Burk v Commonwealth of Australia

16. Pursuant to leave granted on 14 October 2002, paragraph 8 of the statement of claim was amended so as to substitute "March 1999" for "1997".

19. Section 5 (1A) of the Limitation of Actions Act 1958 relevantly provides as follows:

"An action for damages for negligence . . . where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries consisting of a disease or disorder contracted by any person may be brought not more than 3 years from, and the cause of action shall be taken to have accrued on, the date on which the person first knows -

(a) that he has suffered those personal injuries; and

(b) that those personal injuries were caused by the act or omission of some person."

26. Subject to the ability to seek an extension of time, where s 5(1A) does not apply, the Limitation of Actions Act, as applicable to this cause of action, provides for a limitation period of three years from the date when the cause of action accrued (s 5(6)).[1] The cause of action accrues in a negligence claim involving personal injury at the time when the injury occurs.[2]

29. On 12 July 1999 the Commonwealth filed its defence. In response to the allegation in paragraph 8, as set out above, the Commonwealth relevantly pleaded as follows:

"(a) It admits that post-traumatic stress disorder is a disorder within the meaning of Section 5(1A) of the Limitation of Actions Act 1958 (Vic); (b) It denies that the plaintiff is suffering from post-traumatic stress disorder . . . as a result of the collision between HMAS Melbourne and HMAS Voyager on 10 February 1964; (c) It otherwise does not admit the allegations contained in paragraph 8."

33. The application before me is to amend paragraph 8 of the defence so that it would read as follows:

"It does not admit the allegations contained in paragraph 8."

37. A draft amended defence was handed to me. This is the only amendment in that draft.

41. In September 2001 Gillard J considered an application to amend on behalf of the Commonwealth in the proceeding McKenzie v Commonwealth of Australia.[3] That application raised similar issues to those raised here. The application before Gillard J also raised a number of matters not raised here. In the proceeding before me, senior counsel for the plaintiff and senior counsel for the defendant accepted the statements of principle by Gillard J in that decision. Each counsel placed some minor qualifications on that acceptance which, in the circumstances, were inconsequential.

44. It seems to me that the principles set out by Gillard J in McKenzie, insofar as they apply to this application, are as follows:

* The Rules of Court authorise amendment of a pleading at any time: Rule 36.03(b) [21].

* The general rule that applies to all applications to amend is Rule 36.01. The rule provides that the Court may order an amendment or give leave to amend for the purpose of determining the real question in controversy between the parties. This purpose is both the rationale for the power and the criterion for its exercise [22] - [23].[4]

* Parties to litigation should be permitted to amend pleadings to raise relevant matters if that can be done without injustice to the other party; or, put another way, amendment should be allowed unless there is likely to be prejudice to the other party which cannot be overcome [28] - [33].[5]

* It is in the course of the trial that all claims and defences should be exhaustively considered and determined, and it is not appropriate, except in a clear case, on a summary application to amend, to attempt to exhaustively investigate the facts and the law [32].

* The anxiety for a plaintiff caused by the need to face new issues and the raising of false hopes may constitute prejudice, but that prejudice is likely to be slight when application to amend is made before the proceeding is set down for trial [65] - [68].[6]

* A question of prejudice, based on the plaintiff losing opportunities to take advantage of statutory provisions, is a matter of substantial concern [70].

* If the Court concludes that it cannot decide whether or not it is just to allow the amendment, the party applying for leave must fail [88].[7]

54. In my view, the position adopted by senior counsel for the plaintiff and senior counsel for the defendant in relation to McKenzie is correct. The critical consideration is the issue of prejudice to the plaintiff.

The material relied upon - matters relevant to prejudice

58. There are a large number of affidavits on the Court file, many of which relate in one way or another to this application. However, the material relied upon was the following:

Affidavit of Joanne Murray Girgenti sworn 14 June 2001 (the front page bears the date 15 June 2001).

Affidavit of Rodney Arthur Burk sworn 24 February 2004.

Affidavits of David Brian Forster sworn 27 February 2004, 3 March 2004 and 12 March 2004.

Defendant in response (Plaintiff's material consolidates and expands earlier material):

Affidavit of Catherine Alexandra Lawley sworn 8 October 2001.

Affidavit of Peta Jane Heffernan sworn 9 October 2001.

Affidavit of Richard Neish Boughton sworn 9 October 2001.

Affidavit of Manuel René Behnke sworn 10 October 2001.

Objection was taken to reliance on the affidavit of David Brian Forster sworn 3 March 2004. I over-ruled that objection for the reasons set out in my ruling of 13 May 2004. Counsel for the Commonwealth sought leave to cross-examine the plaintiff's deponents. I granted leave on conditions on 13 May 2004. The plaintiff's deponents were cross-examined and some brief further evidence-in-chief was also led from them.

72. The material, insofar as it concerns the issue of prejudice, reveals the following.

75. In August 1997 Mr Burk read an article in the Mercury newspaper in Tasmania concerning one William McLean, another former crewman of HMAS Melbourne. The article dealt with Mr McLean's success in winning compensation and summarised some of the symptoms which Mr McLean suffered. Mr Burk deposed that he recognised some of those symptoms as being similar to symptoms that he suffered. In his evidence-in-chief given orally, the plaintiff said that he went to see a doctor in December 1997 named Dr Doug Saner. The plaintiff said in his oral evidence that Dr Saner was "dismissive" of the suggestion that problems the plaintiff was having sleeping at the time might be related to the Melbourne/Voyager collision.

78. The plaintiff said in his oral evidence that he didn't seek any further professional advice until 1999 when he read an article in a newspaper which referred to a solicitor in Melbourne, Mr Forster at the firm Hollows. He contacted Mr Forster by telephone and Mr Forster drafted a statement of claim. Mr Forster gave oral evidence about the process of drafting this statement of claim. The evidence indicated that Mr Forster had a "pro-forma" statement of claim and that he filled in blanks and added or deleted items as he spoke to Mr Burk. In cross-examination Mr Burk agreed that he told Mr Forster about visiting Dr Saner in 1997. He also said in cross-examination that reading of Mr McLean's situation in 1997 "started to confirm what I had been wondering about for a long time". Mr Burk agreed with the suggestion put to him by counsel for the Commonwealth that he had been suffering symptoms since 1967 and that he "put it all together" when he read about Mr McLean in 1997.

81. In evidence-in-chief given orally Mr Forster said that, when he first spoke to Mr Burk in February 1999, Mr Burk "didn't have a diagnosis" and that accordingly he arranged for him to see a clinical psychologist named Mr Robert Wilks. Mr Forster received a report from Mr Wilks dated 6 March 1999 which diagnosed the plaintiff as suffering from post-traumatic stress disorder.

84. On 28 May 1999 this proceeding was issued. A long list of conditions or complaints was included in the particulars of injuries allegedly suffered, the first of which was post-traumatic stress disorder. The statement of claim as originally issued alleged, in paragraph 8, that the plaintiff had first become aware of his condition in 1997. Both the plaintiff and Mr Forster agreed in cross-examination that the source of that date was the instructions given by Mr Burk to Mr Forster in relation to Mr Burk's having read the article concerning Mr McLean in 1997.

87. Mr Forster's evidence was that, prior to the decision being made to issue in Victoria, he had told Mr Burk that he had a choice between issuing in Victoria and issuing in New South Wales. The choice, as he had explained it to Mr Burk at that time, was between New South Wales, where a larger sum might be recovered because of more advantageous rules concerning interest but where an application for extension of time would be required, or Victoria, where less might be recovered but there would only be the need for one hearing. The plaintiff chose to sue in Victoria. Mr Forster swore that he advised that only one hearing would be necessary in Victoria because of an assumption on his part that s 5(1A) would apply.

90. In setting out the sequence of events it is necessary at certain points to say something about what was happening in other litigation concerning the Melbourne/Voyager collision. Mr Forster gave evidence that he has acted for other plaintiffs in relation to this collision. Both the plaintiff's material and the Commonwealth's material dealt with the position taken in a number of those other cases.

93. Until June 1998 the Commonwealth had contested the proposition that post-traumatic stress disorder fell within s 5(1A). The first open indication of a change in that position came on 26 June 1998. Mr Forster deposed that on that day Hedigan J was conducting a directions hearing in relation to five matters concerning the Melbourne/Voyager collision. An interchange took place between Hedigan J and Mr O'Donoghue, who appeared on behalf of the Commonwealth of Australia. In that interchange, Mr O'Donoghue conceded that post-traumatic stress disorder was a disorder within the meaning of s 5(1A). In June 1999 the Commonwealth amended its defences in three matters where it had previously placed the application of s 5(1A) in issue, being matters referred to as Quinn, Hart and Cavenett, so as to admit that post-traumatic stress disorder was a disorder within the meaning of s 5(1A). Mr Forster acted for those plaintiffs.

96. As previously indicated, the Commonwealth filed its defence in this proceeding on 12 July 1999, containing the admission now sought to be withdrawn. Mr Forster was asked in his evidence-in-chief given orally what he would have done if the Commonwealth had denied the applicability of s 5(1A) in its defence in July 1999. He responded as follows:

"Well, I would have explained to my client that he had two options: one, that he could issue proceedings under 23A of the Victorian Statute of Limitations; or alternatively issue proceedings in New South Wales."[8]

Mr Forster did not refer to the option of simply continuing on with the existing proceeding in Victoria. He may have meant by his evidence that he would have explained the plaintiff had two options in addition to continuing on with his existing proceeding. Continuing on with the existing proceedings is indeed what Mr Forster had done in other, earlier proceedings in which he acted where the Commonwealth had placed all issues concerning the application of s 5(1A) in issue (Hart, Cavenett, Mason, Vincent and Dunn).

101. From 11 February 2000 onwards the Commonwealth appears to have again changed tack. In a number of matters in which Mr Forster acted for plaintiffs it put the application of s 5(1A) in issue, being Turton, Slater, Thompson, Mander, Stafford and Crothers.

104. On 12 December 2000, the Victorian Court of Appeal handed down judgment in the matter of Mazzeo v Caleandro Guastalegname & Co.[9] As a result of some observations made obiter by Chernov JA in that judgment,[10] the defendant took advice from counsel. Ms Girgenti, in her affidavit sworn 14 June 2001, deposed that counsel raised the "probability" of a complete defence on the basis that s 5(1A) did not extend to the purely psychiatric injuries claimed by former members of the crew of HMAS Melbourne. She also deposed that the defence as currently pleaded did not allow for such a matter to be argued. By a letter of 5 June 2001, the solicitors for the defendant advised the solicitors for the plaintiff of the Commonwealth's intention to make this application. The application was issued on 15 June 2001.

107. Section 23A of the Limitation of Actions Act has not always been in its current form. Under s 23A in the form in which it was originally enacted by the Limitation of Actions (Personal Injuries) Act 1972, a plaintiff could apply for an extension of time within which to commence an action for personal injuries within 12 months of learning, amongst other things, of the material facts relating to the cause of action. Section 23A in that form was repealed by the Limitation of Actions (Personal Injuries) Act 1983. The new form of s 23A has no 12 month limitation. However, the section in its 1972 form continues to apply to Mr Burk's claim by virtue of s 11(2) of the 1983 Act. In argument before me, both counsel accepted that Mr Burk is, and always has been, subject to the old twelve month limitation in an application under s 23A.

110. The evidence exposed a controversy as to whether, for the purpose of an application under s 23A, time commenced to run in 1997, when Mr Burk read the Mercury article concerning Mr McLean and consulted Dr Saner, or in 1999, when Mr Burk consulted Mr Forster, saw Mr Robert Wilks, and obtained Mr Wilks' diagnosis.

113. The position in relation to timing of a potential s 23A application is as follows:

* If time began running in late 1997, Mr Burk was out of time before this proceeding was issued.

* If time began running in early 1999, Mr Burk lost the ability to bring a s 23A application in early 2000.

118. The other option which Mr Forster said would have been put to the plaintiff for him to consider, if a denial had been made in 1999, was issuing proceedings in New South Wales. In New South Wales an application for an extension could have been made up to three years after the injured person became aware of the fact that personal injury had been suffered, of the nature and extent of that personal injury, and of the connection between the personal injury and the defendant's act or omission: Limitation Act 1969 (NSW) ss 60G, 60I.

121. The position in relation to timing of a potential extension application and a new proceeding in New South Wales is as follows:

* If time began running in late 1997, the time for an extension application in New South Wales expired in late 2000.

* If time began running in early 1999, the time for an extension application in New South Wales expired in early 2002.

126. The parties to this action initially proceeded on the basis that the applicable limitation law was the law of Victoria. The plaintiff pleaded reliance on s 5(1A) of the Victorian Act in his statement of claim, and the defendant pleaded reliance on s 5(1)(a) of the same Act in its defence.

129. When the summons of 15 June 2001 was issued, leave to amend was sought to address two issues. The first was the matter raised by Mazzeo and the Commonwealth's wish to withdraw the admission that post-traumatic stress disorder was a disorder within the meaning of s 5(1A). This is the amendment upon which I have heard argument. The second was an issue arising as a result of another proceeding involving a member of the Melbourne crew named Mr B.T. Blunden. The original affidavit in support of the application to amend sworn by Ms Girgenti on 14 June 2001 deposed to uncertainty arising out of the Blunden proceedings as to which limitation legislation was applicable. The Commonwealth wished to amend to plead in the alternative that the limitation legislation in the Australian Capital Territory or New South Wales was applicable. The affidavit referred to a pending application for special leave to appeal to the High Court in the Blunden proceeding.

132. The trial of this proceeding was fixed for 10 October 2001 and the defendant's application to amend was adjourned to the trial judge. On that day, the defendant issued a summons seeking to have the question of prejudice to the plaintiff as a consequence of the amendment determined as a preliminary issue, and the plaintiff issued a summons seeking an extension of time in which to bring proceedings under the limitation legislation of the Australian Capital Territory, alternatively New South Wales, alternatively under s 23A of the Victorian Act. The trial judge was Bongiorno J.

135. Bongiorno J was of the view that what he described as the choice of law issue should be determined first.

138. The plaintiff argued before Bongiorno J that the applicable limitation law was the law of the forum (the lex fori). The defendant argued it was the law of the place where the tort was committed (the lex loci delicti) or, failing that, the law with the closest real connection to the commission of the tort. This was said to be the law of either New South Wales or the Australian Capital Territory. Bongiorno J held in favour of the Commonwealth approach and found that the applicable law was the law of the Australian Capital Territory. On 21 October 2002, he ordered that the choice of law issue be determined as a separate issue before trial, he declared that all questions of substance in the proceedings were to be determined according to the law of the Australian Capital Territory, and he gave the defendant leave to amend to plead the Australian Capital Territory limitation legislation.[11]

141. Bongiorno J then went on to hear the application for an extension under s 36 of the Limitations Act 1985 (ACT).[12] Bongiorno J refused the application for an extension on 31 October 2002. He found that:

"... the prejudice, actual or presumptive, suffered or likely to be suffered by the defendant if the plaintiff is given leave to sue out of time is not insubstantial. It is significant. A fair trial of the plaintiff's action may not be possible. The Court could never be confident that a fair trial could be had in the circumstances."[13]

145. By a summons dated 4 November 2002, the plaintiff sought leave to appeal against the decisions of Bongiorno J of 21 October 2002 and of 31 October 2002. On 14 March 2003, the Court of Appeal dismissed the application, without analysis of either of Bongiorno J's decisions. By that time, the High Court had heard argument in the Blunden proceeding. The Court of Appeal refused an application to adjourn pending the outcome of the High Court appeal in Blunden, but did so without prejudice to those applications being renewed should circumstances change.

148. On 10 December 2003, judgment was handed down in Blunden v Commonwealth of Australia.[14] Like Bongiorno J, the High Court held that the applicable limitation law was the law of the place where the tort was committed (the lex loci delicti). However, the High Court held that the lex loci delicti could not be identified adequately here because the accident occurred on the high seas. In such circumstances, and given the application of s 80 of the Judiciary Act 1903 (Cth) to State or Territory courts exercising federal jurisdiction, this being a claim in tort against the Commonwealth, the appropriate limitation law was held to be furnished by the State or Territory exercising the federal jurisdiction.[15]

151. Applying that principle in this case, therefore, the appropriate limitation law is that of Victoria.

154. On 6 February 2004, the Court of Appeal reinstated the leave application, granted leave to appeal, heard the appeal instanter, set aside Bongiorno J's orders, ordered in lieu that the preliminary question should be answered by declaring that the law by which this proceeding was to be determined was Victorian law, remitted the defendant's summons filed 15 June 2001, and adjourned the plaintiff's summons filed 10 October 2001 to "provide" (presumably meant to be "abide") the further consideration of the summons filed 15 June 2001.

157. Thus, it comes about that the application to amend is now confined to the issue of withdrawal of the admission concerning s 5(1A).

160. Whilst proceedings in this Court were taking the course described, substantial additional barriers to recovery in personal injury litigation were raised in New South Wales as a result of tort law reform in that state. The applicable provisions have had operative effect from 20 March 2002.[16]

164. Counsel for the plaintiff submitted that in 1997 Mr Burk's concerns about his psychological condition were dismissed by a doctor. It was submitted that he had sought expert advice and his queries had been put to rest. He then did nothing until consulting Mr Forster in 1999. Prior to 1999, it was submitted, he had only suspicions, which an expert had "debunked". The plaintiff's counsel accordingly submitted that the plaintiff only became aware of the material facts when he received Mr Robert Wilks' diagnosis on 6 March 1999, and time for a s 23A application began running then.

167. The prejudice to which counsel for the plaintiff pointed is the limitation of the plaintiff's options. Counsel for the plaintiff asked me to infer that if the defence had been a complete denial (or non-admission) of the application of s 5(1A) in 1999, then counsel would have been briefed. He asked me to draw that inference on the basis that counsel was briefed to oppose the application to amend when it was made in 2001. The prejudice is then said to be that counsel was not given the opportunity to consider the denial in a context where all options were still open, and in particular where the plaintiff still had open to him the option of discontinuing and issuing proceedings in New South Wales after an extension application in that state, and the option of making a s 23A application in Victoria, which would also have necessarily involved discontinuance of this proceeding.

170. If time began running in early 1999, the option of applying under s 23A was lost in early 2000, more than a year before the Commonwealth first foreshadowed the application to withdraw its admission. If time began running in late 1997, then the option of discontinuing and re-issuing in New South Wales was lost in late 2000, some six months before the Commonwealth first gave notice of its desire to withdraw the admission. Counsel for the plaintiff submitted that by June 2001, when the defendant advised that it wished to withdraw the admission, it had become impractical to abandon the Victorian proceedings. Simply issuing a second proceeding in New South Wales without discontinuing in Victoria could not have been done as that would have been an abuse of process, it was submitted. Further, it was submitted that since then the attractiveness of New South Wales as an alternative venue has been reduced by the process of tort law reform in that state.

173. The defendant submitted that there was no prejudice by the narrowing of the options because Mr Forster's approach to these claims in 1999 was "set in concrete". In this respect the defendant relied upon Mr Forster's pro-forma Victorian statement of claim, tendered as exhibit 1, upon the fact that Mr Forster had always issued every proceeding in which he acted for a similar plaintiff in Victoria, upon the strength of the plaintiff's advisors' view that s 5(1A) did (and does) apply notwithstanding the Commonwealth's denial and notwithstanding the observations in Mazzeo, upon the vagueness of Mr Forster's knowledge concerning s 23A, upon Mr Forster's view that post-traumatic stress disorder encompassed all of the plaintiff's alleged problems, and upon the fact that no application under s 23A and no discontinuance and re-issuing in New South Wales had occurred in those Victorian proceedings where Mr Forster acted for plaintiffs and where the Commonwealth had placed all aspects of the application of s 5(1A) in issue.

176. Counsel for the defendant also submitted that, even if the Commonwealth had denied paragraph 8 of the statement of claim in its defence in July 1999, an application under s 23A would have been very unlikely as the statement of claim at that time itself alleged that the plaintiff had first become aware of the circumstances in 1997, indicating that the 12 month period had already elapsed.

179. In response to a question from me, counsel for the defendant appeared to me to agree that, if it were accepted that time had begun to run in 1999, the plaintiff would have had fairly good prospects of success in a s 23A application made in 1999.[17]

182. Counsel for the defendant said that the option of discontinuing and re-issuing in New South Wales was not realistic and that even if the Commonwealth had denied paragraph 8 in July 1999, the plaintiff would simply have been faced with the same decision again as he had made in May 1999 before he issued. It was submitted that the plaintiff would have determined to continue with the existing proceeding in Victoria.

186. Three days after the conclusion of argument on this application, I received further unsolicited written submissions from junior counsel for the plaintiff. I indicated to the parties that unless the defendant agreed that those submissions ought to be taken into account the plaintiff would need to apply to the court for leave. The defendant did not agree and the plaintiff sought leave to file further written submissions.

189. Prior to hearing the leave application I notified the parties that I would be assisted by submissions on the question of the possible relevance, if any, of Bongiorno J's decision on the extension application under Australian Capital Territory limitation legislation.

192. I did not allow the plaintiff leave to file the further unsolicited written submissions. Both the Court of Appeal of this court and the High Court have made it clear in recent times that the parties cannot simply file further submissions except, perhaps, in very limited circumstances.[18]

195. The plaintiff's counsel sought to explain that the further written submissions were directed to a question I had asked regarding the prospect of Mr Forster briefing counsel in response to any Commonwealth denial or failure to admit the applicability of s 5(1A) in 1999. He sought to show that counsel were briefed in 2001 some ten days earlier than the material before me otherwise suggested. He also sought to submit that, by reason of rr 13.02 and 13.07 of the Supreme Court (General Civil Procedure) Rules 1996, the defendant should in fact have sought, in its response to paragraph 8 of the statement of claim, to make a positive denial that s 5(1A) applied to post-traumatic stress disorder. Finally, he sought to rely on an earlier affidavit by Mr Burk, in order to show that the legal advisers to the plaintiff had an appreciation sometime in 2001 of the need to amend the statement of claim to allege that time began to run in 1999, even if it were October 2002 before that amendment was made.

198. The defendant's counsel had no objection to the court taking into account those oral submissions and I have taken them into account.

201. When asked to address the issue of how I should approach Bongiorno J's decision regarding the Australian Capital Territory extension application, counsel for the plaintiff submitted that the fact that an extension had not been granted in that application should not determine the issue of potential prejudice to the plaintiff. He made some criticisms of Bongiorno J's decision. He submitted that the wrong test for causation had been applied and that findings on credibility had been made without the benefit of viva voce evidence from the plaintiff. He then pointed to the fact that the plaintiff had been denied the possibility of appealing Bongiorno J's decision on substantive grounds, and that the decision was in the exercise of a discretion. Relying upon Aussems v Commonwealth of Australia,[19] he submitted that an appeal on substantive grounds would have had good prospects.

204. Counsel for the defendant sought to defend the non-admission in the proposed pleading. He also submitted that the timing of counsel's involvement was immaterial, as "counsel were involved all the way, as far as the plaintiff's case was concerned."[20]

207. As far as Bongiorno J's Australian Capital Territory extension decision was concerned, counsel for the defendant submitted that the applicable form of s 23A essentially demanded the same thing of the court as Bongiorno J had addressed: an assessment of the prejudice suffered by reason of the delay.[21] He submitted that, unlike the position in Aussems, the Commonwealth had, before Bongiorno J, demonstrated actual prejudice. For this reason, he submitted, any appeal from Bongiorno J's discretionary decision would not have succeeded.

210. Finally, counsel for the plaintiff sought to correct any impression that Mr Forster had not, when acting for other plaintiffs in Melbourne/Voyager litigation, issued any proceedings in New South Wales. To this end, counsel for both sides later forwarded to me, at my request, lists of those cases commenced by Mr Forster's firm in New South Wales and those in Victoria. In relation to the New South Wales list, the defendant said that in the time available it had not been possible to confirm "every detail", but that the defendant did accept that the list set out an "illustrative pattern". The pattern so revealed is that Mr Forster did not issue any proceedings in New South Wales until one issued in May 2000, and then not again until 31 August 2001, after which such proceedings become frequent (23 in 2001), approaching in number the proceedings issued in Victoria.

214. If the Commonwealth is permitted to withdraw the admission now, the plaintiff will not have available to him the same range of options in order to address that position as he would have had if the Commonwealth had made its denial or non-admission in July 1999. It is not appropriate on this application to determine whether, in a hypothetical application under s 23A, the date when time began running would be 1997 or 1999. In July 1999 there was an argument available, given a proper investigation of the facts, that time did not start to run until 6 March 1999. The option of making a s 23A application arguing that time only began to run on 6 March 1999, which would have been available to the plaintiff in July 1999 if the denial had been made then, was not available in June 2001 when this application was made, and is not available now. Similarly, in July 1999 the plaintiff had the option of discontinuing in Victoria and re-issuing in New South Wales after making an extension application in that state, whether time began running in 1997 or in 1999. That option had become compromised by June 2001 because the plaintiff would have been out of time if time had begun to run in 1997, and on any view that option has been lost now. Further, it seems to me that the plaintiff's submission that discontinuance in 2001 was more unpalatable than it would have been in 1999 is correct. Discontinuance after two years of litigation is a different proposition to discontinuance as soon as a defence is filed raising an issue of concern. In that two years interlocutory steps had been undertaken and a mediation had occurred. The plaintiff had a trial date on 10 October 2001. Counsel for the defendant conceded in argument that discontinuance in 2001 was "certainly less palatable" than it would have been in 1999 from the point of view of the plaintiff.

217. On the other hand, the defendant's submissions about the likelihood of the plaintiff pursuing one of the options closed off to him by June 2001, and closed off to him now, have substance. The description of Mr Forster as "set in concrete", whilst colloquial, is substantially accurate, at least insofar as it relates to Mr Forster's attitude prior to 2001. For that time period, it seems to me, all the matters relied upon, as set out in para [46] above, were made out in the evidence.

220. Mr Forster expressed confidence that s 5(1A) was satisfied in the circumstances of post-traumatic stress disorder arising out of the Melbourne/Voyager collision. The choice of forum he gave to Mr Burk when proceedings were commenced in 1999 was predicated on the assumption that s 5(1A) applied to the claim. So much is clear from Mr Forster's evidence. Mr Forster in his evidence did display a lack of familiarity with the operation of s 23A of the Limitation of Actions Act 1958, other than in quite general terms. Mr Forster also clearly believed (and believes) that post-traumatic stress disorder encompassed all of the plaintiff's alleged problems. The pro-forma statement of claim he filled out for Mr Burk was, as for his other clients, a Victorian one, which pleaded the applicability of s 5(1A).

223. However, as the lists prepared by counsel demonstrate, Mr Forster's attachment to proceeding in Victoria did not persist beyond August 2001. There was no evidence as to whether the reason for this change in approach was the doubt, by then well and truly raised, as to the applicability of s 5(1A).

226. I do not believe I can infer, as counsel for the plaintiff submitted I should, that Mr Forster would have briefed counsel if a defence had been filed by the Commonwealth denying or not admitting paragraph 8 in July 1999. He might have done so, but he might not have done so.

229. In addition to the matters the defendant relied upon, it is also noteworthy that Mr Forster's affidavits in support of the plaintiff's opposition in this application do not refer to a s 23A application as one of the options that he would have considered if there had been a denial at the outset; that option was only referred to in his evidence in chief given orally.

232. It is unlikely, it seems to me, that the plaintiff would have discontinued this proceeding and pursued either the s 23A option or the New South Wales option if the Commonwealth had made a complete denial or non-admission of the applicability of s 5(1A) in 1999, unless counsel had been briefed.

235. I have considered the degree to which Bongiorno J's decision on the extension application under Australian Capital Territory legislation may provide me with assistance. I am mindful of the fact that the Australian Capital Territory legislation differs from that which would have applied to the plaintiff. The Australian Capital Territory legislation that Bongiorno J applied is similar to the current form of s 23A. The terms of s 23A which would have applied to the plaintiff are different. However, under both provisions prejudice to the defendant is an important factor, particularly where it is so severe that it may preclude a fair trial.[22] Bongiorno J found prejudice of this character. Because of conditions he had imposed on the amendment application, he dealt with the extension application as if it had been made on 12 July 1999. It seems to me that if Bongiorno J's conclusion is correct, and had the same conclusion been reached in 1999, an extension application in 1999 under the old form of s 23A or under the New South Wales legislation would also have failed.

238. Bongiorno J's judgment on the Australian Capital Territory legislation cannot now be substantively tested on appeal because, based as it was on what was later shown to be the incorrect law, it has been set aside. The plaintiff's criticisms of Bongiorno J's decision have been summarised above. I do not intend to decide these arguments. It is not for this court to act as a putative appellate court. That being so, if Bongiorno J's decision is treated as precluding any prejudice as a result of an inability to pursue an extension application under Victorian or New South Wales legislation, one effect of that approach is to effectively impose that decision on the plaintiff without any avenue of appeal.

241. Further, if a s 23A application or a New South Wales extension application had been made in 1999, the decision would have involved the exercise of judicial discretion. Inevitably, the exercise of such a discretion will vary between judges and may not have been exercised the same way in another forum at another time. There are imponderable differences that cannot be identified. Prejudice that was shown to exist in 2001 might not have been shown to exist in 1999. A New South Wales court may have taken a different view from a Victorian one on particular issues.

244. For these reasons, I am not prepared to find that on the basis of Bongiorno J's decision it must follow that there is no prejudice to the plaintiff as a result of an inability to pursue extension applications under New South Wales or Victorian law.

247. Deprivation of an opportunity to take a step in response to a denial may constitute sufficient prejudice to render it unjust to permit withdrawal of an admission. Giuriato v Attorney General for Tasmania[23] and Wilson v Grimwade[24] are each examples of a lost opportunity resulting in a position where the prejudice to a defendant in binding it to proceed on a basis more favourable to the plaintiff than the basis it wished to contend for, was outweighed by the prejudice to the plaintiff in being deprived of the admission after it had ceased to be possible for him or her to take a particular step.

250. In each of those cases, however, the plaintiff's case on the amendment application was that the step in question would have been taken. Here, the highest the plaintiff puts it is that the options of which he is now deprived would have been considered. In my view, it is unlikely they would have been taken if the matter had been left to Mr Forster in 1999. It is possible, however, that counsel would have been briefed. Certainly, by 2001, counsel was briefed by Mr Forster in these matters to oppose the Commonwealth application to amend its defence to put s 5(1A) in issue, and plaintiffs advised by Mr Forster were issuing proceedings in New South Wales in 2001. If the Commonwealth had made clear its current position regarding the applicability of s 5(1A) in 1999, or even if it had merely not admitted that the section did apply to post-traumatic stress disorder, counsel might have become involved. A prudent member of counsel might well have recommended that reliance solely on the contested application of s 5(1A) was unwise and that the safer course was to seek an extension under s 23A in Victoria, or under s 60G in New South Wales. An example of the kind of application counsel might have considered or recommended is provided by Donnelly v State of Victoria.[25]

253. The actual result in McKenzie does not assist me here because of certain key differences between that case and this. First, in McKenzie the time for a s 23A application had expired on any view before the proceeding had been issued. Secondly, in McKenzie the option of seeking an extension and re-issuing in New South Wales was not put forward as an option of which the plaintiff had been deprived by reliance on the s 5(1A) admission. Expiry of time for an extension application in New South Wales was significant in Gillard J's decision, but only in relation to an application made to amend to plead the New South Wales limitation law. The issue of which law was applicable was unresolved at that time. Here, although perhaps for the wrong reasons, the plaintiff has been proceeding in a manner consistent with the eventual decision in Blunden, so that the possibility of the plaintiff responding to a denial by seeking an extension in New South Wales and re-issuing there is not fanciful.

256. The plaintiff's counsel submitted that the defendant should not be permitted to amend now because of the stress and anxiety for the plaintiff associated with the proceeding generally and with the introduction of a new issue. For the reasons given by Gillard J in McKenzie, those matters would not usually be of significant weight. I was told a new trial date has been fixed for March next year. It was not suggested that allowing the amendment would affect that trial date. The amendment, if allowed, would not, it seems to me, be likely to substantially increase the ambit of factual enquiry at the hearing; the nature of post traumatic stress disorder will be the subject of expert evidence whether the amendment is allowed or not. On the other hand, this plaintiff has already gone through an extraordinary interlocutory ordeal. His trial on 10 October 2001 was lost in the labyrinth of the choice of law controversy from which his case did not emerge for over 15 months. He was, in effect, forced to pursue an extension application under the wrong legislation. His case has already been to the Court of Appeal twice. The plaintiff is an individual. He alleges he is suffering from a psychological disorder. The course of this litigation has been more demanding on a plaintiff than is usual. The amendment, if allowed, is likely to increase the anxiety and pressure which the litigation necessarily imposes on this plaintiff.

259. Two observations in the authorities suggest that if the possibility of injustice or prejudice cannot be excluded then the application should be refused. The first is the terms in which Zeeman J expressed his conclusion in Giuriato. He said:[26]

"I am not persuaded that substantial injustice might not be caused to the plaintiff if the amendment were to be allowed."

The second is the dicta of Staughton LJ in Hancock Shipping v Kawasaki,[27] cited with approval by Gillard J in McKenzie.[28] He said:

"In my judgment, it is not helpful to speak of the burden of proof, but rather of the burden of persuasion. If the court concludes that it cannot decide whether or not it is just to allow the amendment the party applying for leave must fail."

266. It seems to me that it is incumbent upon the defendant to persuade me that there will not be injustice to the plaintiff, or prejudice that cannot be overcome, if I allow the amendment withdrawing the admission. I am not so persuaded.

269. While it is not the decisive factor, I find that there will be increased stress and anxiety on the plaintiff if the Commonwealth is allowed to withdraw its admission, and that that is important here given what has already occurred during the interlocutory processes. In the circumstances here it is unjust to impose any additional burden of this kind on the plaintiff.

272. More significantly, while I cannot conclude that the plaintiff would have applied under s 23A or under New South Wales legislation, he might have done. While I cannot conclude that any such application would have succeeded, it might have done. Those options are now lost. They were either lost or compromised before the Commonwealth foreshadowed this application. It is unjust to the plaintiff to permit the amendment, given the narrower options the plaintiff now has, and had in June 2001, to take steps in response.

276. I will briefly deal with the other arguments raised by the plaintiff in opposition to the defendant's application. One matter that counsel for the plaintiff submitted I should take into account is what was said to be the weakness of the Commonwealth's foreshadowed argument on s 5(1A). Counsel for the plaintiff submitted that Chernov JA's observations in Mazzeo were not applicable to post-traumatic stress disorder. He also relied upon the report of Professor McFarland exhibited to Mr Forster's affidavit of 3 March 2004. On this application I do not think it is appropriate to say any more than that the Commonwealth's foreshadowed position is arguable. I do not accept that the weakness of the potential argument is a relevant factor to be taken into account.

279. The plaintiff also submitted that the defendant is estopped from denying that post-traumatic stress disorder is a disorder within s 5(1A). Whatever validity that argument has would be best assessed after a proper trial of the facts. If the amendment had been allowed the plaintiff could have pleaded estoppel in his reply.

[1] Section 5(6) was repealed by s 3 of the Limitation of Actions (Personal Injury Claims) Act 1983 but by virtue of s 11(2) of that Act, the repeal had no effect on causes of action arising more than six years before the commencement of the Act.

[2] Cartledge v Jopling [1963] AC 758 and McKenzie v Commonwealth of Australia [2001] VSC 361 at [5].

[3] [2001] VSC 361.

[4] Applying GL Baker Ltd v Medway Building and Supplies Ltd [1958] 1 WLR 1216 at 1231 per Jenkins LJ.

[5] Applying Cropper v Smith (1884) 26 Ch D 700 at 710 per Bowen LJ; Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 at 155; Commonwealth v Verwayen (1990) 170 CLR 394 at 456-457 per Dawson J, and Clarapede & Co v Commercial Union Ass (1883) 32 WR 262 at 263.

[6] Considering Ketteman v Hansel Properties [1987] AC 189 at 220 per Lord Griffiths.

[7] Applying Hancock Shipping Co v Kawasaki Ltd [1992] 1 WLR 1025 at 1030 per Staughton LJ.

[9] (2000) 3 VR 172.

[10] (2000) 3 VR 172 at 188-190.

[11] Burk v The Commonwealth [2002] VSC 453.

[12] Burk v The Commonwealth (No 2) [2002] VSC 464.

[13] [2002] VSC 464 at [69].

[14] [2003] HCA 73; (2003) 203 ALR 189; (2003) 78 ALJR 236.

[15] [2003] HCA 73 at [18] per Gleeson CJ, Gummow, Hayne and Heydon JJ, and at [97] per Kirby J. The High Court was unconcerned that this approach might encourage "forum shopping" in these limited circumstances: [2003] HCA 73 at [42].

[16] Civil Liability Act 2002 (NSW). At paras 12-13 of his affidavit sworn 12 March 2004, Mr Forster also deposed to further possible prejudice if the case were now argued under New South Wales law as a result of amendments to the Workers Compensation Legislation Act 2001 (NSW) and the Legal Profession Act 1997 (NSW).

[18] Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28 at [27]- [31] per McHugh J; Stockdale v Alesios [1999] VSCA 128; [1999] 3 VR 169.

[19] [2001] NSWSC 615.

[21] Relying on Repco Corporation Ltd v Scardamaglia [1996] VicRp 2; [1996] 1 VR 7.

[22] Tsiadis v Patterson [2001] VSCA 138; (2001) 4 VR 114 at 123 and Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 555.

[23] (1997) 6 Tas R 344.

[24] [1995] VicRp 80; [1995] 2 VR 628.

[25] Unreported, Supreme Court of Victoria, O'Bryan J, 30 June 1994. Application of both s 5(1A) and s 23A would not now be consistent with Mazzeo.

[26] (1997) 6 Tas R 344 at 349.

[27] [1992] 1 WLR 1025 at 1030.

[28] [2001] VSC 361 at [88].