New South Wales Supreme Court CITATION : JORDAN v COMMONWEALTH OF AUSTRALIA [1999] NSWSC 673 CURRENT JURISDICTION : COMMON LAW FILE NUMBER(S) : 20280/1996 HEARING DATE(S) : 16 June 1999 JUDGMENT DATE : 6 July 1999 BRYAN DAVID JORDAN PARTIES : v THE COMMONWEALTH OF AUSTRALIA JUDGMENT OF : Master Malpass COUNSEL : PLAINTIFF: MR M L BRABAZON DEFENDANT: MR B J SKINNER SOLICITORS : PLAINTIFF: JAMES TAYLOR & CO DEFENDANT: AUSTRALIAN GOVERNMENT SOLICITOR CATCHWORDS : Extension of limitation period; survivor of collision between HMAS Voyager and HMAS Melbourne; psychiatric disorder; no question of principle. ACTS CITED : Limitation Act 1969, s 60G, s 60I CASES CITED : N/A DECISION : SEE PARAGRAPH 14 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER MALPASS TUESDAY 6 JULY 1999 20280/96 BRYAN DAVID JORDAN v THE COMMONWEALTH OF AUSTRALIA JUDGMENT 1 This proceeding is one of the many arising out of the collision between the HMAS Melbourne and the HMAS Voyager on 10 February 1964. The process was filed on 20 March 1996. A Notice of Motion was filed on the same day. It sought an extension of the relevant limitation period. 2 The Notice of Motion was heard on 16 June 1999. The plaintiff relied on his own affidavit. Certain exhibits were tendered (including a report from Professor Raphael and a report from Dr Wu). The plaintiff was cross-examined. The defendant did not adduce any evidence. 3 The plaintiff was born on 26 June 1943. He became a member of the Royal Australian Navy on 8 July 1961. At the time of the collision, he was a member of the crew of HMAS Melbourne. Paragraph 6 of his affidavit provides a version of what he observed at the time of and following the collision. 4 He was discharged from the Navy on 5 April 1966. Details of his post Naval history may be gleaned from both his affidavit and the transcript of his cross-examination. The history reveals that he has had a problem with alcoholism and many jobs. Save for particular mention of certain matters, it is not necessary to repeat history details in this judgment. 5 In or about 1995, his wife asked him to get treatment for both his alcohol problem and his emotional state. He first made contact with a solicitor in 1995. He saw Mr Forster (who practices under the name of Hollows) on television. He then telephoned Mr Forster and it was arranged for him to see Professor Raphael. He was seen and assessed by her on 21 July 1995. The Court has been told that Professor Raphael did not provide him with any diagnosis. It appears that Mr Forster may have commenced proceedings on the plaintiff's behalf in the Supreme Court of Victoria. The plaintiff maintains that the commencement of those proceedings was the solicitor's idea and that at the time he was not suffering from any health problems. It may be that these proceedings were subsequently brought to an end. 6 After a meeting with Rodney Ayliff, contact was made with the plaintiff's present solicitor (Mr Taylor). Mr Taylor arranged for the plaintiff to see Dr Wu. The report from Dr Wu is dated 1 February 1996. Dr Wu reached the conclusion that the plaintiff suffered from multiple problems. Two of his problems are nightmares and insomnia. Dr Wu made a diagnosis of post traumatic stress disorder. He also expressed the view that the alcoholism was secondary to this disorder. The report also referred to the plaintiff's tendency to be dismissive and maintain a facade of not suffering from any health problem. In paragraph 14 of his affidavit, the plaintiff deposed inter alia to the following:- "At the conclusion of the interview with Dr Wu he informed me that I was suffering from Post Traumatic Stress Disorder and he discussed my problems, including my alcoholism which he said was a consequence of my stress disorder. I did not know until Dr Wu explained to me that I was suffering from a psychiatric illness or disability. I did not know the nature and extent of the condition from which I had been suffering and to some extent still don't." 7 Relief is sought pursuant to s 60G of the Limitation Act 1969. Section 60I prohibits the making of an order under s 60G unless the Court is satisfied of the matters set forth in paragraphs (a) and (b) of subsection (1) thereof. These are threshold requirements to the making of an order. When the threshold requirements have been satisfied, there is a discretionary power to grant relief. 8 The defendant's submissions were limited to the requirements set forth in s 60I (1) (a) (i) - (iii). It was conceded that it is open to the Court to find that the requirement listed in paragraph (a) (i) has been satisfied. It was contended that neither (ii) nor (iii) of the paragraph had been satisfied. 9 In my view, the threshold requirement listed in paragraph (a) (i) has been satisfied. In these circumstances it is unnecessary to pursue the contentions relating to (ii) and (iii) thereof. However, it may be of assistance if some observations are made. 10 There is evidence that the plaintiff has been diagnosed as suffering from a psychiatric disorder. There is evidence which may be seen as satisfying the requirements of (ii) and (iii). I take the view that the evidence of the plaintiff has to be assessed in the light of the facade that he seeks to maintain as to his health and his tendency to be dismissive of suggestion to the contrary. 11 The defendant did not raise any discretionary consideration in opposition to the plaintiff's application. Accordingly, no submissions were made on the matter of discretion. 12 The plaintiff bears the onus of satisfying the Court that he has an entitlement to relief. In the relevant circumstances of this case, I am satisfied that the onus has been discharged. 13 Accordingly, I have reached the decision that it is just and reasonable to make the order sought and that such an order should be made in this case. 14 I extend the limitation period for the cause of action pleaded in the Statement of Claim up to and including 20 March 1996. I reserve the question of costs. The exhibits may be returned. ********** Last Modified: 07/06/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.