Mundraby v Commonwealth of Australia

[2001] FCA 834

FEDERAL COURT OF AUSTRALIA

Mundraby v Commonwealth of Australia [2001] FCA 834

ELLIS MUNDRABY v COMMONWEALTH OF AUSTRALIA
NG 808 OF 1998

AND

DAVID MARK LEWIS v COMMONWEALTH OF AUSTRALIA
NG 809 OF 1998

TAMBERLIN J
SYDNEY
28 JUNE 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 808 OF 1998

BETWEEN:	ELLIS MUNDRABY APPLICANT
AND:	COMMONWEALTH OF AUSTRALIA RESPONDENT
NG 809 of 1998
BETWEEN:	DAVID MARK LEWIS APPLICANT
AND:	COMMONWEALTH OF AUSTRALIA RESPONDENT
JUDGE:	TAMBERLIN J
DATE:	28 JUNE 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter, I am satisfied that Mr McKenzie has sufficient expertise and experience to testify relevantly in relation to the issues in the case which are the subject of his report.  Although he cannot testify specifically in relation to the incident at sea in October 1985, I think his evidence is capable of bearing on the question that will ultimately fall for determination.  I think it is artificial to confine the evidence which may be adduced to experience of what actually happens at sea in relation to the effect of bilge water and oily water and the generation of gas, to the exclusion of more general experience of gas generators.

2. I think it is important to know, as background to his qualifications, what research Mr McKenzie had done and what he may have communicated.  I can see, of course, that there is a wide area of dispute in relation to the weight that should be given to the evidence of Mr McKenzie.  In particular, the weight that should be given to his evidence of what happens on shore will be affected by what particular circumstances there may be at sea which will distinguish his expertise from the expertise of a person who has actually carried out research on a ship at sea.

3. So far as expertise is concerned, I am satisfied that Mr McKenzie has expertise in the area and I also think his evidence is material in relation to what he may have passed on to other persons of various ranks in the Royal Australian Navy.  I am therefore prepared to allow his evidence.  However, I can see that there is a great deal of room for debate in relation to whether Mr McKenzie’s knowledge is the knowledge of the Navy as such, and whether the material which was passed on to other officers in the naval service was to personnel who were of sufficient seniority to be identified with the Navy so far as the question of notice is concerned.

4. At the moment, on this issue of his expertise, I am satisfied Mr McKenzie has the expertise and the experience to speak about the subject matter of his report.  Of course, he needs no expertise to give evidence as to what he passed on to other persons.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:  10 July 2001

Counsel for the Applicant:	Mr D T Kennedy SC Mr E G Romaniuk Mr A C M Iuliano
Solicitor for the Applicant:	William Szekely Szekely & Associates
Counsel for the Respondent:	Mr C C Branson QC Mr P S Jones Ms S Thode
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 June 2001
Date of Judgment:	28 June 2001