Blaxter v The Commonwealth of Australia [2001] NSWSC 957

Reported Decision : [2001] NSWSC 957 [2001] ACL Rep 255 NSW 44

New South Wales Supreme Court

CITATION : Blaxter v The Commonwealth of Australia [2001] NSWSC 957 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20777 of 1997 HEARING DATE(S) : 4 October 2001 JUDGMENT DATE : 29 October 2001

Lawerance Gary Blaxter (Plaintiff) PARTIES : v The Commonwealth of Australia (Defendant) JUDGMENT OF : Master Malpass

COUNSEL : Mr M Joseph SC/Mr W Walsh (Plaintiff) Mr C Branson QC/Mr T Howe (Defendant) James Taylor & Co (Plaintiff) SOLICITORS : Australian Government Solicitor (Defendant)

CATCHWORDS : Extension of limitation period - no question of principle. LEGISLATION CITED : Limitation Act 1969, s 60G, s 60I (1) (a) and (b). CASES CITED : McLean v Sydney Water Corporation [2001] NSWCA 122. Parsons v Doukas [2001] NSWCA 128. DECISION : See Paragraph 24.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20777 of 1997

MASTER MALPASS

MONDAY 29 OCTOBER 2001

Lawerance Gary Blaxter v The Commonwealth of Australia

Judgment 1 Master: 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 14 August 1997. On the same day, the plaintiff filed a Notice of Motion. It sought an extension of the relevant limitation period pursuant to s 60G of the Limitation Act 1969 (the Act). A supporting affidavit was sworn on 24 January 2001. 3 The hearing of the Notice of Motion took place on 4 October 2001. The affidavit of the plaintiff was read. The exhibits to that affidavit (including a copy of a report from Dr Hayes dated 2 June 1998 and a copy of a report from Dr Knox dated 31 August 1998) were tendered. The plaintiff was cross-examined. The defendant relied on an affidavit sworn by Mr Kathner (a solicitor in the employ of the Australian Government Solicitor). It annexed inter alia a copy of a report from Lee, Kelly & Associates Pty Ltd and documentation from the Department of Defence. He was also cross-examined. There was a tender of documentation (including records). 4 The plaintiff was born on 24 July 1940. He entered the Royal Navy on 20 March 1958. He was discharged on 19 March 1967. He then held the rank of Leading Seaman. 5 At the time of the collision, he was a member of the crew of HMAS Melbourne. He had two very good friends on HMAS Voyager. His affidavit provides a version of events which he says happened immediately following the collision. It also contains a narrative of personal events in his life subsequent to the collision. This material was supplemented and/or corrected by oral evidence. 6 I shall briefly refer to some of the matters that appear in his personal history. This reference is not intended to be exhaustive. 7 The affidavit provides a history of inter alia heavy drinking, anxiety, lack of confidence and inability to concentrate. Also, it deposes to daily thoughts and visions concerning the collision. 8 In about April 1997, as a consequence of a conversation with an ex naval colleague he went to see the Veterans' Liaison Officer, who referred him to Dr McDonald. He was informed by Dr McDonald that he may be suffering from a post traumatic stress disorder. He says that prior to April 1997 he had not heard of the term. He was referred to Dr Hayes, whom he saw on about 15 August 1997. Dr Hayes confirmed the diagnosis of post traumatic stress disorder. He says that it was then that he became aware that he was suffering from a psychiatric illness, which was a consequence of the collision. 9 The reading of an advertisement led him to contacting his present solicitor (Mr Taylor) at the end of 1995. Mr Taylor referred him to Dr Knox (a psychiatrist). Dr Knox diagnosed post traumatic stress disorder and related the plaintiff's alcohol abuse to that disorder. 10 The plaintiff says that he has read his Statement of Claim. He further says that until he had read it, he had no knowledge of any negligent acts or omissions by the defendant. Further, he had not known that those negligent acts or omissions had caused his psychiatric damage. 11 I now turn to the relevant statutory requirements. 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 provisions have been seen as imposing threshold requirements to the making of an order. 12 When these matters have been satisfied, the court may grant relief if it also finds that it was just and reasonable to do so. The plaintiff bears the onus of demonstrating an entitlement to relief. 13 It is not said that the plaintiff has failed to satisfy the threshold requirements. The court has before it evidence which demonstrates that they have been met. The only issue agitated was whether or not a fair trial can still be had. The arguments put embrace matters of delay and prejudice. Indisputably, a long time has elapsed since the collision. The defendant alleges both presumptive and actual prejudice. Further, it says that the prejudice is substantial. 14 It is unnecessary to exhaustively deal with each and every one of the matters agitated. It suffices to concentrate on those which were the subject of principal submission. 15 The plaintiff did not seek expert advice concerning his psychiatric problems until 1997. It does not appear that he has undergone treatment for the diagnosed conditions. 16 There is no evidence of loss of medical records. The plaintiff was seen by Dr Phillips in late 1999 on behalf of the defendant. 17 There is complaint in relation to difficulty in making a diagnosis after such long delay. No doubt, the delay may throw up some difficulty. However, the plaintiff's experts seem to have been able to cope with the situation. There is no evidence that Dr Phillips was unable to so cope with it. 18 Despite the problems of which he complains, his work history shows him as being mostly in employment until his retirement. On one view he may not have a large claim for loss of earning capacity. His work history may lend assistance to the defendant in resisting his claim. 19 There is material which reveals that there is documentation which is no longer available. There is material which reveals that potential witnesses may no longer be available. This material not only concerns the claim for loss of earning capacity but other aspects of the plaintiff's claim. Despite this, the material also reveals that there remain records and potential witnesses available to the parties. 20 As has been said in other cases arising out of this collision, the material tends to throw up some conflict as to what in fact may have been lost. There remains an overall difficulty of relating certain of the unavailable documentation to the issues arising from the plaintiff's claim. 21 The delay can be expected to give rise to what has been described at times as either presumptive or general prejudice. Also, it can be expected that there will be some actual prejudice. However, in the circumstances of this case, I am not satisfied that the defendant has been significantly or substantially prejudiced (see inter alia Parsons v Doukas [2001] NSWCA 128). 22 In deciding whether or not it is just and reasonable to make an order, current authority presents the view that the court should look to the question of whether a fair trial can still be had. Fairness is regarded as a matter of degree and the concept of a fair trial is treated as a relative one. It does not mean a perfect trial (see inter alia McLean v Sydney Water Corporation [2001] NSWCA 122). In the circumstances of this case, I am not satisfied that a fair trial is now unlikely. 23 I have come to the view that the plaintiff has discharged the relevant onus of proof. Accordingly, 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. 24 I extend the limitation period for the cause of action pleaded in the Statement of Claim up to and including 14 August 1997. I reserve the question of costs. The exhibits may be returned. **********