Shinn v Commonwealth of Australia

[2004] VSC 221

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5504 of 2000

JOHN LESLIE ROBERT SHINN	Plaintiff
v
COMMONWEALTH OF AUSTRALIA	Defendant
- and -
No. 8711 of 1994
PAUL MICHAEL QUINN	Plaintiff
v
COMMONWEALTH OF AUSTRALIA	Defendant
- and -
No. 7911 of 1996
JOHN ROBERT CAVENETT	Plaintiff
v
COMMONWEALTH OF AUSTRALIA	Defendant
- and -
No. 6531 of 1996
GRAHAM JAMES HART	Plaintiff
v
COMMONWEALTH OF AUSTRALIA	Defendant
- and -
No. 6663 of 1999
JAMES ALEXANDER BATE	Plaintiff
v
COMMONWEALTH OF AUSTRALIA	Defendant

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JUDGE:	KAYE J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 to 18 June 2004
DATE OF JUDGMENT:	28 June 2004
CASE MAY BE CITED AS:	Shinn and ors v Commonwealth of Australia
MEDIUM NEUTRAL CITATION:	[2004] VSC 221

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PROCEDURE - Supreme Court procedure – Application to amend pleading – Admission that s.5(1A) of Limitation of Actions Act 1958 applies to post‑traumatic stress disorder – Withdrawal of admission – Question of prejudice to plaintiff – Estoppel – Futility.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J.B. Richards S.C. with Mr C.B. Thomson	Hollows Lawyers
For the Defendant	Mr M.R. Titshall Q.C. with Mr A.J. McG. Moulds	Australian Government Solcitior

TABLE OF CONTENTS

Legal Principles.................................................................................................................................. 5

Prejudice Alleged by Plaintiffs....................................................................................................... 9

Background....................................................................................................................................... 12

The Evidence of Mr Forster............................................................................................................ 15

Shinn v Commonwealth of Australia.......................................................................................... 23

Cavenett v Commonwealth of Australia..................................................................................... 31

Hart v Commonwealth of Australia............................................................................................. 33

Quinn v Commonwealth of Australia......................................................................................... 35

Bate v Commonwealth of Australia............................................................................................. 41

Estoppel.............................................................................................................................................. 44

Futility................................................................................................................................................ 44

Conclusion......................................................................................................................................... 44

HIS HONOUR:

1. These are applications by the Commonwealth of Australia, as defendant in five proceedings, to amend its defence in each proceeding.  The five plaintiffs are each former members of the Royal Australian Navy.  They are John Leslie Robert Shinn (“Shinn”), James Alexander Bate (“Bate”), Graham James Hart (“Hart”), Paul Michael Quinn (“Quinn”), and John Robert Cavenett (“Cavenett”). 

1. In those proceedings the plaintiffs claim damages for injuries suffered by them, as members of the Royal Australian Navy, on 10 February 1964, when HMAS Voyager collided with HMAS Melbourne approximately 20 miles south-east of Jervis Bay.  Shinn, Bate, Hart and Cavenett were each members of the aircraft carrier HMAS Melbourne.  Quinn initially pleaded, and swore an affidavit, that he was a member of the destroyer HMAS Voyager.  The Commonwealth delivered a defence admitting that fact.  Later the Commonwealth amended its defence to plead that Quinn was in fact on HMAS Melbourne on the date of the collision.  Subsequently, Quinn amended his statement of claim to also plead that on the date of the collision he was on the HMAS Melbourne.  In each proceeding the plaintiff claimed, inter alia, that as a result of the collision he had suffered injury including post traumatic stress disorder, or alternatively, symptoms consistent with that disorder. 

1. In its defence in each proceeding the Commonwealth pleaded that the plaintiff’s cause of action was statute barred by virtue of s.5(1)(a) of the Limitations of Actions Act 1958 (Vic).  In order to avoid the effect of that plea, the initial statements of claim in Shinn, Bate, Hart and Cavenett, and an amended statement of claim in Quinn, each contain an affirmative plea in paragraph 8 as follows:

“The injuries referred to in paragraph 6 hereof are a disorder within the meaning of s.5(1A) of the Limitation of Actions Act 1958 and the plaintiff first knew that he suffered such injuries and that they were caused by and resulted from the incident referred to in paragraph 3 hereof in or about (date specified).”

1. In each action the defendant, either in its initial defence or in amended defences, delivered on various dates between 3 August 1999 and 10 July 2000, responded to paragraph 8 in the statements of claim in the following terms:

“8(a)It admits that post-traumatic stress disorder is a disorder within the meaning of s.5(1A) of the Limitation of Actions Act 1958 (Vic);

(b)it denies that the plaintiff is suffering from post-traumatic stress disorder or any other disease or disorder within the meaning of s.5(1A) of the Limitation of Actions Act 1958 (Vic) as a result of the collision between HMAS Melbourne and HMAS Voyager on 10 February 1964;

(c)it otherwise does not admit the allegations contained in paragraph 8.”

1. I shall hereafter refer to the admission in paragraph 8 of those defences as “the admission”. 

1. Section 5(1A) of the Limitation of Actions Act 1958 (Vic) so far as relevant, provides:

“An action for damages for negligence nuisance or breach of duty  …  where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries consisting of a disease or disorder contracted by any person may be brought not more than three years from, and the cause of action shall be taken to have accrued on, the date on which the person first knows –

(a)that he has suffered those personal injuries; and

(b)that those personal injuries were caused by the act or omission of some person.”

(Emphasis added).

1. On 12 December 2000, the Court of Appeal delivered judgment in Mazzeo v Calendro Guastalegname and Co[1].  In the course of his judgment Chernov JA[2] expressed the view, as obiter dictum, that on its proper construction s.5(1A) is only concerned with actions arising out of “insidious” personal injuries, in other words, injuries which have not been caused by trauma. As a result, the defendant obtained advice from counsel. That advice indicated that the dicta in Mazzeo raised the probability of a defence to the plaintiff’s action based on the proposition that a psychiatric injury does not constitute a “disease or disorder” for the purposes of s.5(1A) of the Limitation of Actions Act.  By a letter dated 5 June 2001, the solicitors for the defendant advised the solicitors for the plaintiff of the decision in Mazzeo, and of the Commonwealth’s intention to apply to amend its defence so that the Commonwealth would not admit that the psychiatric injuries claimed in each proceeding constituted an injury for the purposes of s.5(1A) of the Limitation of Actions Act.  In each of the five proceedings the defendant’s solicitor has sworn an affidavit exhibiting a proposed amended form of the defence on which the defendant seeks leave to rely.  In each draft defence he has sought to amend paragraph 8 of the defence by substituting the following:

“8(a)It denies that the plaintiff is suffering from post-traumatic stress disorder or any other disease or disorder within the meaning of .s5(1A) of the Limitation of Actions Act 1958 (Vic) as a result of the collision between HMAS Melbourne and HMAS Voyager on 10 February 1964;

(b)It otherwise does not admit the allegations contained in paragraph 8.”

[1](2000) 3 VR 172.

[2]Paragraphs 45 and following.

1. In the course of submissions concerns were raised about the adequacy of the proposed amendment to plead the point now sought to be raised by the defendant.  After some discussion the defendant redrafted the proposed amended paragraph 8, in respect of which it sought leave to amend, in the following terms:

“8(a)It denies that any of the injuries alleged to have been suffered by the plaintiff is a disease or disorder within the meaning of s.5(1A) of the Limitation of Actions Act 1958 (Vic);

(b)It denies that the plaintiff is suffering from any disease or disorder within the meaning of s.5(1A) of the Limitation of Actions Act 1958 (Vic) as a result of the collision between HMAS Melbourne and HMAS Voyager on 10 February 1964;

(c)It otherwise does not admit the allegations contained in paragraph 8.”

1. The applications to amend the defence in each of the five proceedings have been significantly delayed.  That delay arose out of a debate whether the applicable limitation law in various proceedings brought in the State of Victoria is the law of the forum, or the law of the place where the tort was committed.  That debate was agitated in a case in which Burk was the plaintiff, and also in the matter of Blunden.  Ultimately, the High Court of Australia delivered judgment in Blunden v Commonwealth of Australia[3] in December 2003.  It held that the appropriate limitation law was to be furnished by the State or Territory exercising the federal jurisdiction.  Accordingly, the relevant limitation law for the purposes of each of the five proceedings before me is the law of the State of Victoria.  Counsel have advised me that in each action the interlocutory steps are either completed or substantially complete.  Each proceeding has been set down for trial.  The first trial (in the matter of Cavenett) is set to commence on 7 June 2005.  The last trial (in the matter of Quinn) is set to commence on 14 November 2005.  It is estimated that each trial will be of three weeks duration. 

   [3][2003] HCA 73.

Legal Principles

1. The principles which are applicable to an application to amend a pleading are well established.  The fundamental principle is that an application to amend a pleading to plead a new or alternative claim or defence should ordinarily be allowed, provided that any injustice caused to the other party by that amendment can be compensated by the imposition of terms; see Clarapede v Commercial Union Association[4]; Cropper v Smith[5]; The Commonwealth v Verwayen[6]; Howarth v Adey[7]; The State of Queensland and anor v JL. Holdings Pty Ltd[8]. That approach is reflected in Rule 36.01 of the Supreme Court (General Civil Procedure) Rules 1996. That rule provides that the Court may order an amendment or give leave to amend for the purpose of determining the real question in controversy between the parties. This purpose has been held to constitute both the rationale for the power to amend, and the criterion for its exercise; McKenzie v Commonwealth of Australia[9]; GL Baker Limited v Medway Building and Supplies Ltd[10]. 

   [4](1883) 32 WR 262 at 263.

   [5](1884) 26 Ch D 700 at 710-11.

   [6](1990) 170 CLR 394 at 456-7, 464-5, 482.

   [7][1996] 2 VR 535 at 542 (per Winneke P).

   [8](1997) 189 CLR 146 at 155 (per Dawson, Gaudron and McHugh JJ).

   [9][2001] VSC 361 at paragraphs 22‑3 (per Gillard J).

   [10][1958] 1 WLR 1216 at 1231 (per Jenkins LJ).

1. Thus the principal question, in considering an application for leave to amend a pleading, is whether such an amendment would occasion prejudice to the party opposing the amendment.  Generally, in a case such as the present, the plaintiff must point to prejudice caused by the conduct of the defendant in first filing a defence without relying on the proposed amendment, and later seeking to file a defence which relied on that defence; Wilson and ors v Grimwade[11].  The question whether prejudice is so caused to the plaintiff falls to be determined as at the date when the defendant issued its summons seeking leave to amend; Wilson v Grimwade[12] (above). 

   [11][1995] 2 VR 628 at 632 (per Tadgell JA).

   [12]At 634 (per Phillips JA).

1. The party, which seeks the amendment, bears the burden of persuading the Court, to whom the application is made, that the amendment will not cause prejudice to the other party; see Hancock Shipping Co v Kawasaki Limited[13]; McKenzie v Commonwealth (above)[14]; Burk v Commonwealth of Australia (above)[15]; Wintle v Conaust (Vic) Pty Ltd[16].  However, in Hancock’s case (above), Staughton LJ recognised that the party opposing the amendment ordinarily bears the evidential onus of adducing evidence in relation to the prejudice, at least where the proofs of that prejudice lie in the hands of that party.  As observed by Staughton LJ, a negative (that is, the non-existence of prejudice) is difficult to prove, so that, in practice, the evidential burden is borne by the party resisting the amendment. 

   [13][1992] 1 WLR 1025 at 1030.

   [14]At paragraph 88.

   [15]At paragraph 12, 74.

   [16][2001] VSC 315 at para 18, 19.

1. In order that a defendant should not be disentitled from amending its pleading, it is not sufficient for the plaintiff to rely on prejudice which results from an unreasonable act or omission on the part of the plaintiff; Steward v North Metropolitan Tramways Co[17]; Wilson v Grimwade (above)[18].  However, it is recognised in the authorities that it is not unreasonable for a plaintiff, or his solicitors, either to act, or to desist from acting, in reliance on the absence of a specific plea of the statute of limitations by a defendant.  Thus in Wilson v Grimwade (above)[19] Tadgell JA observed:

“As Lord Griffiths pointed out in Ketteman v Hansel Properties Limited [1987] AC 189 at 219:

‘A defendant does not invariably wish to rely on a defence of limitation and may prefer to contest the issue on the merits.  If, therefore, no plea of limitation is raised in the defence the plaintiff is entitled to assume that the defendant does not wish to rely upon a time bar but prefers the court to adjudicate on the issues raised in the dispute between the parties.’

Counsel for the appellants disputed that that statement of principle was one of universal application.  It is true that it was a statement made in the context of a case in which a very late application was made to amend a defence in order to plea a statute of limitations.  Notwithstanding that, it does not seem to me to be a statement which is confined to the kind of case in respect of which his Lordship was making it.”

[17](1886) 16 QBD 556 at 559-60.

[18]At 632 (Tadgell JA).

[19]At 633.

1. In each of the applications the plaintiff has sworn an affidavit setting out the stress to which he has been subjected as a result of the litigation, and, at least by inference, attesting to the additional stress which would be occasioned to him should the defendant now be entitled to amend its defence, and thereby abandon the admission by it that, if the plaintiff suffered a post‑traumatic stress disorder it was a disorder for the purposes of s.5(1A) of the Limitation of Actions Act.  There was some debate before me as to the amount of weight, if any, which should be attributed to such a factor, in determining whether the plaintiff would suffer irreparable prejudice should the amendment be granted.  This issue was addressed in the speech of Lord Griffiths in Ketteman’s case (above)[20], where his Lordship stated:

“Whether an amendment should be granted is a matter for the discretion of the trial judge and he should be guided in the exercise of the discretion by his assessment of where justice lies.  Many and diverse factors will bear upon the exercise of this discretion.  I do not think it is possible to enumerate them all or wise to attempt to do so.  But justice cannot always be measured in terms of money and in my view a judge is entitled to weigh in the balance the strain the litigation imposes on litigants, particularly if they are personal litigants rather than business corporations, the anxieties occasioned by facing new issues, the raising of false hopes, and the legitimate expectation that the trial will determine the issues one way or the other.  Furthermore to allow an amendment before a trial begins is quite different from allowing it at the end of the trial to give an apparently unsuccessful defendant an opportunity to renew the fight on an entirely different defence.”

[20]At 220.

1. Ketteman’s case was concerned with the grant, to the defendants, of leave to amend a defence to include a defence of limitation during final address.  However, the passage from the speech of Lord Griffiths, which I have quoted above, has been quoted with approval on a number of occasions, some of which involved applications for leave to amend a defence before trial; see The Commonwealth of Australia v Verwayen[21]above; The State of Queensland and anor v JL Holdings Pty Ltd (above)[22]; Howarth v Adey[23]. 

   [21]At 461-2 (Dawson J), 464-5 (Toohey J), 482 (Gaudron J).

   [22]At 155 (Dawson, Gaudron and McHugh JJ), 170 (Kirby J).

   [23]at 552 (Brooking JA).

1. In McKenzie’s case (above) Gillard J, after referring to the passage from the speech of Lord Griffiths in Ketteman’s case to which I have referred, expressed the view[24] that while questions of anxiety and stress are relevant, the weight which should be attached to such factors, when application is made to amend before the proceeding is set down for the trial, “would be slight”.  In Burk’s case (above) Whelan J[25], expressed the matter slightly differently, noting as a matter of fact that the anxiety for a plaintiff, caused by the need to face new issues and raising false hopes, is “likely to be slight” when application to amend is made before the proceeding is set down before trial.  Based on those views, and on the passage to which I have referred in Ketteman’s case, it seems to me that the assessment of the degree of weight which must be attached to issues such as stress, and the destruction of expectations, brought about by an amendment must be determined in light of the individual facts of each case.  Of course, as submitted by counsel for the defendant in these cases, any amendment which enhances the case of the party amending, and thereby undermines the case of the party resisting the amendment, will no doubt add to the stress of the litigation suffered by the latter.  Amendments are a regular fact of life in litigation, and are part of the vicissitudes encountered by all litigants. 

   [24]At para 68.

   [25]At para 12.

Prejudice Alleged by Plaintiffs

1. The plaintiffs contend that, if the defendant is entitled to amend its defences in the manner now sought, the plaintiffs will suffer prejudice in two respects which cannot be remedied by an appropriate order of costs in their favour. First, they contend that if the defendant had not, in earlier defences, admitted that post-traumatic stress disorder was a disorder within s.5(1A) of the Limitation of Actions Act, but, rather, had delivered defences containing the plea which is now sought to be made by the defendant by way of amendment, the plaintiffs would have had the opportunity of instituting proceedings in New South Wales and taking advantage of the provisions of Part 3, Division 2A of the Limitation of Actions Act 1969 of that State.  Secondly, the plaintiffs contend that if the proposed amendment is permitted to be made, they will each suffer significant stress and strain. 

1. In each case, the question is whether the plaintiff might suffer prejudice because the defendant filed a defence (or an amended defence) admitting that post-traumatic stress disorder is a disorder within s.5(1A) of the Limitation of Actions Act, instead of filing a defence (as it now seeks to do) which denied that post-traumatic stress disorder is a disorder within s.5(1A). In turn, that question involves a consideration of whether, in each case, the plaintiff would have taken useful action to protect his position, which he can no longer take, if the defendant had delivered a defence denying, rather than admitting, that post-traumatic stress disorder is a disorder within s.5(1A).

1. In each of the five cases, the defence, which contained the admission, was delivered more than 12 months after the plaintiff first knew that he suffered post-traumatic stress disorder. Accordingly, none of the plaintiffs are in a position to contend, nor did they contend, that the defence containing the admission caused him to refrain from making an application, in Victoria, to extend time within which to institute proceedings in Victoria pursuant to s.23A of the Limitation of Actions Act, as it then applied. However, each plaintiff contended that, at the time at which the defence containing the admission was filed and served, that plaintiff still had an opportunity, which was no longer available to him in June 2001 when the amendment was foreshadowed, to bring an application in New South Wales pursuant to the provisions of Part 2, Division 2A (sub-division 3) of the Limitation Act (1969) (NSW) (“the New South Wales Act”). Such an application would have been governed by s.60I of that Act which provides:

“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).”

1. In Shinn, Cavenett and Hart, it was contended on behalf of the plaintiff that, at the time at which the defence containing the admission was delivered, less than three years had lapsed since the plaintiff first knew that he suffered from a post‑traumatic stress disorder. In fact, in the case of Shinn, arguably two years and nine months had passed; in the case of Cavenett two years and ten months had passed; and in the case of Hart (arguably) only 21 months had passed. On that analysis, at that time, Shinn had three months, Cavenett two months, and Hart 15 months, within which to institute proceedings under the New South Wales Act, at the time at which the defence containing the admission was delivered. Further, in each of those three cases, the relevant period of three years had passed by the time the defendant, in June 2001, sought leave to amend its defence to withdraw the admission, and to specifically deny that post-traumatic stress disorder is a disorder under s.5(1A). In Quinn and Bate, more than three years had passed between the first knowledge by the plaintiff of his disorder, and the delivery of the defence containing the admission. Accordingly, neither of those plaintiffs would be able to rely on s.60I(a)(i) or (ii) of the New South Wales Act. In both cases, however, it was contended that, within the relevant three year period, each plaintiff had obtained new information concerning the connection between his injury and the act or omission of the defendant alleged in the proceedings. Again, that three year period had passed by the time the defendant sought to withdraw the admission in June 2001. Accordingly, in each proceeding, the plaintiff has submitted that as a result of the delivery of the defence containing the admission, he lost the opportunity to institute an application in New South Wales to extend time to bring proceedings in that State, rather than continue with the current proceedings in the State of Victoria.

1. In each of the five proceedings the plaintiff is represented by Messrs Hollows Solicitors.  The principal solicitor who has been charged with the conduct and supervision of the proceedings, and of all actions arising from the “Voyager” disaster, is and has been Mr David Forster (“Forster”), a member of that firm.  Mr Forster has sworn three affidavits in the recently concluded proceedings before Whelan J in Burk v Commonwealth of Australia.  In the present applications the parties relied on those three affidavits.  In addition, Mr Forster was cross-examined by counsel on behalf of the defendant.  At the heart of the debate, as to whether the plaintiff did suffer any prejudice as a result of the delivery of the defence containing the admission, lay the proposition that, if the defence, which the defendant now seeks leave to deliver, had been delivered instead of the defence containing the admission, Mr Forster would have sought and obtained the advice of counsel to commence an application in New South Wales to extend time to bring proceedings in that jurisdiction, as an alternative to continuing with the current proceedings in Victoria.  In analysing that evidence, it is necessary to consider some of the background to the current litigation and to other litigation involving the Voyager collision.  Most of that background is already set out in the judgment of Whelan J in Burk v Commonwealth (above), I shall set it out again, albeit by way of summary. 

Background

1. The writ in Quinn’s action was issued on 17 November 1994. By defence delivered 23 November 1994 the defendant pleaded that the proceeding was barred under s.5(1A) of the Limitation of Actions Act. No reply was delivered to that defence. On 2 August 1996 a writ was issued in Hart’s proceeding, and on 25 November 1996 a writ was issued in Cavenett’s proceeding. The statement of claim attached to each writ contained the positive plea (in paragraph 8) relating to s.5(1A) of the Limitation of Actions Act, which I have set out in paragraph 3 of these reasons.  The defendant delivered defences, to Hart’s proceeding on 7 August 1996, and to Cavenett’s statement of claim on 9 December 1996, pleading that the defendant did not admit any of the allegations in paragraph 8 of the statement of claim. 

1. In the meantime, the Commonwealth had commenced to attempt to settle proceedings brought by survivors of HMAS Voyager.  In April 1995, the Commonwealth Attorney‑General and Defence Minister announced the establishment of a Settlement Scheme to settle all proceedings issued by Voyager survivors.  The Settlement Scheme was not extended to survivors who were on HMAS Melbourne.  On 14 November 1997 a directions hearing took place before Hedigan J in the Major Torts List instituted on behalf of a Melbourne crewman.  The solicitor for the Commonwealth, Mr O’Donoghue, expressly stated to his Honour that the limitation defence was an issue between the parties “in all its forms”.  In February 1998 the Commonwealth Attorney‑General and Minister for Defence issued a joint news release which, inter alia, related to the steps taken by the Commonwealth to settle proceedings brought on behalf of Voyager survivors.  The news release concluded with the statement that: “The Commonwealth will continue to respond to HMAS Melbourne claims in accordance with normal legal principle and practice.” 

1. Some months later it appeared that the Commonwealth changed its policy in relation to Melbourne survivors. On 26 June 1998 a directions hearing took place in the Major Torts List before Hedigan J in proceedings by five Melbourne survivors. In the course of that hearing Mr O’Donoghue, on behalf of the defendant, made it clear that the defendant was conceding that the post-traumatic stress disorder, claimed by the plaintiff, was a disease or disorder under s.5(1A) of the Limitation of Actions Act.  Mr O’Donoghue stated that the only issue in the proceeding related, first, to the question whether the individual plaintiff had post-traumatic stress disorder and, secondly, when the plaintiff acquired knowledge that he had that disorder. 

1. In the course of that hearing Hedigan J referred to his recent decision in Hickey v Women’s and Children’s Healthcare Network[26]. In that case his Honour cast doubt on the validity of previous decisions of the Supreme Court in which it had been held that the phrase “disease or disorder” in s.5(1A) encompassed injuries and conditions which were traumatic in their origin. In Hickey, Hedigan J expressed the view that, if he were not constrained by those previous authorities, he would have held that s.5(1A) was confined to insidious diseases or disorders, the symptoms of which may take some years to emerge. It was in the context of his Honour raising his decision in Hickey that Mr O’Donoghue made the statement that it would not be contested that a plaintiff suffering from post-traumatic stress disorder had suffered a disease or disorder contracted for the purposes of s.5(1A) of the Limitation of Actions Act. 

   [26](unreported, 11 June 1998).

1. Subsequently, on 3 August 1999 in the Quinn proceeding, and on 4 August 1999 in the Cavenett and Hart proceedings, the defendant served amended defences containing the admission in the form set out in paragraph 4 of these reasons. In the same month, on 27 August 1999, Supreme Court proceedings were issued in the matter of Bate. The statement of claim pleaded the application of s.5(1A) in the form set out in paragraph 3 of these reasons. The writ was not served until March 2000. The defendant delivered a defence dated 20 April 2000 containing the admission in the form set out in paragraph 4 of these reasons. One month later, on 25 May 2000, a writ was issued in the matter of Shinn. The statement of claim also contained a paragraph 8 which asserted the application of s.5(1A) in the form set out in paragraph 3 of these reasons. The defendant delivered a defence on 10 July 2000 containing the admission.

1. As I have previously noted, on 12 December 2000 the Court of Appeal delivered judgment in Mazzeo v Calendro Guastalegname and Co (above). Previously it had been held, in a number of cases, that the words “disease or disorder” in s.5(1A) of the Limitation of Actions Act was not confined to “insidious” injuries as distinct from injuries which originated in trauma.  The seminal case was the decision of Beach J in Perry v Royal Women’s Hospital[27].  That case was followed and applied by Southwell and O’Bryan JJ in Herchberg v Mula [28], and by O’Bryan J in Donnelly v State of Victoria [29].  However, in Hickey v Women’s and Children’s Healthcare Network[30] Hedigan J expressed strong doubts about the validity of those decisions but felt bound to adopt the approach of Beach J in Perry and in the subsequent cases.  In Mazzeo’s case, those doubts were echoed, by way of obiter dicta, in the judgments of Winneke P[31] and Chernov JA[32]. 

   [27](unreported, 14 May 1991).

   [28](1993) Aust Torts Reports 81-256.

   [29](unreported, 30 June 1994).

   [30](unreported, 7 June 1998).

   [31]Para 7.

   [32]Paras 41 – 45.

1. As a result of the dicta in Mazzeo the solicitor for the defendant sent letters to the plaintiffs’ solicitors dated 5 June 2001 advising the solicitors for the plaintiff of the decision in Mazzeo, and of the intention of the defendant to apply to amend its defence so that the Commonwealth would not admit that the psychiatric injuries, claimed in each proceeding, constituted an injury for the purposes of s.5(1A) of the Limitation of Actions Act. 

1. It is in that background that the plaintiff, in each proceeding, contends that if the defendant had not, originally, delivered a defence containing the admission but, rather, had then delivered a defence containing the amendment now sought by the defendant, the plaintiff might have had the opportunity to take advantage of the New South Wales legislation which then enabled him to apply to bring proceedings in that State.  It is, as I understand it, common ground that, if any such opportunity had existed at the time of the delivery of the original defence, such an opportunity was no longer available to the plaintiff, in New South Wales, by June 2001 (the date of the solicitor’s letter) or by October 2001, when the defendant issued its summons in each of these proceedings seeking leave to amend its defence.  At the centre of this issue lies the question as to how the plaintiff’s solicitor, Mr Forster, would have reacted, and what he would have done, if the defendant had not delivered defences containing the admission, but, rather, at that time had delivered defences containing the amendment which it now seeks to make. 

The Evidence of Mr Forster

1. In the matter of Burk v Commonwealth of Australia, Mr Forster swore three affidavits dated 27 February 2004, 3 March 2004 and 12 March 2004.  The parties adopted those affidavits as evidence of Mr Forster in the present case.  In addition, Mr Forster was cross‑examined. 

1. In his first affidavit Mr Forster set out in some detail the history of the proceedings relating to the collision between the Voyager and the Melbourne, which I have summarised above. He stated that he regarded the admission contained in the defence in each proceeding as very important, and that he was led to believe that the defendant was adopting a more co‑operative attitude in relation to the Melbourne crew members, as had been the case with the Voyager survivors. Since that time, Mr Forster managed to settle approximately 30 other proceedings involving crew members of HMAS Melbourne who had suffered psychiatric injury as a result of the collision. Those settlements were achieved because the plaintiff was able to satisfy the defendant that he was likely to satisfy the provisions relating to when he obtained knowledge of his disorder under s.5(1A) of the Limitation of Actions Act. Mr Forster stated that he was further encouraged by settlement negotiations which he had with solicitors acting on behalf of the Commonwealth in relation to proceedings involving the Melbourne crew members generally from that time. Based on both the admission contained in the defences, and the progress of those negotiations, Mr Forster assumed that when an individual plaintiff established the two factual conditions postulated by s.5(1A), he would be entitled to have his damages assessed either by negotiation or at trial. Acting on that assumption, Mr Forster informed each of the five plaintiffs that the admission confirmed the correctness of his decision to issue proceedings in Victoria on their behalf rather than in the State of New South Wales. Mr Forster stated that before each proceeding had been issued he had offered to the plaintiff the opportunity to either sue in Victoria or New South Wales. He had advised each plaintiff that although the legislative provisions relating to the award of interest on damages were more generous in New South Wales than in Victoria, the advantage of issuing proceedings in the State of Victoria was that such a proceeding would not involve a requirement, as it did in New South Wales, to make an application to extend time for issuing the writ. Based on that advice, each of the five plaintiffs opted to sue the Commonwealth in the State of Victoria.

1. Mr Forster further stated that nothing occurred between the date on which the admissions were made in the defences, and June 2001, to indicate any change in attitude on behalf of the defendant. Mr Forster stated that he assured each of the five plaintiffs, between 1999 and 2001, that it was worthwhile continuing with his claim and undergoing the additional stress and anxiety suffered by them, as he was confident of acting on the assumption that the claim would be resolved quickly by a process of mediated settlement and without an unduly prolonged hearing. Mr Forster stated that if the defendant had not made the admission in the defence when it did, each of the five plaintiffs would have been entitled to issue an application in New South Wales or in another jurisdiction. He stated, “Because of the admission each of the plaintiffs did not consider issuing his claim in another jurisdiction was necessary.” During the course of cross‑examination, he was asked whether if, in a particular case, the defendant had not originally admitted that post‑traumatic stress disorder was a disease or disorder under s.5(1A), that would not have concerned him because, in the prevailing climate of settlement discussions with the Commonwealth, he would have treated that as a formal plea which was not being adhered to by the Commonwealth. In response to that question Mr Forster stated as follows:

“If there had been a change and up to date they are pleading s.5(1A) and then there’s an obvious change in their direction, with an obvious indication that they are going in a different direction, then obviously as a responsible solicitor I would have to get advice from my counsel as to what to do.”

1. In response to Mr Forster’s affidavit the defendant relied on paragraphs 5 to 9 of an affidavit sworn by a solicitor in the employment of the Australian Government Solicitor, Mr Richard Neish Boughton, dated 15 June 2004. In particular, Mr Boughton deposed that, in 11 proceedings (including the matters of Cavenett and Hart) between December 1996 and May 2000, the defendant, in answer to paragraph 8 of the plaintiff’s statement of claim, delivered an original defence which did not admit that post-traumatic stress disorder was a disorder within the meaning of s.5(1A) of the Limitation of Actions Act. In other words, as I understand Mr Boughton’s affidavit, in each of those proceedings the defendant delivered a defence, paragraph 8 of which did not admit any of the allegations in paragraph 8 of the relevant statement of claim. Between 1999 and 2000, some of those defences were amended to contain the admission, and others were not. From April 2001 the only defences filed in matters did not admit to the issue. Mr Boughton further deposed that in no Victorian matter, where the Commonwealth had not admitted the allegation that post‑traumatic stress disorder is a disorder within s.5(1A) of the Limitation of Actions Act, had the plaintiff either discontinued the proceeding and applied for an extension of time under s.23A of the Victorian Limitation of Actions Act, or discontinued the proceeding and issued fresh proceedings in New South Wales or the Australian Capital Territory. 

1. It is important, then, to examine the evidence of Mr Forster closely. As the defendant pointed out, Forster issued the five proceedings which are before me, and indeed all other proceedings in Victoria, without first instituting an application seeking leave to issue the proceedings out of time under s.23A of the Limitation of Actions Act 1958 (as it then was). Nor did Mr Forster choose to combine reliance on s.5(1A) with an application under s.23A. Rather, he relied solely on s.5(1A) as the means by which his clients might avoid the application of the relevant time bar. Further, Mr Forster was entirely unmoved by the fact that in some proceedings the defendant, in its initial defence, pleaded that it did not admit the allegation in paragraph 8 of each statement of claim that s.5(1A) applied to the plaintiff’s proceedings. This occurred in Hart and Cavenett, as well as in the cases of Mason and Olinga which are referred to in the affidavit of Mr Boughton. Further, it must be borne in mind that the admission, contained in the defences delivered between August 1999 and July 2000, was limited in its scope. In each action the plaintiff had pleaded and relied on a number of injuries, including, but not limited to, post-traumatic stress disorder. The admission pleaded by the defendant was restricted to post-traumatic stress disorder; the defendant did not admit that any of the other injuries pleaded by the plaintiff was a disorder under s.5(1A).

1. In response, plaintiffs’ counsel contended that it was understandable, and not significant, that Forster did not react in any way to the simple plea by the defendant in some matters, such as Hart and Cavenett, that it did not admit that s.5(1A) applied to the plaintiff’s claim. Mr Forster pointed out in cross‑examination that notwithstanding that the “do not admit” plea was delivered in some actions, nevertheless a number of those cases were being settled by the Commonwealth. On the other hand, reliance was placed on Mr Forster’s evidence that, if a defence had been delivered containing a specific plea that the plaintiffs’ alleged injuries did not constitute a disorder under s.5(1A), such a plea would have alerted the plaintiffs that the defendant was changing its approach to the litigation, and was taking the stance that, even if the plaintiff were able to establish the factual elements of s.5(1A), nonetheless the defendant did not recognise that s.5(1A) operated to obviate the operation of the time bar prescribed by s.5(1)(a) of the Limitation of Actions Act. 

1. This point does have some force. In particular such a specific defence would be at odds with the approach which the Commonwealth had, through its solicitor, stated it was taking in open court in the directions hearing before Hedigan J on 26 June 1998. In Hart and Cavenett, the raising of such a plea would have been by way of an amended defence. That amendment would have converted the bland, and commonly used, formula of ‘do not admit any of the allegations’, to a pointed defence which specifically pleaded that the plaintiff’s injuries did not constitute a disorder under s.5(1A) of the Limitation of Actions Act.

1. Further, in each of the cases before me, the defence which is sought to be amended was delivered after the decision of Hedigan J in Hickey, in which his Honour expressed, in forceful terms, his doubts whether s.5(1A) applied to traumatic injury. On the face of it, a solicitor who had any familiarity with Hickey, would, I expect, have clearly understood the import of the type of plea which is now sought to be made.  I express one qualification.  I am not particularly confident that Mr Forster would have read Hickey, or been familiar with its significance, notwithstanding the fact that he did appear on behalf of the plaintiffs at the hearing before Hedigan J on 26 June 1998, when his Honour raised Hickey with the solicitor for the defendant.  However, I cannot eliminate at least a reasonable possibility that, if the defence which is now sought to be pleaded had been delivered on the various dates between 3 August 1999 and 10 July 2000, Mr Forster might have understood the significance of it, particularly given the remarks made by Hedigan J in Hickey.  ‘

1. The conduct of Mr Forster after 5 June 2001 was relied on by both the plaintiff and the defendant in support of their submissions as to whether Mr Forster would or would not have reacted differently if the plea, which is now sought to be made, had been made at the time the defences were delivered which are now sought to be amended.  Mr Forster stated that, after receiving the letter of the defendant’s solicitor dated 5 June 2001, he sought and obtained advice from counsel.  Apparently, counsel advised Mr Forster that the plaintiff could issue an application to have the cases considered under either Australian Capital Territory, New South Wales or Victorian law.  The plaintiff contends that his conduct in obtaining that advice demonstrates that if he had been alerted to the problem earlier he would have, similarly, sought that type of advice. 

1. On the other hand, as was pointed out by counsel for the defendant, the situation after 5 June 2001 was somewhat different.  Mazzeo had been decided.  The defendant’s solicitor’s letter referred expressly to Mazzeo. That letter also raised the complicated private international law point on which counsel’s advice was also needed. I agree that those factors do make the situation different to the circumstances which would have pertained earlier. The most that can be said is that Forster was not so far wedded to the application of s.5(1A), as a means to circumventing the time bar under the Limitation of Actions Act, that he turned a blind eye to the issue when it was squarely and directly raised by the defendant’s solicitor.  

1. On the other hand, the defendant relies on Forster’s conduct after 5 June 2001 because, notwithstanding the fact that he sought counsel’s advice, Forster did not proceed, in any of the actions in which he had already issued proceedings, to issue other proceedings in the Australian Capital Territory.  It would seem that, in 2001, the plaintiff could still have issued proceedings in that territory.  No time bar is prescribed under s.36 of the Limitations Act 1985 of the ACT within which such an application for extension of time must be brought.  Forster’s response to this point, when asked in cross‑examination, was that the case of Blunden was before the High Court, and that he was waiting to receive the determination of the court as to what would be the consequences of that decision. I interpret that response as meaning that it was by no means clear to Forster that, if he discontinued in Victoria, and issued proceedings in the Australian Capital Territory, his clients would have thereby derived any advantage. On reflection, that point is quite well made. If Forster had discontinued in Victoria, and made an application in the ACT, his clients would have been better off if the High Court held (as it later did) that ACT law applied; however, they would have been in a worse position if the High Court had held that New South Wales law applied. By that stage none of the plaintiffs could have obtained an extension of time if New South Wales law applied. On the other hand, the position in Victoria as to the interpretation of s.5(1A) was still unresolved. It is at least arguable that in those circumstances Forster did not act unreasonably in not seeking to pursue the ACT option.

1. In the end, the question which I have to determine on this issue is somewhat a matter of conjecture.  I do regard Mr Forster as a truthful witness.  However, of necessity, the evidence which he gave is based on hindsight, with all the limitations that that type of evidence bears.  I have substantial reservations whether Mr Forster would have acted differently, and sought advice, if the defences delivered by the defendant between 3 August 1999 and 10 July 2000 had contained the pleas which are now sought to be included in them, rather than the admission.  On the other hand, I am far from convinced that Mr Forster would not have reacted differently.  It must be remembered that the proceedings with which I am concerned were issued between 1994 and 2000, and concerned an event which took place in 1964.  It is inconceivable that Mr Forster would not have been conscious of the relevance of an issue raised by a plea of the type which is now sought to be included in the defence, if such a plea had been raised by the defendant in 1999 or 2000.  In summary, I find that it is not probable – in other words it is less than probable – that Forster would have reacted differently and sought counsel’s advice if the defences, in 1999 and 2000, had contained the defences now sought to be made.  However, I do find that there was a realistic possibility that Mr Forster would have reacted differently and would have sought solicitor’s advice, particularly if, as he said in cross‑examination, the defence had been framed in such terms as to convey an “obvious indication” that the Commonwealth was now proceeding in a different direction. 

1. In addition, it must be borne in mind that what the defendant seeks by amendment is not only to introduce a specific plea that s.5(1A) does not apply to the plaintiffs’ injuries. The amendment sought by the defendant also withdraws an important admission made by the defendant in the proceeding. I do accept, on the balance of probabilities, Forster’s evidence that that admission reinforced his understanding that the five plaintiffs in this case would not be statute barred, provided only that each plaintiff was able to establish that he had suffered post‑traumatic stress disorder, and that he did not know that he had suffered that disorder more than three years before he issued his proceedings.

1. If the defendant had delivered a defence, in 1999 and 2000, containing the plea which it now seeks leave to make, and if Mr Forster had, on receipt of such a defence, briefed counsel, the next question is what advice would counsel have given.  Certainly by that time Hickey had been decided. I am persuaded that if such defences had been delivered in 1999, and if counsel had been briefed, then it is likely that counsel would have, at least as a matter of caution, advised the plaintiff to seek to rely on other options rather than solely relying on s.5(1A) of the Limitation of Actions Act.  I am satisfied that counsel would have advised giving consideration to any options available to such a plaintiff under interstate legislation.  In Donnelly, the plaintiff did not choose to rely only on s.5(1A); an application was also made in that case under s.23A of the Limitation of Actions Act for an extension of time. Indeed, in the course of final submissions, counsel for the defendant, correctly, acknowledged that it was a “fair point” that a member of the Bar at that time would not have trusted solely to the application of s.5(1A) of the Limitation of Actions Act. 

1. In summary, then, there was a realistic possibility, albeit an improbability, that Forster would have acted differently and sought advice, if the defences which are sought to be amended in this case originally contained the pleas which the defendant now seeks to make.  If counsel had been so consulted, it is likely that counsel would have advised the plaintiff to utilise any option available to him interstate, if such options were then available. 

1. In light of those findings I now turn to consider each individual case. I shall change the order in which those cases were argued so that I shall consider, in the following order, Shinn, Cavenett, Hart, Quinn and Bate. I do so because, at least theoretically, Shinn, Cavenett and Hart were within time to make an application for extension of time in New South Wales under s.60I(1)(a)(i) or (ii) of the Limitations Act 1969 (NSW), when the admission was made which is now sought to be withdrawn. 

Shinn v Commonwealth of Australia

1. In the matter of Shinn, the defendant, in addition to the materials to which I have already referred, relied on two affidavits of its solicitor, Peta Jane Heffernan, sworn 16 October 2001 and 15 June 2004 respectively.  The plaintiff, Mr Shinn, swore an affidavit dated 25 February 2004.  He was cross-examined by counsel for the defendant. 

1. Mr Shinn was born in April 1947.  He served in the Royal Australian Navy between January 1963 and November 1966.  At the time of the collision he was off duty in the engineers’ mess of the Melbourne.  Shortly after the collision he took his position in a rescue lifeboat.  Over a period of hours he swam in the water of Jervis Bay, rescuing badly injured survivors from HMAS Voyager.  In his interviews with a psychiatrist and a psychologist, which were exhibits to his affidavits, he described the distressing sequence of events which unfolded on the night of the disaster. 

1. Mr Shinn deposed that on 4 September 1997 he was examined by a psychiatrist, Dr George Freed, on behalf of the Department of Veterans’ Affairs.  He stated that on that date Dr Freed informed him that he was suffering from a long‑term mood and anxiety disorder related principally to the Melbourne‑Voyager incident.  In evidence before me, which I accept, Mr Shinn stated that in fact Dr Freed did not tell him of that diagnosis on that date, but that, rather, he learned of it a few weeks later when Dr Freed’s report was released to him by the Department of Veterans’ Affairs.  Thus, Mr Shinn’s evidence was that the first diagnosis of his condition, relating to the Melbourne-Voyager incident, came to his attention in October 1997.  Later, shortly before the commencement of litigation, he was referred by his solicitor to Mr Robert Wilks, a psychologist.  Mr Shinn stated that Mr Wilks’ diagnosis of post-traumatic stress disorder was the first official diagnosis of his condition for the purposes of a possible common law claim. 

1. Mr Shinn’s evidence was the subject of cross‑examination by counsel for the Commonwealth. In particular, he was cross-examined about some documents exhibited to the second affidavit sworn by Ms Heffernan. Having heard the cross‑examination I am, for the purposes of the application before me, satisfied that Mr Shinn’s first knowledge of his condition, and of the connection of that condition to the Voyager disaster, was gained by him in October 1997. More relevantly, I am satisfied that that would have been the evidence of Mr Shinn had he, before October 2000, instituted an application in the State of New South Wales for leave to issue proceedings in that State under s.60I of the Limitation Act. 

1. In his affidavit Mr Shinn stated that he had read an item in a newspaper in early 1999 concerning the collision.  He contacted a solicitor who he knew, and that solicitor contacted Mr Forster.  Mr Shinn first met with Mr Forster on 19 March 1999.  He stated that because of the discussions which he had with Mr Forster in March 1999 he first appreciated he might be able to claim damages.  Mr Forster told him that he could bring an action in either New South Wales or Victoria.  From those discussions Mr Shinn understood that although he may recover more damages in New South Wales because of the additional interest on the claim, that that would involve two separate proceedings.  Accordingly, he elected to bring his proceedings in Victoria as it would involve less stress and only one hearing.  The writ in the matter of Shinn was issued on 25 May 2000.  The defence containing the admission was delivered on 10 July 2000. 

1. When Mr Shinn issued his proceeding, he was well out of time within which he might have made an application under s.23A for an extension of time within which to issue the writ. He was therefore solely reliant on s.5(1A) of the Limitation of Actions Act. At the time at which the defence was delivered containing the admission, Shinn would have had three months (approximately) within which to issue an application in New South Wales under s.60I(1)(a)(i) and (ii) of the Limitation Act. 

1. It was also contended on behalf of the plaintiff that in any event an application might be available to the plaintiff under s.60I(1)(a)(iii) of that Act, because it was not until March 1999 that Shinn knew that he had a cause of action against the Commonwealth at common law. In my view, based on the materials contained in this application, there is no evidence at all that Mr Shinn would have had a basis upon which to apply to the New South Wales court under s.60I(a)(iii). There was no evidence that he was unaware of the connection between his injury and the alleged act or omission of the defendant after October 1997. Indeed, in cross‑examination, Mr Shinn readily conceded that at all times since the 1960s he was aware that the collision was the fault of either the captain of the Melbourne or of the captain of the Voyager.

1. Thus the prejudice, which is alleged by the plaintiff, is constituted by the proposition that if, in July 2000, the defence did not contain the admission but, instead, had contained an express denial that the plaintiff’s injuries were a disorder under s.5(1A), the plaintiff would have had the opportunity, over the ensuing three months, to issue an application in New South Wales to bring proceedings in that State. I have already found that if such a defence had been delivered by the defendant, Mr Forster probably would not have consulted with counsel and thus instituted such an application, but that nevertheless there is a realistic possibility that he might have done so.  I have also found that if Mr Forster had consulted counsel, it is likely (but not certain) that such counsel would have advised issuing an application interstate.  In that set of circumstances, if the defence, delivered in July 2000, had contained the plea which is now sought to be made, it is possible, but not probable, that Mr Shinn’s solicitor would have been advised to issue an application in New South Wales. 

1. It is not possible to speculate whether such an application, if issued, would have succeeded.  However, the Commonwealth did not, in the case of Shinn, contend that such an application would have been hopeless or devoid of merit in New South Wales.  Certainly, on the face of it, Mr Shinn would have had three months within which to issue such an application.  The question therefore is whether the loss of opportunity by the plaintiff to bring such a proceeding in New South Wales constitutes relevant prejudice which I must take into account in considering this application. 

1. A decision whether or not to allow an amendment of the type sought in this case is, of necessity, a balancing process.  In my view, it is relevant to take into account the loss of an opportunity of the type established in the case of Mr Shinn.  If the defendant were permitted to amend its defence, the plaintiff would be left in a position where it was possible (although not likely) that he might have issued an application in New South Wales to protect his position, but, because of the time at which the amendment has been sought, he has been precluded from doing so.  In balancing the respective rights and interests of the plaintiff and the defendant I consider that such a matter is relevant and of some importance.  That conclusion is supported by a number of authorities. 

1. In Joint Coal Board v Adelaide Steamship Co Limited[33], the defendant agreed, under a bill of lading, to carry coal on behalf of the plaintiff from Newcastle to Port Augusta.  Before the ship sailed the coal was discharged.  The plaintiff issued a writ against the defendant.  Ten years later the defendant applied for leave to amend its defence to add a plea that the action was barred by the Hague Rules.  The plaintiff contended that it was prejudiced by the foreshadowed amendment, because it had lost the right, in the meantime, to issue proceedings in tort against the ship owner.  On that basis Richardson J[34], at first instance, rejected the amendment.  The defendant’s appeal to the Full Court was unanimously dismissed.  In the course of his judgment, Sugerman J (with whom Maguire and Nagle JJ agreed) stated:

“I do not propose to set out the facts upon which Mr L.W. Street has relied as giving rise to a cause of action in tort against the owner of the Dornoch, or the legal theory on which that cause of action is claimed by him to be supportable.  It will suffice to say that the facts relied upon as supporting such an action were within the knowledge of the plaintiff before any such action became statute barred, and that, while it must be regarded as doubtful whether those facts give rise to a cause of action against the owner, that question could at least be regarded as a fairly arguable one.  It may well be thought that, in the absence of any such difficulty as would be occasioned by the defence now sought to be set up, the plaintiff would have preferred to proceed only against the present defendant and not to proceed concurrently with a more doubtful action against the ship owner, but that it would have been reasonably concerned to test its rights against the ship owner if it had become apparent in good time that its claim against the present defendant was not available to it or at least was being challenged as having been made out of time …  The plaintiff’s cause of action in tort against the ship owner is not clear, but the plaintiff has been prejudiced by the defendant’s conduct of its case to the extent of being debarred from testing what was at least an arguable claim against the ship owner.”[35] 

[33][1965] NSWR 143.

[34][1964] NSWR 1126.

[35][1965] NSWR 143 at 145.

1. In Giuriato v the Attorney‑General and anor[36], the plaintiff was an enrolled nurse.  She claimed damages against the defendant alleging a back injury sustained, in September 1993, while lifting a patient, Mrs McCarthy.  The defendant delivered a defence admitting the accident.  Later, the defendant received information that Mrs McCarthy claimed not to have been lifted by the plaintiff.  The defendant engaged an inquiry agent to investigate and report.  The agent made a report which included a statement by Mrs McCarthy in which she denied she had been lifted by the plaintiff.  That report was dated April 1996.  Mrs McCarthy died in August 1996.  In November 1996 the defendant made an application for leave to amend by withdrawing the admission and denying the accident.  The plaintiff’s solicitor swore that, if he had been aware that it was asserted by Mrs McCarthy that she had not been lifted by the plaintiff, he would have engaged a solicitor unconnected with the litigation to interview Mrs McCarthy and take a statement from her.  Zeeman J took into account the fact that the delay by the defendant deprived the plaintiff of the opportunity to have a competent solicitor obtain a statement from Mrs McCarthy which might have been admissible in evidence under the Evidence Act 1910 s.81B.  Accordingly, His Honour held that he was not persuaded that “substantial injustice” might not thereby be caused to the plaintiff if the amendment were to be allowed and he disallowed the amendment[37]. 

   [36](1997) 6 Tas R 344.

   [37]Above at 349.

1. In Wintle v Conaust (Vic) Pty Ltd[38], application was made on behalf of a widow of a plaintiff, who had died as a result of an asbestos related injury, to amend the proceedings in a number of respects, including to insert in them a claim by her pursuant to Part 3 of the Wrongs Act 1958.  The defendant contended, that if such an amendment were allowed, it might suffer prejudice, principally consisting of loss of contribution rights, and of the exposure of the defendant to a very large award of interest on damages.  Hedigan J observed[39] that he was not in a position to make an informed judgment about the matters, but that he could not be satisfied that there was not a “risk of prejudice” if he allowed the amendment[40].  Thus, as there was a risk of prejudice (as distinct from a finding of prejudice), his Honour disallowed the proposed amendment. 

   [38][2001] VSC 315.

   [39]At paragraph 18.

   [40]At paragraphs 18, 26.

1. In Burk v the Commonwealth (above), Whelan J had before him an application to make a similar amendment to that which is sought in the five proceedings with which I am concerned.  His Honour[41] held that the deprivation of an opportunity to the plaintiff in that case to take a step under New South Wales law was sufficient to constitute prejudice such as to render it unjust to permit withdrawal of the admission. 

   [41]At para 70.

1. With respect, I consider that the underlying approach in each of the above four cases was valid.  In each case it is the defendant which seeks to alter the status quo in the pleadings.  The court is then obliged to consider a hypothetical situation, namely, what would have occurred if the plea, which is now sought to be made, had been made earlier.  In balancing the scales of justice in such a circumstance, it is, both as a matter of logic and fairness, relevant that the plaintiff has lost an opportunity to take steps to protect his position, notwithstanding that the court considers that, in the circumstances, it is probable that the plaintiff would not have taken advantage of that opportunity.  The fact remains, in the case before me, that there was a realistic possibility that the plaintiff might have done so. 

1. In considering the matters before me I consider that such a factor is a weighty circumstance.  In each case of course the nature and extent of the opportunity which has been lost must be analysed.  In the case of Shinn, there was only a narrow window of time available to the plaintiff after delivery of the original defence in July 2000.  At that time Shinn would have had three months, at the most, to be able to access New South Wales law, in order to bring proceedings in that State.  The conduct of the five actions with which I am concerned overall by Mr Forster does not instil me with great confidence that he would have reacted in great haste to such a plea made in response to the statement of claim in Shinn’s case.  Nevertheless, there does remain a distinct possibility that Mr Forster would have been moved by the plea, which is now sought to be made, to seek and obtain counsel’s advice.  If counsel had been consulted, and if counsel had been advised that alternative action had been taken, I would expect that such action would have been taken, of necessity, as a matter of urgency.  Thus, in the circumstances of this case, I do consider that Mr Shinn will suffer prejudice to a significant degree if I were to allow the amendment sought by the defendant. 

1. In conducting the balancing exercise other factors also need to be taken into account.  First, it is relevant that the admission by the Commonwealth in this case was a deliberate decision by it, notwithstanding that its solicitor knew of Hickey’s case.  Indeed the defendant’s solicitor had had that case drawn to his attention by Hedigan J in the directions hearing on 26 June 1998.  I am thus not concerned with a case where a defendant or its practitioner has acted either by oversight, or by an understandable ignorance of a development in the law.  On the other hand, and on the other side of the equation, there must be weighed the consideration that the court should not be overly stringent in holding parties to admissions, least, by doing so, the court thereby deters litigants from making admissions which are important in the administration of justice. 

1. A second factor arises from the evidence that Mr Shinn will suffer stress and strain should I permit the amendments sought by the defendant.  The plaintiff has a number of health problems, many of which are not related to the collision in 1964 or the current litigation.  The main thrust of Mr Shinn’s affidavit concerns the effect that the litigation as a whole has been, and continues to be, a cause of stress to him.  Those two circumstances are not particularly relevant.  The real question is what effect would a change in the plea of the defendant have on Mr Shinn.  In this respect, Mr Shinn stated both in evidence and in his affidavit that, if I were to allow the amendment, he would become more ill, and that the substituted plea foreshadowed by the defendant would impose “additional and overwhelming stress” on him. 

1. As I have already stated, the question of the additional stress to the defendant is relevant.  However, I am mindful that, according to the authorities, such a factor can only be given limited weight.  Any party to litigation must expect to undergo various vicissitudes including the changing nature of issues and allegations between the parties.  Nevertheless, it is relevant, in my view, that the Commonwealth did choose to make the admission in a case in which the plaintiff had alleged that he suffered from post‑traumatic stress disorder.  The admission made by the defendant created in the plaintiff an expectation that, if his evidence were believed as to when he first knew of his condition, his claim would not be affected by the statute of limitations, and his claim would be dealt with “on its merits”.  It is in that context that the defendant now seeks to withdraw the admission, and to put at risk the plaintiff’s claim.  Whilst the stress which would be occasioned to the plaintiff, should I allow such an amendment, is of limited weight, nevertheless it cannot be disregarded in balancing the competing interests of the parties. 

1. In support of the application the Commonwealth also argued that, if the amendment were not allowed, the proceeding might be heard on a legal basis which is either artificial or erroneous.  That consideration has limited, if any, relevance.  As noted by Lord Griffiths in Ketteman’s case, not all defendants choose to rely on the statute of limitations.  In this case, in the defences which are now sought to be amended, the defendant only sought to rely on the statute of limitations to a limited effect.  There is, in my view, no relevant artificiality in holding the defendant to such a position, even if ultimately the doubts expressed by two members of the Court of Appeal in Mazzeo are upheld in a subsequent decision. 

1. The Commonwealth also contended that the plaintiff, and indeed the other four plaintiffs, are “forum shoppers” and therefore they must take the law of the State of Victoria as they find it.  I do not consider that to be a valid consideration.  Each plaintiff is entitled to the same rights as any other litigant in the State of Victoria.  Indeed, on the other side of the equation, it might be said on behalf of the plaintiffs that, since they were not resident in the State of Victoria, they might have been more prepared to issue proceedings in New South Wales, if the defendant had made the plea, which is now sought to be made, in the defences in 1999 and 2000. 

1. In the end, and bearing in mind all the matters which I have referred to above, the factors which I need to consider are finely balanced.  I remind myself that the underlying principle is that the defendant should be entitled to amend its defence so that all issues are agitated at trial.  On the other hand, I am not satisfied that, if I were to allow the amendment, the plaintiff would not thereby suffer prejudice of some moment.  In such a case, I have come to the conclusion that the justice of the situation lies in holding the Commonwealth to its current plea, rather than permitting the Commonwealth to amend its defence, and thereby visiting potential injustice on the plaintiff.  For those reasons, in the matter of Shinn, I refuse the application by the defendant to amend its pleading as sought. 

Cavenett v Commonwealth of Australia

1. In the matter of Cavenett, in addition to the materials to which I have referred above, the defendant relied on an affidavit of Richard Neish Boughton sworn 18 October 2001, and the plaintiff relied on an affidavit sworn by himself on 1 March 2004, and an affidavit of Blair Andrew Williams sworn 16 June 2004. 

1. Mr Cavenett was born on 1 August 1942.  He served in the Royal Australian Navy between 1959 and 1979.  On the night of the collision he was on board HMAS Melbourne as a medical orderly.  After the collision he was sent out in a rescue boat, which sank.  When he returned to the ship he was placed in another rescue boat.  In the course of rescuing Voyager survivors, at one point he slipped into the water whilst stepping between the lifeboat and a raft.  He went under the water and was almost drowned.  He finished on a rescue boat with survivors from the Voyager and was conveyed to Jervis Bay. 

1. Mr Cavenett first contacted his solicitor in mid November 1995.  He had read an advertisement published by his solicitor in a newspaper, seeking former crewmen of HMAS Melbourne who had served on the ship at the time of the collision and who were interested in seeking compensation.  This was the first occasion on which Mr Cavenett had learned that there was any prospect of compensation for what had occurred to him.  At about the same time, Mr Cavenett wondered whether he suffered from post-traumatic stress disorder.  His general practitioner referred him to Dr Leonard Lambeth, a consultant psychiatrist.  On 7 October 1996, Dr Lambeth informed Mr Cavenett that, in his opinion, Mr Cavenett suffered a post-traumatic stress disorder as a result of the collision. 

1. Mr Cavenett’s proceeding was issued by writ on 25 November 1996.  Before commencing those proceedings Mr Cavenett was informed by his solicitor that he could bring a proceeding in either New South Wales or Victoria.  The solicitor told him that he might be able to recover more money in New South Wales because of the additional interest on the claim, but that proceedings in that State would require two separate hearings in order to obtain an extension of time.  On the other hand, so he was told, if he brought a claim in Victoria, there would only be one hearing.  In his affidavit Mr Cavenett stated that for this reason he elected to bring his proceeding in Victoria, because it would only involve one hearing, and would involve less pressure and stress on him. 

1. Two weeks after the proceedings were issued, the defendant delivered a defence on 9 December 1996. Paragraph 8 of the defence did not admit the allegations in paragraph 8 of the statement of claim, which had alleged that s.5(1A) of the Limitation of Actions Act applied to the plaintiff’s proceeding.  The pleadings remained in that state for almost three years.  On 4 August 1999 the defendant delivered an amended defence containing the admission.  That amended defence was delivered nine weeks before the last date upon which Mr Cavenett might apply in the State of New South Wales to seek an extension of time in order to bring proceedings in that State. 

1. The considerations which apply to Mr Cavenett’s case are similar, although not identical, to those which apply in Mr Shinn’s case. In Cavenett’s case, Mr Forster had not responded to the initial defence pleading a non-admission in relation to the allegation in the statement of claim that s.5(1A) applied to the proceeding. That defence was replaced by a specific admission that, subject to the establishment of the relevant factual criteria, s.5(1A) did apply to the plaintiff’s claim in respect of his post‑traumatic stress disorder. If, instead of that amended plea, the defendant had delivered the defence which it now seeks leave to plead specifically denying that any of the plaintiff’s injuries are a “disorder” under s.5(1A), that defence would have stood in marked contrast to the bland non-admission which had preceded it.

1. In his affidavit Mr Cavenett also deposes to the stress caused to him by the litigation.  In the same terms as that deposed to by Mr Shinn, he swore that the foreshadowed change of defence by the Commonwealth “will impose additional overwhelming stress”.  Mr Cavenett does also suffer from some health problems. 

1. While the two cases are not identical, I consider that, for the reasons I have set out in Shinn, the relevant circumstances of each case are sufficiently similar to apply the same reasoning to each.  Thus for the reasons which I have set out in Shinn’s case, I have concluded that the defendant’s application to amend its pleading should be refused. 

Hart v Commonwealth of Australia

1. In the matter of Hart, the defendant, in addition to the materials to which I have already referred, relied upon an affidavit of Mr Boughton sworn 16 October 2001, and the plaintiff relied on an affidavit which he swore on 3 March 2004. 

1. Mr Hart was born on 27 May 1942.  He joined the Royal Australian Navy in 1961 and remained in it until 1974 with the rank of Chief Petty Officer Engineer.  At the time of the collision in 1964 he was a member of the crew of HMAS Melbourne.  After the collision he got into a cutter which was lowered into the water.  He assisted with the rescue of survivors from HMAS Voyager.  He jumped into the water to assist with the rescue, and apparently was in the water for some hours. 

1. In June 1995 an old friend of Mr Hart, whom he had known in the navy, told Mr Hart that there might be a possibility of compensation for former crewmen who had taken part in the rescue of survivors of the Voyager. He contacted Mr Forster at about that time. Mr Hart remained in contact with that solicitor for over a year. He was hesitant to issue proceedings. His solicitor informed him that he could bring an action claiming compensation in either New South Wales or Victoria. He was told he could recover more money in New South Wales because of the additional interest on the claim, but that it would require two separate hearings in order to gain an extension of time. On the other hand, if a claim was brought in Victoria there would only be one hearing. Based on that advice, Mr Hart chose to institute his proceeding in Victoria. Ultimately, a writ was issued on his behalf on 2 August 1996. The defendant delivered its defence on 7 August 1996. Paragraph 8 of that defence pleaded that the defendant did not admit the allegation, in paragraph 8 of the statement of claim, that s.5(1A) of the Limitation of Actions Act applied to the plaintiff’s claim.  Three years later, on 4 August 1999, the defendant delivered an amended defence containing the admission. 

1. In the original statement of claim, the plaintiff pleaded that he first knew that he had suffered the injuries pleaded by him in or about July 1996.  That plea was repeated in an amended statement of claim filed on behalf of the plaintiff on 29 June 1999.  However, in his affidavit, Mr Hart has sworn that, after he consulted his solicitor, he was referred to Dr Lillian Cameron, a psychiatrist, on 26 November 1997.  On that date, Dr Cameron told Mr Hart that in her opinion he suffered post‑traumatic stress disorder as a result of the collision.  Mr Hart states, “This was the first official diagnosis of my condition for the purposes of the possible common law claim for damages in respect to my injuries.” 

1. The question of when Mr Hart first obtained knowledge of his post‑traumatic stress disorder, and of the connection of that disorder with the Voyager collision, is of course of significance to the resolution of the defendant’s application in this case.  However, in light of the sworn evidence of the plaintiff, for the purposes of resolving this application, I accept that, if the plaintiff had applied in New South Wales for an extension of time within which to bring a proceeding in that State, he would have given similar evidence, and exhibited in support of it the report of Dr Cameron which was in evidence before me.  In those circumstances, I accept that he would have at least have had an arguable right to extend time within which to bring proceedings in New South Wales. 

1. Thus, on the date on which the defence was delivered containing the admission, Mr Hart, at least arguably, still had 15 months within which to bring a proceeding in New South Wales.  The relevant three year time period within which he might have brought those proceedings expired in November 2000, seven months before the defendant notified the plaintiff’s solicitor of its intention to seek to amend the defence by withdrawing the admission. 

1. In his affidavit, Mr Hart has also sworn that the foreshadowed amendment by the defendant would impose additional and overwhelming stress on him.  Mr Forster, in his evidence, stated that Mr Hart’s mental state was such that he was in a position that he could barely travel from his own home. 

1. The circumstances pertaining to the defendant’s application in Mr Hart’s case are relevantly similar to the same circumstances pertaining to the applications in Mr Shinn’s case and Mr Cavenett’s case.  Accordingly, and for the reasons which I have set out in relation to Mr Shinn’s application, I have come to the conclusion that the defendant’s application to amend its defence should be refused. 

Quinn v Commonwealth of Australia

1. In Mr Quinn’s case, the defendant relied on an affidavit of Ms Heffernan sworn 26 October 2001.  The plaintiff swore an affidavit on 1 March 2004, and also relied on an affidavit of Mr Blair Williams sworn 16 June 2004.  In addition, the defendant relied upon a previous affidavit sworn by the plaintiff on 28 September 1995 in support of an application by him for a speedy trial. 

1. Mr Quinn was born on 27 November 1944.  He joined the Royal Australian Navy on 7 July 1960, and completed his service on 26 November 1964. 

1. The writ in Mr Quinn’s proceedings was issued on 17 November 1994.  Before the proceedings were issued Mr Quinn attended Professor Beverley Raphael, a psychiatrist, on 24 March 1994.  On that date, Professor Raphael told Mr Quinn that he suffered a post‑traumatic stress disorder as a result of the collision.  Mr Quinn states that that was the first official diagnosis of his condition for the purposes of a possible common law claim for damages in respect of his injuries. 

1. In his original statement of claim the plaintiff pleaded that, at the time of the collision, he was a member of HMAS Voyager. Indeed, he told Professor Raphael, on 24 March 1994, that he was on the Voyager, and that he recalled assisting the injured crewmen into life rafts and casting the rafts away. He recalled then getting himself into the water and waiting to be picked up. The plaintiff did not plead s.5(1A) of the Limitation of Actions Act in his initial statement of claim, nor did he specifically plead that he had suffered post‑traumatic stress disorder. 

1. The defendant delivered its initial defence on 23 November 1994. In that defence it admitted that the plaintiff was on HMAS Voyager on 10 February 1964. The defence also pleaded that the plaintiff’s action was statute barred by virtue of s.5(1)(a) of the Limitation of Actions Act. No reply was delivered in response to that defence. In the meantime, Mr Quinn swore an affidavit on 28 September 1995 in support of an application for a speedy trial. In that affidavit Mr Quinn deposed to being on HMAS Voyager at the time of the collision. On 19 November 1997 the defendant delivered an amended defence. In that amended defence the defendant admitted that the plaintiff was on HMAS Melbourne (not the Voyager) on 10 February 1964. It also admitted some of the allegations of negligence. It retained the plea that the plaintiff’s action was statute barred under s.5(1)(a) of the Limitation of Actions Act. 

1. Subsequently, the plaintiff delivered an amended statement of claim dated 29 June 1999. In that statement of claim the plaintiff pleaded that, at the time of the collision, he was upon HMAS Melbourne. The particulars of injury still did not expressly allege the plaintiff had suffered a post‑traumatic stress disorder. Paragraph 8 of the amended statement of claim pleaded that the injuries referred to in paragraph 6 of the statement of claim are a disorder under s.5(1A) of the Limitation of Actions Act and the plaintiff first knew he suffered those injuries and that they were caused by or resulted from the collision in or about 1993. In response, the defendant delivered a further amended defence dated 3 August 1999. That defence contained the admission and, notably, an admission that post‑traumatic stress disorder is a disorder within s.5(1A) of the Limitation of Actions Act. 

1. On 18 December 2003 the plaintiff delivered a further amended statement of claim. In that statement of claim he pleaded that on the day of the collision he was either on HMAS Voyager or HMAS Melbourne. The particulars of injury included (for the first time) post‑traumatic stress disorder, depression, anxiety disorder and substance abuse disorder (alcohol and tobacco). The defence to that further amended statement of claim admitted that the plaintiff was on HMAS Melbourne and denied that he was on HMAS Voyager. It specifically denied that the injuries referred to in paragraph 6 of the statement of claim are disorder within the meaning of s.5(1A) of the Limitation of Actions Act. It was accepted before me by the defendant that the defendant would need leave to withdraw its previous admission, and to make the plea that the plaintiff’s injuries were not a disorder under s.5(1A).

1. The position in Mr Quinn’s case is, of course, quite different to the position of the plaintiffs Shinn, Cavenett and Hart. Mr Quinn first knew of his disorder, and its connection with the collision, in March 1994. The defendant did not deliver a defence containing the admission until 3 August 1999. Accordingly, the plaintiff is unable to contend that, at the time that that admission was made, less than three years had passed since he had acquired knowledge that he had suffered personal injury in the collision, or knowledge as to the nature of extent of that personal injury. Thus, the plaintiff is unable to contend that, if the admission had not been made, he could have taken advantage of s.60I(1)(a)(i) or (ii) of the Limitation Act 1969 of New South Wales.

1. Faced with this difficulty, Mr Richards SC, who appeared with Mr C. Thomson for the plaintiff, relied on the amended defence delivered by the defendant on 19 November 1997, when the defendant withdrew its admission that the plaintiff had been on HMAS Voyager, and admitted that the plaintiff was on HMAS Melbourne, at the time of the collision. On behalf of the plaintiff it was submitted that this was the first occasion on which Mr Quinn knew of that fact. Thus, so it was contended, until 19 November 1997, Mr Quinn was unaware of the connection of his injury with the act or omission of the defendant, for the purposes of s.60I(1)(a)(iii) of the New South Wales legislation. It was contended that the plaintiff, accordingly, would have been able to take proceedings in New South Wales until November 2000, based on that new knowledge.

1. The factual premise on which the plaintiff’s argument is based is doubtful.  There is no evidence when the plaintiff was first aware that he was (or might have been) on HMAS Melbourne and not on HMAS Voyager at the time of the collision.  In fact, it is still not clear just what knowledge Mr Quinn has as to which vessel he was on.  In his latest affidavit he has sworn that he was listed as a Voyager survivor.  At most, the only new knowledge which could have come to him in 1997 was that the Commonwealth was alleging that he was on the Melbourne and not on the Voyager at the time of the collision. 

1. However, even if it were accepted that there was evidence before me that the plaintiff first knew, in November 1997, that he was or might have been on the Melbourne rather than the Voyager at the time of the collision, I do not consider that it has been shown that, thereby, he acquired new knowledge which would have enabled him, until November 2000, to issue proceedings in New South Wales.  It is clear that the plaintiff knew, from March 1994, that his injuries were a result of the collision between the Melbourne and the Voyager.  Extensive particulars of negligence were pleaded at that time on behalf of the plaintiff.  The plaintiff has not, in subsequent pleadings, added to those particulars.  Indeed, in his latest pleading he deleted a number of the particulars of negligence.  From the outset the plaintiff claimed that the collision was caused by the negligence of the officers and crew of either the Voyager or the officers and crew of the Melbourne (or indeed the officers and servants of the Commonwealth).  He has not sworn to gaining any new knowledge, in or since 1997, as to the connection between his injuries and the collision, or between his injuries and any act or omission of the servants or agents of the defendant which caused that collision and thus gave rise to his injuries. 

1. In support of his submissions the plaintiff relied on the decision of Master Harrison in Aussems v Commonwealth of Australia[42]. There the learned Master stated that s.60I(1)(a)(iii) is concerned with the ignorance of acts or omissions rather than legal conclusions. In that case the plaintiff submitted that it was not until he read the statement of claim and the particulars of negligence that he was aware of the factors that contributed to the collision and thus his injuries. In support, Master Harrison referred to the decision of the New South Wales Court of Appeal in Drayton Coal Pty Ltd v Drain [43].  The decision in Drayton Coal does not support the proposition that each time the plaintiff learns of a single new fact – for example a particular of negligence – he gains new knowledge of the connection between his injury and the acts or omissions of the defendant.  However, even if that were the case, it would not assist the plaintiff.  Assuming that the plaintiff first knew in November 1997 that he was or might have been on the Melbourne rather than the Voyager, he has not deposed to learning any new knowledge of any act or omission of the defendant which brought about the collision, in which he was involved either as a crewman of the Melbourne or the Voyager, and thus caused his injuries. 

   [42][2001] NSWSC 44, especially at paragraphs 13 – 15.

   [43]Unreported, New South Wales Court of Appeal, 22 August 1994; BC 9505 244.

1. For the above reasons, no basis has been disclosed to me upon which the plaintiff might have been able to proceed in New South Wales, after August 1999, if the defendant had not made the admission but, rather, had included in its defence the plea which it now seeks to make denying that post‑traumatic stress disorder is a disorder under s.5(1A) of the Limitation of Actions Act.  While I am wary of expressing any concluded view on whether or not the plaintiff might have even had a remote “chance” of making a successful application in New South Wales, nevertheless it is for the plaintiff to adduce at least some evidence to show me that such a chance existed.  There is no evidence in this proceeding that such a chance existed[44].  Accordingly, the defendant has persuaded me, in this case, that no prejudice would be occasioned to Mr Quinn in the conduct of the proceeding, if the defendant were given leave to make the amendment which it seeks. 

   [44]See for example Clough and Rogers v Frog (1974) 4 ALR 615, especially at 619; 48 ALJR 481 at 482.

1. The plaintiff also relies on the stress which would be occasioned to him should leave be granted to make the amendments sought by the defendant.  In his affidavit, Mr Quinn has sworn that there has been great stress and pressure on him since June 2001, and that, as a result he has been most anxious as to what will occur.  He has limited financial resources, and it is too late for him to withdraw from the litigation.  If the defendant now succeeds in amending its defence his psychiatric condition will be exacerbated and he and his wife may be saddled with a crippling financial burden.  In evidence, Mr Forster stated that Mr Quinn is extremely anxious, and he confirmed that Mr Quinn has no financial resources. 

1. I accept all of that evidence.  I do accept that if I were to grant leave to the defendant to amend its defence, Mr Quinn will suffer stress, particularly as a result of the expectations engendered by the admission in the amended defence of the Commonwealth of 4 August 1999.  However, I do not consider that that prejudice to the plaintiff, standing alone, would be sufficient to outweigh the prejudice to the defendant were I to refuse the application to amend the defence.  While the prejudice occasioned to the plaintiff has some relevance, that prejudice, in the case of Mr Quinn, is not combined with prejudice in the actual conduct by the plaintiff of the litigation.  He has not shown that he has been deprived of an opportunity, even a dubious opportunity, to issue an application in New South Wales as a result of the admission having been made.  In those circumstances, I conclude, in accordance with the principles which I have expressed earlier in these reasons, that the defendant should be given leave to amend its defence in the form set out in paragraph 8 of these reasons. 

Bate v Commonwealth of Australia

1. In the matter of Bate, the defendant relied on affidavits of Ms Heffernan sworn 16 October 2001 and 16 June 2004.  The plaintiff relied on an affidavit which he swore on 24 February 2004 in opposition to the defendant’s application. 

1. The plaintiff, Mr Bate, was born on 15 November 1941.  He served in the Royal Australian Navy between 1958 and 1992.  At the time of the collision Mr Bate was the Officer of the Watch on the HMAS Melbourne.  He was an eyewitness to the collision.  In his description to his psychiatrist, he has vivid recollections of the agonising moments before the two ships collided.  After the collision he remained on duty for some hours, ensuring that the ship was safe while the collision bulkheads were installed.  He also had the responsibility of co-ordinating the efforts to rescue survivors.  In the aftermath of the collision, he and the captain of the Melbourne were held responsible by the first Royal Commission which took place in 1964.  A subsequent Royal Commission in 1967 exonerated both Mr Bate and the Commander of the HMAS Melbourne.  Mr Bate’s father died of a heart attack two days after the publication of the report of the first Royal Commission. 

1. In 1984 Mr Bate was diagnosed as suffering from Bipolar Disorder.  On 6 December 1996 he was examined by Dr Stephen Stern, psychiatrist, at the request of his then solicitors, who were acting for him in an appeal to the Commonwealth Administrative Appeals Tribunal in relation to a claim for compensation by him.  On that date, Dr Stern diagnosed that Mr Bate suffered from Bipolar Affective Disorder, and chronic post‑traumatic stress disorder.  Dr Stern informed Mr Bate of his diagnosis.  Dr Stern informed him that the stress disorder was directly caused by work stress with the Royal Australian Navy, and in particular by the Voyager collision of February 1964 and the subsequent Royal Commissions.  Mr Bate states that that was the first official diagnosis of his condition for the purposes of a possible common law claim for damages. 

1. In 1999, Mr Bate read an advertisement which his present solicitors had published in a newspaper.  He first contacted the solicitors in May 1999.  In his affidavit he states:  “This was [the] first time in my life that I heard there was any chance of compensation for what happened to me in the collision.”  The solicitor advised Mr Bate that he could bring an action for damages in New South Wales or Victoria.  The solicitor stated that although the plaintiff might be able to recover more money in New South Wales because of the additional interest on the claim, he would require two separate hearings in New South Wales in order to gain an extension of time.  Acting on that advice, Mr Bate chose to bring his proceeding in Victoria. 

1. Mr Bate states that he was hesitant to embark on litigation. His writ was finally filed on 27 August 1999. It was not served until March 2000. Paragraph 8 of the statement of claim pleaded the application s.5(1A) of the Limitation of Actions Act.  The defendant delivered its defence on 20 April 2000 containing the admission. 

1. Mr Bate’s case is similar to the case of Mr Quinn, in that the defence containing the admission was delivered more than three years after Mr Bate knew that he had a stress disorder caused by or arising out of the Voyager collision in 1964. Notwithstanding that difficulty, Mr Richards nevertheless contended that, if the defendant had not pleaded the admission in April 2000, but had made the plea which the defendant now seeks to make, Mr Bate could nevertheless have issued proceedings in New South Wales under s.60I of the Limitation Act. 

1. Mr Richards’ submission was based on the assertion by Mr Bate in his affidavit that, when he saw his solicitor in May 1999, that was the first time that he learned that there was any chance of compensation for what happened to him in the collision. It was contended that at that time, or indeed at the time when a statement of claim was first drawn, Mr Bate first knew of the connection between the personal injury which he suffered and the defendant’s act or omission under s.60I(1)(a)(iii) of the New South Wales legislation. I do not consider that that submission is sound. As Master Harrison correctly noted in Aussems’ case[45], the relevant sub-section “ … is concerned with ignorance of the existence of acts or omissions rather than legal conclusions.” Mr Bate does not, anywhere in his affidavit, depose that he did not know of a particular act or omission of the Commonwealth, or know of its connection with his accident, for a period of less than three years before 24 April 2000. As in the case of Mr Quinn, I hesitate to draw any conclusion as to the fate of any possible application which might have been made by Mr Bate under s.60I of the New South Wales Act. However, in order that I be able to conclude that some prejudice has been occasioned to Mr Bate as a result of the admission in the defence of 20 April 2000, the plaintiff must adduce some evidence upon which such prejudice might be founded. There is nothing in Mr Bate’s affidavit which shows that he had any opportunity to access the New South Wales jurisdiction under s.60I of the Act, if the defence, delivered on 20 April 2000, had not contained the admission, but rather had contained the plea which is now sought to be made.

   [45]At para 13.

1. In his reply submissions, Mr Richards also suggested that each of the plaintiffs might have been able to apply for an extension of time under s.36 of the Limitations Act 1985 of the Australian Capital Territory, if the defence had not contained the admission, but had contained the plea which is now sought to be made by amendment.  That argument was not pressed by Mr Richards, and understandably so.  No plaintiff made any mention in his affidavit that, at any stage, consideration had been given by him or his solicitor to a proceeding in the Australian Capital Territory.  It appears that the first occasion on which such an alternative was contemplated by Mr Forster was in June 2001.  It seems that before that time the only alternative to Victoria contemplated by Mr Forster was litigation in New South Wales. 

1. Mr Bate also has deposed to the stress to which he has been subjected as a result of the litigation, and to the fact that, if the amendment is allowed, there will be much more stress and hardship in the litigation.  I accept that evidence, particularly given the diagnosis of Mr Bate’s condition by Dr Stern.  However, as in the case of Mr Quinn, I do not consider that that factor alone is sufficient to outweigh the right of the defendant to amend its defence.  Thus, for the reasons which I have expressed above, I consider that the defendant should be given leave to amend its defence by deleting paragraph 8, and including the plea which I have set out in paragraph 8 of these reasons. 

Estoppel

1. Mr Richards also submitted that in any event the Commonwealth was estopped from seeking and obtaining the amendment to its defence.  Mr Richards, however, did not press that argument.  The question whether or not the defendant is so estopped is a matter for trial.  Both Mr Bate and Mr Quinn are entitled to plead estoppel by way of reply to the amended defence.  It will then be a matter for evidence at trial as to whether such a plea of estoppel is made out.  See McKenzie v Commonwealth of Australia[46]; Burk v Commonwealth of Australia[47]. 

   [46]Above at para 115.

   [47]Above at para 79.

Futility

1. Counsel for the plaintiff also submitted that the observations of Chernov JA in Mazzeo were not applicable to post‑traumatic stress disorder.  In support of that submission he relied upon the report of Professor McFarland exhibited to Mr Forster’s affidavit of 3 March 2004.  A similar submission was made in Burk’s case.  Like Whelan J, I do not consider, on this application, it is appropriate for me to say anything more than that the defendant’s foreshadowed defence is arguable.  I therefore do not accept that it would be futile for me to allow the amendments in the cases of Bate and Quinn.

Conclusion

1. For the reasons which I have set out above I have concluded that:

(a)In the matters of Shinn, Cavenett and Hart each application should be dismissed.

(b)In the matters of Quinn and Bate I shall grant leave to the defendant to amend its defence by deleting paragraph 8, and by substituting the plea which I have set out in paragraph 8 of these reasons.

1. I shall hear counsel on the question of costs.

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