Just and reasonable
23 I turn now to consider whether it is just and reasonable to extend the limitation period. The principles concerning prejudice and whether it is just and reasonable to extend time have been considered in Wynter, by the Court of Appeal (per Sheller JA with whom Meagher, Handley JJA and Brownie AJA agreed) at para 119 where their Honours stated that the effect of the High Court decision in Brisbane South Regional Health Authority v Taylor is that an 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. However, 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.
24 An application must prove facts from which the Court can be satisfied that there is a reasonable prospect that the plaintiff has sufficient evidence, such that he or she will be a reasonable prospect of success on the ultimate hearing - see Rutter per McColl JA at [27].
25 The plaintiff has sufficient evidence such that he has a reasonable prospect of success in the ultimate hearing.
26 Unicorn Lines submitted that the first defendant has not sought to cross claim against Unicorn Lines, as it has against the second defendant, even though the first defendant was obviously aware of the existence of Unicorn Lines and its relationship to other parties in the matter. Therefore, according to Unicorn Lines, the plaintiff suffers no prejudice if he failed in this application. This is not so. The plaintiff may, at trial, prove a case against Unicorn Lines. A cross claim joining the proposed fourth defendant may never eventuate.
27 Mr Robert Lollbach, an investigator, deposed that on 23 September 2005 he received an email response from Hugh Scheffer, managing director of Unicorn Lines in London who advised that they could not find the file concerning the accident on 10 March 2001 (Aff 8/06/2006 - [4.10]). As noted above Unicorn Lines' London office has relocated twice since the accident occurred.
28 The facts and circumstances surrounding the plaintiff's accident are well documented. There are reports of the accident by Butlers Insurance & Litigation Support dated 30 March 2001 and 11 May 2001, Environmental Health Services dated November 2002 and the Australian Maritime Safety Authority dated 20 March 2001. Statements of Jarrod Beckett, the plaintiff's father, and Lee McCormeck, who were working with the plaintiff on the ship at the time of the accident are available. (Ex B).
29 What is important to the proposed fourth defendant in seeking to defend the claim would be the need to ascertain the state of repair of the safety chain and whether it was properly secured. The whereabouts of the third mate who allegedly witnessed events prior to the accident, being either Chen, De Long (3NO) or Yan, Yao Guang (3EO), is unknown to date. The whereabouts of the safety officer at the time, Tang Ya Li is also not known. They are Chinese nationals. Unicorn Lines has ascertained that it contracted Cosco Hong Kong Shipping Co (Cosco) for the supply of the crew for "Cape Jervis". Emails sent to Cosco remain unanswered.
30 While Captain Haakestad, who is no longer employed by Unicorn Lines, has been located and interviewed, he indicated that he did not wish to provide a statement. However, Captain Haakestad has had a lengthy discussion with Unicorn Lines' investigator. Captain Haakestad confirmed that he had been told of the incident by the third mate the day after it occurred. Reference to the ship's duty officer being present when plaintiff was lifted ashore and to the Master not being aware of the accident until he was notified by the AMSA Inspector at 08:45 hours the next morning are contained in an independent report complied by the Australian Maritime Safety Authority. At trial, the record of the conversation may be admitted into evidence.
31 In March 2002 Unicorn Lines sold the ship. Butlers Insurance & Litigation Support report (dated 11 May 2001) contains photographs of the safety chains. Photograph 7 shows the safety chains correctly positioned, Photograph 8 shows the locking mechanism used to secure chains, and Photograph 9 is a view of the chains in an unsecured position.
32 I accept that Unicorn's file concerning the accident, if it existed, has not been located. Nor has the third mate been located. There is a lengthy report of the conversation with Captain Haakestad and photographs of the safety chains in existence. There is an independent contemporaneous report of the accident by the Australian Maritime Safety Authority. While the trial will afforded to the fourth defendant may not be ideal, I am satisfied that the proposed third and fourth defendants will be a fair one. I am satisfied that it is just and reasonable to extend the limitation period in respect of the cause of action which arose on 10 March 2001 in relation to both the proposed third and fourth defendants.
33 The limitation period for a cause of action which arose on 10 March 2001 against Project Asia Service B.V. and Unicorn Lines (Pty) Limited is extended up to and including 5 July 2006.