Norman v Commonwealth

[2000] NSWSC 931

CITATION:	Norman v Commonwealth of Australia [2000] NSWSC 931
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20279/96
HEARING DATE(S):	7 September 2000
JUDGMENT DATE:	4 October 2000
PARTIES :	David Albert Norman (Plaintiff) Commonwealth of Australia (Defendant)
JUDGMENT OF:	Master Harrison

COUNSEL :	Mr I Butcher (Plaintiff) Mr B Skinner (Defendant)
SOLICITORS:	James Taylor & Co Myrtleford. Victoria (Plaintiff) Mr C Ktenas Australian Government Solicitor (Defendant)
CATCHWORDS:	Extension of time to commence proceedings'Ss 60G and 60I Limitation Act - Voyager/Melbourne collision
LEGISLATION CITED:	Ss 60 & 60I Limitation Act 1969 (NSW)
CASES CITED:	Commonwealth of Australia v Dinnison (1995) 56 FCR 389 Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 BHP Steel (AIS) Pty Limited v Guidice (NSWCA, unreported 7 March 1999) Commonwealth of Australia v McLean (1996-97) 14 NSWLR 389 Szerdahelyi v Bailey (NSWSC, unreported Badgery-Parker J, 1 May 1997) Ortado v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997); Lewis v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997); Council of the City of Sydney v Zegarac (NSWCA, unreported 26 February 1998); Dow Corning Australia Pty Ltd v Paton, Meares v Paton (NSWCA, unreported 24 April 1998) Fitzgerald v Bankstown City Council (NSWCA, unreported 6 November 1995)
DECISION:	See para 39

23

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

WEDNESDAY, 4 OCTOBER 2000

20279/96 - DAVID ALBERT NORMAN v
COMMONWEALTH OF AUSTRALIA

JUDGMENT (Extension of time to commence proceedings,

Ss 60G and 60I Limitation Act -

Voyager/Melbourne collision)

1 MASTER: The plaintiff by notice of motion filed 20 March 1996 seeks an extension of time within which to commence proceedings pursuant to ss 60G and 60I of the Limitation Act 1969 (NSW) (the Act). The defendant opposes the orders sought. It did not rely on any affidavit evidence.

2   For the purposes of this application I find the following facts. In doing so I observed the plaintiff both giving evidence and being cross examined and formed the view that overall the plaintiff was a truthful witness. The exception is where the plaintiff maintained that his statement in paragraph 23 of his affidavit, that he had not been able to work since 1990, was because of his psychiatric condition. He maintained this position during cross examination, yet in 1998 he put in a claim saying that he was 100% unemployable due to his back injury. I accept that he may not have been employable as a fitter and turner due to his back but this is also a factor for his lack of employment since 1990.

(1) The plaintiff was born on 24 December 1944 and is 55 years of age.

(2) On 11 July 1960 the plaintiff enlisted as a recruit in the Royal Australian Navy at the age of 15 years. He was in good health both physically and psychologically. It was the plaintiff’s intention to serve as long as he could in the Navy as he had chosen it to be his career. He expected to serve for at least 30 years. His initial period of engagement was for 12 years.

(3) On 10 February 1964 the plaintiff was a member of the crew of HMAS Melbourne when she was doing working up exercises with the escort destroyer HMAS Voyager. He held the rank of ME(1) which is equivalent to the rank of an Able Seaman.

(4) On 10 February 1964 the Voyager was sunk when she collided with the Melbourne on high seas some 20 miles south east of Jervis Bay. Eighty two men from the Voyager lost their lives.

(5) At the time of the collision the plaintiff was in the stores office doing auxiliary watch keeping certificate reports which was necessary for him to obtain a promotion. He felt the ship lurch. He realised that they had hit the Voyager and he heard a pipe “all hands to emergency stations”. The plaintiff rushed straight aft to his emergency station which was the steering gear compartment on 5 deck. He was terrified because the compartment was full of 0M100 vapour. He was covered in oil. 0M100 in vapour form is very explosive; it is a lubricating oil. He thought that at any moment he would be killed by an explosion. There was a problem with the pump and rudder but it re-commenced working.

(6) The plaintiff was in a state of acute fear as he thought he was going to be blown to bits. He recalls finding himself on 4 deck and then 3 deck. He was shaking all over with fear to such an extent that he was disorientated and confused. He looked out across the water and to his horror saw the stern of the Voyager floating in the water, and could see lights on her and could hear emergency diesel whirring.

Nets were put down the starboard side of the Melbourne and he climbed down the nets and helped to get some of the survivors on board. They were covered in oil, some were choking from the oil and oil was in their eyes. The plaintiff went down the net four times. He helped his fellow crewman to get the survivors on board and helped to clean the oil off some of the men. They were in a shocking state. Some were groaning with pain from injuries, some were covered in oil and blood and some were vomiting. It was a scene of devastation.
When the plaintiff went down the nets the last time, he saw what he thought was his reflection in the water, it was drifting away and he realised it was a dead body. At the time he had hold of a survivor trying to get him up the net when he saw the face of the dead person drifting away in the water. There was nothing he could do because he was too busy holding onto the survivor who was trying to get onto the net and up the side of the Melbourne.


(7) The plaintiff remembered being distressed and fearful for some of his mates on the Voyager especially Petty Officer McCartney who was what he called “sea dad”. A sea dad is a person that looks after a young sailor when he first joins. The plaintiff was 15 years of age when he joined the Navy and he was devastated when he found out later that Petty Officer McCartney had been killed. He had been like an elder brother and father to the plaintiff all rolled into one.

The plaintiff was unable to sleep and he recalls the fellows in his Mess talking about the men they had known on the Voyager and being distressed at not knowing who had survived and who might have been killed. Early the next day they were told of the fellows that had been killed and he broke down and cried.

(8) After the collision the plaintiff returned to Sydney and was relieved to go ashore. He was in his uniform and recalls being distressed at being called a murderer by people standing outside Garden Island dockyard. On his night ashore the plaintiff attended Epping RSL with RPO Lou Butcher and Electrical Mechanic Ian Gibb. He was drunk and was crying. The plaintiff remembers a man two tables across from them saying “what a bunch of arseholes you are, it would not have happened in my day.” The plaintiff jumped up and grabbed the man by the throat. He was separated from the man. He got absolutely blind drunk that night.

(9) On returning to the ship the plaintiff felt awful about losing his friend Mucka McCartney off the Voyager. He had lost trust in the Navy. He had until that time thought that the Navy would look after people. He realised after the collision that there were a lot of people the Navy did not look after. The plaintiff felt ashamed to be a crewmember of the Melbourne. He lost his self confidence and self esteem. He remembered that the Naval hierarchy and Government tried to make Captain Robertson a scapegoat and this also affected him.

(10) The plaintiff began to drink heavily to help him sleep and he was having bad memories. These memories have never left him and are part of his daily life. He started to have nightmares and still has nightmares. He became anxious, irritable and argumentative. He was fearful of being below deck but put a lid on his emotions in order to carry out his duties. Every time he went down into the boiler rooms or steering compartments or locked compartments he became extremely apprehensive. He felt all these emotions and feelings were normal and that he just had to cope with them. Throughout the rest of his Naval career to the present time he has been irritable, argumentative and anxious but felt this was normal and he thought he was coping. His heavy drinking has continued from the time of the collision to this day as it helps to calm him down.

(11) In 1965 the plaintiff did a motor transport course and was sent to America on the HMAS Perth. He was on the HMAS Perth for 2 years acting as escort destroyer. Each time they shadowed the Melbourne he was unable to sleep. When the Melbourne also collided with the USS Evans he was in an almost identical situation to that of the Voyager and all the terrible memories flooded back to him.

(12) Between 1969 to 1971 the plaintiff did 4 tours of duty of Vietnam on the HMAS Sydney. His nightmares increased. He would suddenly wake up in fright and covered in sweat. The nightmares invariably involved Mucka McCartney and he visualised the bow of the Voyager going down. In some of the nightmares the plaintiff was locked in the steering compartment. The nightmares increased whilst he was on tour in Vietnam but he thought it was just caused by the stressful situation he was then in. He thought he would cope. The plaintiff had a number of life threatening experiences on board HMAS Sydney while in the waters of Vietnam. He had to enter a soot blower unit in heat resistant clothes to take the back of a boiler off. This was a distressing near death experience. A United States fighter jet flew over the upper deck and let off phosphorus. This was two days after the United States attacked the HMAS Hobart and killed two sailors. On another occasion he felt he was in danger when the HMAS Sydney carried out 24 hour surveillance looking for Russian divers. He also fell in the engine room of a landing craft and injured his back and shoulder. In 1998 the plaintiff lodged a claim with the defendant in relation to these experiences.

(13) In 1972 the plaintiff attended the Navy doctor as he was suffering from a terrible itching which was driving him mad. He was diagnosed as having scabies. In 1973 the plaintiff saw a psychiatrist on HMAS Encounter regarding his weight problem. He made no mention of the Melbourne/Voyager collision.

(14) Prior to the collision the plaintiff says that he was an outgoing and jovial person and he felt great. He seldom drank, was a member of the Navy water polo team and had no fear of the sea. After the collision he became afraid of heights. He began getting into trouble with officer, could not take criticism, was on edge and jumpy and feared going below the water line. In the end the plaintiff just got sick of trying to cope as he could not stand it any more and quit the Navy throwing away a life pension and a fulfilling career.

(15) On 10 July 1975 the plaintiff was discharged from the Navy holding the rank of Chief Petty Officer Marine Technical Propulsion.

(16) Prior to the accident the plaintiff seldom drank and he used to give away his beer issue to other sailors. After the collision he sometimes would drink two bottles of wine in a night along with beer. He felt like a time bomb ready to explode with his subordinates and his superiors. He lost friends. He became quick tempered and abusive which affected his marriage. His marriage began to break down during 1974 to 1975.

(17) In 1977 the plaintiff’s wife left him.

(18) After the plaintiff’s discharge from the Navy he obtained a job at an abattoir as a fitter and turner. He left this job in 1980. He then went to work at the Childrens hospital as a medical technician in charge of diesels and boilers and steam and all other like hospital machinery. He remained there until 1984 but left because he was irritable and abusive towards the foreman. He had no confidence. He took a 6 month break during which time he was on the dole.

(19) In 1985 the plaintiff got a job with the Master Butchers. He was on the road most of the time doing the rounds and providing maintenance.

(20) In 1987 the plaintiff lost his job. His back was giving a good deal of trouble and he did a rehabilitation course through CES Job Search. In 1988 the plaintiff obtained a job through CES which lasted for about 6 months after which time he was unemployed again for 12 months.

(21) In 1990/1991 the plaintiff obtained a job with Bianco’s Engineering Construction for about 12 months and was retrenched. He has not worked since and is unable to work due to his psychiatric condition.

(22) About mid 1995 a fellow Naval friend offered the plaintiff some friendly advice about his lifestyle. He told the plaintiff he should “lift his game and get off the drink”. Someone told the plaintiff how he had felt when he was being treated for a psychiatric disorder and he told the plaintiff that he should see a psychiatrist. Up until that time the plaintiff did not realise that there was anything wrong with him. The plaintiff’s friend sent him an ad he had obtained out of a newspaper put in by James Taylor solicitor.

(23) In November 1995 the plaintiff contacted James Taylor and as a consequence of that he saw Dr Robert Wu a psychiatrist.

(24) On 1 February 1996 the plaintiff saw Dr Wu and he poured out the whole of his feelings and his involvement and memories surrounding the collision. This was the first time that the plaintiff became aware that he was suffering from any psychiatric disorder caused by the collision. Previously he had not sought any psychiatric treatment other than in 1973 when he was directed to take diet pills which cause psychological side effects. Once he was taken off the medication that problem resolved itself.

(25) Dr Wu in his report dated 1 February 1996 stated that the plaintiff showed symptoms and signs of acute stress disorder early after the collision and that these developed into post traumatic stress disorder (PTSD). Dr Wu said that there had been some reduction of the symptomatology and now the features are residual. The adjustment disorder issues were more long lasting. The continuation of the stresses of remaining in the Navy after the collision caused the maintenance of symptomatology. According to Dr Wu the symptoms and signs are attributable to the plaintiff’s experiences in the collision. He also opined that the stresses were sufficiently distressing for the plaintiff to retire prematurely.

The plaintiff’s psychiatric condition is not the only factor which affects his ability to work. In 1998 he made a claim for a pension on the basis that his back and rotator cuff injuries meant that he could no longer perform heavy manual labour, such as required in the trade of a fitter and turner.


(26) On 20 March 1996 the statement of claim was filed and the notice of motion to extend the limitation period was filed.

The Law

3 Section 60G empowers the court to extend the limitation period, if it is just and reasonable to do so, “for such period as it determines”. The onus rests with the plaintiff. In addition to satisfying a threshold requirement in s 60I(1)(a), it must be shown that it is just and reasonable to make an order.

4 The relevant provisions of s 60I are as follows:

“(1) A court may not make an order under s 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 three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a)(i)-(iii).”

5 Thus to gain access to the beneficial provisions of s 60G, the plaintiff must show that:

(1) As at 10 February 1970 (the expiration of the relevant limitation period) he was unaware of one or more of the matters identified in s 60I(1)(a)(i), (ii) or (iii);

(2) That he did not become aware of that or those or he ought to have become aware in s 60I(1)(a) (or the last of those matters to become known to him) earlier than 20 March 1993.

6   The practical effect is to require the plaintiff to identify specifically what fact or facts he claims not to have known as at 10 February 1970, which lack of knowledge meets the description in one or more of paragraphs (i), (ii) and (iii) of s 60I(1)(a); and to show (by evidence) the date on which he acquired knowledge thereof (being a date later than 20 March 1993); or to show that that fact was or those facts were still unknown to him on that date. The defendant did not submit that the plaintiff ought to have become aware of the matters listed in paragraphs (i)-(iii) at an earlier date - see s 60I (1)(b).

7 The plaintiff relied on s 60I (1)(a)(i), (ii) and (iii). The plaintiff submitted that he was unaware that he suffered the psychiatric condition of PTSD until 1 February 1996. The plaintiff also submitted that he did not know of the connection between the personal injury and of the defendant’s act or omissions until he read the statement of claim in 1996.

8   The defendant submitted that the plaintiff knew within the limitation period that he suffered from the symptoms of PTSD. The defendant also submitted that the plaintiff knew he suffered a personal injury, the nature or extent of his injury and the connection between the personal injury within the limitation period. The defendant submitted that the plaintiff’s back injury made him unable to work since 1990.

(i) Whether the plaintiff has proved that “he did not know that a personal injury had been suffered ”

9   Prior to the collision the plaintiff had been in good physical and psychological health. Prior to the expiration of the limitation period the plaintiff knew that he suffered from depression, loss of confidence, nightmares, flashback, night sweats and fast heartbeat. He developed a fear of heights and the sea. He knew he was irritable and argumentative but he thought that this was normal and he was coping. After the collision the plaintiff took up drinking an excessive amount of alcohol to calm himself down.

10 However, any knowledge the plaintiff acquired when completing this claim was acquired within the time period stipulated by s 60I(1)(b).

11   As was stated by the Full Federal Court in Commonwealth of Australia v Dinnison (1995) 56 FCR 389 (per Gummow and Cooper JJ at p 402) it is important to appreciate that the personal injury that the plaintiff suffered was a psychiatric illness. It should also be appreciated that it is the perception of the plaintiff that is important. It was in February 1996 at the earliest that the plaintiff was informed for the first time that he suffered from a diagnosable illness, namely PTSD and that it was caused by the collision. It is my view that the plaintiff did not become aware that he suffered a personal injury until the term PTSD was explained to him by Dr Wu in February 1996. The plaintiff has passed through the s 60I(1)(a)(i) gateway.

(ii) Whether the plaintiff has proved that he was “unaware of the nature or extent of the personal injury suffered ”

12 The test of knowledge posed by s 60I (1)(a)(ii) requires the court to look at the actual awareness of the plaintiff. Neither the reasonableness of that awareness nor constructive knowledge is an element of s 60I (1)(a) - (Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 at pp 9 and 10). Harris is a case of a physical disease of gradual onset and not one of psychiatric illness.

13 I have referred to the state of the plaintiff’s knowledge prior to and after the expiration of the limitation period under the heading s 60I(1)(a)(i). The plaintiff had much the same symptoms prior to the expiration of the limitation period as he did after the expiration of the limitation period. He was unaware that he had a diagnosable psychiatric illness until 1996 at the earliest. It is more likely that he became aware that he had a diagnosable psychiatric injury namely PTSD when he was first told of this by Dr Wu in February 1996.

14 It is my view that the plaintiff did not know the nature or extent of his personal injury until February 1996 when he became aware that he had a diagnosable psychiatric illness. This falls within the period stipulated by s 60I(1)(b). It is my view that the plaintiff has passed through the 60I(1)(a)(ii) gateway.

(iii) Whether the plaintiff was “unaware of the connection between personal injury and the defendant’s act or omission ”

15 Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than legal conclusions.

16   The plaintiff submitted that it was not until he read the statement of claim in 1996, and specifically the particulars of negligence, that he was aware of the factors that contributed to the collision and that those factors represented acts of negligence by the defendant, its servants or agents.

17   The defendant submitted that because the plaintiff knew shortly after the collision that there had been a “stuff up” caused by the Navy in the guise of the Commonwealth, he was aware of the connection between the personal injury and the defendant’s acts or omissions.

18 The acts or omissions referred to in s 60I(1)(a)(iii) are the acts or omissions on which the plaintiff relied to found the cause of action referred to in s 60G. Those acts or omissions, are to be found in the plaintiff’s particulars of negligence. - Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995).

19   In paragraph 5(a) to (p) of the statement of claim the plaintiff gives particulars of negligence as against the officers of the Voyager. They are as follows:

(a) Causing Voyager to make a turn beyond a course of 020 degrees when not ordered to do so;
(b) Failing to correctly carry out orders transmitted from Melbourne to Voyager;
(c) Failing to correctly receive orders transmitted from Melbourne to Voyager;
(d) Causing or permitting Voyager to take up a course of other than that indicated by signals from Melbourne;
(e) Failing to correctly transmit as orders, signals received from Melbourne;
(f) Causing or permitting Voyager to proceed on a course across and close to the bows of Melbourne;
(g) Causing or permitting Voyager to proceed upon a course and at a speed taking her across and close to the bows of Melbourne;
(h) Failing to alter the course or speed of Voyager in time to avoid a collision;
(i) Failing to maintain a constant and efficient watch;
(j) Failing to observe in sufficient time or at all that if the course and speed of Voyager and Melbourne remained constant a collision was likely to occur;
(k) Failing to warn Melbourne that Voyager was proceeding upon a course across and close to the bows of Melbourne;
(l) Failing to warn Melbourne that a collision was imminent;
(m) Failing to give right of way to Melbourne;
(n) Failing to ensure that Voyager and its equipment were in a seaworthy and safe condition;
(o) Failing to ensure that all persons on Voyager were properly trained and prepared for the eventuality of a collision or other catastrophe;
(p) Failing to maintain any or any adequate lookout.

20   Similarly, there are particulars of negligence given in relation to the officers of the Melbourne and further particulars of negligence of other officers and servants of the Commonwealth of Australia. The plaintiff was not cross examined on this issue.

21 I accept that it was not until 1996 at the earliest, when the plaintiff read the statement of claim that he became aware of the connection between the personal injury and the defendant’s acts or omissions. This falls within the time period stipulated by s 60I(1)(b). The plaintiff has passed through the s 60I(1)(a)(iii) gateway.

22 As the plaintiff has passed through all three s 60I(1)(a) gateways I turn to consider whether it is just and reasonable to extend the limitation period.

Just and reasonable

23   The nature of the discretion conferred by s 31(2) of the Queensland Limitations Act was considered by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1. Section 31(2) is almost identical to s 58(2) of the New South Wales Limitation Act. The Court of Appeal has applied Taylor in relation to s 60G in BHP Steel (AIS) Pty Limited v Giudice (NSWCA, unreported 7 March 1999) and Commonwealth of Australia v McLean (1996-97) 14 NSWLR 389.

24 Firstly, I turn to consider whether the plaintiff has a real case to advance. In relation to s 60G, the applicant bears an evidentiary and persuasive onus which, in the absence of concession, requires material to be adduced which demonstrates that the dilatory plaintiff has a real case to advance. The need for the court to decide that it is just and reasonable to extend the limitation period must focus attention on the question whether there is indeed evidence to establish the plaintiff’s cause of action. It would rarely be possible to say that it was just and reasonable to subject the defendant to litigation otherwise statute barred if it did not appear that there was evidence available to the plaintiff to establish his cause of action. (see Szerdahelyi v Bailey (NSWSC, unreported Badgery-Parker J, 1 May 1997); Ortado v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997); Lewis v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997); Council of the City of Sydney v Zegarac (NSWCA, unreported 26 February 1998); Dow Corning Australia Pty Ltd v Paton, Meares v Paton (NSWCA, unreported 24 April 1998) and Fitzgerald v Bankstown City Council (NSWCA, unreported 6 November 1995).

25   The defendant did not make a submission that the plaintiff had no real case to advance. The plaintiff was employed by the defendant. The defendant as employer of the plaintiff had a duty of care to the plaintiff. The foreseeability of the plaintiff’s damage will be in issue at the trial. It is the plaintiff’s contention that as a result of his being on board the Melbourne when the collision with the Voyager occurred he suffered PTSD. There is medical evidence to support this claim. However, an issue at trial will be to what extent his physical and psychiatric injuries reduced his ability to work.

26   I turn now to Taylor’s case. In Taylor McHugh J referred to the effects of delay in the now often quoted passage which states:

“The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.”

27   and;

“Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff’s right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff’s action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period.

In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff’s lost right should not be revived than that the defendant should have a spent liability reimposed upon it.”

28   Dawson J, in Taylor said at page 2:

“The applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant.”

29   and;

"The onus of satisfying the court that the discretion should be exercised in favour of an applicant lies on the applicant. To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant. I agree with McHugh J that, once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation."

30   He continues:

“The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question: Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires an extension."

31   In Zegarac the Court of Appeal considered the effects of Taylor in relation to the extension of the limitation period of a case which falls into subdivision 2 of the Limitation Act 1969 - ss 60C and 60E.

32   Mason P analysed the views of the Judges of the High Court in Taylor’s case. The President quoted the passage by McHugh J which begins “Legislatures enact” and was of the view that Dawson J agreed with McHugh J. Mason P concluded that it could therefore be seen that Dawson and McHugh JJ appeared to indicate that it is mandatory that the applicant negate “significant prejudice” before the discretion could be exercised in his or her favour.

33   Toohey and Gummow JJ (in their joint judgment) expressed themselves in the following terms.

“The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent.”

34   Mason P perceived that there may be a distinction between the notion of “significant prejudice” and the notion that delay makes “the chances of a fair trial unlikely”. In determining whether it is just and reasonable to extend the limitation period in this application I will examine whether the delay has made “the chances of a fair trial unlikely” or whether the defendants would suffer “significant prejudice”.

35   The defendant has admitted the collision but denied it was negligent. As I have previously stated I accept that with the passing of 36 years, there is the real possibility that some witnesses may not be available to give evidence at the trial. It can also be expected that memories will have faded with the effluxion of time and some witnesses may no longer be alive or able to be located. Indisputably there is presumptive prejudice.

36   The defendant did not put on any evidence to actual prejudice. Dr Wu has died but his report may, at the discretion of the trial judge be admitted into evidence. The defendant has had the plaintiff examined by two psychiatrists, Dr Ewer and Dr Phillips in relation to these proceedings. Dr Phillips’ report has not been served.

37   The events surrounding the collision between the Melbourne and Voyager are well known and there is documentary evidence available - see McLean.

38   After I have taken into account all of these matters, I am not satisfied that the “chances of the defendant obtaining a fair trial are unlikely” nor am I satisfied that the defendant will suffer “significant prejudice”. It is my view that the plaintiff has discharged his onus and satisfied me that it is just and reasonable that an order be made that the limitation period be extended. The appropriate order for costs is that costs be costs in the cause.

39   The orders I make are:

(1) The plaintiff is granted an extension of time within which to commence proceedings in this court for damages in respect of an accident which occurred on 10 February 1964 up to and including 4 October 2000.

(2) Costs are costs in the cause.
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Last Modified: 10/05/2000