Brittain v Commonwealth of Australia [2000] NSWSC 731

New South Wales Supreme Court

CITATION : Brittain v Commonwealth of Australia [2000] NSWSC 731 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 21248 of 1995 HEARING DATE(S) : 14 July 2000 JUDGMENT DATE : 27 July 2000

Anthony Winston Brittain (Plaintiff) PARTIES : v The Commonwealth of Australia (Defendant) JUDGMENT OF : Master Malpass

COUNSEL : Mr I Butcher (Plaintiff) Mr B Skinner (Defendant) SOLICITORS : James Taylor & Co (Plaintiff) Australian Government Solicitor (Defendant) CATCHWORDS : Voyager/Melbourne collision - extension of relevant limitation period - no question of principle. LEGISLATION CITED : Limitation Act 1969, s 60G, s 60I. Follent v The Commonwealth of Australia [2000] NSWSC 674. CASES CITED : Stankowski v The Commonwealth of Australia [1999] NSWSC 1258. DECISION : See paragraph 18.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

THURSDAY 27 JULY 2000

21248 of 1995 ANTHONY WINSTON BRITTAIN 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 29 November 1995. A Notice of Motion seeking an extension of time pursuant to s 60G of the Limitation Act 1969 (the Act) was filed on 6 December 1995. A supporting affidavit was filed on 14 September 1999. 3 On 14 July 2000, I delivered judgment in another Melbourne/Voyager matter ( Follent v The Commonwealth of Australia [2000] NSWSC 674). These proceedings have had a similar recent history to Follent . I do not propose to repeat what has been recorded in the judgment in that case. 4 The hearing of the Notice of Motion in these proceedings took place on 14 July 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 28 September 1995). The plaintiff was cross-examined. The defendant did not lead any evidence. 5 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. 6 The Defendant resists this application on the basis that the threshold requirements have not been satisfied. An attack has been made on the plaintiff's credibility. It is said that because of his lack of credibility, the evidence that he has given in relation to the threshold requirements should not be accepted. It was not sought to agitate any of the discretionary considerations (inter alia no submission was made on the question of prejudice). 7 It is not necessary to recite the detail that appears in the affidavit, the oral evidence and the documentation. It suffices to merely refer to some of that material. This reference is not intended to be exhaustive as a statement of relevant matters. 8 The plaintiff was born on 22 June 1945. He became a member of the Royal Australian Navy on 26 August 1963. He was discharged "on dismissal" on 20 January 1966. His rank was then that of ordinary seaman. 9 At the time of the collision the plaintiff was a member of the crew of HMAS Melbourne. There was evidence as to the experiences had by the plaintiff in relation to the collision. There was evidence relating to subsequent naval service. There was evidence dealing with both his personal and employment history after leaving the Navy. 10 There is evidence from the plaintiff that following the collision he drank to excess, suffered from sleeping problems and had anxiety and depression. He concedes that he has had an awareness of these problems in excess of thirty years. He has not sought any treatment. 11 In 1995, he saw a newspaper advertisement. He responded to it. This led to him contacting his present solicitor (Mr Taylor) on 21 September 1995. It was arranged for him to see Dr Wu. He saw Dr Wu on 28 September 1995. He was told by Dr Wu that he was suffering from post traumatic stress disorder and that this condition was as a direct result of his experiences following the collision. The views of Dr Wu have not been the subject of any challenge. 12 In his affidavit, he has deposed that this was the first time he knew that he was suffering from a psychiatric disorder and that prior to the consultation with Dr Wu he did not know the nature and extent of his condition. 13 In paragraph fourteen of his affidavit, he deposes to a lack of knowledge had in relation to the acts of negligence of the defendant. 14 There may well be some force in the defendant's contention of lack of credibility. However, I am satisfied that I can accept the evidence that he has given as to his lack of awareness of suffering from a psychiatric condition prior to September 1995. The evidence given by him on this matter was not the subject of any direct challenge. In the circumstances, I find that he was unaware of the nature or extent of his injury prior to September 1995. 15 Accordingly, I am satisfied that the plaintiff has met the relevant threshold requirements. Similar considerations have been addressed in other cases dealt with by this Court (see inter alia Stankowski v The Commonwealth of Australia [1999] NSWSC 1258). It is unnecessary to repeat once again what has been said many times in the earlier cases. 16 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. 17 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. 18 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. **********