Raymond Archer Smith v Commonwealth of Australia

[2006] NSWSC 796

CITATION:	Raymond Archer Smith v Commonwealth of Australia [2006] NSWSC 796
HEARING DATE(S):	19/07/2006
JUDGMENT DATE :	10 August 2006
JUDGMENT OF:	Hoeben J at 1
DECISION:	The limitation period is extended pursuant to s60G of the Limitation Act 1969 (as amended) up to and including 12 September 2001. Each party to pay his or its own costs of this application.
CATCHWORDS:	Limitation of actions - sailor on HMAS Melbourne - whether plaintiff ought to have been unaware of nature and extent of personal injury - whether plaintiff ought to have been unaware of connection between personal injury and act or omission of defendant - whether just and reasonable to grant an extension of time - whether fair trial possible - costs order to reflect way in which matter conducted.
LEGISLATION CITED:	Compensation to Relatives Act 1897 Limitation Act 1969 (as amended)
CASES CITED:	Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Commonwealth of Australia v Diston [2003] NSWCA 51 Commonwealth of Australia v McLean (1997) 41 NSWLR 389 Commonwealth of Australia v Shaw [2006] NSWCA 209 at [78] Commonwealth of Australia v Smith [2005] NSWCA 478 Drayton Coal Pty Limited v Drain (Court of Appeal, unreported, 22 August 1995) Holt v Wynter (2000) 49 NSWLR 128 at 146/7 Parsons v Doukas (2001) 52 NSWLR 163 South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 Telstra Corporation v Rea [2002] NSWCA 49
PARTIES:	Raymond Archer Smith - Plaintiff Commonwealth of Australia - Defendant
FILE NUMBER(S):	SC 20770/2001
COUNSEL:	Mr J L Sharpe - Plaintiff Mr D Brogan - Defendant
SOLICITORS:	Hollows Lawyers - Plaintiff Blake Dawson Waldron - Defendant

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Thursday, 10 August 2006

20770/2001 – Raymond Archer SMITH v COMMONWEALTH OF AUSTRALIA

JUDGMENT

1 HIS HONOUR:

Nature of application
The plaintiff was born on 18 June 1940 and was raised in Queensland. He left school at age fourteen and a half in 1954. Thereafter he worked for approximately 12 months on a prawning boat, in a tannery for approximately eight months and in an engineering workshop called “Watson Engineering” for several months. He worked on a prawn trawler until joining the Navy on 21 March 1958. The plaintiff was aged 17 years and 9 months at the time and enlisted for a term of nine years.

2 The plaintiff completed his recruit training at HMAS Cerberus at Flinders in Victoria and was posted to HMAS Anzac, a battle class destroyer. He served on that ship for about 15 months which included 9 months away from Australia. One of the tasks performed by that ship was patrolling the coasts of Malaya and Vietnam looking for communist terrorists and pirates. The plaintiff was next posted to HMAS Swan for 12 months, to HMAS Torrens at Maralinga in 1962 and to HMAS Cerberus and HMAS Penguin in 1963 while he was undertaking courses. He was posted to HMAS Melbourne on 5 January 1964.

3 The plaintiff worked in the mechanical branch of the Naval Service. He was initially appointed as an engineering mechanic class 2 and subsequently proceeded quickly through the ranks. He passed his exams for petty officer in June 1963 and was promoted to that rank on 2 October 1964.

4 On 10 February 1964, which was the date when HMAS Voyager collided with HMAS Melbourne, the plaintiff was off duty on board HMAS Melbourne in the mess deck located on level 3D on the port side. This location is approximately 10 metres from the bow of the ship. When the impact occurred, the plaintiff heard a loud noise and was knocked backwards by the force of the collision.

5 An alarm sounded which required the plaintiff to report to his emergency station. This was midship below the flight deck and below the water line, controlling the pumps which fuelled the aircraft. The plaintiff changed into his overalls and ran to his emergency station. It was at this time that he was told that there had been a collision with HMAS Voyager. He was given no further information. He remained at his emergency station for between 10-12 hours. His emergency station comprised a room five feet by ten. The only communication which he received during this time was through a system of buzzers which advised him when to start and stop pumping the fuel. Since the emergency station was well below the water line on level 7 of the ship, the plaintiff said that he was concerned that if the ship were sinking he would have no chance of escape.

6 When the plaintiff stood down from his emergency station he received no briefing or counselling. He and the other sailors were left to discuss the matter amongst themselves. A direction was subsequently received by the plaintiff and other members of the crew of HMAS Melbourne that they were not to discuss the collision with the media or any outsiders. The ship then returned to Sydney.

7 The plaintiff alleges that as a result of the collision he developed a chronic post-traumatic stress disorder with associated alcohol abuse and generalised anxiety. He claims damages for those matters and their impact on his life.

8 As a preliminary step he must obtain an order extending the limitation period under the Limitation Act 1969 (as amended) (hereafter called the Act) to 12 September 2001 when the statement of claim and this application were filed. This judgment relates to the application for an extension of the limitation period.

9 The statement of claim sets out a number of particulars of negligence which include matters such as failing to correctly transmit orders and signals. The allegations are made against officers on HMAS Voyager and against officers on HMAS Melbourne. The defendant essentially admits liability. It does not admit the allegations of injury, loss and damage.

10 At paragraph 6 of the statement of claim it is alleged that the plaintiff

“… has suffered loss and damage aggravating accelerating exacerbating and/or resulting in the future deterioration of the following:
(a) severe shock;
(b) severe anxiety and depression
(c) difficulties with sleeping, disturbing dreams, night sweats, fear of going to sea and flashbacks;
(d) irritability and fatigue;
(e) difficulty in concentrating, making decisions and solving problems;
(f) mood swings, frustration, isolation and reduced ability to engage in sexual intercourse;
(g) chronic moderately severe post-traumatic stress disorder with avoidance symptoms and arousal symptoms;
(h) emotional detachment;
(i) attempts to medicate himself by heavy use of alcohol and tobacco;
(j) acid reflux;
(k) adjustment disorder.”

11 It is the plaintiff’s case that but for the collision and the injuries sustained by him he would have progressed through the ranks of the Navy within his speciality in the Engineering Branch until after 20 years he would have been entitled to a DFRDB pension. Following the collision because of his injuries he lost interest in a career in the Navy, sought discharge at the end of his nine year period of enlistment and thereafter worked in comparatively menial jobs until the present time, ie the coin room of the Reserve Bank of Queensland and most recently as a bottle shop attendant.

12 The plaintiff says that had he remained in the Navy he would have earned more than he has been able to earn in employment since his discharge. His claim is for general damages, past economic loss, loss of pension benefits and interest on those components of damage.

The Limitation Act

13 The plaintiff relies upon ss 60G and 60I of the Act. Those sections read as follows:

“60G(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 decided 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.”

14 Section 60I(1) provides:

“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 three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraphs (a)(i)-(iii) …”

15 The effect of clause 4 of Schedule 5 of the Act is that s60G applies to this cause of action which accrued before 1 September 1990. It was common ground that for the plaintiff to succeed in obtaining an extension of time, he had to bring himself within the provisions of ss60G and 60I of the Act.

16 A plaintiff seeking an order under s60G must satisfy the requirements of s60I. This requires the plaintiff to:

(a) Show that one or more of sub-paras (i)-(iii) of s60I(1)(a) applies; and
(b) show that the application was made within a time defined by reference to s60I(i)(b).

Where those requirements are met, the court turns to the question of whether in all the circumstances it is just and reasonable to extend the limitation period.

17 The following principles have been stated as relevant to the exercise of discretion conferred by s60G and the “gateway” provisions thereto found in s60I:

(a) 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.

(b) 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 v Doukas (2001) 52 NSWLR 163.

(c) Although s60I(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.

18 Underlying all of the decisions in this area is the fundamental principle that for the Court to be satisfied that it is just and reasonable to extend the limitation period, a plaintiff has to satisfy it that a fair trial is possible from the defendant’s point of view – Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, Holt v Wynter.

19 In considering the fundamental question of whether there can be a fair trial, it is necessary to bear in mind that “fair” does not mean “ideal” – Commonwealth v 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.

Section 60I “Gateway Provisions”

20 It was the plaintiff’s case that before the collision with HMAS Voyager, he enjoyed his Naval service and in particular visiting foreign ports. He was able to sleep without difficulty and was able to mix and socialise well with his fellow sailors. He only drank and smoked moderately. He was ambitious and wished to advance in the Naval service.

21 During the 10-12 hours he was at his emergency station on his own, it was the plaintiff’s evidence that he became extremely anxious. He thought about his friends in HMAS Voyager (one of whom died in the collision) and he thought about his own dangerous position well below the water line in the lower levels of the aircraft carrier near to large quantities of fuel. These fears and anxieties were exacerbated by the fact that he had no communication with anyone during that period and was not aware of exactly what had happened. In particular he says that he was not aware of what damage had been suffered by his own ship.

22 The plaintiff said that he had little memory of events while HMAS Melbourne sailed back to Sydney. He became self-conscious of the fact that he had been on HMAS Melbourne when it had caused such a high loss of life to those on board HMAS Voyager.

23 After the collision the plaintiff said that he lost his love of the sea and of Navy life. He became anxious whenever he was at sea and could never relax properly. He stopped looking for promotion opportunities. He did not apply for any more courses or exams after the collision. The fact that he was promoted after the collision was as a result of examinations he had passed before the collision. He focused on serving out the rest of his enlistment period so that he could be discharged at the earliest opportunity. He took his discharge from the Navy on 21 March 1967.

24 After the collision the plaintiff no longer wanted to go ashore with other sailors and tended to avoid their company in social situations. When overseas with the Navy, he tended to stay on the ship. Not long after the collision he developed problems with sleeping. He started having nightmares, at least a couple of times a week, of being closed up in the pump room and would wake up feeling distressed, uncomfortable and in a cold sweat. Those nightmares had continued up to the present time, although they were less intense and less frightening than in the period immediately after the collision.

25 It was the plaintiff’s opinion that he had significantly increased his intake of alcohol to help get to sleep, to give himself some comfort and to help shut out the disturbing memories and thoughts associated with the night on which the collision occurred. The plaintiff said that his beer consumption steadily increased when he was on shore to eighteen cans or stubbies of full strength beer per day.

26 The plaintiff noticed that whereas before the collision he had tended to smoke approximately one packet of cigarettes every few days, afterwards his smoking increased until he was smoking around sixty cigarettes per day. His level of smoking has fluctuated since then but on occasions he still smokes very heavily.

27 After the accident not only did the plaintiff avoid mixing with other sailors and other people generally, but he became distressed when in confined spaces, especially lifts or on an aircraft. Ever since the accident he has tried to avoid crowded places such as football or cricket matches and even shops, supermarkets, public transport and shopping centres when they are crowded.

28 After leaving the Navy the plaintiff continued to drink heavily, particularly on days when he was not working. Although he had mechanical engineering qualifications because of his Naval service, he did not look for employment in that field but took a job operating a coin counting machine for the Reserve Bank of Queensland. There was no need to mix very much with other workers when performing this job. He remained in that employment as a coin counter between 1967 and when he was retrenched in 1989.

29 For the first few years after being retrenched the plaintiff lived on his redundancy pay out package. In 1994 he obtained employment with the Filmers Palace Hotel as a permanent part-time drive-in attendant working between 24 and 30 hours per week. He remained in that employment until August 2001. He has not worked since that date and has been in receipt of a service pension. He said that he was able to tolerate the employment at the bottle shop because on most occasions it was fairly quiet and people did not want to stay and talk.

30 Since leaving the Navy the plaintiff only sought medical attention for minor ailments such as colds and flu, headaches and indigestion and a recurring right knee problem which he had developed while playing rugby in the Navy. The plaintiff had also attended the nurse at the Reserve Bank sickbay from time to time. At no time did he ever discuss his emotions or other symptoms with those doctors.

31 In about August 2000 the plaintiff made inquiries about a service pension from the Department of Veterans’ Affairs (DVA) due to a hearing problem which he had. He discussed some of his problems with a Mr Bob Long who was a pension liaison officer. It was this person who suggested that he had more than a hearing problem and that he ought consult a solicitor. It was as a result of that conversation that the plaintiff contacted his present solicitors, Messrs Hollows in late 2000.

32 Those solicitors referred the plaintiff to Mr Wayne Binfield, a consultant psychologist, whom the plaintiff saw for the first time on 9 December 2000. In a report to the solicitors dated 13 March 2001 Mr Binfield diagnosed the plaintiff as suffering from a moderate to severe chronic post-traumatic stress disorder.

33 At the request of his solicitors, the plaintiff saw Dr Glaser, a psychiatrist, on 24 July 2001. In a report dated 1 August 2001 Dr Glaser diagnosed the plaintiff as follows:

“From the psychiatric point of view, he is currently suffering from a post-traumatic stress disorder associated with alcohol abuse. His problems are of mild to moderate severity and include fears of (and some avoidance of) situations associated with the collision (sea travel, “rowdy” people, talking about the incident itself etc), a generally raised level of anxiety, sleep disturbance (particularly if he doesn’t drink), disturbing dreams, “flashbacks” related to the incident itself, mild moodiness, mild social avoidance and consumption of alcohol at well above “safe” levels.”

34 It was the plaintiff’s evidence that he was not aware that he had suffered any psychiatric disorder as a result of the collision until he saw Mr Binfield and Dr Glaser. He said that he realised he had experienced some problems over the years but he did not associate those problems with a psychiatric illness, nor did he associate those problems with the collision.

35 In early 2003 at the suggestion of Mr Kevin Dean from the Sandgate RSL Sub-branch the plaintiff lodged a claim with the DVA in relation to his shortness of breath, anxiety and depression. The plaintiff completed an application form in respect of that claim and was in due course seen by a Dr Jonathan Hargreaves, psychiatrist, on behalf of the DVA. Dr Hargreaves provided a report to the DVA dated 4 August 2003. Dr Hargreaves took a full and comprehensive history of the plaintiff’s service with the Navy and also a full and comprehensive list of his complaints and symptoms. Dr Hargreaves diagnosed a chronic post-traumatic stress disorder secondary to a Naval disaster and alcohol dependence. Dr Hargreaves attributed those problems to the effects on the plaintiff of the collision between HMAS Melbourne and HMAS Voyager.

36 The cross-examination of the plaintiff by the defendant was restricted to two matters. Insofar as the gateway provisions under s60I were concerned, the defendant implicitly conceded that the plaintiff had established that he did not know that personal injury had been suffered and was unaware of the nature and extent of the personal injury which was suffered and was unaware of the connection between the personal injury and the defendant’s act or omission. The plaintiff’s evidence on those matters was unchallenged.

37 Nevertheless, I still have to be satisfied that the plaintiff’s evidence is sufficient to satisfy the section 60I(1) requirements. The plaintiff’s evidence on this issue is at para 39 of his affidavit where he deposed:

“39. I had no notion and I was not aware that I had suffered a psychiatric disorder as a result of my experiences in the collision until I saw Mr Binfield and Dr Glaser. I realised there had been changes in me, but I had little insight into the impact of those changes and I did not have any idea what was causing them. …”

38 It seems to me that the plaintiff must have been aware that he had a sleep disturbance, was suffering nightmares and was abusing alcohol. It is unlikely that he knew that his introverted lifestyle and social isolation was a disability as such. It seems to me, therefore, that while the plaintiff might have known that he had suffered some form of personal injury he was not aware of all of the “injuries” which he had suffered.

39 Insofar as being aware of the nature or extent of the personal injuries suffered, in the absence of cross-examination on that issue and because I accept the plaintiff as being essentially a witness of truth, I accept that he was unaware of those matters. Similarly, I accept that the plaintiff was unaware of the connection between his personal injury and the defendant’s acts or omissions.

40 In those circumstances I find that as of 11 February 1970 when the limitation period expired, he did not know that he had suffered personal injury and was otherwise unaware of the matters referred to in s60I(1)(a)(ii) and (iii).

41 The first issue on which the plaintiff was cross-examined was whether his application for an extension of time had been made within three years after he ought to have become aware of all three matters listed in para 60I(1)(a). In that regard the defendant relied upon the evidence of the plaintiff and that of his wife.

42 The plaintiff’s evidence on this issue was:

“Q. It is the fact, isn't it, that over a long period of time the symptoms about which you now complain, your drinking and mood swings and so forth, was that which caused the tension between you and your wife?
A. I don't think so, no.

Q. For a long time she had been asking you to get some help?
A. Yes, but she just thought it was something else.

Q. But I'm simply trying to establish that for some considerable time your wife had been asking you to see a doctor to get some help?
A. That's correct, yes.

Q. And do you remember when your wife first commenced to ask you to see a doctor to get some help?
A. No. (T.25.26)
...

Q. Did you eventually see a doctor?
A. Yes.

Q. Who was that?
A. Dr Lean.

Q. When was that?
A. Oh, 2002 I think, 2003.
…

Q. And do you agree with the proposition that not only was she asking you to see a doctor but that she was actually putting pressure on you to see a doctor?
A. I think so, yes.

Q. And by that do you mean that she was actively agitating?
A. Sometimes, yes.

Q. And would not let up?
A. Sometimes. “ (T.26.6)

43 The evidence of the plaintiff’s wife was:

“Q. Tell me, over the time you have known him, when was the first time you knew about the Voyager disaster being anything to do with him?
A. Well, I knew there was something wrong with him but I didn't associate that with that until probably 15, 20 years ago, probably, you know. Like it's progressively gone over the period of time.

Q. When was the first time he talked to you about the Voyager?
A. He has never really really talked to me about the Voyager.

Q. So when you say over 15, 20 years, you knew there was something wrong with him over 15 to 20 years, is that right?
A. Yes.

Q. And you feel he has gone progressively down over that time?
A. Yes.

Q. He went to see a psychologist and then a doctor in 2000, 2001 sort of time. Did you talk about it then with him, about the Voyager?
A. Not really. He wouldn't open up.

Q. After that time, that is, in 2001, did you try to get him to see a doctor?
A. Yes, I did.

Q. And did he go to see a doctor?
A. He finally did, yes. (T.29.26)
…

Q. Is this a copy of that letter, 31 March 2003? Is that a copy of your letter to the doctor of that date?
A. Yes.

Q. In that letter in the second last paragraph you refer there to having tried to get your husband to see a doctor?
A. Yes.

Q. When did you start saying that he should go and see a doctor? Is that in the recent time before 2003 or when was that?
A. It's very hard to try and - probably a few years before that but, as men do, they refuse to go to doctors, unfortunately.

…

Q. You said over 15 years or so you've noticed things. What sort of things have you noticed about him?
A. His drinking, his moodiness, he doesn't like to associate with people very much. He doesn't like noise, things like that. He just likes to stay with his self.

Q. Anything about his sleep you have noticed?
A. Yes, he doesn't sleep real good. Many a time I have had to move out of the road because there's been an arm come across. (T.30.19)


Q. Madam, between 1986 and 2006 is it correct that you noticed these problems of drinking, sleep disorder, et cetera?
A. Yes.

Q. For the whole of that period?
A. Yes, it has been going on for a fair while, yes.

Q. Is it your evidence that it was only in about 2001 or thereabouts that you said anything to your husband about those matters?
A. Yes. I had been saying to him prior to that, but that's over a period of time when he finally went to see a doctor.

Q. But you would have been saying that to him presumably over the majority of the 15 or 20 year period that you noticed it, wouldn't you?
A. More towards probably 15 years onward like until now probably, yes.

Q. What you were saying to him was in effect you had noticed that his behaviour had changed?
A. Yes.

Q. And that it was affecting your marriage?
A. Yes.

Q. He was moody?
A. Yes.

Q. Difficult to get along with?
A. Yes.

Q. He didn't sleep properly?
A. No.

Q. And he was drinking heavily?
A. Yes.

Q. And you were trying to get him to understand that in your opinion there was something wrong with him?
A. Yes.

Q. Something psychologically wrong with him?
A. I thought there was, yes.

Q. For at least 15 years before, between the period 15 years before until 2003 you were actively trying to get him to seek some psychiatric help?
A. Yes. “

(There was a discussion with counsel as to the fairness of that last question and answer. In the circumstances I propose to disregard it, although I did not strike out the question and answer.)


“Q. When his Honour says wasn't right and wasn't well and when I asked you about your observations of your husband, I think you agreed with me that you thought there was something not quite right with him mentally; correct?
A. Yeah, I suppose. I wouldn't say - I knew there was something not right, basically.

Q. And you felt within yourself that he needed some form of treatment?
A. Yes.

Q. That he needed help, in other words?
A. Yes.

Q. And what was in your mind was that he needed to see some form of a doctor?
A. Just a doctor.

Q. Either to establish whether it was a physical condition that was causing these problems; correct?
A. Possibility, yes, I would say so.

Q. Or some other reason?
A. Yes.

Q. Which would have been some sort of mental problem; correct?
A. Yes.

Q. So you in your mind, I am only talking about you now, felt that the cause of these difficulties of which you have been speaking about could have either been physical or mental?
A. Yes.

Q. That's in effect what you were saying to your husband, wasn't it?
A. Yes.

Q. You were saying to him I think you might have either a physical or a mental problem; correct?
A. Well, I didn't actually say that, I just said, "You need to go to a doctor." Basically that's what I said to him.

Q. As you understood it, because you had discussed this with him many times, correct?
A. Yes, to go to a doctor, yes.

Q. You had spoken to him many times about this, you didn't just say to him, "I think you should go to a doctor", I presume, correct?
A. Yes, because I didn't know any psychiatrist or anything mentally, I knew there was a change.

Q. But you were saying to him presumably: Look, I think something is wrong with you because of all of these conditions that you have identified; correct?
A. Yes.

Q. You were saying to him: Look, you almost hit me with your elbow in bed last night, I think something's wrong?
A. Yes.

Q. You were saying to him: Look, I think you are drinking to excess?
A. Yes.

Q. You are not yourself, you are moody, you are not happy within yourself?
A. Yes.

Q. And these were things that you were saying to him?
A. Yes.

Q. You were putting that to him, you were identifying them to him?
A. Yes.

Q. You were pointing them out to him?
A. Yes.

Q. You were making it known to him that his behaviour had changed?
A. Yes.

Q. And you were suggesting to him that he needed to get some treatment?
A. Yes.

Q. And for the whole of the 15 years, I presume, he persisted in refusing to accede to your incantations?
A. Demands, yes.” (T.31.1 – 33.4)
…

“Q. When you agreed with the various things that were just put to you, do you recall the conversations you had with your husband over those years?
A. Basically not anything about what he was doing on a ship or anything else he didn't speak, just normal husband and wife conversations.

Q. When you told him to go, and I think you said you need a doctor, did you discuss each of the symptoms that have been put to you?
A. No, not to him, no.

Q. You noticed that there was a change in him as time progressed?
A. Yes.

Q. You yourself, do you have any medical knowledge?
A. No.

Q. You are not a doctor, are you, or anything of that nature?
A. No.

Q. Just to make it clear, when was the first time you knew that there was anything to do with the Voyager?
A. Probably in 2001 or around that area that I put two and two together.” (T.34.16)

44 The plaintiff’s wife was a relatively unsophisticated person. Despite her agreement to a number of propositions put to her by the cross-examiner, I was left with the clear impression that she did not at any time during the 1990’s or earlier discuss with the plaintiff each one of his symptoms. I am also satisfied that she did not ever suggest to him that he had a mental problem or that he should seek some kind of psychological or psychiatric assistance. I am, however, satisfied that she was aware that there were abnormalities in his behaviour and that she did suggest to him on more than one occasion that he should see a doctor. That conclusion conforms with the plaintiff’s evidence on this subject which I accept.

45 On the basis of that evidence, the defendant submitted that the plaintiff should have consulted a doctor when this was suggested by his wife and that if he had done so that doctor would have diagnosed him as suffering from some form of mental illness and he would have been referred to a psychologist or psychiatrist for treatment as a result of which his problems would have been diagnosed and he would have become aware of the matters referred to in s60I(1)(a) of the Act.

46 There are a number of difficulties with that submission. As the plaintiff’s wife pointed out, she did not know anything about psychologists or psychiatrists. I find that when she suggested to him that he see a doctor, she meant and was understood by him to mean that he should see a general practitioner, ie almost certainly his local doctor at the time.

47 The submission assumes that the hypothetical doctor would have been given and would have taken a full and comprehensive history and would have then concluded that the plaintiff’s problems were of mental kind justifying a referral to an appropriate specialist, eg a psychiatrist or psychologist.

48 That scenario involves a number of rather speculative assumptions. The plaintiff at this time was not aware that he was ill, although he certainly would have been aware of the physical manifestations of his problems, ie difficulty with sleeping, excessive drinking etc. He was not aware of any connection between these problems and the Voyager/Melbourne collision. It is by no means clear that if he had seen a general practitioner at the urging of his wife that such a doctor would have made the necessary connection between his problems and the collision. It is by no means clear that such a doctor would have diagnosed a mental problem. The doctor may well have suggested that he simply reduce his drinking and smoking.

49 This is particularly so since the plaintiff had consulted doctors over the years for minor ailments, but none of those doctors (no doubt being busy general practitioners) had made any diagnosis of a mental problem or any connection between the plaintiff’s problems and the collision.

50 The plaintiff, from his demeanour when giving evidence, is clearly not a talkative person. He volunteers very little information. Evidence had to be extracted from him with some difficulty. In saying that I do not wish to criticise the plaintiff. That is simply his personality. Accordingly, it would have been difficult for any general practitioner to extract from the plaintiff the relevant information unless the doctor had some information about the plaintiff’s background, such as the psychologists and psychiatrists who eventually saw him had.

51 There is a further difficulty with the submission. It arises from the affidavit of the psychiatrist, Professor McFarlane, of 3 March 2004, which was partly read in the proceedings. Although Professor McFarlane at no time examined the plaintiff, the affidavit contains some general observations concerning the condition of post-traumatic stress disorder as it has affected sailors who were on HMAS Melbourne. As Professor McFarlane made clear, he had treated quite a large number of such persons over the years.

52 In that affidavit Professor McFarlane deposed:

“3. Post-traumatic stress disorder is a difficulty condition to diagnose for various reasons.
4. Avoidance behaviour is a common symptom of post-traumatic stress disorder, although the specific type of avoidance behaviour is idiosyncratic and personal to each sufferer. Two possible manifestations of avoidance behaviour are avoidance of treatment and avoidance of disclosing symptoms to doctors.”

53 My impression of the plaintiff which is confirmed by the evidence of his wife that he would not at any time discuss the Voyager/Melbourne incident with her, is that the plaintiff would not have volunteered any of that information to a general practitioner unless specifically asked about it. That, it seems to me, was part of the plaintiff’s personality but also as Professor MacFarlane points out it may well have been part of the actual illness/disorder itself.

54 This also accords with the assessment of Dr Glaser:

“On interview, Mr Smith presented as a very pleasant but taciturn man, who was obviously most reluctant to talk about his situation, preferring rather to respond fairly briefly to specific questions. Despite this reluctance, he appeared to be quite tense throughout the interview, particularly when describing his fear of the sea and difficulties in getting on with people. I gained a very strong impression that he was trying to downplay or minimise a number of his difficulties including, particularly, his excessive alcohol use.”

55 That the illness/disorder was having this effect on him seems all the more likely given his consistent avoidance of social interaction over the last forty years which seems to have been a direct result of the collision.

56 It follows that the plaintiff’s failure to follow the advice of his wife to see a doctor was probably a direct consequence of the condition itself. It would also have been contributed to by his personality and by the fact that he did not believe that he was ill. I do not find fault with the plaintiff in that regard. In those circumstances I am not satisfied that the plaintiff “ought” to have acceded to his wife’s requests that he see a doctor.

57 Even if he had acceded to those requests and consulted a general practitioner in the 1990’s or earlier, I am not satisfied that his condition would have been accurately diagnosed or if not accurately diagnosed that the doctor concerned would have identified him as suffering from a mental illness of some kind and would have referred him to an appropriate specialist so that a correct diagnosis would have been made and so that the plaintiff would have developed an awareness of the matters referred to in s60I(1)(a).

58 I appreciate that the test posed by s60I(1)(b) as to whether or not the plaintiff ought to have become aware of all three matters in s60I(1)(a) is an objective test. There are, as was pointed out in South Western Sydney Area Health Service v Gabriel ([2001] NSWCA 477, some limitations to that objective approach:

“103. The capacity to take action to utilise a means of knowledge, while based on what is reasonable in the circumstances, must be judged by reference to the actual qualities of the person concerned, rather than by reference to the qualities of the hypothetical reasonable man; Telstra Corporation v Rea [2002] NSWCA 49. That case stands as authority for the proposition that what a person “ought” to know or be aware of for the purposes of s60I(1)(b) must necessarily take account of the circumstances of the particular applicant. The question is what a person with the actual qualities of the particular plaintiff should have done in the circumstances. … “

59 Applying that test I am satisfied that it was reasonable for the plaintiff not to accede to his wife’s requests to see a doctor. Even if he had seen a doctor when requested, I am not satisfied that he would have come into possession or otherwise would have become aware of the necessary information.

60 There is another consideration which is fatal to the defendant’s submission on this issue. Subsection 60I(1)(a)(iii) requires an awareness of the connection between the personal injury and the defendant’s act or omission at the relevant time. There is no evidence that the plaintiff had any knowledge of any of the facts upon which a finding of negligence against the Commonwealth might have been based. On the contrary, it is clear from his affidavit and from the histories given to the doctors that the plaintiff had no detailed knowledge of the facts leading up to the collision and did not after the collision seek to inform himself of any of those matters. There was no reason why he should have done so.

61 The sort of information to which subs60I(1)(a)(iii) refers was described in Drayton Coal Pty Limited v Drain (Court of Appeal, unreported, 22 August 1995) as follows:

“Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than the legal conclusion. The legal complexion which may be put upon a set of facts or circumstances (eg actionable negligence) and the plaintiff’s awareness of that legal complexion, is not what matters for the purposes of s60I(1).
The acts or omissions referred to in s60I(1)(a)(iii) are the acts or omissions on which the plaintiff relies to found the cause of action referred to in s60G. Those acts or omissions, in a case such as the present (as in Dedousis) will be found in the plaintiff’s particulars of negligence. (In this connection I refer, not to product of some word processors which, as some of the particulars in the present case illustrate, might include allegations that are either inapplicable or of marginal relevance, but to the material particulars as they emerge from a consideration of a statement of claim and in the evidence in support of the application for an extension of time).” ( Drayton p5-6)

62 Accordingly, even if it were found that the plaintiff ought to have had an awareness of the fact of personal injury and its nature and extent, there is no basis for a conclusion that he had or ought to have had knowledge of the acts or omissions on the part of the Commonwealth which would have given him a claim in negligence against it in respect of that personal injury. That finding alone is sufficient to enable the plaintiff to access the s60I(1) gateway.

63 It follows from the above findings that I am satisfied that until he consulted his solicitors and saw Mr Binfield the plaintiff did not know that personal injury had been suffered, was unaware of the nature and extent of that personal injury and was unaware of the connection between the personal injury and the defendant’s act or omission. I am also satisfied that he ought not to have become aware of those matters before he first saw his solicitors and first consulted Mr Binfield. The plaintiff has accordingly satisfied the gateway provisions of s60I.

Section 60G – Just and reasonable

64 Having passed through the s60I gateway, it is still necessary for the plaintiff to show that it is just and reasonable for the limitation period to be extended, not for the defendant to show that it is not. On this issue the evidence and submissions focused on the question of prejudice to the defendant. Accordingly, and not withstanding the onus on the plaintiff, I propose to consider this issue by reference to the defendant’s case. I wish to make it clear that I am not in any way reversing the onus which at all times remains upon the plaintiff to establish that it is just and reasonable for the limitation period to be extended.

65 The defendant has admitted breach of duty of care. There remains in issue between the parties the questions of causation and quantification of damages. If there is to be a trial, it will be limited to those matters. Questions of prejudice and a fair trial need to be looked at against the issues which will be actually contested at trial.

66 As indicated above, the cross-examination on behalf of the defendant focused on two issues. I have already dealt with the first issue, ie whether the plaintiff should have acceded to his wife’s requests that he see a doctor and if he had what would have been the consequences. The second matter upon which cross-examination focused was certain information provided by the plaintiff in his two applications to the DVA for a pension.

67 The evidence on this issue was as follows. On 21 August 2001 the plaintiff applied to the DVA for a service pension. Question No 15 on the form which was completed on behalf of the plaintiff was:

“15. Did you experience real and actual danger from hostile enemy forces?”

The square marked “yes” was crossed to indicate the affirmative to that question. The following comment was then added:

“Operating against communist terrorist in waters off Malay Peninsular and operating in waters off Vietnam.” (exhibit 1)

68 The plaintiff was cross-examined as to that entry as follows:

“Q. Sir I just wanted to ask you a couple of questions about the time you were drafted onto the HMAS Anzac, which I think was about in 1959?
A. ’59, yes.
…
Q. And do you remember, Anzac was a destroyer, is that right?
A. That’s right, battle class.
Q. Battle class?
A. That’s destroyer.
Q. Do you remember how long you were on the Anzac?
A. About 12 months.
Q. And when you say destroyer battle class, does that mean it was on active?
A. Active service, yes, active duty.
Q. Do you remember where it was on active service?
A. I think going through Indonesian straights and around Malaysia.
Q. What were your duties on the Anzac during that 12 month period?
A. In the boiler room.
Q. And do you know what the Anzac was doing on that tour of duty?
A. No I don’t, no.
Q. Was it involved in any active combat?
A. Not combat, no.
Q. Was it involved in some sort of surveillance?
A. Surveillance for I think it was pirates.
Q. I’m sorry.
A. Pirates, there were some pirates about.
Q. Pirates, Okay. Do you remember that in August 2001 you made a claim to the Department of Veterans’ Affairs for a pension?
A. That’s correct.

Q. Do you remember doing that?
A. Yes.

Q. And in that claim you answered a question relating to your service on the Anzac. The question was, "Did you experience real and actual danger from hostile enemy forces?" Do you remember that question in the document?
A. No.

Q. And you have ticked, I think, the answer as "Yes". I might show you this document and ask you to have a look at the last page if you wouldn't mind?

…

Q. See that signature in the bottom right-hand corner?
A. Yes.

Q. Do you recognise that as your signature?
A. That's correct.

Q. See it is dated 21 August 2001?
A. That's correct.

Q. And do you see that next to the word "Yes" there is a cross?
A. Yes.

Q. And underneath that there are the words written, "Operating against Communist terrorists in water off Malay Peninsular and operating in waters off Vietnam"?
A. Yes, that was for the pirates.

Q. Is that your handwriting?
A. No, it is not.

Q. The signature is yours?
A. That's correct.

Q. But the other words are not?
A. No.

Q. And do you know whose handwriting that is?
A. It would have been the advocate from, I think it was Bob Long.

Q. And in any event the words that are written there are correct, that you were operating against Communist terrorists in waters off the Malay Peninsular?
A. Yes, that is the pirates.

Q. And the Communist terrorists you recall as being pirates?
A. Yes.

Q. What was the Anzac doing? Merely seeking to pursue pirates?
A. No, just patrolling along the coast.

Q. Do you remember during that 12 months whether there was any incident of any kind?
A. No.

Q. Did you ever come into contact with any pirates?
A. No.
Q. Did you ever come into contact with any Communist terrorists?
A. No.” (T.19.49-21.54)

69 In January 2003 the plaintiff made a further application to the DVA for a pension. Under item 18 on that form, under the heading “Disability”, the words “anxiety/depression” were inserted. Under the heading “Signs and Symptoms” the words “mood swings, outburst of anger, depression” were inserted and in answer to the question “How do you believe your service caused, contributed to, or aggravated this disability?” the words “Operational service Malaya Vietnam” were inserted (exhibit 2).

70 The plaintiff was cross-examined on that matter as follows:

“Q. Do you remember that in January of 2003 you made a further application to the Department of Veterans Affairs for a pension?
A. For a disability pension.

Q. Yes. Please look at this document. (Document shown.) Just tell me whether you recognise that signature?
A. Yes.

Q. And that is your signature?
A. That is correct, yes.

Q. And that was an application for a disability pension as you have said?
A. That's correct.

Q. Could I ask you to go to page 3 of that document? I think the next page, sir, if you could just flip it over. In the top left-hand corner you will see the number 18?
A. Yes.

Q. See there? That was an application you made for a disability, being anxiety and depression?
A. Correct.

Q. See that? And do you see the handwritten words "anxiety, depression"?
A. Yes.

Q. Is that your handwriting?
A. No.

Q. Is that the advocate's writing?
A. Yes.

Q. See under the heading "Signs and symptoms" the words "Mood swings, outbursts of anger and depression"?
A. That's right.

Q. Is that your handwriting?
A. Advocate's.

Q. Do you see under the question "How do you believe your service caused or contributed to or aggravated this disability?" See that question?
A. Yes.

Q. Under that the words are written "Operational service, Malay, Vietnam"?
A. Yes.

Q. See that?
A. Yes.

Q. Is that your writing?
A. No.

Q. That is the representative's?
A. Yes.

Q. Is that correct? That at the time this application was signed by you in January of 2003 you believed that your anxiety and depression was caused by operational service in Malay and Vietnam?
A. That's what I thought, yes.

Q. Was that because something had happened to you in the course of that operational service in Malay and Vietnam?
A. No, no.

Q. What was the reason that you thought the operational service in Malay and Vietnam was the cause of your anxiety and depression?
A. I just thought, I didn't know that I had from the Voyager incident.

Q. I'm sorry, I didn't understand that?
A. I didn't know until after I seen the psychiatrists that I had, well, I'm not too sure on that one.

Q. Because you had seen Mr Binfield in December 2000, hadn't you?
A. Yes.

Q. The psychologist?
A. Because I think the advocate wrote that down and that is what he just put down.

Q. But you signed the document?
A. Yes, that's correct, yes.

Q. And you signed it as being correct, presumably?
A. Yes.

Q. You read it before you signed it?
A. Yes.

Q. Do you remember seeing Mr Binfield in December 2000?
A. Yes.

Q. He was a psychologist?
A. That's correct, yes.

Q. And do you remember whether, when you saw Dr Binfield, you thought that your anxiety and depression was caused by your operational service in Malay and Vietnam?
A. I told him about, then it sort of hit me it could have been in the Voyager incident.

Q. But did you tell him anything to do with the operational service in Malay and Vietnam?
A. I'm not too sure.

Q. Do you remember whether you thought in December 2000 that your anxiety and depression may have been caused by your operational service in Malay and Vietnam?
A. No, I didn't.

Q. You do remember that you did not think that?
A. Yes.

Q. But by 2003 you did think that?
A. That's right, yes.

Q. What caused you to come to think that in 2003?
A. I'm not too sure.

Q. Do you remember seeing Dr Glaser in August 2001?
A. Yes, that was in Melbourne.

Q. Did you think by then that, by August, by August of 2001, that your anxiety and depression may have been caused by your operational service in Malay and Vietnam?
A. No.

Q. So it was some time between August 2001 and early 2003, was it?
A. That's correct.

Q. That you came to think that?
A. Yes.

Q. And you don't remember what it was that caused you to think that?
A. No.

Q. Do you recall seeing Dr Hargreaves in August 2003?
A. Yes.

Q. And that was for the purposes of Dr Hargreaves examining you in relation to that application that you have before you?
A. That's correct, yes.

Q. And do you remember whether you told Dr Hargreaves about your operational service in Malay and Vietnam?
A. No, I don't think so.

Q. Do you remember whether he asked you anything about whether there may have been some other incident in your earlier life that might have caused your anxiety and depression?
A. No, I don't think so.

Q. Have you read his report?
A. A fair while ago, yes.

Q. In that report Dr Hargreaves says:

“I was unable to identify any other significant factors in his earlier personal life or later civilian life.”

That is what he says in his report. Do you remember him questioning you about any other matters that might have--
A. No, I don't.

Q. And you don't remember him questioning you at all about your operational service in Malay and Vietnam?
A. No.” (T.22.1-25.6)

“Q. All right. Just going back to the application that you made in January of 2003 which I showed you a minute ago, is it correct to say that by the time you made that application you, yourself, had some considerable doubt about what it was that had caused your anxiety and depression?
A. I'm not too sure.

Q. You had some doubt about it?
A. Yes.

Q. Because you would not have made an application for a pension which was incorrect, would you?
A. No.

Q. You wouldn't have stated a belief about what caused your anxiety and depression if you thought this was incorrect?
A. I wouldn't be too sure on that one.

Q. I'm putting to you, you would not have done that?
A. No.

Q. Because you did, in January 2003, state that operational service in Malay and Vietnam had caused your anxiety and depression?
A. That is what I thought.

Q. That at that time you thought that to be so?
A. Yes.

Q. Because the statement of claim in these proceedings was filed on 12 December 2001?
A. That's correct I think, yes.

Q. Did you know that that was so?
A. No.

Q. Did you know that the statement of claim had been filed?
A. No, I didn't.

Q. When did you first find out that it had been filed?
A. I'm not too sure.

Q. Did you know before you came to court today?
A. Yes.

Q. Did you know before you made the application in January 2003?
A. What is that?

Q. Did you know in January of 2003 when you made the application for the pension that a statement of claim had already been filed in the Supreme Court?
A. I think so, yes.

Q. And did you know that the statement of claim that had been filed in the Supreme Court alleged that it was the Melbourne/Voyager collision that had caused your psychiatric disorder?
A. Probably, yes.” (T.26.41-T.27.44)

71 The only other piece of evidence which was relevant was on page 3 of the report of Dr Hargreaves where he recorded:

“Aside from events already noted, there were no other significant stressful events during his Navy service.”

72 It was submitted by the defendant that the pension application forms, exhibits 1 and 2, together with the evidence of the plaintiff when asked about them raised a real causation issue which the defendant could not now properly explore. This, it was submitted, was a matter of actual prejudice.

73 On the basis of the same evidence, it was submitted that the contradiction between the assertion in the pension applications forms that the plaintiff had developed anxiety and depression as a result of his service on HMAS Anzac and the matters in the statement of claim indicated that the plaintiff was an unreliable witness. Since much of his case depended upon his uncorroborated evidence, this unreliability meant that a fair trial was not possible. Reliance was placed on the Court of Appeal decision in Commonwealth of Australia v Diston [2003] NSWCA 51.

74 In his histories to doctors and in his affidavit, the plaintiff has never referred to any cause for his problems other than the Voyager/Melbourne collision. No incident or occasion has been identified which could constitute such a cause. It is not without significance that the two entries in the pension application forms upon which the defendant relies were not written by the plaintiff even though each form was signed by him. It is also of significance that in relation to his service in HMAS Anzac no specific incident is referred to but service in that ship generally. This is very different to the specific Voyager/Melbourne incident.

75 The plaintiff’s description of that service is also important. HMAS Anzac was not in any danger. It appears to have been carrying out some low level surveillance task in 1959 off the coasts of Malaya and Vietnam. During that time the plaintiff was performing his duties below deck near the boilers. It is difficult to envisage how any stress or anxiety would be engendered by that form of service.

76 I gained a clear impression from the cross-examination of the plaintiff that he had no recollection at all of the contents of the forms and that he was quite surprised and perplexed by the fact that those matters had been asserted in the forms. I infer that these matters were added by the persons who completed the forms in the belief that it would help the plaintiff, but that the inclusion of these matters was not instigated by the plaintiff.

77 Had the plaintiff been asserting in 2003 that he was suffering from anxiety/depression as a result of his operational service in Malaya and Vietnam, he would have told Dr Hargreaves about that. He had been specifically referred to Dr Hargreaves by the DVA for the purpose of Dr Hargreaves assessing this aspect of the pension application. He specifically denied any precipitant for his problems other than the Melbourne/Voyager collision when specifically asked that question by Dr Hargreaves.

78 It seems to me that the question of whether something happened in 1959 on HMAS Anzac is really a false issue and that no genuine causation question is raised such as would interfere with the defendant’s ability to meet this aspect of the plaintiff’s claim. In any event it would be an easy matter for the defendant to check the log of HMAS Anzac as to 1959. It would be surprising if the defendant could not find some crew members of HMAS Anzac who would be able to say whether any particular incident occurred during 1959 while cruising off the Malayan and North Vietnam coasts. There was no evidence from the defendant that it had sought such information but was unable to obtain it.

79 As to the plaintiff’s unreliability, I found him to be a person who was doing his best to tell the truth. When confronted with the two pension application forms it was obvious that he did not know how those entries had come to be made, nor did he know why. Other than the fact that he signed the pension application forms, I formed the opinion that he did not fully understand their content and that he was not responsible for it, at least in relation to the two specific entries relating to his service on HMAS Anzac.

80 The fact that he signed those forms without properly understanding these entries or properly reading them, does not indicate unreliability of the kind referred to by the Court in Diston. In Diston the unreliability was so widespread and fundamental that a fair trial was not possible. Such was not the case here.

81 In submissions it was specifically conceded on behalf of the defendant that it did not oppose the plaintiff’s application on the basis that insufficient records existed to enable it to meet the plaintiff’s case on damages (T.37.26). Nevertheless, affidavits from Messrs Emmerig and Hanger were relied upon to show that persons identified by the plaintiff as having served with him in the Navy, both before and after the Voyager/Melbourne collision, could either not be found or had no recollection of the plaintiff. In the case of Mr Emmerig’s affidavit, an examination had been carried out of the plaintiff’s Certificate of Service. It had been sought to identify, locate and interview every officer who had made an entry in respect of the plaintiff in that Certificate of Service. Some of the officers could not be found or were deceased and others had no recollection of the plaintiff.

82 In view of the concession made by the defendant in submissions, I assume that the purpose of the affidavits from Messrs Emmerig and Hanger was to support the defendant’s submission of actual prejudice due to its inability to explore with persons who had served with the plaintiff in the Navy whether or not he had referred to or said anything about developing anxiety/depression as a result of his service in the Anzac. In view of the conclusions which I have reached as to the significance of the entries in the pension application forms, much of the force of those affidavits is lost.

83 As indicated above, the issues to be decided in any trial relate to quantum, ie causation of the plaintiff’s injuries and disabilities and their extent. If the plaintiff had demonstrated some pre-existing medical problems or personality defects before the Melbourne/Voyager collision, or had developed same for reasons unrelated to the collision one would expect there to be some entry in his Certificate of Service to that effect. It is most unlikely that he would have been selected to sit for examinations to qualify him to become a petty officer. Accordingly, although the defendant does not have all possible information concerning the plaintiff, it does have a considerable amount of information based on the plaintiff’s Certificate of Service and other documents relating to his service which would have come into existence during the nine years that he was with the Navy.

84 As was pointed out in Holt v Wynter (2000) 49 NSWLR 128 at 146/7:

“The effect of the decision of the High Court in Brisbane South Regional Health Authority is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant.”

As to relevant principle, the following was stated in Commonwealth of Australia v Smith [2005] NSWCA 478 at [128]:

“128 “ Significant prejudice ” means such prejudice as would make the chances of a fair trial unlikely. As Hodgson JA, with whom Beazley JA and Rolfe AJA agreed, said in South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 at [33] (a case concerning s60G Limitation Act 1969):

“the true issue on this matter is whether or not the applicant for the extension discharged the onus of satisfying the Court that there would not be such prejudice as would make the chances of an acceptably fair trial unlikely.” “

85 I am of course mindful of what the Court of Appeal has more recently said in Commonwealth of Australia v Shaw [2006] NSWCA 209 at [78]:

“…In order to satisfy the Court that the discretion should be exercised in his favour, the plaintiff would need to demonstrate that the Commonwealth would have a reasonable opportunity to challenge the underlying factual assumptions behind the diagnosis of PTSD or an alcohol disorder. For example, a question would arise as to whether or not it was the collision which led to his abuse of alcohol, violence towards his wife and the breakdown of his marriage. There was evidence before the primary judge from which it might be inferred that his abuse of alcohol pre-dated the collision, that his long periods of absence, his own infidelities and his drunkenness precipitated the breakdown of his first marriage, which in turn exacerbated his abuse of alcohol. It is also possible that his sleep disorders were consequent upon excessive consumption of alcohol, rather than being the cause of that consumption.”

In Shaw the Court held:

“The Commonwealth should not be required to rely solely upon the inherent weakness or inconsistencies in the applicant’s case. If it has been denied the opportunity, due to the lapse of time, to make any reasonable inquiry as to the accuracy of the plaintiff’s assertions, that is an element of actual prejudice.”

86 That finding in Shaw was made against the background of evidence which was before the Court that the plaintiff in that case had abused alcohol before the collision and that other factors had precipitated the breakdown of his first marriage and that there was a dispute concerning the cause of his sleep disorders. Such is not the case here. The only specific area of prejudice which was raised was the question of the service on HMAS Anzac and I have already dealt with that matter. Otherwise the sorts of matters which the court identified in Shaw did not arise.

87 There is no argument as to where the plaintiff was when the collision occurred nor as to what he did afterwards. There was no argument as to what employment the plaintiff undertook after he left the Navy. He has identified doctors whom he consulted between he left the Navy and the present time. Apart from the general prejudice associated with defending a claim which is over forty years old, no specific prejudice has been identified by the defendant. It has not sought to rely upon general prejudice.

88 On the facts of this case given the specific matters on which the plaintiff was cross-examined and which were raised by the defendant in submissions, I am satisfied that there can a fair trial from the defendant’s point of view.

89 I am satisfied that although the Commonwealth will find it difficult in some respects to prepare and put its case (eg the absence so far of persons who served with the plaintiff while in the Navy who are able to give evidence as to his performance) that does not amount to sufficient prejudice to refuse to extend the limitation period. In this case there is a significant amount of information available to the Commonwealth, both in relation to the plaintiff’s navel service and in relation to his activities following his discharge until the present time. I am satisfied that it is just and reasonable to grant an extension of the limitation period.

90 I therefore extend the limitation period pursuant to s60G of the Act up to and including 12 September 2001 when these proceedings were commenced.

Costs

91 Specific argument was heard on the question of costs should the plaintiff succeed in this application. It was submitted on behalf of the plaintiff that I should follow the approach in Commonwealth of Australia v Smith and award costs in favour of the plaintiff.

92 The basis for the costs order in Smith was that in a large number of Voyager/Melbourne cases which the Court there set out [148-151] the Commonwealth had opposed applications for extension of time and that in almost all of those cases an extension of time had been granted. In each of those matters the Commonwealth had relied upon essentially the same arguments. Specifically, the Court referred to submissions by the Commonwealth as to actual prejudice by being deprived of witnesses due to their unavailability or inability to recall, to the unavailability of doctors and medical officers who examined applicants and to the absence of medical records for applicants since leaving the Navy. The Court pointed out that in no case had the Commonwealth succeeded in discharging its evidentiary onus by establishing that it would suffer significant prejudice on the basis of the loss or absence of that kind of evidence. The Court upheld the finding of the primary judge in that case that the Commonwealth had acted unreasonably in opposing an extension of time and should pay the applicant’s costs.

93 On behalf of the defendant it was submitted that contrary to the situation described in Smith, this case had been conducted on quite a different basis. The cross-examination of the plaintiff had been restricted to two issues and had been kept as brief as was commensurate with a full exploration of those two issues. The defendant’s submissions had not referred to the “usual” issues of prejudice described in Smith but had been directed to the s60I(1)(b) question and to the question of specific prejudice arising from the causation question raised by the pension application forms and to prejudice associated with the general unreliability of the plaintiff as a witness.

94 As a result, it was submitted, a matter which had been fixed for 2 days had completed in half a day. The matters which the defendant had raised in submissions involved real questions for the decision of the court and the defendant was entitled to contest the application for an extension of time on that basis.

95 I agree substantially with the submission put by the defendant. In my opinion the defendant has not acted unreasonably in opposing the present application on the basis which it did. It has, in effect, had regard to what was said by the Court of Appeal in Smith and has significantly changed the way in which it conducted this case, certainly by comparison with those referred to in Smith.

96 The general rule of practice in applications for extension of time was referred to by Sheller JA in Holt v Wynter:

“Ordinarily a successful applicant, who allowed him or herself to get out of time, should pay the costs of the application unless the respondent’s opposition was wholly unreasonable.”

97 In this case there was nothing unreasonable in the plaintiff allowing himself to get out of time. Equally, the defendant was entitled to oppose the application on the limited basis which it did. In those circumstances it seems to me that the most appropriate order is that each party pay his or its own costs.

Conclusion

98 The orders which I make are as follows:

(1) The limitation period is extended pursuant to s60G of the Limitation Act 1969 (as amended) up to and including 12 September 2001.

(2) Each party to pay his or its own costs of this application.

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