New South Wales Supreme Court CITATION : Landells v The Commonwealth of Australia [2000] NSWSC 1193 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 21246 of 1995 HEARING DATE(S) : 11 - 12 December 2000 JUDGMENT DATE : 15 December 2000 Theodore Douglas Landells (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 - viable cause of action and prejudice. LEGISLATION CITED : Limitation Act 1969, s 60G, s 60I, s 60I (1) (a) and (b). CASES CITED : Holt v Wynter 49 NSWLR 128. Morgan v Tame 49 NSWLR 21. DECISION : See paragraph 31. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER MALPASS FRIDAY 15 DECEMBER 2000 21246 OF 1995 THEODORE DOUGLAS LANDELLS v THE COMMONWEALTH OF AUSTRALIA JUDGMENT 1 These proceedings were commenced by Statement of Claim filed on 29 November 1995. It is yet another of the claims said to arise out of the collision between HMAS Melbourne and HMAS Voyager on 10 February 1964. However, there was one startling difference between this case and the other cases I have heard. The difference is that the plaintiff was on neither ship at the time of the collision. Indeed, he was not on any ship. In fact, he was ashore at the time of the collision and had been involved in a motor vehicle accident near Camden a short time before it took place. Following the accident, he acquired knowledge of the collision. 2 The plaintiff became a member of the Royal Australian Navy on 24 January 1955. He was discharged on or about 7 September 1964. By that time, he had attained the rank of leading mechanical engineer. 3 The plaintiff's supporting affidavit (which was sworn on 2 May 2000) discloses that late in 1963 he had transferred from HMAS Voyager to HMAS Vampire (he changed places with a member of the Vampire Crew). He had been a member of the crew of Voyager (for some unspecified time). The affidavit also tells us that following the collision, he was involved in a burial service at sea on board Vampire. It does not tell us that he was in fact ashore at the time of the collision and/or how he came to know of the collision. It was necessary for him to be called to give supplementary oral evidence. During this evidence, he gave a version of how he came to know of the collision (told of it on 11th by his wife). 4 Paragraph 6 of that affidavit sets out his version of the effect had upon him by the loss of the Voyager. Paragraphs 7 to 9 set out a personal history. In approximately March 1997 he spoke to a psychiatrist (Dr Knox). The plaintiff says that then for the first time he learned that he was suffering from a post-traumatic stress disorder caused by his involvement in events surrounding the sinking of the Voyager. He says that prior to this, he never knew that he had sustained a psychiatric illness caused by the Voyager. 5 The affidavit deposes to the plaintiff having had an alcohol problem after the collision. It says that he continued to drink excessively until 1986. A report dated 23 April 2000 from Dr Knox offers a diagnosis that the plaintiff appeared to suffer from alcohol abuse and alcohol dependence throughout the greater part of the period from 1964 to the mid 1980's. Also, the report links the alcohol abuse with the Voyager sinking. 6 The Statement of Claim falsely pleads that he was upon HMAS Melbourne on 10 February 1964 (it has not been amended). On 31 January 1996 a Defence was filed raising the issue of the expiry of the relevant limitation period. Prior to the filing of that Defence, a Notice of Motion had been filed on 6 December 1995 seeking an extension of the limitation period. The supporting affidavit was not filed until 26 July 2000. This Notice of Motion did not come on for hearing until 11 December 2000. 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 A number of issues have been agitated by the parties (including what have been referred to as discretionary considerations). 9 For present purposes, save for dealing with one matter, consideration of the question of the satisfying of the other threshold requirements can be put to one side. Section 60I (1) (b) has not been satisfied. The application was not made within the prescribed period. It was made before he became aware of all of the three matters listed in (a) (i) - (iii). Unless all of the threshold requirements are satisfied, the statute states that the court may not make an order under s 60G. 10 Leaving aside this consideration it seems to me that the application has problems with s 60G itself. I shall now proceed to look at these problems. I shall do so on the assumption that the relevant threshold requirements have been satisfied. 11 A relevant matter that is agitated is whether or not the plaintiff has a viable cause of action. In this case, the plaintiff brings a claim for damages founded on negligence. My immediate reaction to this claim is that it is hopeless. However, I bear in mind that the court should exercise caution when looking at causes of action founded on negligence at a time prior to trial. Despite exercising that caution, it seems to me that if he does have any prospects of success they are indeed of a very low order. 12 The claim that is now being propounded on behalf of the plaintiff is different to that pleaded in the Statement of Claim. The alleged negligence is pleaded in the context of the plaintiff having been a member of the crew of the Melbourne. The relevant allegation is that the collision was caused by negligence. The duty of care which is now said to have been owed to the plaintiff has not been spelt out. I am unable to see a duty of care that has been breached. The cases have drawn a distinction between claims based on pure psychiatric illness and claims based on personal bodily injury. It was somewhat unclear whether or not the plaintiff propounds the claim as a nervous shock case. The defendant seeks to place it in that category. If it is, the element of perception is lacking ( Morgan v Tame 49 NSWLR 21). 13 It seems to me that this matter of itself would suffice to defeat the plaintiff's application. If an extension of time was to be granted in these circumstances, it may expose the defendant to the prospect of a long and expensive trial and it may have little prospects of satisfying any order for costs made in its favour. 14 Largely, the delay in bringing this application before the court is left unexplained. The delay is significant. The process and the Notice of Motion were both filed in late 1995. The opinion from Dr Knox was not obtained until during 1997. The Notice of Motion was not brought to hearing until December 2000. This delay is additional to that which took place prior to his obtaining legal advice. 15 Despite the passing of about five years, there remains many unsatisfactory aspects of the relevant documentation. The Statement of Claim remains in its original form, with a serious false allegation. It has not been amended to present the case which is now sought to be advanced. The supporting affidavit (which was not sworn until this year) also is deserving of criticism. There is much vagueness. It is drafted in a form which has the potential to mislead. It was silent on relevant matters. 16 The question of prejudice has been a lively issue in this case. It is a question which is material to the granting of the relief sought by the plaintiff. In cases of this nature it is inevitable that there will be prejudice. There will be both presumptive and actual prejudice. 17 The defendant has prepared a document which it says identifies what is says to be areas of prejudice. These are identified as prior service on Voyager, motor vehicle accident 10 February 1964, service in Navy post 10 February 1964, drinking history, claim for loss of earning capacity, hospital treatment, medical practitioners, medications, other medical conditions, family history, income tax records and other motor vehicle accidents. 18 There are many problems confronting the defendant in the task of investigating the plaintiff's claim. I shall make specific mention of some of them. In so doing, I am not intending to be exhaustive. 19 Histories have been given to experts. There is variation and conflict to be found in the histories. The loss of relevant records may be material in the investigation of matters thrown up by the histories. 20 The problems confronting the defendant are well illustrated when regard is had to just one of the components of the plaintiff's claim for damages (the claim for economic loss). The meeting of this component involves an investigation of a substantial part of the claimant's working life (about thirty five years). It covers at least forty four employers. It is the plaintiff's case that most of the employments were terminated because of alcoholism and inability to accept authority. The quantum of the claim may be substantial. 21 The claim in relation to alcohol abuse is now very stale. It ended in the 1980's. The defendant may have little prospect of investigating and meeting what may be said inter alia by the plaintiff and members of his family. 22 The contents of a medical report suggests that there are significant features in his personal and family history (including a history of alcoholism on his mother's side of the family). This is an example of an area where there is conflicting history. 23 In the past the plaintiff has suffered from other medical conditions (including chronic fatigue syndrome) which have affected inter alia his capacity for work. There is evidence of loss of relevant hospital records. 24 There is a history and a medical view to the effect that the plaintiff suffered major emotional stress initially in the course of a tour of duty on the Voyager prior to the collision. 25 There was a motor vehicle accident in 1964. There have been other motor vehicle accidents. Whilst the plaintiff describes them as being minor, it seems that there is little material available to the defendant to enable it to investigate these matters. 26 Generally speaking, the material reveals that there will be significant problems for the defendant in investigating the plaintiff's claim. It could be expected, that relevant witnesses will not now be available. It could be expected that those who remain available may suffer from a diminished recollection. There will be records which will not be available to the defendant (including naval, employment, hospital and medical records). 27 For completeness I should make specific reference to a report prepared by Lee, Kelly & Associates Pty Ltd. It was an annexure to the affidavit sworn by Mr Ktenas. The author of the report (Mr Duncan) was subjected to a prolix and forceful cross-examination. The plaintiff has attacked the report as being superficial and limited in nature. There were limitations (inter alia as to time and costs) in relation to the preparation of the report. Whatever shortcomings it might have, it does reinforce the view that the defendant is confronted with significant difficulties in meeting the plaintiff's claim. The fact that the report may be limited in nature merely throws up the likelihood that a more thorough report may reveal that the plaintiff's problems are greater than presently envisaged. 28 In the past, prejudice arguments have had limited success in these cases. However, this case is distinguishable from the others (in many respects) and each case must be determined on its own particular circumstances. 29 The defendant has vigorously argued the question of prejudice. The attention of the court has been directed to the case of Holt v Wynter 49 NSWLR 128. In the circumstances of this case, it seems to me that there is prejudice of significance and the likelihood is that a fair trial cannot now take place. 30 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 not satisfied that the onus has been discharged. Indeed, in the circumstances of this case, the court may not make an order. 31 I am not able to reach the decision that it is just and reasonable to make the order sought and/or that such an order should be made in this case. I dismiss the Notice of Motion. The plaintiff is to pay the costs of the Notice of Motion. The Exhibits may be returned. ********** Last Modified: 12/18/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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