Just and reasonable
23 The nature of the discretion conferred by s 31(2) of the Queensland Limitations Act was considered by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1. Section 31(2) is almost identical to s 58(2) of the New South Wales Limitation Act. The Court of Appeal has applied Taylor in relation to s 60G in BHP Steel (AIS) Pty Limited v Giudice (NSWCA, unreported 7 March 1999) and Commonwealth of Australia v McLean (1996-97) 14 NSWLR 389.
24 Firstly, I turn to consider whether the plaintiff has a real case to advance. In relation to s 60G, the applicant bears an evidentiary and persuasive onus which, in the absence of concession, requires material to be adduced which demonstrates that the dilatory plaintiff has a real case to advance. The need for the court to decide that it is just and reasonable to extend the limitation period must focus attention on the question whether there is indeed evidence to establish the plaintiff's cause of action. It would rarely be possible to say that it was just and reasonable to subject the defendant to litigation otherwise statute barred if it did not appear that there was evidence available to the plaintiff to establish his cause of action. (see Szerdahelyi v Bailey (NSWSC, unreported Badgery-Parker J, 1 May 1997); Ortado v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997); Lewis v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997); Council of the City of Sydney v Zegarac (NSWCA, unreported 26 February 1998); Dow Corning Australia Pty Ltd v Paton, Meares v Paton (NSWCA, unreported 24 April 1998) and Fitzgerald v Bankstown City Council (NSWCA, unreported 6 November 1995).
25 The defendant did not make a submission that the plaintiff had no real case to advance. The plaintiff was employed by the defendant. The defendant as employer of the plaintiff had a duty of care to the plaintiff. The foreseeability of the plaintiff's damage will be in issue at the trial. It is the plaintiff's contention that as a result of his being on board the Melbourne when the collision with the Voyager occurred he suffered PTSD, memory and cognitive impairment. There is medical evidence to support this claim.
26 The principles concerning prejudice have recently been considered in Holt v Wynter [2000] 49 NSWLR 148, the Court of Appeal (per Sheller JA with whom Meagher, Handley JJA and Brownie AJA agreed) at p 147 para 119 stated that the effect of the High Court decision in Taylor's case is that on application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. Fairness is a matter of degree. The concept of a fair trial is a relative one to be fair ; it need not be ideal - see McLean v Sydney Water Corporation [2001] NSWCA 122, 20 April 2001.
27 The defendant has admitted the collision but denied it was negligent. As I have previously stated I accept that with the passing of 37 years, there is the real possibility that some witnesses may not be available to give evidence at the trial. It can also be expected that memories will have faded with the effluxion of time and some witnesses may no longer be alive or able to be located. Indisputably there is presumptive prejudice.
28 The events surrounding the collision between the Melbourne and Voyager are well known and there is documentary evidence available - see Commonwealth of Australia v McLean.
29 The defendant submitted that they are actually and significantly prejudiced because of lack of medical and employment records including those of the defendant. The plaintiff left the Navy in 1980. He has produced copies of his tax returns from 1982 to 1995, which gave details of his earnings and his employers. The defendant's solicitor, Mr Ktenas, in his affidavit deposes that the plaintiff's service records have been destroyed. They may have been destroyed but prior to their destruction the plaintiff obtained and produced to the court service records and a large bundle of Navy records relating to the plaintiff and there are detailed records of his medical condition from entry into the Navy to 1973 (Ex B and C). Dr Jenkins 1988 report is available. As previously stated, Dr Jenkins' clinical notes have been destroyed and he may not be competent to give evidence. Dr Jenkins told the plaintiff that he would require ongoing psychiatric treatment to ensure that he comes to terms with his chronic tension and claustrophobia which otherwise would be highly likely to deteriorate. The plaintiff has denied being told this. The defendant submitted that it is prejudiced because the issue of further treatment can no longer be tested. However it is common ground between the plaintiff and Dr Jenkins' report that the plaintiff was able to continue with his employment. It is my view, that having regard to the other overall facts and circumstances, this issue is not a significant one.
30 After I have taken into account all of these matters, I am satisfied that there will be a fair trial between the parties. The defendant does not suffer significant prejudice. It is my view that the plaintiff has discharged his onus and satisfied me that it is just and reasonable that an order be made that the limitation period be extended. Costs are reserved.
31 The orders I make are: