McVee v The Commonwealth of Australia [2000] NSWSC 1194

New South Wales Supreme Court

CITATION : McVee v The Commonwealth of Australia [2000] NSWSC 1194 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20277 of 1996 HEARING DATE(S) : 12 December 2000 JUDGMENT DATE : 15 December 2000

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

COUNSEL : Mr M Joseph SC (Plaintiff) Mr C Branson QC/S Thode (Defendant) SOLICITORS : James Taylor & Co (Plaintiff) Australian Government Solicitor (Defendant) CATCHWORDS : Extension of limitation period - threshold requirements - and - prejudice. LEGISLATION CITED : Limitation Act 1969, s 60G, s 60I, s 60I (1) (a) and (b). CASES CITED : Holt v Winter 49 NSWLR 128. DECISION : See paragraph 19.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

FRIDAY 15 DECEMBER 2000

20277 OF 1996 PETER JOHN McVEE v THE COMMONWEALTH OF AUSTRALIA JUDGMENT 1 This is yet another of the many proceedings brought before this Court which arise out of the collision between the HMAS Melbourne and the HMAS Voyager on 10 February 1964. 2 The Statement of Claim was filed on 20 March 1996. On the same day, a Notice of Motion seeking an extension of time pursuant to s 60G of the Limitation Act 1969 (the Act) was filed. A supporting affidavit was filed on 30 June 2000. The hearing of the Notice of Motion took place on 12 December 2000. The affidavit of the plaintiff was read. The exhibits to that affidavit were tendered (including a copy of a report from Dr Wu dated 1 February 1996). There was a tender of documentation. The plaintiff was cross-examined. 3 The defendant read an affidavit sworn by Mr Ktenas. One of the annexures to the affidavit was a report from Lee, Kelly & Associates Pty Ltd. Mr Duncan (who had been involved in its preparation) was cross-examined. The defendant also tendered other documentation. 4 The plaintiff was a member of the crew of the Aircraft Carrier HMAS Melbourne at the time of the collision. In his affidavit, he recites experiences both at the time of the collision and thereafter. Also, the affidavit provides some personal history. 5 In about September 1995, he saw an advertisement put in a paper by his present solicitor (Mr Taylor). In about September 1995, he contacted Mr Taylor. Mr Taylor sent him to see a psychiatrist (Dr Wu). Dr Wu informed him that he was suffering from a chronic adjustment disorder with depression and also explained that the illness was due to the collision. Since the collision, there has been alcohol and drug abuse. Dr Wu also told him that this was related to the collision. The plaintiff says that prior to that time he did not know that he was suffering from a psychiatric illness and did not know the nature and extent of the condition from which he had been suffering. 6 The court has before it naval medical records (these go back to August 1968). The records disclose that the plaintiff was being treated for inter alia a depression illness and an anxiety state. There is evidence of matrimonial problems and of a suicide attempt. The plaintiff's evidence is that he was never informed by the Navy as to what was wrong with him and that he did not become aware of the details of these records until the time of the swearing of his affidavit. 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 if the court is satisfied that it is just and reasonable to do so. 8 Broadly speaking, two questions have been agitated. Firstly, there was a threshold question. Secondly, there was a question of prejudice. 9 The evidence from the plaintiff established a prima facie case that at the relevant time he was unaware that he was suffering from a psychiatric illness and that he was unaware of the nature and extent of the personal injury suffered. The defendant contends that this evidence should not be accepted and that the court should infer that he did know these things. Although he was cross-examined, there was no direct challenge to the evidence given by him in relation to these matters. He was merely questioned on matters such as inter alia symptoms, treatment received, overdoses, and the identity of hospitals and treating doctors. It was not put to him that he did know that he was suffering from a psychiatric illness prior to seeing Dr Wu. 10 If it was intended by this line of questioning, to mount an attack on the credibility of the plaintiff, in my view that attack has failed. I am not persuaded that I should reject the evidence that the plaintiff has given on these matters. 11 Whilst these findings suffice to determine this question in the plaintiff's favour, it may be further observed that I do not consider this submission was open to the defendant in the light of its conduct of the matter. 12 The other question was that of prejudice. Largely, the defendant relies on material put into evidence through the affidavit sworn by Mr Ktenas. It puts evidence of actual prejudice before the court. Again, the defendant relies on what was said in Holt v Winter 49 NSWLR 128. 13 The defendant has prepared a document which identifies what he says are the relevant areas of prejudice. The areas are identified as loss of earning capacity, service on HMAS Melbourne and HMAS Harmon deterioration after accident, onset of alcoholism, treatment by medical practitioners, history given to Wu who diagnoses chronic adjustment disorder, non-availability of defence records and hospital records. 14 For present purposes, whilst I have given these matters careful consideration, it is not necessary to address individually each of these areas. However, I will briefly refer to one area. 15 Loss of earning capacity is a particular area which may give rise to prejudice in such a case as this. In this case, there is an initial difficulty in assessing the extent of the prejudice. The nature of the claim for economic loss presently remains unclear. Although there is evidence of actual prejudice, there is material which could suggest that the claim may not be a significant one. In any event, although a large period of time is involved the plaintiff has had but two employers and a period of self employment. In recent times, he has been unemployed. 16 In cases of this nature, prejudice is inevitable. It will be both presumptive and actual. The real question is whether prejudice will deprive the parties of the likelihood of a fair trial. In the circumstances of this case, it does not seem to me that this will be the case. 17 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. 18 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. 19 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. **********