did not know, or was not aware, of the matters specified, it does not require proof of those matters as facts: Commonwealth of Australia v McLean (1997) 41 NSWLR 389.

(5) An application for extension of time is not a trial, or a dress rehearsal for a trial, and requires proof only of a serious question to be tried as to the ingredients of the asserted cause of action: McLean .


12 In considering where the balance lies on the ‘just and reasonable’ issue, the words of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 are relevant. At 551, his Honour adopted with approval the proposition that ‘where there is delay the whole quality of justice deteriorates’, and stated that ‘ [p] rejudice may exist without the parties or anybody else realising that it exists’.

13 At 552, his Honour pointed out that there were four broad rationales supporting the enactment of limitation periods. The first is that, with the passage of time, relevant evidence is likely to be lost. The second is that ‘ [i] t is oppressive, even ‘cruel’, to even allow an action to be brought long after the circumstances which gave rise to it have passed’. The third is people should be free to arrange their affairs and use their resources on the basis that claims can no longer be made against them. The fourth is the public interest in the prompt settlement of disputes.

14 I refer to these matters because, I think, they provide a valuable guide to the basis upon which the discretion conferred by s 60G should be approached.

Other authorities on the Act

15 The fundamental question, in considering whether it is just and reasonable to extend a limitation period, is whether there can be a fair trial: Holt . Other matters include the diligence (or lack of it) of the plaintiff and the plaintiff’s legal representatives; and whether it will be futile to extend time: Salido v Nominal Defendant (1993) 32 NSWLR 524. It may be queried whether there is a separate requirement for the plaintiff to give a full and satisfactory explanation for delay: Holt .

16 In considering the fundamental question, whether there can be a fair trial, it is necessary to bear in mind that ‘fair’ does not mean ‘ideal’: McLean . An analysis and resolution of that fundamental question requires a consideration of all the circumstances of the case: South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477. It is not to be answered simply by balancing the relevant prejudice to the plaintiff and the defendant: Sydney City Council v Zegarac (1998) 43 NSWLR 195.”

8 In McLean v Sydney Water Corporation [2001] NSWCA 122, Giles JA (Stein JA and Hodgson CJ in Eq agreeing) observed at paragraph 27 that fairness is a matter of degree and that the concept of a fair trial is a relative one:

“I do not exclude as a consideration properly to be taken into account as part of, or together with, considerations such as these, in appropriate cases, that there has been a particularly long lapse of time since the events material to the claim. In such circumstances there will commonly be an element of general prejudice, even if not such as to make a trial unfair, meaning thereby the dimming of memories and other such consequences of the passage of time. Fairness is a matter of degree. As Priestley JA said in Holt v Wynter at 142, the concept of a fair trial is a relative one, and must in any particular case mean a fair trial between the parties in the circumstances of that particular case. As well, for the trial to be fair it need not be perfect or ideal. That degree of fairness is unattainable, and that a trial may be held for which not all relevant evidence is before the court does not mean that it is not a fair trial.”

9 In the present case, the Commonwealth submitted that the Plaintiff was a witness who could not be relied upon to give a true and reliable account of events. Accordingly, the Commonwealth submitted that the principles in Commonwealth of Australia v Diston [2003] NSWCA 51 have application. In Diston, Sheller JA (Mason P and Grove J agreeing), said at paragraphs 44, 48 and 51:

“As the Master appreciated but O'Meally AJ did not, in the absence of any records relating to why the opponent left his various employments and identifying who he was working with and because of the failure of the opponent to provide information to enable enquiries to be made, the claimant had no way of challenging or verifying the opponent's evidence. This actual prejudice was compounded by the Master's finding that this evidence was unreliable because the opponent was willing to tell untruths where he perceived he would gain an advantage by doing so. In such a situation the question of onus was fundamental; Uniting Church in Australia Property Trust v Lea [2002] NSWCA 55 paras 28, 36, 40-43 per Ipp AJA. …
Thus it seems to me that a finding that there is a real possibility of significant prejudice to a defendant will lead to the application being refused though it does not follow that in the absence of that possibility the application will be necessarily granted; Holt v Wynter at 147 para 119; Parsons v Doukas at 163 and 190.
…
Again, as I have said, it was open to the Master to find that the opponent could not be relied upon to give a true account of events. His unreliability may indeed tell against him in the eyes of the jury that will hear his claim if the time is extended. But what is relevant is that his unreliability makes it more important than usual that the claimant have available material against which it can test what the claimant says about his heavy drinking and his injuries and treatment.”

The Evidence

10 At the hearing before me, the Plaintiff relied upon the following affidavits:

(a) Affidavit of Plaintiff sworn 9 October 2001;

(b) Affidavit of Plaintiff sworn 11 March 2005;

(c) Affidavit of David Brian Forster sworn 7 March 2005;

(d) Affidavit of Lucinda Aties Susannah Veldman sworn 8 March 2005.

11 The Commonwealth relied upon the following affidavits at the hearing of the application:

(a) Affidavit of Donna Ann Robinson sworn 30 August 2002;

(b) Affidavit of Donna Ann Robinson sworn 9 March 2005;

(c) Affidavit of Donna Ann Robinson sworn 15 March 2005;

(d) Affidavit of Gregory George Kathner sworn 11 August 2003;

(e) Affidavit of Alan Jeffrey Melrose sworn 24 June 2004.

12 The only witness called to give oral evidence at the hearing was the Plaintiff. He was extensively and strenuously cross-examined by Senior Counsel for the Commonwealth.

The Plaintiff’s Account

13 The Plaintiff was born in Sydney on 29 March 1946. His father and grandfather had served with the Royal Australian Navy (“RAN”). The Plaintiff joined the RAN on 5 January 1962, at the age of 15 years, for an initial term of 12 years. He undertook initial training at HMAS Leeuwin. On 10 January 1963, he was transferred to HMAS Albatross at Jervis Bay. On 6 January 1964, he was transferred to HMAS Melbourne as a Navy Airman, Aircraft Handler.

14 On the night of 10 February 1964, the Plaintiff was working on the flight deck on the starboard quarter in an area where aircraft were parked. His function was to accept aircraft onto the carrier which were performing “touch and go” operations. The Plaintiff’s task was to chock the wheels of the aircraft when they landed. He was relieved to go on a break to go to the canteen on 4 Deck. He had a locker space on 5 Deck below the canteen. He was at his locker, changing his boots, at about 9.00 pm on 10 February 1964 when the collision occurred. He gave the following description of what followed (Affidavit, 9 October 2001, paragraphs 9-12):

“9. I was by myself [in the locker space on 5 Deck]. It was a narrow passage when the collision occurred but I did not know that at the time. As I was changing the boots, I felt the collision, the crunching the vibration and shaking under my feet and in front of me and in panic, I was making my way up to the canteen. At that stage the ship had gone to damage control and they were closing the watertight compartments. I got very scared. I thought I would be locked in. I made my way to the hatch in the canteen and there was chaos in the canteen. People were scrambling to get out. People were yelling different things. I went up to the forecastle and that was when I bumped into a mate, Fisher. He was very stressed. I then went up to the fight [sic] deck and I saw the result of what had happened. I saw steam shooting high up into the air and half a ship. The first half must have gone down within a few minutes. By the time I got up there, half of it had already gone. It was noisy and chaotic.

10. I was 17 at the time of the collision. The rescue operation had already started. The next thing I remember I was carrying survivors on stretches [sic] covered in oil. They looked burnt to me. I was crying and the Petty Officer was yelling at me to pull myself together. My memory from then onwards is just in patches. One of the survivors was screaming hysterically. He was a younger boy like me and was screaming for his mother. I placed him on a bunk and he dug his fingernails into my arm and begged me to stay with him. I spent a long time with that survivor because he would not let me go, perhaps a couple of hours.

11. My next memory is being on the flight deck around midnight. We were standing on the flight deck watching the floating half of the Voyager when it finally sank. I cannot remember the rest of that evening. I do not remember sleeping. The following morning we were still looking for survivors. We were cleaning up the flight deck at the front end.

12. I have a dim memory of being part of the clean up crew but cannot remember the details. My next recollection is coming back to Sydney Harbour on Wednesday and filling out paper work for the Navy. I was told not to talk to the media or anybody about the collision.”

15 The Plaintiff stayed in Sydney whilst HMAS Melbourne was repaired at Cockatoo Island. He went on leave between 30 March and 19 April 1964.

16 The Plaintiff was the subject of a number of disciplinary charges whilst in the RAN. The circumstances of some of these matters were explored with him in oral evidence and were the subject of submissions to which I will turn later in this judgment. However, for present purposes, it is sufficient to note the following disciplinary charges in 1963 and 1964:

(a) 28 February 1963 – being slovenly on board at 1515 hours (stockings rolled down, shirt front unbuttoned, shorts rolled up);

(b) 27 May 1963 – being absent from place of duty at 1647 hours;

(c) 7 February 1964 – being absent from sick bay at 0700 hours;

(d) 13 February 1964 – claiming entitlement to leave while in sick bay;

(e) 2 March 1964 – being absent without leave.

17 On 1 April 1964, the plaintiff met his first wife, Rosalind, and they married in June 1965.

18 In June 1964, the Plaintiff was stationed on HMAS Melbourne which sailed to Hong Kong for the purposes of undertaking Far East Strategic Reserve exercises with the United States Navy. It was during this tour of duty that an incident occurred, to which later reference will be made, described as the “Singapore incident”.

19 The Plaintiff provided the following account of his life and experiences in the RAN between 1964 and his discharge on 25 October 1967 (Affidavit, 9 October 2001, paragraphs 17-23):

“17. After the collision I think I still wanted to be part of the Navy but I was uneasy. It was different from before the collision. I was a happy young man when I joined the Navy but after the collision it all changed. I was drinking, smoking and gambling. I felt very different. Everything felt different to me. I was thinking constantly about the collision and about all the young men who had died. I was going downhill.

18. In most parts of Australia you had to be 21 years old to get a drink but I was drinking anyway. With alcohol I felt it was a refuge. I drowned my sorrows. I was rationed to get a drink and had to produce a liberty card. I used to get people who did not drink to give me the drink for us and I would pay them for it.

19. My work became bad. I was not working to my full potential because I would be drunk from the night before. I would often stay all night awake drinking. My attitude changed and I no longer cared about anything. I just kept drinking to deal with my feelings. Often I would stay out, when I had the chance, all night drinking.

20. I was on the HMAS Melbourne for all of 1964 other than for leave and left on 3 January 1965 when I was sent to HMAS Albatross. On the Albatross I worked as a fireman.

21. On 12 May 1965 I was admitted to Balmoral Naval Hospital according to my naval records. However, I have no recollection of this. My records show that I suffered an acute psychiatric disturbance.

22. I was transferred to HMAS Waterhen in Sydney on 14 June 1966. It is a shore depot with a ship tied up to the dock. I was there as Captain’s driver and general driver. During 1966 and 1967 I had a number of different postings on the Waterhen, Penguin and Albatross.

23. I was then discharged on 25 October 1967, services no longer required, having been involved in a number of disciplinary infractions. Since the collision I had problems with trying to avoid my duties and breaching discipline due to my unruly behaviour and drunkenness. My total attitude had changed toward the Navy, causing me to become disrespectful. My records show that I was discharged from the Navy because I was a bad example and influence on younger sailors and was considered to have low moral worth.”

20 A number of the matters referred to in these paragraphs of the Plaintiff’s Affidavit were the subject of close cross-examination at the hearing of the application.

21 Between his discharge from the Navy in 1967 and December 1970, the Plaintiff worked as a taxi driver or as a driver with a number of employers. On 23 January 1969, a daughter, Linda, was born to his marriage.

22 On 11 December 1970, he was sentenced to imprisonment for three years for armed robbery. The Plaintiff’s first marriage broke down.

23 Following his release from prison in December 1973, the Plaintiff moved to Adelaide and was employed as a factory hand by Bonair Airconditioning in Edwardstown. He met his second wife, Sylvia, and they married on 10 September 1976. A son, Robert, was born of the marriage on 26 December 1977. Between 1975 and 1979, the Plaintiff worked as a car salesman with different employers in South Australia.

24 In October 1979, the Plaintiff moved back to live in Sydney where he worked as a car salesman until returning to Adelaide in September 1980. He separated from his second wife, Sylvia, in March 1982.

25 In July 1982, the Plaintiff ceased work because of a back problem and underwent a laminectomy in late October 1983. He worked as a car salesman from time to time, between August 1982 and July 1986.

26 In December 1983, he met his third wife, Helen, whom he married in August 1985. Following employment as a casual barman and doorman, and then as a car detailer, between November 1986 and November 1988, the Plaintiff sustained a back injury at work on 15 November 1988 and was on worker’s compensation, totally incapacitated, until 16 June 1992. He received a worker’s compensation award on 17 June 1992 and commenced receiving weekly worker’s compensation payments at that time. Worker’s compensation payments ceased on 16 October 1995 and the Plaintiff thereafter received a disability support pension.

27 From 1995, the Plaintiff worked as a subcontractor and then as a part-time cleaner. As at September 2004, the Plaintiff was employed as a part-time cleaner and subsequently as a courier earning approximately $600.00 per week.

28 The Plaintiff states that an event occurred in December 1999 which has culminated in the present application (Affidavit, 9 October 2001, paragraphs 43-46:

“43. At the end of 1999 I was watching a television programme about the previous century, a millennium story. They showed a picture of the HMAS Melbourne coming back to port with a hole in it. I burst into tears and my wife said to me that there was something wrong. She said that I got upset too often about things and that I should see my general practitioner to talk about it.

44. Shortly afterwards my wife saw an advertisement in the newspaper for Mr Forster, who is now my Solicitor. She encouraged me to go to see him because she thought I needed help with getting so upset.

45. Mr Forster arranged for me to speak to Mr Tuckfield, a psychologist in June 2000. For the first time I talked to a professional then about the collision and he told me that he thought I had Post Traumatic Stress Disorder.

46. The night of the television programme was the start of my realising that a range of my problems are related to the collision. However, it was the talk with Mr Tuckfield in June 2000 that really brought things into focus. I started to appreciate that my physical and psychological symptoms, my heavy drinking and my smoking, problems that I had experienced for so long since shortly after the collision, are all connected with that night of 10th February 1964.”

29 Annexed to the Plaintiff’s Affidavit of 11 March 2005 is a report dated 31 October 2000 of Mr Brian Tuckfield, Clinical Psychologist, Department of Psychiatry, University of Adelaide which is located at the Queen Elizabeth Hospital, Woodville, South Australia. Mr Tuckfield’s report contained the following conclusions (pages 5-7):

“The symptoms reported by Mr Lewis are consistent with a diagnosis of chronic Post Traumatic Stress Disorder (PTSD), lifetime and current according to the Diagnostic and Statistical Manual of Psychiatric Disorder (DSM IV) criteria. The nature of the collision meets the criterion that requires Mr Lewis to have experienced or witnessed an event in which either his or another person’s life or physical integrity is threatened. Secondly his response to the event was one of intense fear, helplessness or horror.
The diagnosis also specifies 3 categories of symptoms: re-experiencing, avoidance and hyperarousal. Re-experiencing the memory of the collision occurs both in waking and dreaming state. He has attempted to avoid the intrusiveness through a range of cognitive and behavioural strategies and most particularly by excessive use of alcohol. Moreover he exhibits a range of hyperarousal symptoms, including an exaggerated startle response, sleep disturbance and physical symptoms consistent with panic attacks.
He believes that he has experienced most of these symptoms while in the Navy within the first twelve months after the collision.
In addition to the diagnosis of PTSD, the self-reported drinking behaviour meets criteria for diagnosis of substance abuse disorder onset 1964, in remission since 1989.
Furthermore he currently exhibits features of depression. He views many aspects of his life as a failure, is self critical, feels punished and has lost most of his interest in others.
…
Mr Lewis believes that he began to experience disturbing memories of the collision within six months after the collision. His recollection is that his drinking escalated rapidly after the collision as did his use of cigarettes. Keane et al (1998) points out that the parallel development of substance abuse and PTSD is not uncommon with the substance abuse being a form of self-medication either to suppress disturbing recollections particularly nightmares or to numb distressing emotions as they arise.
Mr Lewis describes life as series of crises and personal difficulties subsequent to the Melbourne-Voyager collision. He describes an increasing propensity to abuse cigarettes and alcohol but more particularly describes increasing abuse and violence towards his spouses. Additionally he describes his lack of control over gambling and his deterioration in judgement and decision to engage in further antisocial acts of fraud and armed robbery. While McFarlane (1998) asserts that ‘there is sufficient evidence to argue that alcohol abuse is a predictable consequence of PTSD’ (p823), to argue that his criminal behaviour was a predictable consequence of PTSD would be more difficult. Nonetheless Pitman (1996, p385) does point to three possible dynamic aspects of PTSD that might account for a person’s diminished capacity to make moral judgements in relation to a criminal act. He explains the behaviour as arising from (1) sensation seeking or so-called ‘addiction to the trauma, (2) need for punishment to appease a sense of guilt connected with the traumatic event and (3) substance abuse in an attempt to numb post traumatic psychic pain with resultant disinhibited actions. In the absence of evidence of antisocial behaviour prior to joining the navy, the self-destructive and nihilistic behaviour of Mr Lewis after the collision is explicable as one type of response to trauma.”
The Plaintiff’s Approach to the Application

30 Mr Sharpe, Counsel for the Plaintiff, submitted that the Plaintiff has established, on the balance of probabilities, each of the gateway issues under s.60I(1)(a) and (b) Limitation Act 1969. He submitted that, on the evidence adduced in the application, it is just and reasonable to extend the relevant limitation period: s.60G(2).

31 Mr Sharpe submitted that, despite the attack launched upon the Plaintiff in cross-examination, the Court should reject the Commonwealth’s submissions that the Plaintiff was an untruthful or unreliable witness. Emphasis was placed by Mr Sharpe upon the statutory issues arising for determination in the present application. He contended that the Commonwealth had, contrary to the principles in McLean, used the hearing as a type of dress rehearsal for a trial. Mr Sharpe acknowledged that the question whether the Plaintiff could succeed in his claim for damages at a trial was an open question. However, for the purposes of the present application, Mr Sharpe emphasised that the Plaintiff had demonstrated, in accordance with McLean, that there were serious questions to be tried.

32 With respect to the just and reasonable issue, Mr Sharpe emphasised that, despite the Commonwealth’s arguments, a large number of documents remained in existence concerning the Plaintiff’s service in the RAN, his medical treatment in the RAN and concerning other aspects of his life since his discharge from the RAN. Despite the fact that a number of medical practitioners who had examined the Plaintiff at various times in the RAN were now deceased, a medical practitioner (Dr Edmonds) who had undertaken such a task was alive and had provided a lengthy report to the Commonwealth concerning the Plaintiff.

33 Mr Sharpe contended that, in reality, any medical witness called in personal injury proceedings would have little recollection of a particular patient. The medical records concerning the examination and treatment of the patient would be the critical items and those records remain in existence in the present case. Mr Sharpe emphasised that, as the cases make clear, a fair trial does not mean an ideal or perfect trial.

The Commonwealth’s Approach to the Application

34 Mr Barry QC, for the Commonwealth, submitted that the Court would not be satisfied, on the balance of probabilities, of the s.60I(1)(a) and (b) gateway issues because the Plaintiff was not a credible and reliable witness.

35 In making this submission, Mr Barry QC referred to areas of the Plaintiff’s evidence to which reference will be made later in this judgment.

36 With respect to the just and reasonable issue, Mr Barry QC placed particular emphasis upon passages in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 544, 547, 551 and 555 concerning prejudice resulting from delay and the rationale for a limitation period with respect to personal injury claims. He pointed to the death of a number of persons, including medical practitioners, who had dealings with the Plaintiff and the fact that a number of RAN documents relating to the Plaintiff were destroyed or missing. He relied upon evidence that some potential Commonwealth witnesses could not be located or had no current recollection of relevant events.

37 It was the Commonwealth’s submission that the Plaintiff had not discharged the onus of demonstrating that it would be just and reasonable to extend the limitation period. Reliance was placed upon the principles in Diston in submitting that the Plaintiff was an unreliable witness and that this compounds the prejudice which the Commonwealth would be subjected to at any trial.

38 Mr Barry QC for the Commonwealth identified several areas in which the Plaintiff was said to have not been truthful. It is appropriate to turn to these areas to assess the attack which has been made upon the Plaintiff’s credibility by the Commonwealth. Although it is the Plaintiff who bears the onus of satisfying the statutory requirements of the Limitation Act 1969 and it is not for the Commonwealth to negative any entitlement to an extension, an examination of the Commonwealth’s submissions which criticise the Plaintiff will assist a process culminating in a determination whether the Plaintiff has discharged the onus which he bears.

An Incident in September 1967

39 The Plaintiff was cross-examined concerning an incident in September 1967 referred to in medical records held by the Commonwealth. Those documents reveal that the Plaintiff and a Seaman X, whose name was the subject of a non-publication order made during the hearing, both asserted to RAN personnel that a homosexual incident had taken place between the Plaintiff and X in a naval facility. X signed a statement to that effect (Exhibit 9). Medical records disclose that the Plaintiff admitted to such conduct but there was no signed statement from the Plaintiff to that effect.

40 It was the Plaintiff’s evidence that no homosexual incident in fact took place but that he, the Plaintiff, suggested to X that an admission of such conduct would see X’s immediate discharge from the RAN. Accordingly, the Plaintiff went along with X in claiming falsely that such an incident had occurred.

41 Mr Barry QC cross-examined the Plaintiff closely concerning this incident. The Plaintiff maintained the position that he was not homosexual and had not engaged in any homosexual conduct with X. It should be said that there is nothing else in the extensive body of evidence which is before me on this application to suggest that the Plaintiff had or has homosexual tendencies.

42 The Commonwealth submits that this material goes to the truthfulness and reliability of the Plaintiff. The Plaintiff frankly acknowledged in evidence that he had lied to his RAN superiors in this respect in 1967. However, he explained why that was done and there is nothing in the document which would suggest that this explanation was other than truthful. I do not consider that this issue points to a lack of current truthfulness or reliability on the Plaintiff’s part.

The Singapore Incident

43 The Commonwealth’s challenge to the Plaintiff concerning the “Singapore incident” arises from a letter written by him on 4 June 1986 to the then Minister for Defence. That letter (Exhibit 1) stated (gaps indicate parts of the letter which are missing or illegible):

“I served on board HMAS MELBOURNE from 5th January 1964 during which time I was involved in the Voyager disaster. In June of 1964 we sailed to the South China Seas for … off the Coast of Vietnam, during which time we were at action stations for 3 straight days. On a brief stay in Singapore I was shot at in the street of Singapore during a conflict , subsequently we were … back to our ship and we sailed out of port immediately.
I have heard conflicting reports from naval personnel … nothing official, except one of my shipmates just … a Medal under the ‘Borneo Conflict’. Could you please tell me if I am entitled to any benefits in the way of Defence Forces Home Loans etc. Hoping you will give my letter your consideration.” (emphasis added)

44 The Plaintiff was cross-examined by Mr Barry QC concerning this letter (T72.49-T73.39):

“Q. You say in the document about half way down the first paragraph ‘On a brief stay in Singapore I was shot at in the streets of Singapore during a conflict’?
A. Well.

Q. That is what you have said?
A. Okay I have written that.

Q. Was it true?
A. Not directly at me, no.

Q. Just to be clear about it, what you have written there where you have said ‘On a brief stay in Singapore I was shot at in the streets of Singapore during a conflict’ is that statement true or untrue?
A. That is untrue that I was shot at.

Q. Exhibit 1 was a letter you wrote because you were seeking to obtain a benefit, were you?
A. Like I just said --

Q. Yes?
A. Yes.

Q. What you did in that letter was state something that was untrue because you thought it would increase your chances of receiving the benefit you were seeking to obtain when you wrote the letter?
A. I don’t think so.

Q. You do agree with the concluding paragraph of the letter, that it was ‘could you please tell me if I am entitled to any benefits in the way of defence forces home loans etc.’
A. Right.

Q. ‘Hoping you will give my letter consideration’?
A. That was referring to the fact I was in the Far East strategic reserve, and that was the Indonesian conflict, and should have entitled me to benefits that they wouldn’t give me.

Q. You falsely stated you were shot at because you thought that would improve your chances to get the benefit you were seeking to obtain?
A. I don’t agree with that.”

45 The Plaintiff accepted that it was not accurate to say that he had been “shot at” in the street in Singapore during this incident. However, he asserted consistently that he was, together with other naval personnel, in the street in Singapore when shooting occurred in their vicinity (T33.58-34.9; T71.37-72.29). It does not seem to me that the Plaintiff’s short description of this incident in this letter can be characterised as deceptive or intending to mislead. In evidence before me, the Plaintiff readily acknowledged the letter did not describe the incident in entirely accurate terms. I do not consider that this issue points to a lack of current truthfulness on the Plaintiff’s part.

The Plaintiff’s Claim That He Was Told Not To Discuss With Anyone the Events of the Collision

46 The Plaintiff was cross-examined concerning an instruction which he says was given by RAN officers not to discuss the collision. He was asked (T91.10):

“Q. I want to suggest to you that on the occasion when you did present [on 18 February 1965] with symptoms diagnosed as depression, you made no mention of the Melbourne-Voyager collision?
A. As I said, I have no memory of that, but I must tell you that we were told never to talk about the collision in the navy to anybody. They were the instructions we were given after the collision. We were not to talk to anybody about the collision, to forget about it, and to go out and get pissed with our mates and you’ll forget about the whole thing. I’m sorry, 41 years later I still can’t forget about it.
…

Q. Who do you say told you that you weren’t to discuss what happened in the collision with anyone?
A. We were told by naval officers.

Q. Could you please identify who the naval officer was?
A. No, I can’t.

Q. Can you identify the occasion on which you were told?
A. We were told on return to Sydney before anybody stepped off that ship. Garden Island was crawling with reporters. It was the biggest story going at the time and everybody wanted information and we were instructed, ‘Do not talk, especially to the media’, but we were instructed, ‘Do not talk to anybody.’ The navy was handling this problem. That’s what we were told and to get pissed and forget about it.

Q. Mr Lewis, am I right in thinking that because of that instruction you, therefore, didn’t talk to any medical officers within the navy about any emotional problems that you were having as a result of the collision?

A. I have – to the best of my knowledge, I have never spoken to anybody about that.”

47 Mr Lewis was cross-examined about a statement dated 9 August 2000 prepared by him which said:

“We arrived back in Sydney on the Wednesday. The navy made us sign forms and swear not to talk to the media about what we had seen or knew about the collision. I remember leaving Garden Island gates and being swamped by reporters.”

It was put to him that he was not being truthful in asserting that crew members were told after the collision not to talk to “anybody” given that he had asserted, in his 2000 statement, that they were told not to talk to “the media” .

48 The Commonwealth submits that the Plaintiff has sought to extend an instruction not to speak to the media about the collision into a type of instruction not to talk to anyone, including medical practitioners, about the collision and its effect upon him. I note that, in paragraph 12 of his Affidavit of 9 October 2001, the Plaintiff said “I was told not to talk to the media or anybody about the collision” (see paragraph 11 of this judgment).

49 I do not consider that this aspect reflects, in any significant way, upon the Plaintiff’s credibility or reliability in the present application. He has stated consistently that words of caution were spoken by RAN personnel to crew members as HMAS Melbourne returned to Sydney. The Plaintiff was 17 years old at the time. In my view, the variation in his accounts on this issue does not operate against him on the present application.

The Plaintiff’s Wedding in June 1965

50 The Plaintiff was cross-examined concerning his wedding day in June 1965 (T98.35-99.9):

“Q. Do you actually recall the day of the wedding itself?
A. Yes.

Q. Can you tell us when in relation to the wedding your next recollection is?
A. The reception.

Q. Sorry, the reception, may we assume, came after the wedding?
A. After, yeah.

Q. So do you remember the morning of your wedding day?
A. No.

Q. Were you married in a church or a registry office?
A. We were married at HMAS Watson naval base in the chapel.

Q. Do you remember going to the chapel?
A. Yes – well, I remember being at the chapel. I don’t remember going there.

Q. Do you remember anything before the occasion when you were standing at the altar of the chapel about to commit yourself to a marriage?
A. No.

Q. Do you remember walking up the aisle?
A. No.

Q. What was the date of your first marriage?
A. 19 June.”

51 The Commonwealth submitted that the Plaintiff’s asserted lack of recollection of events surrounding his wedding day in June 1965 was not credible and should be rejected as untruthful. It appears, from the Commonwealth records which provided a foundation for cross-examination in this area, that the Plaintiff had several troubles in his life at that time. I do not consider that his limited recollection of events 40 years ago, even a significant event such as his wedding day, points to a lack of credibility or unreliability on his part.

Whether the Plaintiff’s First Wife had a Baby by Another Man

52 The Commonwealth contended that the Plaintiff had given unreliable evidence with respect to his belief in 1965 that his first wife had given birth to a baby by another man. It appears, from various contemporaneous documents to which the Commonwealth has access, that this was a period of some tumult in the Plaintiff’s life. Senior Counsel for the Commonwealth drew my attention to portions of the cross-examination of the Plaintiff (T100-108). There is an element of confusion in the Plaintiff’s evidence on this issue. The Plaintiff acknowledged that he was informed ultimately by his wife that she had had a baby to another man although, according to the Plaintiff, he had originally been informed that it was his wife’s mother who had the baby (T106-107).

53 I do not consider that the Plaintiff’s evidence with respect to this issue reflects significantly upon his reliability or credibility in the context of the present application.

The Plaintiff’s Drug Use

54 The Commonwealth submitted that an adverse view should be formed concerning the credibility and reliability of the Plaintiff arising from evidence given by him concerning his drug use whilst in the RAN. An RAN outpatient record dated 21 September 1967 contains a typed record made by Surgeon Commander JH Mitchell to the following effect:

“Captain of Waterhen asked that this sailor who has got himself into a lot of disciplinary trouble should be seen by M.O. He told his captain that he had been taking pink pills, etc including heroin. Request examination please.”

In the same record, an entry bearing the same date appears made by Surgeon Lieutenant Commander C Edmonds which stated:

“This man is not now under the influence of drugs, though he does admit to taking opium, methedrine and L.S.D. in the past. This patient is fit for both trial and punishment. His problem is a disciplinary and not a psychiatric one. He has requested that he not be given a psychiatric appointment.”

55 In evidence in chief, the Plaintiff denied taking heroin, but said that, in the period after the collision, “I took on drinking binges, I took – I don’t know what the word was – but it was a term called uppers, and I took those to keep awake” (T45). In cross-examination, the Plaintiff denied taking heroin, opium, methedrine or LSD (T116).

56 The Plaintiff readily admitted that he was abusing alcohol and using “uppers” following the collision. The fact that, according to contemporaneous medical records, he admitted in September 1967 to the use of other illicit drugs and that he now denies having used such drugs is an issue which would be explored at the hearing of the Plaintiff’s claim for damages if an extension of the limitation period is allowed. As has been mentioned, Dr Edmonds has provided a report to the Commonwealth and is available to give evidence. It may be that a significant issue at the trial will arise with respect to this controversy.

57 I do not consider that the factual conflict arising on this question leads to a finding adverse to the Plaintiff’s credibility and reliability on this application. It may be anticipated that there will be several, possibly many, areas of controversy and factual dispute at the trial of the Plaintiff’s claim. The fact that a particular area of dispute has been identified as between the written record made (not by the Plaintiff) in September 1967 and the Plaintiff’s evidence in the witness box in March 2005 does not, in my view, lead to the rejection of the Plaintiff’s evidence on this issue.

The Plaintiff’s Memory Difficulties

58 The Commonwealth submits that, even if the primary submissions concerning incidents reflecting upon the Plaintiff’s credibility and reliability were rejected, a significant issue remains surrounding his reliability arising from his failure to recall various attendances on medical practitioners on occasions referred to in contemporaneous RAN medical records between 1965 and 1967. Senior Counsel for the Commonwealth submitted that this memory difficulty would constitute an impediment for any medical practitioner retained by his client to obtain a proper history from the Plaintiff. In these circumstances, the Commonwealth submitted that there could not be a fair trial of the matter.

59 It is true that the Plaintiff, on a number of occasions during his evidence, said that he could not recall particular consultations with medical practitioners and particular events referred to in contemporaneous RAN medical records. Of course, this may constitute a difficulty for the Plaintiff’s prospects of success at the trial of this matter. The Commonwealth, of course, is armed with these contemporaneous medical records. In addition, Dr Edmonds has provided a report to the Commonwealth and is available to give evidence. I do not consider that the Plaintiff’s memory difficulties represent an impediment to a fair trial. A fair trial is not a perfect trial.

Some Other Features of Evidence Concerning the Plaintiff

60 In assessing the Commonwealth’s challenge to the Plaintiff’s credibility and reliability, some general observations should be made concerning the evidence.

61 In a number of areas, the Plaintiff made frank concessions concerning past statements by him that were either untruthful (the incident with X) or inaccurate (the Singapore incident). He did not appear to be a witness who was going out of his way to fend off criticisms of himself and his past conduct. He was subjected to a lengthy cross-examination which traversed aspects of his family and personal life. It was put to him that he was feigning distress which he exhibited on occasions in the witness box. He was asked in cross-examination (T137.45):

“Q. Do you agree that a number of traumatic and distressing things have occurred to you from your early childhood years, perhaps right up to the present time, which have caused you psychological damage and injury and that that state has nothing to do with the Melbourne-Voyager collision?

A. No, I don't agree with that”.

62 It is necessary to bear in mind that the Plaintiff, having joined the RAN at the age of 15 years, experienced the Melbourne-Voyager collision at 17 years of age.

63 The RAN Service Classification Records for the Plaintiff (Exhibit C) contain a number of entries which are presently relevant for the period before the Melbourne-Voyager collision. On 6 November 1961, a psychiatric or psychological comment to the following effect appears on the record:

“A good type of lad, although not outstanding intellectually. Seems keen and industrious. I rate him ‘C+’ for JR [junior recruit] .
Educational: Average.
Study-Tolerance: Average.
Peer Group Acceptability: Good.
Emancipation: Adequate.
Motivation: Acceptable.
Authority – Adjustment: Good.
Not a bad type of lad.”

64 In the same record (Exhibit C), a report made on 12 January 1962 includes the following:

“He tells a long story of a disturbed early life. Parents separated when he was very young. He remained with M [mother] who took to the drink. He spent some time in a children’s home (Carlingford) and was later cared for by his uncle. Parents came together again and he returned to them but mother contracted TB and he was this time taken by his G/father [grandfather] . M [mother] dies 6/12 ago. He apparently felt this rather deeply. Has a lot of respect for G/father [grandfather] . Says father was in RAN, thinks he was a … . For this reason, x [the plaintiff] is particularly anxious to make a success of his service life. …”.

65 On a date that appears to be in December 1962, the record contained the following notation:

“Good kid. Sincere. A good trier (?). Reliable and trustworthy. Could be the typical three badge able rank”.

66 Further entries in December 1962 in the report state:

“JR Lewis has made a lot of effort to improve his educational standard during this term, and although his results are not up to the standard that I would like, I feel that this lad has done his best.
Failure to reach the required standard for educational Test 1 is not through lack of trying on the part of JR Lewis.
…
Has made steady improvements throughout his time at LEEUWIN. Although he has not been outstanding he has always done his best. A clean, honest and reliable JR who should continue to make a satisfactory progress in his service career. Selected as an Aircraft Handler”.

67 Reference has been made at paragraph 16 of this judgment to the Plaintiff’s disciplinary record on the RAN in 1963 and 1964. Viewed objectively, the record cannot be regarded as serious for matters predating the Melbourne-Voyager collision.

68 There is no record of the Plaintiff complaining of or exhibiting signs of any psychiatric disorder before the collision. There is a reference in his service record (Exhibit C) to a possible sleep-walking episode in 1961, but this incident does not appear to have given rise to any concern, let alone treatment on the part of naval authorities.

69 There is nothing that points to excessive alcohol consumption or other behavioural difficulties on the part of the Plaintiff prior to the collision on 10 February 1964, although he appears to have had a disturbed early life with a family history of alcohol abuse. In reciting these features of the evidence, of course, I make no finding of any causal link between the Plaintiff’s later behavioural problems and the collision. That issue is one for the trial court at the hearing of the Plaintiff’s claim if an extension of the limitation period is granted. However, it is appropriate to record these matters given the challenge which is made to the Plaintiff’s credibility and reliability on the present application.

70 The Commonwealth records disclose a number of medical attendances upon the Plaintiff, following the collision, in and after 1964. These include diagnoses of psychiatric conditions and abuse of alcohol. The RAN records do not suggest that these conditions were linked to the Melbourne-Voyager collision. The Plaintiff does not assert that he complained to any RAN medical practitioners that his problems were, in some way, linked to the collision. Indeed, it is the Plaintiff’s case on the present application that he did not associate his problems with the collision.

71 The Plaintiff was discharged from the RAN “services no longer required” in October 1967 (Exhibit C).

72 The Plaintiff acknowledged that he had a chequered employment history following his discharge from the RAN. He acknowledged a gambling problem which contributed to his loss of employment on at least one occasion.

73 On 17 December 1970, the Plaintiff pleaded guilty in Sydney Quarter Sessions to two counts of armed robbery, one count of robbery and one of robbery in company. He was sentenced to penal servitude for a total of nine-and-a-half years with a non-parole period of three years. The Commonwealth has access to a detailed pre-sentence report dated 17 December 1970 concerning the Plaintiff which was prepared by Mr K Hindle, Probation Officer, (Annexure “F”, Affidavit, Ms DA Robinson, 15 March 2005). Following his release from prison in 1973, the Plaintiff was fined on one occasion for indecent language in the 1980s and has incurred speeding offences, but has otherwise not been in conflict with the criminal law.

74 He conceded readily under cross-examination (T128) that, following his release from prison in 1973, his gambling caused difficulty with employment. He has worked in some 28 different positions between 1973 and 2000 (T128).

75 In summary:

(a) the Plaintiff acknowledges, and RAN records confirm, that the Plaintiff had a disturbed family background prior to his entry into the RAN at the age of 15 years;

(b) RAN records indicate that the Plaintiff had an unremarkable but not unsatisfactory service history prior to the Melbourne-Voyager collision on 10 February 1964;

(c) the evidence does not indicate that the Plaintiff was engaging in excessive alcohol consumption or gambling or was otherwise demonstrating behavioural problems prior to the collision, although given his family background, he may have been at greater risk of developing such difficulties;

(d) in the months and years following 10 February 1964, the Plaintiff manifested behavioural difficulties including excessive alcohol consumption, acts of violence and psychiatric or psychological disturbance on more than one occasion; these incidents gave rise to medical treatment or disciplinary action and incarceration by the RAN.

76 If an extension of the limitation period is granted and this matter proceeds to trial, significant issues will fall for determination concerning the existence and causation of the various disorders which the Plaintiff claims are referable to the Melbourne-Voyager collision. This is not an unfamiliar scenario in the context of litigation against the Commonwealth brought by former crew members of HMAS Melbourne. Some plaintiffs have succeeded in establishing liability (see, for example, Commonwealth of Australia v Stankowski [2005] NSWCA 106; Aussems v Commonwealth of Australia [2005] NSWSC 217). Some have not (see, for example, Hill v Commonwealth of Australia [2005] NSWCA 94). It is a matter, of course, for each case to be determined on its own facts. I mention this feature at this stage merely to note that issues of causation and existence of injury in the context of former crew members of HMAS Melbourne is a well-trodden path for the Commonwealth. That is not to say that the path is easy in each case, let alone the present case. Rather, the point is that the present Plaintiff is but another example of a class of litigant bringing proceedings against the Commonwealth where the Commonwealth has substantial experience in meeting such claims.

Lost Witnesses and Documents

77 The Commonwealth points to prejudice arising from the death or absence of a number of witnesses who would have been able to throw light upon the Plaintiff’s claim. The persons in this class include, without seeking to list them exhaustively:

(a) Dr McGeorge, psychiatrist, who died in 1979 – he examined the Plaintiff in 1967 and diagnosed certain conditions which he considered did not arise from the Plaintiff’s service in the RAN;

(b) Reverend Trainer who died in 1981 – he acted as celebrant at the marriage of the Plaintiff and his first wife in 1965 and provided counselling to them – a letter dated 1 August 1966 concerning the Plaintiff is available within RAN records;

(c) Dr Radeski, psychiatrist, who died in 1996 – he examined the Plaintiff in 1991 in the context of a back injury;

(d) Dr Mitchell who cannot be located – he examined the Plaintiff in 1966-1967 whilst serving as an RAN medical officer.

78 Dr Grainger, Dr Treloar, Dr Vauback and Dr Cilento are alive, but have no recollection of the Plaintiff – they examined the Plaintiff in the years following the collision whilst serving as RAN medical officers. Another medical practitioner from that period, Dr Gilmore, has not responded to a letter from the Commonwealth’s solicitors.

79 Dr Carl Edmonds was present when Dr McGeorge examined the Plaintiff in 1967 and made his own observations and notes in RAN records concerning the Plaintiff. Dr Edmonds is still alive and has provided the Commonwealth with a report dated 3 November 2002 concerning the Plaintiff. In that report, Dr Edmonds has expressed an opinion about the Plaintiff based upon “my observations and memory of the claimant during my full-time employment in the Royal Australia Navy, 1967-75” and “perusal of the copious documents supplied to me, including his Navy Medical Records”. According to Dr Edmonds’ report, some 125 pages of written material was provided to him concerning the Plaintiff. Accordingly, and perhaps unusually, the Commonwealth has available to it a medical practitioner who examined the Plaintiff some 38 years ago and who has a current recollection of him and is available to provide opinions and evidence concerning the Plaintiff. The availability of the “copious documents” and the opinions and evidence of Dr Edmonds operates against the Commonwealth’s submission that there cannot be a fair trial of the Plaintiff’s claim.

80 The Commonwealth points to a range of documents relating to the Plaintiff which are missing or destroyed and a range of persons who may have been potential witnesses who cannot be located or have no recollection of events. See the Affidavits of Ms DA Robinson sworn 30 August 2002 (paragraphs 8-26, 50-53, 73-77), 9 March 2005 (paragraphs 7-17, 25-42) and 15 March 2005 (paragraphs 2-3, 5-8); Affidavit of Mr GG Kathner sworn 11 August 2003 (paragraphs 6, 9, 10, 17-44); Affidavit of Mr AJ Melrose sworn 24 June 2004 (paragraphs 3-9). Counsel for the Plaintiff did not seek to cross-examine these persons upon their affidavits. It is apparent, nevertheless, from the evidence before me that a very substantial body of documentation remains in existence surrounding the Plaintiff’s period of service in the RAN. Further, the evidence concerning efforts made by the investigator for the Commonwealth to locate and interview contemporaries of the Plaintiff within the RAN between 1962 and 1967 is somewhat superficial. Although some persons have been located who are said to have no recollection of the Plaintiff, the evidence does not suggest that the investigation extended beyond an inquiry of these people as to whether they recalled the Plaintiff (letter of D Campanella, 28 July 2003; Exhibit “GGK-1”, Tab 4, Affidavit GG Kathner, 11 August 2003).

81 The Commonwealth points to deficiencies in documentation relating to the Plaintiff’s employment between 1967 and the present time. See the Affidavits of Ms DA Robinson sworn 30 August 2002 (paragraphs 27-49) and 9 March 2005 (paragraphs 23-24) and Mr GG Kathner sworn 11 August 2003 (paragraphs 11-16).

82 A range of documents does exist which touches upon aspects of the Plaintiff’s employment history since his discharge from the RAN in 1967. A number of these documents, including medical reports prepared between 1989 and 1991, have their origin in compensation proceedings brought by the Plaintiff. The Commonwealth points to missing medical records relating to this period (Affidavit, Ms DA Robinson, 30 August 2002, paragraphs 54-72). The Affidavit of the Plaintiff’s solicitor, Ms LAS Veldman, sworn on 8 March 2005 demonstrates that extensive particulars have been provided to the Commonwealth with respect to the Plaintiff’s employment history.

Conclusions Concerning s.60I and s.60G Issues

83 I turn to express my conclusions concerning the issues under s.60I(1) and s.60G(2) Limitation Act 1969.

84 With respect to s.60I(1)(a)(i), it seems to me that the Plaintiff had some awareness that he suffered “personal injury”, at least with respect to some of the conditions referred to in paragraph 4(b) of this judgment. I am inclined to accept that the Plaintiff has satisfied s.60I(1)(a)(i) with respect to, at least, some of the conditions referred to in paragraph 4. Given the conclusion I have reached with respect to s.60I(1)(a)(iii), it is not necessary that I come to a settled view with respect to s.60I(1)(a)(i) of the Act.

85 With respect to 60I(1)(a)(ii), it is clear that a person may not know the medical description or diagnosis of his or her condition, but nonetheless be aware for the purposes of that provision of the nature and extent of injury: CRA Limited v Martignago (1995) 39 NSWLR 13 at 20. I am inclined to conclude that the Plaintiff was unaware of the nature and extent of at least some of the injuries that are the subject of this claim and which are particularised in paragraph 3 of this judgment. In light of the view to which I have come concerning s.60I(1)(a)(iii), it is not necessary to come to a concluded view concerning whether the Plaintiff has satisfied me of the matters contained in s.60I(1)(a)(ii) of the Act.

86 With respect to s.60I(a)(iii), the test is whether the Plaintiff knows the facts, not whether he is aware of the legal significance of those facts: State of New South Wales v Judd [2003] NSWCA 355. The question is one of actual subjective knowledge or awareness: Harris v Commercial Minerals Limited (1996) 186 CLR 1.

87 I accept the Plaintiff’s evidence that it was not until the period of December 1999 to June 2000 that he became aware of the connection between his personal injury and the Commonwealth’s act or omission. Accordingly, I am satisfied, on the balance of probabilities, that the Plaintiff has established the matters contained in s.60I(1)(a)(iii) of the Act.

88 I am satisfied, on the balance of probabilities, that the application for extension of the limitation period was made within three years after the Plaintiff became aware (or ought to have become aware) of all three matters contained in s.60I(1)(a) and that, accordingly, the requirements of s.60I(1)(b) have been satisfied.

89 I am satisfied, on the balance of probabilities, that it is just and reasonable to extend the limitation period in this case: s.60G(2) of the Act. I have referred earlier in this judgment to the Commonwealth’s submissions and evidence concerning prejudice. There is evidence that documents have been destroyed or lost. However, there is a significant body of documentary material in evidence before me which relates to the Plaintiff’s employment, disciplinary history and medical history in the RAN both before and after the collision. It is true that a number of medical practitioners and other persons who would have been potential Commonwealth witnesses are dead, cannot be located or have no current recollection of events. However, Dr Edmonds has been provided with, to use his words, “copious documents” of the RAN and has provided a report to the Commonwealth expressing his recollection and opinion concerning events surrounding the Plaintiff. It is true that documents concerning parts of the Plaintiff’s employment history and medical history since leaving the RAN cannot be located. However, the Plaintiff’s solicitors have provided detailed particulars to the Commonwealth with respect to the Plaintiff’s employment and a substantial body of documentary material, including medical reports, concerning the Plaintiff’s medical condition since 1967 is available to the Commonwealth.

90 It is undesirable that I should express any concluded view on the Plaintiff’s credibility. However, I have formed the view that, in his evidence before me, he was attempting to answer questions directly and frankly, and to the best of his ability. I am not satisfied that the Plaintiff was an unreliable witness so as to attract the principles in Diston to this case.

91 I have had regard to the Commonwealth’s evidence and submissions. The fundamental question, in considering whether it is just and reasonable to extend the limitation period, is whether there can be a fair trial: Holt v Wynter (2000) 49 NSWLR 128 at 142-143 (paragraphs 79-84). It is necessary to bear in mind that, in this context, fairness is a matter of degree and that the concept of a fair trial is a relative one. For the trial to be fair, it need not be perfect or ideal: McLean v Sydney Water Corporation at paragraph 27.

92 I am satisfied that the Plaintiff has demonstrated that there are serious questions to be tried: Commonwealth of Australia v McLean (1997) 41 NSWLR 389 at 395.

93 Accordingly, I propose to make an order, pursuant to s.60G(2) of the Act, that the limitation period for the cause of action in this proceeding be extended to the date on which the Statement of Claim was filed, namely 18 October 2001.

Costs

94 Mr Barry QC submitted that, in the event that the Plaintiff was granted an extension of time, an order should be made that the Plaintiff pay the Commonwealth’s costs of the application. Reliance was placed upon Part 52A r 17 Supreme Court Rules which provides as follows:

“Where a party applies for an extension of time, unless the Court otherwise orders, he or she shall, after the conclusion of the proceedings, pay the costs of and occasioned by the application, or any order made on or in consequence of the application.”

95 The Plaintiff submitted that, as occurred in Smith v The Commonwealth of Australia [2004] NSWSC 873, the Commonwealth ought be ordered to pay the Plaintiff’s costs of the application. In this respect, Mr Sharpe relied upon an aspect of the conduct of the matter on behalf of the Commonwealth whereby an alteration was made to an original RAN record which was used in the hearing.

96 That issue arose in this way. The Plaintiff was being cross-examined concerning a medical attendance for abdominal pain which was said to have taken place on 18 January 1965 (T83-85). A photocopy of an RAN medical record, which appeared to bear that date, was tendered on behalf of the Commonwealth (Exhibit 4; T84.30). The Plaintiff was cross-examined on this document upon the basis that, if he had been suffering some adverse effects as a result of the collision, he would have spoken to the RAN doctor about it in January 1965, that is some 11 months after the collision (T85.7-15). Counsel for the Plaintiff sought access to Exhibit 4 and compared it with a document in his brief which had been provided to the Plaintiff’s legal representatives by the Commonwealth. That document bore the date “18-1-64” and not “18-1-65”. Mr Barry QC sought a short adjournment to clarify the position and, upon resumption, it became apparent that the true date of the consultation was 18 January 1964, a date preceding the Melbourne-Voyager collision (T86-89). On the following morning of the hearing, Mr Barry QC, having obtained instructions, provided the following explanation for the alteration (T147.48):

“Could I then hand up the original on which someone, as yet unidentified, has changed the date or written over the date from the ‘4’ to the ‘5’ on the original and one would infer they did that at some stage after the photocopying. I’m afraid we can’t assist your Honour as to who did it, but that is the explanation as to why.”

97 Mr Barry QC tendered a number of documents, including the original RAN medical record which has been altered in the manner described by Mr Barry QC (Exhibit 11).

98 I accept that the legal representatives for the Commonwealth had no knowledge that the cross-examination of the Plaintiff on this topic was being undertaken upon a false premise based upon an altered document. I make no criticism of the Commonwealth’s legal representatives in this respect.

99 In circumstances where the Commonwealth was launching a strenuous attack upon the Plaintiff, it was, however, unfortunate that the Commonwealth itself placed before the Plaintiff in cross-examination a document which had been altered and was misleading in a material respect.

100 I do not consider that this event, nor any other feature of the conduct of the application entitles the Plaintiff at this time to an order that the Commonwealth pay his costs of this application.

101 However, it does seem to me, in all the circumstances and having regard to the justice of the case, that the question of costs should be reserved.

102 Accordingly, I make the following orders:

(a) pursuant to s.60G(2) Limitation Act 1969 , the limitation period for the cause of action in this proceeding is extended to the date on which the Statement of Claim was filed, being 18 October 2001;

(b) the question of costs is reserved.

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