Cavanagh v Commonwealth of Australia

COUNSEL : Dr K. Sant (Plaintiff) C. Barry QC/D. Brogan (Defendant)

SOLICITORS : Moyle Legal (Plaintiff) Blake Dawson Waldron (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20769/01 JOHN EDWARD CAVANAGH v COMMONWEALTH OF AUSTRALIA

1 HIS HONOUR: By statement of claim filed on 12 September 2001 John Edward Cavanagh commenced proceedings against the Commonwealth of Australia claiming damages for harm allegedly suffered when the "HMAS Melbourne" collided with the "HMAS Voyager" on 10 February 1964. He also made application for an extension of the limitation period for the bringing of his claim by notice of motion filed with the statement of claim.

2 The plaintiff's claim calls for consideration of the provisions of s 60G and s 60I of the Limitation Act 1969.

3 Section 60G provides: "(1) This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897 . (2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines."

4 Whilst s 60G(1) applies the section to a cause of action accruing or on after 1 September 1990, the application of the section was extended by Sch 5 cl 4.

5 Section 60I(1) provides: "(1) A court may not make an order under section 60G or 60H unless it is satisfied that: (a) the plaintiff: (i) did not know that personal injury had been suffered, or (ii) was unaware of the nature or extent of personal injury suffered, or (iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and (b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)-(iii)."

6 The Commonwealth has opposed the plaintiff's application for an extension of time under the Limitation Act. Hence the plaintiff must satisfy the Court on the present application that he was unaware of at least one of the matters referred to in s 60I(1)(a) and that he brought the present application within three years after becoming aware, or after he ought to have become aware, of all three matters referred to in s 60I(1)(a). Further, it is for the plaintiff to prove that it is just and reasonable for the Court to order that the limitation period be extended.

7 Since the application was filed on 12 September 2001 the plaintiff must prove that he first acquired the requisite knowledge within the preceding three years.

8 The plaintiff relied upon three affidavits sworn by him. The dates of the affidavits were 6 December 2002, 30 November 2004 and 26 November 2005. The defendant relied upon the affidavit of John Emmerig sworn on 2 June 2005.

9 The plaintiff gave oral evidence and was closely cross examined by Mr Barry of Queens Counsel.

10 The defendant, in opposing the plaintiff's application, submitted that a fair trial of the relevant issues could not now occur and hence that it would not be just and reasonable to extend time even if the Court was satisfied that the application was brought within three years of the plaintiff becoming aware of one or more of the matters addressed in s 60I(1)(a).

11 Before focussing on the matters of prejudice to which Mr Barry directed his submissions, it is necessary to review the plaintiff's evidence.

12 The plaintiff joined the Navy on 4 January 1957 at the age of fifteen years. He undertook an apprenticeship as a boilermaker welder as a path into marine engineering and by 1962 he had been promoted to Petty Officer. He passed exams in 1963 and he asserts that it was his intention before the collision which brings him to this Court to pursue a lifetime career in the Navy.

13 The plaintiff joined the "Melbourne" on 11 January 1961. On the night of the collision he was off duty and was about to enter the Petty Officers' mess when the collision occurred. He proceeded to his emergency station, which was under the engineer's workshop, at the lowest point of the ship. He said it was his task to attend a pump and to connect it into the suction main pipe. He said he remained at that post experiencing extreme nervousness for approximately one hour before he presented himself to the engineers' office. He said he was then sent to the upper deck to assist in attending to survivors. The plaintiff said that he saw the stern part of the "Voyager" sink.

14 The plaintiff remained in the Navy after the collision and was promoted to Engine Room Artificer 1, equivalent to a Chief Petty Officer, on 2 October 1964. However, he said that his attitude to the service changed after the collision. Nevertheless, he went to the United States of America for the process of the commissioning of "HMAS Perth" before its arrival in Australia in the middle of 1966. Later still, the plaintiff did two tours of duty on the "Perth" in the course of the Vietnam war. He said he came under fire on a number of occasions and he was cross examined at some length about this experience.

15 The plaintiff was discharged from the Navy in July 1969 upon expiry of his engagement. He was then twenty-seven years of age. He said he was asked by one of his senior officers to sign on again but he was not prepared to do so. He claims he no longer had the motivation for Naval life, he felt anxious in his exposure to it and he lacked confidence in his superiors.

16 After leaving the Navy, the plaintiff said he attended Sydney Technical College to study marine engineering and he was successful in obtaining a further marine engineering certificate.

17 Notwithstanding his decision to leave the Navy, the plaintiff pursued employment in the merchant navy. His post Naval career was traced in the plaintiff's affidavit of 30 November 2004 and can be briefly summarised:

(i) after finishing the technical college course, the plaintiff worked on petroleum tankers as a junior engineer employed by Howard Smiths;

(ii) in 1971 he became a relief engineer for Clutha Development Co. working on bulk ore carriers, and did this work from October 1971 until April 1972;

(iii) he then worked for his father and a friend designing and building a charter fishing boat. He was not paid for that work, but following the death of his father and the departure of the father's friend to Western Australia, the plaintiff used the vessel for charter work, operating from Southport for some nine months;

(iv) from May 1975 until August 1975 he worked as a boilermaker welder for Davis Constructions on the Hinze Dam at Southport;

(v) in 1976 he was employed as a boilermaker for an identified employer in Southport;

(vi) from January 1977 until April 1977 he was employed by the Greek Orthodox Church as a construction foreman and boilermaker welder;

(vii) from May 1977 until September 1977 he was employed as a maintenance engineer by an identified employer at Miami;

(viii) there followed a period of unemployment between September 1977 and May 1978;

(ix) from May until August 1978 the plaintiff was employed by a named employer installing marine machinery on vessels;

(x) then, the plaintiff set up his own business as a marine engineer towards the end of 1978 and worked in that business for six years before incorporating a company;

(xi) the plaintiff carried on business until January 2000 and his company in that time undertook maintenance in relation to generating plants in high rise buildings. According to the plaintiff, he sold the business early in 2000 because of his ill health, and he has not worked since.

18 He asserts that he found the mental problems that he had in conducting his own business to be "overwhelming".

19 According to the plaintiff, by 1999 he had a number of health problems, including high blood pressure, reflux problems and polymyalgia rheumatica. He responded to an advertisement and consulted the Vietnam Veteran's Counselling Service. That service referred him to Mr Duggan, a psychologist. The plaintiff saw Mr Duggan late in 1999 or early in 2000. Mr Duggan reported on 17 February 2000, and in that report recorded that the plaintiff sought assistance because of his episodes of depression, outbursts of anger and high stress. Mr Duggan wrote: "It is felt the real problem is the underlying causality for John's mood swings, his feel[ing]s of anger, fear, and depression. John suffers from severe mood swings. He can be extremely anxious and depressed and then change into being in an irritable mood sometimes culminating in a transient rage (10-15 minutes). It became apparent that John had experienced psychological problems over a protracted period and that the presenting problems were only some of John's difficulties. But the immediate requirement was seen to be to reduce John's stress levels and effect some anger management. John felt that if he first disposed of his business this would remove the reason for a significant proportion of his stress and he might be more able to resolve the underlying reasons for his difficulties. The business was sold and John returned to counselling sessions in January 2000. However to varying degrees John is still suffering from the presenting difficulties, the disturbed sleep patterns, and intrusive thoughts. John has related some of the details of his experience and the visual images he has retained from his involvement in the Voyager disaster. John undoubtedly underwent a series of traumatic experiences at that time. He has retained vivid images of his experiences. He was 22 years old at the time. He has also related some details of the traumatic events he experienced when a North Vietnamese shell exploded below deck in the HMAS Perth. John saw a shipmate suffer severe injuries and gave the injured man help and comfort. A summary of therapeutic issues in the case. To date John has related his experiences of at least two traumatic events that have involved a potential life threatening situation for John and the death and injury of shipmates. It would seem that his psychological response to these events might have been concealed or delayed by the close proximity and consequent emotional support of his shipmates. John now has recollections of his fear and images of the horror of these events and is clearly ill at ease when discussions are directed to them. John now suffers from intrusive thoughts, poor sleep patterns and disturbing dreams. Since leaving the Navy John has always had difficulties with social contacts. He has avoided personal interactions outside of his immediate family and a small social/business network and now because of his inability to cope emotionally has had to sell his business. He has mood swings from depression to irritability with outbursts of anger. John's suicidal thoughts shortly after he had left the Navy give an inference as to a possible beginning of these serious psychological difficulties. The range of symptoms outlined above support Dr Buckley's initial diagnosis of PTSD and are presently impairing his functional ability and emotional well being."

21 Subsequently, the plaintiff saw Dr Glaser, a psychiatrist, on 31 October 2001. Dr Glaser obtained a very detailed history from the plaintiff of his experience on the "Melbourne" on the night of the collision, and the doctor also obtained a history as to the plaintiff's mental wellbeing thereafter. I do not propose to record here the details of the history taken, but Dr Glaser expressed this opinion: "This fifty-nine year old gentleman who has now retired from his business as a generator maintenance person, is experiencing ongoing psychiatric problems which continue to trouble him considerably, despite having received some interventions from a psychologist and a psychiatrist. He has experienced a number of unfortunate events during his life including the separation of his parents when he was an infant (although he developed a good relationship with his stepfather subsequently), his involvement in the Voyager collision, witnessing the severe injuries of a young fellow sailor when their ship was fired upon in Vietnamese waters, some breaches of safety standards when he was working on tanker ships after he left the navy and a chronic medical condition (polymyalgia rheumatica; which is now under good control). All of these have made a contribution to the development of his current significant psychiatric problems. The Voyager disaster, however, remains a prominent influence on the expression of his current psychiatric symptoms. He himself was subjected to potentially life-threatening experiences at the time (particularly staying by himself, deep in the bowels of the damaged Melbourne tending a pump) and also witnessed the distress of the survivors and the eventual sinking of the aft section of the Voyager. His substantial abuse of alcohol started shortly after the collision and the events of the collision still are responsible for specific problems such as his nightmares and his fears of working in enclosed spaces. In terms of his psychiatric state, he continues to suffer from a post-traumatic stress disorder which is of mild to moderate severity and which has been complicated in the past by alcohol abuse. His current problems include quite marked irritability, mood swings, intermittent sleep disturbance, nightmares, some social isolation, a generally raised level of anxiety, specific anxiety in certain situations (e.g. enclosed spaces) and concentration difficulties."

22 And, further: "This gentleman has clearly made a very well-motivated attempt to get on with his life, despite his considerable difficulties, and has obviously been reluctant to acknowledge that he had any form of psychiatric problem. It was only two years ago, when his symptoms were truly threatening to engulf him emotionally, that he sought professional help. It is thus most unlikely that, until approximately two years ago, he would have been able to recognize the nature and extent of his psychiatric problems or to understand their relationship to his experiences during the Voyager collision."

23 The plaintiff has asserted in his affidavit that it was not until he had had a number of counselling sessions with Mr Duggan that he was informed that he was suffering from a post traumatic stress disorder initiated by his experience at the time of the collision between the "Melbourne" and the "Voyager". Further, he has asserted that he did not appreciate that that condition was related to the acts or omissions of the defendant until he saw the statement of claim prepared by his solicitors.

24 The plaintiff was not directly challenged on those particular assertions relevant for the purpose of s 60I(1)(a) of the Limitation Act. However, it is necessary for me to make an assessment as to the honesty and reliability of the plaintiff's evidence.

25 I referred earlier to the cross examination of the plaintiff about his experience during the Vietnam war. The plaintiff was cross examined about what he told Dr Glaser. Mr Barry submitted that the account recorded by Dr Glaser was an incomplete account when compared with another version the plaintiff had given and upon which Mr Barry cross examined.

26 As I listened to the cross examination and observed the plaintiff's response to questions that were asked of him, I did not form the impression that the plaintiff was being other than truthful in the responses that he made. Whilst the account on which the plaintiff was cross examined may have been more detailed than the account that Dr Glaser recorded, I would not infer from this that the plaintiff was endeavouring to be less than frank when he consulted Dr Glaser. Dr Glaser has not been called on this application, and I do not know whether Dr Glaser received the further detail from the plaintiff which the account upon which the plaintiff was cross examined suggested he gave on another occasion. The account which Dr Glaser took about the plaintiff's experience when another seaman nearby sustained facial injury during shelling was quite detailed, and it may well be the case that Dr Glaser considered it to be sufficiently detailed for the purposes of his report without recording exhaustively everything he was told. In any event, the cross examination on this issue did not lead me to conclude that the plaintiff was being untruthful in the evidence that he gave before the Court.

27 I formed a favourable impression of this plaintiff. He impressed me as being an honest witness, and as far as I could judge on the evidence placed before the Court on this application, he also impressed me as being a reliable witness.

28 The plaintiff's evidence satisfies me that the requirements of s 60I of the Limitation Act have been met. I am satisfied on the balance of probabilities that the plaintiff was unaware of the matters addressed by s 60I(1)(a) (i) and (ii) before he undertook counselling with Mr Duggan, and I also accept the assertion the plaintiff made as to his lack of awareness of the matter addressed in s 60I(a)(iii) before he read the statement of claim.

29 For the purposes of s 60I(1)(b), I am satisfied that the plaintiff has made his application within three years of acquiring the requisite knowledge, because knowledge of the matters to which s 60I(a)(i) and (ii) relates was not acquired before either the end of 1999 or early 2000. I am also satisfied that the plaintiff did not have the knowledge, either actual or constructive, which s 60I(1)(a)(iii) addresses until after he had seen his solicitors following counselling. Is it just and reasonable that the limitation period be extended?

30 On this particular application, as is commonly the case, Mr Barry has focussed upon the issue of prejudice. So, too, of course, does the affidavit of Mr Emmerig address this question.

31 It is, of course, well settled that it is for the plaintiff to discharge the onus of showing that the discretion should be exercised in his favour: Brisbane South Regional Health Authority v Taylor (1996-1997) 186 CLR 541. See also Holt v Wynter (2000) 49 NSWLR 128 and Commonwealth of Australia v Diston [2003] NSWCA 51.

32 It is to be recognised that where an extension of time is granted in relation to a stale claim there is presumptive prejudice to the defendant, but such prejudice does not necessarily disentitle a plaintiff seeking an extension. McHugh J expressed the position thus in Brisbane South (at 555): "Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period."

33 In Brisbane South Dawson J said (at 544): "The onus of satisfying the court that the discretion should be exercised in favour of an applicant lies on the applicant. To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant."

34 In Commonwealth of Australia v Smith [2005] NSWCA 478 Santow JA said this as to the concept of significant prejudice (at [128]): "' Significant prejudice ' means such prejudice as would make the chances of a fair trial unlikely. As Hodgson JA, with whom Beazley JA and Rolfe AJA agreed, said in South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 at [33] (a case concerning s60G Limitation Act 1969): 'the true issue on this matter is whether or not the applicant for the extension discharged the onus of satisfying the Court that there would not be such prejudice as would make the chances of an acceptably fair trial unlikely.'"

35 His Honour proceeded (at [129]): "Moreover, for a trial to be fair, it need not be perfect or ideal: Holt v Wynter per Priestley JA at 142; McLean v Sydney Water Corp [2001] NSWCA 122; Gabriel . It is not the case that in the absence of proof of significant prejudice the Court is bound to grant leave to commence proceedings as it must still be shown that it is just and reasonable to grant the necessary extension; Parsons v Doukas (2001) 52 NSWLR 162 at 163, 190 (a case concerning s52 Motor Accidents Act )."

36 I approach my task with the above expressions of principle in mind.

37 I remind myself in addressing this application that I am not embarking upon a balancing exercise, weighing prejudice to the plaintiff on the one hand and prejudice to the defendant on the other hand. Plainly, if the plaintiff loses this application, its prejudice is absolute, but that is not determinative: see Sydney City Council v Zegarac (1998) 43 NSWLR 195, and in particular the judgment of Mason P at 199-200.

38 There were two matters as to which Mr Barry concentrated his attention in the course of submissions.

39 The first was the difficulty in determining so long after the event whether, if it be accepted that the plaintiff is suffering from post traumatic stress disorder, that condition is due to the "Melbourne"/"Voyager" collision, or to experiences in Vietnam, or to some other cause. In one sense, that is a problem the plaintiff faces because it is for the plaintiff to prove his case but, of course, the plaintiff has to satisfy the Court on this application that there can be a fair trial when it comes to that particular issue.

40 The plaintiff alerted Mr Duggan to both the "Melbourne"/"Voyager" collision and to his experience on the "Perth". He gave what appear to me to be detailed histories to Dr Glaser of these events, but the defendant is not limited to these sources in preparing to meet the claim that there is a causative link between the post traumatic stress disorder and the "Melbourne"/"Voyager" collision. The defendant has available to it service and trade certificates relating to the plaintiff's service in the Navy as identified in paras 3 and 4 of the plaintiff's affidavit of 30 November 2004. In addition, the defendant has its medical records and the plaintiff's service spans a period of more than twelve years, including some seven years before the collision and some five years after it. The plaintiff's certificate of service is available (para 29 of his affidavit of 6 December 2002) and this incorporates reference to a psychological appraisal shortly after the collision, when the plaintiff was subjected to a submarine suitability test. The psychologist who did the test is available and has been spoken to by Mr Emmerig: see para 24 of Mr Emmerig's affidavit.

41 The defendant has available Dr Bayliss, who examined the plaintiff in September 1964 and in July 1966. The defendant has available to it medical records concerning the plaintiff's period of service up to the time of his discharge.

42 The plaintiff has identified a number of persons who knew him before he joined the Royal Australian Navy (see para 2 of his affidavit of 26 November 2005). Those persons are available to be interviewed.

43 The plaintiff has also identified a number of persons who served with him in Vietnam (see his affidavit of 26 November 2005, para 10). Those persons have been located and the plaintiff is able to provide addresses.

44 Then, the plaintiff has identified in para 16 of the same affidavit a number of persons who he has seen socially and in a work environment since he left the Navy.

45 There was tendered on this application, as Exhibit A, a list of those who were in the same intake as the plaintiff in January 1957.

46 The plaintiff does not contend that he made any complaint of a psychiatric problem to any doctor before he consulted Mr Duggan in 1999 or early 2000. Nevertheless, the plaintiff has been able to identify various doctors who he has seen from time to time since he left the Navy. He had no occasion to consult any regular doctor prior to 1971 but the plaintiff has identified the doctors whom he has seen since then. Dr Gower was his doctor for some ten or eleven years until 1983, and then Dr Markey was his doctor for the next ten years. The plaintiff has identified two specialists he consulted, Dr McLeod was a skin specialist and Dr Frank Johnston was a rheumatologist. After Dr Markey the plaintiff attended a medical centre and he was able to nominate two doctors who saw him at that centre. Thereafter, until the present time, he saw Dr John Buckley at the Grice Medical Centre. So it is that there are available identified sources of medical information in relation to the plaintiff since he left the Navy.

47 Having reflected upon the competing submissions, I consider that there can be a fair trial concerning the medical issue which arises in this cause.

48 The other matter to which Mr Barry directed his submissions was the issue of economic loss. In this case the plaintiff makes a claim for loss of earning capacity and loss of pension benefits. What his earnings would have been had he remained in the Navy and what his pension benefits would have been are calculable, but Mr Barry submits that if this application is granted the defendant would be prejudiced when endeavouring to address the question as to what the plaintiff has earned or has been able to earn outside Naval service.

49 I reviewed earlier the plaintiff's working history. Various employers have been identified prior to the time when the plaintiff commenced to work for himself. It is apparent that up to that time and, indeed, subsequently, the plaintiff utilised his trade qualifications. It could hardly be contended that the plaintiff was unable to earn award rates as a boilermaker at any time prior to setting up his own engineering business. The plaintiff has made available documents identified in paras 6-9 of his affidavit of 30 November 2004, and these include copies of his notices of assessment from the Taxation Office for the years ending 30 June 1991 to 30 June 2000.

50 In Blyth v Commonwealth of Australia [2005] NSWSC 721, I refused an application for an extension of time because of the unsatisfactory state of the evidence as to the applicant's work history, but I consider that this case is clearly distinguishable.

51 I do not consider that the issue of loss of earning capacity and loss of pension benefits presents a barrier to a fair trial in this case. In my opinion, the defendant can prepare itself to address this issue adequately.

52 Mr Barry made no specific submissions about the circumstances of the collision itself. Of course those circumstances were thoroughly investigated and the defendant would be able to test the account which the plaintiff has offered as to his movements. True it is, he said he was alone, but the defendant would be in a position to determine whether his duties would have taken him to the pump attendant's position as he asserts.

53 In Mr Emmerig's affidavit there is reference to the death of the supervising Chief Petty Officer on the "Perth" (para 35) and to the destruction of relevant service records (paras 54-76). As observed, the defendant has available the records produced by the plaintiff, and I do not consider that the lack of those Navy records which are no longer available will prevent a fair trial.

54 I note what Santow JA said as to the issue of prejudice in Smith (supra). His Honour there carried out an analysis of the outcomes of the many applications by former members of the crew of the "Melbourne" who have made application to this court for an extension of the Limitation Act period. His Honour noted that in all but three cases, the extension of time sought was granted.

55 Santow JA said, after noting the features that led to the refusal of the extension applications in those three cases (at [150]-[153]: "150 In all the other applications the court found that the Commonwealth would not suffer significant prejudice and extended the limitation period. The circumstances of each case and the history of each applicant are of course different. The Commonwealth is entitled to argue that it would suffer prejudice particular to the circumstances of the applicant in each case. However, the Commonwealth continues to contend that lack of medical and employment records and the unavailability of witnesses have created significant prejudice. This is despite the fact that these arguments have so frequently been rejected by the court in finding that it is just and reasonable to extend the limitation period. Similarly, the Commonwealth has consistently run (and lost) arguments that it would suffer significant prejudice resulting from the loss or destruction of defence records, principally consisting of the applicant's service records. Gretton v Commonwealth [2005] NSWSC 437; Evans v Commonwealth [2005] NSWSC 280; Stringer v Commonwealth [2004] NSWSC 1132; Beasley v Commonwealth [2001] NSWSC 998; Ackland v Commonwealth [2001] NSWSC 991; Fisher v Commonwealth [2001] NSWSC 779; Terry v Commonwealth [2001] NSWSC 778; Andrew v Commonwealth [2001] NSWSC 733; Heffernan v Commonwealth [2001] NSWSC 687; Philippe v Commonwealth [1999] NSWSC 1118; 151 The Court has regularly found that sufficient evidence had been retained either by the applicant or the Commonwealth or both. This was either sufficient to allow a fair trial or the Court found that the difficulties were more likely to affect the plaintiff who bore the onus of establishing the injury. Baragwanath v Commonwealth [2005] NSWSC 575; Pearce v Commonwealth [2005] NSWSC 359; Simmonds v Commonwealth [2005] NSWSC 290; Evans v Commonwealth [2005] NSWSC 280; Stringer v Commonwealth [2004] NSWSC 1132; Hill v Commonwealth [2001] NSWSC 800; Beasley v Commonwealth [2001] NSWSC 998; Ackland v Commonwealth [2001] NSWSC 991; Blaxter v Commonwealth [2001] NSWSC 957; Fisher v Commonwealth [2001] NSWSC 779; Terry v Commonwealth [2001] NSWSC 778; Andrew v Commonwealth [2001] NSWSC 733; Aussems v Commonwealth [2001] NSWSC 44; confirmed on appeal [2001] NSWSC 615; Windle v Commonwealth [2000] NSWSC 1209; Watkins v Commonwealth [1999] NSWSC 1127; Philippe v Commonwealth [1999] NSWSC 1118; Mancer v Commonwealth [1999] NSWSC 693 152 The Commonwealth has also regularly failed in submissions that it would suffer significant prejudice as a result of: (a) being deprived of witnesses (due to their unavailability or inability to recall) who could give evidence of the applicant's behaviour during his service in the Navy before, during and after the collision; Fullarton v Commonwealth [2005] NSWSC 444; Gretton v Commonwealth [2005] NSWSC 437; Watkins v Commonwealth [1999] NSWSC 1127; Mancer v Commonwealth [1999] NSWSC 693; (b) the doctors and medical officers who examined the applicant and wrote medical reports being unavailable or unable to recall the applicant; Fullarton v Commonwealth [2005] NSWSC 444; Beasley v Commonwealth [2001] NSWSC 998; Andrew v Commonwealth [2001] NSWSC 733; Norman v Commonwealth [2000] NSWSC 931; Philippe v Commonwealth [1999] NSWSC 1118 (c) the absence of medical records for the applicant since leaving the Navy. Levis v Commonwealth [2001] NSWSC 725; Heffernan v Commonwealth [2001] NSWSC 687; Aussems v Commonwealth [2001] NSWSC 44; confirmed on appeal [2001] NSWSC 615; Mancer v Commonwealth [1999] NSWSC 693 153 In no case has the Commonwealth succeeded in discharging the evidentiary onus by establishing that it would suffer significant prejudice on the basis of the loss or absence of this evidence."

56 Of course, every application for an extension of time requires discrete consideration, and it does not follow that success by applicants in a majority of cases must lead to success by applicants in all extension applications. However, in my assessment of this case, the avenues of investigation open to the defendant are such that I consider a fair trial can be conducted. It seems to me that a decision to grant the extension sought would not result in significant prejudice to the defendant in the relevant sense.

57 Having reflected upon the competing submissions, I therefore conclude that it is just and reasonable in this case to extend the limitation period.

58 I do not consider it was unreasonable of the defendant to contest this application, and in the circumstances of this case I consider it appropriate that costs of the application should be costs in the cause. Formal orders

59 1. Order that the limitation period be extended until 30 September 2001. 2. Costs of the application are to be costs in the cause.

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