Sendy v The Commonwealth of Australia [1999] NSWSC 1259

New South Wales Supreme Court CITATION : Sendy v The Commonwealth of Australia [1999] NSWSC 1259 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 21148/1996 HEARING DATE(S) : 16 December 1999 JUDGMENT DATE : 17 December 1999

John Patrick Sendy (Plaintiff) PARTIES : v The Commonwealth of Australia (Defendant) JUDGMENT OF : Master Malpass

COUNSEL : Mr M Brabazon (Plaintiff) Mr P Jones (Defendant) SOLICITORS : James Taylor & Co. (Plaintiff) Australian Government Solicitor (Defendant) 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. Burns v The Commonwealth of Australia [1999] CASES CITED : NSWSC 223. Commonwealth of Australia v Dinnison (1995) 56 FCR 389 Darcy v The Commonwealth of Australia (25 July 1997). DECISION : See paragraph 24.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

FRIDAY 17 DECEMBER 1999

21148/1996 JOHN PATRICK SENDY v THE COMMONWEALTH OF AUSTRALIA JUDGMENT 1 This is yet another of the many proceedings arising out of the collision between the HMAS Melbourne and the HMAS Voyager on 10 February 1964. The Statement of Claim was filed on 14 October 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 December 1999. There is affidavit material from the plaintiff. There is exhibited material (from both the plaintiff and the defendant). The plaintiff has been cross-examined. 3 The defendant sought to read an affidavit sworn by Mr Ktenas (a solicitor for the defendant). The affidavit was said to have relevance to matters of prejudice. It related to inquiries made after the court had on 22 October 1999 allocated a special fixture for the hearing on 16 December 1999. The special fixture had been allocated after the legal representatives for the parties had signed the usual special fixture form. The form states in bold letters that the fixture is allocated on the assurance of the parties that all affidavits to be read have been filed and served. It also contains the notation that "Only affidavits on file when the matter is specially fixed may be read". The defendant had been a party to many similar hearings and was fully appraised of the practice of the court in relation to special fixtures. The material related to inquiries made after the date of allocation of the special fixture (during December 1999). No satisfactory explanation was offered for the failure to prepare this material prior to the obtaining of the special fixture. 4 The plaintiff objected to the reading of the affidavit. The tender of the affidavit was rejected. 5 Apart from the flagrant disregard of the assurance given to the court and the practice adopted by the court in relation to special fixtures, the affidavit contained material which may have required investigation and consideration by the plaintiff and perhaps the adducing of further evidence to meet the material. 6 Following the rejection of the tender, the defendant then unsuccessfully sought to re-agitate an application for adjournment. The parties had been directed on 15 December 1999 that in the event of an application for adjournment of this hearing, the application was to be made on that day and before the Registrar handling the list of special fixtures for Masters. Subsequently an application was made to him on that day and refused. 7 The special fixture document also contains the notation that "It can be assumed that no adjournment will be granted". Any question of adjournment should have been raised at a much earlier time so as to avoid prejudice and inconvenience to the plaintiff and the disruption of the court's business. The plaintiff had come from South Australia for the purposes of the hearing. The defendant had required him to attend for purposes of cross-examination. There is evidence that travel and the visiting of major centres is a problem for him. 8 The plaintiff was born on 23 January 1943. He enlisted in the Royal Australian Navy on 9 April 1962. At the time of the collision, he was a member of the crew of HMAS Melbourne. 9 The affidavit material details his experiences in relation to the collision and his subsequent service in the Navy. He had Vietnam service in 1966 and 1967. He was discharged from the Navy on 8 April 1971. It also provides a history since discharge. 10 Since the collision, he has had a variety of symptoms. There has been a history of alcohol abuse. This may have caused a heart disorder. 11 In 1969, (at the suggestion of his wife), he saw a Navy psychiatrist (Dr McGeorge) about a drinking and sleeping problem. The psychiatrist prescribed Valium. He did not give any diagnosis. 12 In about 1994, because of his problems, he decided to go and see a general practitioner. He was referred to a psychologist (Mr Leonard). Up to that time, he did not think that he had a psychiatric illness. A friend suggested that he might have post traumatic stress disorder. He applied for a service pension (Exhibit 1). Mr Leonard expressed to him the opinion that he was suffering from post traumatic stress disorder. Mr Leonard did not take a full history. He expressed the opinion that the disorder centred around his Vietnam service. The Department of Veterans Affairs had him examined by a psychiatrist (Dr Trueman). He made a similar diagnosis. He did not obtain any history concerning the collision. 13 Subsequently, his general practitioner referred him to a psychiatrist (Dr Riseby). The plaintiff had a number of sessions with him. Dr Riseby took a very long and detailed history (which included history concerning the collision). The plaintiff has given evidence as to how he came to give that history to Dr Riseby. Dr Riseby prepared a report dated 5 September 1996 (Exhibit JPS 2). In that report, he expressed the opinion that the collision was the original cause of the disorder. It was not until then that the plaintiff was aware that his psychiatric disorder was related to both the collision and his Vietnam service. 14 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 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. 15 Generally speaking, it could be said that the application has been opposed in all of its aspects. It is said that the plaintiff has failed to satisfy any of the threshold requirements. Further, it is said that he has failed to satisfy the court that it would be just and reasonable to make an order. In addition to these matters, there was a specific submission that the plaintiff's material failed to disclose a viable cause of action. 16 I have had regard to all of the evidence before the court on the hearing of this application. In particular, I have had regard to such inconsistencies as may have emerged between evidence and other material. In my view, the defendant's submissions fail. 17 I am satisfied that the plaintiff has met the relevant threshold requirements. Similar considerations have been addressed in previous cases (including Darcy v The Commonwealth of Australia (25 July 1997) and Burns v The Commonwealth of Australia [1999] NSWSC 223). It suffices to specifically mention that I am satisfied that the requirement appearing in (a) (ii) of s 60I (1) has been met. I am satisfied that, despite his knowledge as to symptoms, he was unaware that he had a psychiatric condition prior to 1994 (see inter alia Commonwealth of Australia v Dinnison (1995) 56 FCR 389). It was not until later that he was aware that the condition was related to the collision. In these circumstances, it is not necessary to dwell on the submissions made in respect of (i) and (iii) thereof. Further, I am satisfied that this application has been made within the 3 year period prescribed by (1) (b). 18 The defendant has placed emphasis on the discretionary considerations of delay and prejudice. It is not disputed that there has been delay which has occasioned prejudice. In the relevant circumstances of this particular case, I do not regard the delay and prejudice as having sufficient weight as to lead the court to a rejection of the application. A rejection would deny the plaintiff the opportunity to prosecute his claim for damages. The court is not in a position to form any view as to the potential of that claim but it can be said that it may be a quantum of significance. 19 I should perhaps make further mention of one aspect of the prejudice argument. It may be that for some periods in the more distant past the plaintiff has engaged in income earning activities in relation to which there is a lack of documentation. The defendant may well have difficulty investigating any claim that relates to these periods. However, it seems also that the plaintiff may have great difficulty in propounding any claim in respect of these periods. Whatever be the position, these periods may only relate to a modest component of any claim made for loss of earning capacity. This is a claim which has not yet been formulated. 20 There is presumptive prejudice. However, despite the matters of prejudice, I am of the view that a fair trial of the relevant issues can still take place. 21 There is evidence from both the plaintiff and Dr Riseby which reveals that he may have an arguable claim. It may be that there is material which casts doubt on whether or not such a claim may be successful at a trial. However, it seems to me that the issues thrown up by that material are questions to be determined at a trial. I do not accept the plaintiff's submission that the material available on this application fails to reveal a viable cause of action. 22 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. 23 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. 24 I extend the limitation period for the cause of action pleaded in the Statement of Claim up to and including 14 October 1996. I reserve the question of costs. The exhibits may be returned. **********