Hill v The Commonwealth of Australia [2001] NSWSC 800

New South Wales Supreme Court

CITATION : Hill v The Commonwealth of Australia [2001] NSWSC 800 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 21147 of 1996 HEARING DATE(S) : 7 September 2001 JUDGMENT DATE : 12 September 2001

Brian Finlay Hill (Plaintiff) PARTIES : v The Commonwealth of Australia (Defendant) JUDGMENT OF : Master Malpass

COUNSEL : Mr I Butcher/Mr W Walsh (Plaintiff) Mr R S McIlwaine SC/Mr A P Coleman (Defendant) SOLICITORS : James Taylor & Co (Plaintiff) Australian Government Solicitor (Defendant) CATCHWORDS : Extension of limitation period - viable cause of action - prejudice - no question of principle. LEGISLATION CITED : Limitation Act 1969 s 60G, s 60I, s 60I (1) (a) and (b). CASES CITED : McLean v Sydney Water Corporation [2001] NSWCA 122 DECISION : See Paragraph 28.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

WEDNESDAY 12 SEPTEMBER 2001

21147 of 1996 BRIAN FINLAY HILL 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 14 October 1996. 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). 3 The hearing of the Notice of Motion took place on 7 September 2001. The plaintiff has sworn two affidavits. The exhibits to that material (including a report from Dr Ahmed dated 12 February 1998 and two reports from Dr Keshava) were tendered. There was cross-examination of the plaintiff. The defendant relied on an affidavit sworn by Mr Ktenas (a principal solicitor in the employ of the Australian Government Solicitor). The plaintiff has tendered other documentation (including records available to the defendant). 4 The plaintiff was born on 8 September 1938. On 20 March 1958, he enlisted as a recruit in the Royal Australian Navy. He was discharged as medically unfit on about 9 December 1964. He then had the rank of Leading Airman Safety Equipment. At the time of the collision he was a member of the crew of HMAS Melbourne. He was with a work party carrying out maintenance on safety equipment. Paragraphs 6 and 7 of the plaintiff's affidavit sworn on 26 September 2000 provide a version of events which he says happened immediately following the collision. A narrative of personal events in his life subsequent to the collision may also be found in the affidavit. 5 I shall briefly refer to some of the matters that appear in the personal history. This reference is not intended to be exhaustive. 6 He said that after the collision he began to drink extremely heavily and smoking very heavily. He was having nightmares and suffering from claustrophobia. He was angry and aggressive. 7 In about August 1964, the plaintiff was transferred or posted to HMAS Duchess. He deposes to an experience had on that ship. He went absent without leave for about 10 days during which he said he was drinking all the time and just wanted to get out of the Navy. He further said that he was terrified of returning to the Duchess or going back to sea at all. He gave himself up by going to Balmoral Naval Hospital. Shortly thereafter, he was discharged. 8 A conversation with a friend in or about August 1995, led to him contacting Mr Taylor (his present solicitor). This took place in about September 1995. Mr Taylor suggested he should go and see his general practitioner. 9 It was not until 1997 that he saw his general practitioner. The general practitioner referred him to a psychiatrist (Dr Ahmed). He saw Dr Ahmed on 17 October 1997. He says that he then became aware that he was suffering from a psychiatric condition as a consequence of the collision. There was a diagnosis of post traumatic stress disorder. He was also told he was suffering from possible brain damage as a result of alcohol abuse. The report refers to inter alia neurological complications and cognitive impairment. He also became aware that he was suffering from irritable bowel syndrome as a consequence of his psychiatric condition. 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. 11 At this stage, it is convenient to mention certain matters that were elicited during cross-examination. Neither the collision nor his experiences on the HMAS Duchess formed part of the history given to any doctor prior to the time that he became aware that claims were being made by other servicemen. His attention was directed to naval medical documentation (some of it was in his own hand or signed by him). It records inter alia the suffering of a "nervous disorder" and problems of "anxiety". He does not dispute what appears in the documentation. However, he does dispute that the documentation correctly represented the actual state of affairs. At times, he was unable to offer an explanation for discrepancies. An explanation that he did give was that he wrote down what the doctor told him to put into the document and that he used "anxiety" as an excuse or means of gaining a discharge. 12 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 sub-section (1) thereof. These provisions have been seen as imposing threshold requirements to the making of an order. 13 When these matters have been satisfied, the court may grant relief if it also finds that it is just and reasonable to do so. The plaintiff bears the onus of demonstrating an entitlement to relief. 14 I now turn to the bases upon which the defendant resists the application. It is not said that the plaintiff has failed to satisfy the threshold requirements appearing in s 60I (1) (a). The defendant relies on what are said to be two discretionary considerations which it says should lead the court to the position of not deciding that it is just and reasonable to make an order. 15 Firstly, it is said that the evidence does not disclose that the plaintiff has a viable cause of action. Secondly, it is said that there is such prejudice as to bring about a situation where a fair trial is now unlikely. 16 The evidence does throw up a messy factual situation. There was conflict between the documentary material and what the plaintiff now says in his evidence. The plaintiff relies on his own evidence and his experts. It is not said that such material falls short of demonstrating a viable cause of action. 17 During his cross-examination, the plaintiff's credit was challenged on a number of matters. However, no submission was made that he was not a witness of truth. It was accepted that these interlocutory proceedings were not a forum in which the court should embark on the making of credibility findings and/or determine disputed issues of fact. 18 The documentary material evidences a history of mental problems preceding the collision (indeed goes back to about 1955). There is reference to problems arising from when he was in Hong Kong and problems with other naval personnel. The report from Dr Ahmed records that his consumption of alcohol did not skyrocket until after his discharge. In the summary contained therein, Dr Ahmed expresses the opinion that the plaintiff had suffered from chronic post traumatic stress disorder for at least ten years following the collision. 19 On the evidence in this application, it seems to me that the plaintiff has an arguable cause of action. The evidence does reveal that his case has its difficulties. His prospects of success may depend on inter alia such findings as may be made as to reliability and credibility of his own evidence. He will be confronted with the task of dealing with the conflicting documentary material. 20 It is well established that delay of itself may give rise to what has been described at times as either presumptive or general prejudice. There will be such prejudice in this case. In addition, the defendant contends that there is evidence of significant actual prejudice. 21 In support of the contention of actual prejudice, the defendant looks to material contained in the affidavit sworn by Mr Ktenas and to inferences that may be drawn as to loss of documentation. 22 The affidavit does provide evidence that there is documentation which is no longer available. There is material which casts doubt on the reliability of some of this evidence. There is an overall difficulty of relating any unavailable documentation to the issues arising from the plaintiff's claim. 23 Naval medical records relating to the plaintiff have been produced in evidence. It has been said from the Bar Table that the court should infer that there is material which should be in the records and which is now no longer available to the defendant. The submission is lacking in evidentiary foundation. Indeed, it seems to me that what is available is more likely to excite an inference contrary to that which the defendant seeks to have drawn. 24 The evidence discloses that the defendant will have documentary material which can be expected to assist it in defending the plaintiff's claim. It is the plaintiff who will be confronted with the difficulty of persuading the court that the documentation does not correctly record the true state of affairs. 25 In the circumstances of this case, I am not satisfied that the defendant has been significantly prejudiced. 26 There is now abundant authority to the effect that in deciding whether or not it is just and reasonable to make an order the court should look to the question of whether a fair trial can still be had. The authorities emphasise that fairness is a matter of degree and that the concept of a fair trial is 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. 27 In the circumstances of this case, I am satisfied that the plaintiff has discharged the onus of proof. 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. 28 I extend the limitation period for the cause of action pleaded in the Statement of Claim up to and including 14 October 1996. I reserve the question of costs. The exhibits may be returned. **********