Brandon & Ors v The Commonwealth

REASONS FOR JUDGMENT The present proceeding was begun in June of 1994 in the High Court of Australia and immediately remitted by consent to this Court. It involves a claim for damages against the Commonwealth by a former seaman in the Royal Australian Navy. In brief, the applicant alleges that, in the State of Victoria in 1979, the Commonwealth breached a duty which it owed to him in his capacity as a seaman aboard HMAS Kimbla (wrongly called in the statement of claim, "Kembla"). That duty is said to have arisen both in contract and under the general law. The applicant further alleges that in consequence of that breach of duty by the Commonwealth he suffered post-traumatic stress disorder. Since about fifteen years had elapsed between the alleged breach of duty and the commencement of the proceeding, it was not surprising that the Commonwealth's defence to the applicant's claim included from the outset a plea that that claim was statute barred. It was originally said that the statute which had had that effect was the Limitation Act 1969 (NSW), although, as I will mention again below, it is now said instead that the statute which had that effect is the Limitation of Actions Act 1958 (Vic). Additionally, the Commonwealth relied in its defence on s 44 of the Safety Rehabilitation and Compensation Act 1988 (Cth). (It is as well to mention immediately that the Commonwealth's former plea of reliance on the New South Wales limitation statute was apparently not meant to be taken literally; the same applies to its current plea of reliance on the Victorian limitation statute. What was apparently meant in connection with the New South Wales limitation statute was not that it applied of its own force in the proceeding, but that it was made applicable in the proceeding as surrogate Commonwealth law; the same is apparently meant in connection with the Victorian limitation statute. It will, however, be easier to refer hereafter in these reasons to the two statutes as if they were capable of direct application in the proceeding, just as was done in the Commonwealth's defence and amended defence.) The Commonwealth's reliance by way of defence on the New South Wales limitation statute provoked a protective application by the applicant, also in reliance on that statute, for an extension of time within which to sue. The applicant put on evidence in support of that protective application and, stated shortly, his position regarding the major part of the delay in commencing the proceeding was that he had not become aware, until August of 1990, either that he suffered from post-traumatic stress disorder or that it had been caused by the Commonwealth's breach of duty. Before the applicant's protective application for an extension of time within which to sue was heard, the Commonwealth sought, in reliance on s 44 of the Safety Rehabilitation and Compensation Act, to have the applicant's statement of claim struck out. It was the applicant's response to such attempt by the Commonwealth that s 44 of the Safety Rehabilitation and Compensation Act could not validly apply to his claim, a response which was ultimately accepted by the High Court of Australia. The history of the resolution of the s 44 issue is as follows: the issue was first debated before Foster J of this Court in August of 1994 and he gave his decision on it, adverse to the Commonwealth, in November of 1994 (see (1994) 126 ALR 391). Next, the issue was debated before a Full Court of this Court (Spender, Cooper and Lindgren JJ) in February of 1995 and it gave its decision on it, also adverse to the Commonwealth, in August of 1995 (see (1995) 59 FCR 391). Finally, the issue was debated before the High Court in September of 1996 and again in February of 1997 and it gave its decision on it in July of 1997 (see (1997) 71 ALJR 1102). The s 44 issue having been finally determined, the matter then returned to this Court, with the Commonwealth still relying on the New South Wales limitation statute and the applicant still protectively seeking, also in reliance on that statute, a extension of time within which to sue. However, it was very shortly after the matter's return to this Court that the Commonwealth was given leave, of which it availed itself (as I foreshadowed above), to amend its defence by ending its reliance on the New South Wales limitation statute and beginning instead a reliance on s 5(1A) of the Victorian limitation statute. When met with that new limitation defence, the applicant made plain his position on it: first, he denied that he was statute barred by s 5(1A); secondly, he said that if he was so barred, he wanted an extension of time under s 23A of the Victorian limitation statute within which to sue; and, thirdly, he said that he wanted the limitation issues raised by ss 5(1A) and 23A to be dealt with in advance of any other issues then remaining to be dealt with in the proceeding. Without formally seeking an order under s 23A, the applicant then sought from the Court in May of this year an order summarised as follows in unreported reasons for judgment given by Whitlam J on 12 June 1998: "… that the judge to hear his extension of time application be appointed as examiner to take his testimony in England on terms that the Commonwealth bear the costs of the examination, the expenses of the examiner, and the legal costs and disbursements of Mr Mewett, including the travel expenses of his counsel and solicitor." (I should add here that the applicant had been born in England and had returned there from Australia to live in March of 1995.) The basis of the applicant's application that his evidence on the limitation issues be taken by the Court in England was that he was then unable, for health reasons, to travel to Australia to give evidence. Whitlam J refused to grant the applicant's application that his evidence on the limitation issues be taken by the Court in England, not being satisfied on the evidence before him that the applicant was then unable, for health reasons, to travel to Australia to give evidence. A few weeks after Whitlam J's decision, the applicant returned to the fray, filing a second notice of motion seeking orders most of which were identical in form to those which had earlier been sought before Whitlam J. (The identity in form was so extensive that one of the orders sought in the second notice of motion was that the Commonwealth should do something by a date which, although in the future at the time of the filing of the first notice of motion, was already in the past by the time of the filing of the second notice of motion.) The orders sought in the second notice of motion underwent significant amendment during the course of oral argument before me on the applicant's second motion and, in the result, may now be summarised as follows: first, the applicant seeks an extension of time under s 23A if it is held that he is barred under s 5(1A); secondly, the applicant seeks that the limitation issues raised by ss 5(1A) and 23A be dealt with at trial, rather than in advance of it (thus contra-dicting the position he took on his first motion and, indeed, in his second notice of motion); thirdly, the applicant seeks that the Judge of trial take in England the evidence on all issues (liability, including limitations, and damages) of the applicant, his wife and Dr Bowman, a consultant psychiatrist who is one of the applicant's doctors; and, fourthly, the applicant seeks that the Commonwealth bear, in the first instance at least, the cost of the taking of his and his witnesses' evidence in England. (However, he no longer seeks, as he did on his first motion, to include within that initial cost his own legal costs and disbursements, including the travel expenses of his counsel and solicitor.) The Commonwealth was content to deal without adjournment with the applicant's application as amended during the course of oral argument, which amended application it opposed. As well as relying on some at least of the evidence on which he had relied in support of his first motion, the applicant supported his second motion by certain additional evidence. There were two affidavits by his solicitor, dated 10 July 1998 and 7 August 1998 respectively, both deposing to matters which postdated the decision of Whitlam J and also annexing documents which also postdated that decision. There was a letter dated 21 August 1998 from Mr MacDermott, one of the applicant's doctors, to the applicant's solicitor. Finally, there was an official report dated 1979 into the events of that year concerning HMAS Kimbla which were alleged to constitute the breach by the Commonwealth of its duty to the applicant. All of the applicant's evidence was admitted without any objection by the Commonwealth. As well as opposing the making of the orders sought by the applicant, the Commonwealth sought, during the course of oral argument before me on the applicant's second motion, two orders in the alternative to those sought by the applicant: first, that the evidence of the applicant, his wife and Dr Bowman be taken by video link from England; and, secondly, that that evidence be limited to the limitation issues, which issues should be dealt with in advance of any other issues then remaining to be dealt with in the proceeding (thus adopting the position formerly adopted by the applicant). The Commonwealth made plain that it recognised that any cost saving associated with the taking of the evidence of the applicant, his wife and Dr Bowman by video link from England, as opposed to the Court's travelling there to take it, depended on that evidence's being restricted to the limitation issues, as opposed to its being on all issues, including limitations. Accordingly, the Commonwealth did not press strenuously for the making of the first of the orders it sought if the second were not also to be made. I asked counsel for the applicant at the hearing whether he had any difficulty in dealing there and then with the Commonwealth's oral counter-motion; he assured me that he did not. It was therefore heard concurrently with the applicant's orally amended motion and opposed by the applicant, the applicant relying for the purpose on the evidence on which he was relying in support of his own motion. As well as opposing outright the Commonwealth's motion, the applicant also submitted that, if the orders sought by the Commonwealth were to be made, they should be made on the basis that the Commonwealth bear, at least in the first instance, the cost of the use of the video link facility. The Commonwealth made no submission that the orders which it sought should not be made on such basis and it is difficult to see how such a submission could successfully have been made, given that it was the Commonwealth which was seeking an order that the facility be used. The Commonwealth's evidence, both in opposition to the applicant's motion and in support of its own counter-motion, consisted of two affidavits by an officer of its solicitor, one of which had been sworn for the purpose of the applicant's first motion and one of which was new. Both affidavits were read without any objection by the applicant. As is apparent from the fact that the Commonwealth itself sought before me an order that (relevantly) the applicant's evidence on the limitation issues be taken by video link from England, the applicant's additional evidence as to his inability, for health reasons, to travel to Australia to give evidence has significantly altered the evidentiary position which obtained on the hearing of the applicant's first motion before Whitlam J. Indeed, counsel for the Commonwealth, while he did draw attention to the fact that none of the applicant's additional evidence on the matter was more recent than August of this year and while he did not formally admit that the applicant could not now, for health reasons, travel to Australia to give evidence, did concede that there now existed "substantial" evidence to that effect. It is sufficient for present purposes that I refer to one aspect of the applicant's additional evidence, namely, a letter dated 4 August 1998 from Dr Bowman to the applicant's solicitor, which letter was annexed to the applicant's solicitor's affidavit of 7 August 1998. Before referring to the contents of that letter, however, I should mention that, in Sydney in October of 1994, the applicant had "gender realignment" surgery, is now known as "Romana", rather than "Robert", Mewett and is referred to by Dr Bowman in the letter as a female. Dr Bowman, in his letter of 4 August 1998, expressed the opinion, based in part at least on his having interviewed the applicant on that date, that, "… Romana Mewett's current mental state precludes her from travelling anywhere. She is psychically exhausted and has no toleration of stress. The slightest difficulty throws her into feelings of rejection and she becomes hostile and resentful and threatening…. [H]er threats include harming herself and indeed others. She is therefore under the slightest stress likely to have a catastrophic reaction with a violent outburst that could be directed towards herself or others. Therefore it can be inferred that travel by air to Australia is totally out of the question. Romana would be a danger not only to herself but others on the flight …"