O'DWYER v COMMONWEALTH OF AUSTRALIA [1999] NSWSC 586

New South Wales Supreme Court CITATION : O'DWYER v COMMONWEALTH OF AUSTRALIA [1999] NSWSC 586 CURRENT JURISDICTION : COMMON LAW FILE NUMBER(S) : 21244/1995 HEARING DATE(S) : 9 June 1999 JUDGMENT DATE : 16 June 1999

BRIAN PATRICK O'DWYER PARTIES : v THE COMMONWEALTH OF AUSTRALIA JUDGMENT OF : Master Malpass

COUNSEL : PLAINTIFF: MR M JOSEPH SC/MR M BRABAZON DEFENDANT: MR T J MORAHAN SOLICITORS : PLAINTIFF: JAMES TAYLOR & CO DEFENDANT: AUSTRALIAN GOVERNMENT SOLICITOR CATCHWORDS : EXTENSION OF LIMITATION PERIOD; collision between HMAS Voyager and HMAS Melbourne; unaware of nature or extent of personal injury (psychiatric illness). ACTS CITED : Limitation Act 1969, s 60G, s 60I, s 63 (1). Burns v The Commonwealth of Australia [1999] NSWSC 223. CASES CITED : Commonwealth of Australia v Dinnison (1995) 56 FCR 389. Darcy v The Commonwealth of Australia (25 July 1997). Harris v Commercial Minerals Ltd (3 April 1996). DECISION : SEE PARAGRAPH 14

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

WEDNESDAY 16 JUNE 1999

21244/1995 BRIAN PATRICK O'DWYER 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 29 November 1995. An Amended Defence was filed in Court on 9 June 1999. It admits certain of the alleged particulars of negligence. It pleads a defence under s 63 (1) of the Limitation Act 1969 (the Act). 2 Previously, on 6 December 1995, the Plaintiff had filed a Notice of Motion seeking an extension of the relevant limitation period. This application came on for hearing on 9 June 1999. The application was opposed. 3 The evidence placed before the Court fell within a small compass. The plaintiff has sworn three affidavits. Exhibits to the affidavits were tendered. There was some short cross-examination of the plaintiff. The defendant did not adduce any evidence. 4 The plaintiff was born on 7 August 1936. He became a member of the Royal Australian Navy on 23 October 1958. At the time of the collision he was a member of the crew of HMAS Melbourne. He was on the flight deck at the time. Paragraph 6 of the affidavit sworn on 12 November 1998 provides a version of what he observed at the time of and following the collision. He was not cross-examined on this version. 5 The plaintiff has said that his life changed after the collision and that he was a different man. He has suffered from various symptoms since the collision and his condition has remained much the same. 6 He was discharged from the Navy on 22 October 1970. Thereafter, an unhappy personal history ensued. For the purposes of dealing with this application, it is unnecessary to recite the details of that history. The material can be gleaned from the affidavits. 7 In 1995 he responded to an advertisement placed by his now solicitor. He first saw a solicitor (which was his present solicitor) in about September 1995. The instructions given by him led to the bringing of these proceedings. He was referred to Dr Wu. The late Dr Wu was a consultant psychiatrist. He provided a report dated 25 February 1996. It was following his consultation with Dr Wu that he first became aware that he was suffering from acute stress disorder/adjustment disorder. Prior to that time, he was unaware that he had been suffering from a medical condition. 8 Relief is sought pursuant to s 60G of the Act. Section 60I prohibits the making of an order under s 60G unless the Court is satisfied of the matters listed in (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. 9 The submissions made on behalf of the parties were brief. The defendant contended that the threshold requirements had not been met. It was submitted that none of the matters listed in paragraph (a) (i) - (iii) of s 60I (1) had been made out by the evidence. Further, it was said that the discretion should not be exercised in favour of the plaintiff. Broadly speaking, it was said that he had constructive knowledge and should have earlier found out about his medical condition (reference was made to Harris v Commercial Minerals Ltd (3 April 1996)). 10 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 serious psychiatric condition prior to seeing Dr Wu (see inter alia Commonwealth of Australia v Dinnison (1995) 56 FCR 389). In these circumstances, it is not necessary to consider 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). 11 I am not satisfied that the discretionary consideration agitated by the defendant has been sustained. I should add that had it been sustained it did not seem to me to be of such weight (in the circumstances of this case) as to lead the Court to a rejection of the application. 12 The onus rests with the plaintiff to satisfy 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 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 29 November 1995. I reserve the question of costs. The exhibits may be returned. **********