New South Wales Supreme Court CITATION : RAE v COMMONWEALTH OF AUSTRALIA [1999] NSWSC 587 CURRENT JURISDICTION : COMMON LAW FILE NUMBER(S) : 20840/1996 HEARING DATE(S) : 10 June 1999 JUDGMENT DATE : 16 June 1999 JOHN BERNARD RAE PARTIES : v THE COMMONWEALTH OF AUSTRALIA JUDGMENT OF : Master Malpass COUNSEL : PLAINTIFF: MR M JOSEPH SC/MR M BRABAZON DEFENDANT: MR G RUNDLE SOLICITORS : PLAINTIFF: JAMES TAYLOR & CO DEFENDANT: AUSTRALIAN GOVERNMENT SOLICITOR CATCHWORDS : EXTENSION OF LIMITATION PERIOD; collision between HMAS Voyager and HMAS Melbourne; personal injury; No question of principle. ACTS CITED : Limitation Act 1969, s 60G, s 60I CASES CITED : N/A DECISION : SEE PARAGRAPH 10 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER MALPASS WEDNESDAY 16 JUNE 1999 20840/1996 JOHN BERNARD RAE 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 8 August 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 10 June 1999. It commenced as an opposed application. 3 The evidence placed before the Court fell within a small compass. The plaintiff has sworn an affidavit. Certain exhibits were tendered. The plaintiff was asked a few questions in cross-examination. The defendant did not adduce any evidence. 4 The plaintiff was born on 14 December 1942. He became a member of the Royal Australian Navy on 15 February 1960. 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 his affidavit provides a version of what he observed at the time of and following the collision. He was not cross-examined on this version. 5 He was discharged from the Navy on 14 February 1969. His other post-collision history can be gleaned from the affidavit. Save for particular mention of certain matters, it is not necessary to repeat history details in this judgment. 6 The plaintiff's present problems are a psychiatric disorder, a substance abuse disorder and a heart condition. He became aware that he was suffering from a psychiatric disorder in 1995 after consulting with a general practitioner (Dr Peachey) and a specialist (Dr Pohlen). On 20 January 1998, he suffered a heart attack. He came under the care of Dr Hill (a cardiologist). Later in January 1998, he became aware that in the opinion of Dr Hill the psychiatric disorder had caused him to greatly increase his smoking and drinking and that all of these conditions were either a contributing factor to or cause of his heart condition. This was the first time that he had knowledge that his heart condition was related to the collision. 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 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. 8 At the conclusion of the evidence, the defendant made no submissions in opposition to the granting of the relief sought by the plaintiff. Although by that time the application had become unopposed, the defendant indicated to the Court that a judgment was still required. 9 The evidence demonstrates that the plaintiff has met the relevant threshold requirements. In the circumstances of this case, 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. 10 I extend the limitation period for the cause of action pleaded in the Statement of Claim up to and including 8 August 1996. It is common ground that the costs of the application should be costs in the cause. I make that order. The exhibits may be returned. ********** Last Modified: 06/23/1999 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.