COMMONWEALTH OF AUSTRALIA v DISTON

Relevant legislation 19 Section 60F in Part 3, Div 3, sub-division 3 of the Act provides that the purpose of the sub-division is to provide a procedure for a further discretionary extension of limitation periods where the plaintiff was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time and makes the procedure available for causes of action accruing on or after 1 September 1990 and also (by the operation of schedule 5) for causes of action that accrued before that date. By force of subs (1), s60G applies to a cause of action for damages for personal injury founded, relevantly, on negligence or breach of duty. Section 60G(2) provides that if an application for an order under the section is made to a court by a person claiming to have a cause of action to which the 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. 20 Clause 4(1) of schedule 5 provides that s60G applies to a cause of action founded, inter alia, on negligence or breach of duty being a cause of action that accrued or would have accrued before 1 September 1990. Clause 4(3) provides that s60G so applies whether or not a relevant limitation period has expired before 1 September 1990 or before an application is made. Clause 4(4) enables the court to make an order under s60G in relation to a cause of action referred to in clause 4 if an application for such an order is made within, relevantly, the period of three years referred to in s60I. 21 Section 60I headed "Matters to be considered by court" provides, so far as presently material: "(1) A court may not make an order under s60G … 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 three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a) (i) - (iii)."

Master Harrison's decision 22 Master Harrison treated "the relevant limitation period" as expiring on 10 February 1970, that is to say, six years after the Voyager collision. The opponent had to show that he was unaware of one or more of the matters identified in s60I (1) (a) (i), (ii) or (iii) and also that he did not become aware of those matters or ought not to have become aware of them earlier than 14 August 1994, that is to say three years before he filed his statement of claim and made his application for extension. 23 Master Harrison found that the opponent passed through all three gateways stipulated in s60I(1)(a). These findings have not been challenged. 24 This left the Master to consider whether, applying s60G(2), it was just and reasonable to order that the limitation period for the opponent's cause of action be extended. The major issue on this, according to the Master, was that of prejudice. In that regard, the Master referred to a decision of this Court in Holt v Wynter (2000) 49 NSWLR 128 and what was there said about the High Court's decision in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. 25 The claimant admitted the collision but denied it was negligent. The Master accepted that with the passing of thirty-seven years there was the real possibility that some witnesses might not be available to give evidence at the trial, that memories will have faded with the effluxion of time and some witnesses may no longer be alive or be able to be located. Indisputably there was presumptive prejudice. On the other hand, the events surrounding the collision were well known and there was documentary evidence available. Reference was made to The Commonwealth of Australia v McLean (1997) 41 NSWLR 389. 26 The Master said: "29 The defendant submitted that they are actually and significantly prejudiced because of lack of medical and employment records including those of the defendant. In relation to the employment records of: The Total Service Station and Melbourne Transport, electronic searches failed to locate these companies and therefore no employment documentation could be obtained; in relation to Coates Patten Wool Dyers, no director or former employee of the company could be located and the company has been deregistered; in relation to Trico, no records are kept beyond a seven year period and it is unlikely that any records would remain with regard to the plaintiff, since he had only worked for a period of three months; in relation to the plaintiff's employment on the ship the 'Myarra', electronic searches have failed to identify or ascertain the ownership details of the ship; in relation to Pine Lodge Private Psychiatric Hospital, the hospital does not keep records for more than seven years and was unable to confirm the plaintiff's employment; and in relation to the Royal Children's Hospital, the hospital confirmed that the plaintiff was employed by the hospital in 1980 but could not nominate any former co-workers or supervisors of the plaintiff. All of these records cover significant years of the plaintiff's employment history because as they cover the period immediately after the plaintiff left the Navy. The personnel records may contain information to show why the plaintiff left these employers. The tax returns during this period have not been produced. The missing records mean that there are significant gaps for the defendant seeking to investigate the reasons why the plaintiff left employment. 31 The Melbourne Taxation Office confirmed that the plaintiff had been employed by them from 6 January 1975 to 24 April 1975. The plaintiff's tax returns from 1986 to 1996 have been produced (Ex C). In relation to TNT, due to company integration the company is unable to locate any personnel files for the plaintiff and are unable to identify any supervisors or workmates of the plaintiff; in relation to Jetspress and Armaguard (subsidiary companies of Mayne Nickless), the company is unwilling to provide any information with respect to former employees. This seems to be an odd response from Armaguard. However, at present I accept that there is no documentary evidence produced by Armaguard, but copies of tax returns during this period are available. 32 The defendant's solicitor deposed that a search of the psychology records failed to locate any psychology record for the plaintiff. It appears that the plaintiff never saw a psychologist or psychiatrist while in the Navy, so this is not a cause for concern. However, Department of Veterans Affairs pension and medical files do exist, as does the plaintiff's record of service in the Navy. The medical records of Dr Burgess, the plaintiff's general practitioner, from 1980 to 1995 are available. Medical records of Dr Pan, Dr Roger O'Keefe and Dr Seabridge are available. The medical evidence available is suffice [sic]. 33 In terms of testing the veracity of the plaintiff's evidence, he has given two differing accounts of the role he played on the night of the collision. The plaintiff has shown that his evidence is unreliable and this makes it more difficult for the defendant to investigate his claims, particularly in relation to the most important issue of did he actually witness the collision or was he in bed? 34 After I have taken into account all of these matters, particularly the gaps in employment and the veracity of the plaintiff evidence. I am not satisfied that there will be a fair trial between the parties. The defendant will suffer significant prejudice if a trial is to be held. It is my view that the plaintiff has not discharged his onus. It is not just and reasonable that an order be made extending the limitation period. Costs normally follow the event. The plaintiff is to pay the defendant's costs." 27 Missing employment records covered significant years of the opponent's employment history because they covered the period immediately after he left the Navy. Absence of these records meant that there were significant gaps for the claimant seeking to investigate the reasons why the opponent left employment. No documentary evidence had been produced by Armaguard but copies of tax returns during the period of the opponent's employment by it were available. A search had failed to locate any psychological record for the opponent although he had never seen a psychologist or a psychiatrist while in the Navy. The medical evidence available was sufficient. 28 The Master emphasised the two differing accounts that the opponent gave of the role he played on the night of the collision. She obviously regarded it as an important factor, in determining whether an extension of time should be granted, that the opponent's evidence was unreliable and therefore that it would be more difficult for the claimant to investigate his claims, particularly in relation to the most important issue of whether he witnessed the collision or was in bed. Accordingly, the Master was not persuaded there would be a fair trial between the parties. The claimant would suffer significant prejudice if a trial was to be held. The opponent had not discharged his onus.

Decision of O'Meally AJ 29 On 10 May 2002 O'Meally AJ reversed this decision. The appeal from a Master to a Judge of the Court is governed by Pt 60 of the Supreme Court Rules. Part 60 r15 provides that oral evidence shall not be adduced on an appeal except by leave of the Court. Provisions are made for the service of a statement of the general nature of the evidence. The accepted view is that in an appeal from a Master to a single Judge the same principles apply as those governing an appeal from a Judge to the Court of Appeal. Subject to the impact of any fresh evidence admitted under r15 the Master's primary findings of fact are binding on the court hearing the appeal unless those findings of fact, or the inferences drawn from them, by the Master are so flawed as to attract review by the court in accordance with the principles found in Warren v Coombes (1979) 142 CLR 531 at 553; see per Cross J in Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409 particularly at 420. On appeal the Court of Appeal while affirming the decision was not concerned with the question as to the nature of the appeal; [1981] 2 NSWLR 253 at 257. The High Court varied the decision of the Court of Appeal but again was not concerned with the nature of the appeal; (1984) 154 CLR 234. 30 O'Meally AJ noted: · the inconsistency of the answers given by the opponent to the Royal Commission questionnaire and his affidavit evidence; · that the version given in the affidavit was the subject of cross-examination on the application before the Master but it was not put to the opponent that the account given in his affidavit was false; · that the opponent failed to give an account of the Tarakan episode in his affidavit in support of the application; and · that the history he gave to Dr Seabridge made no mention of the Melbourne/Voyager collision. 31 Further evidence was admitted on the appeal, including an affidavit by Paul Curran, a Pensions Officer that he had given advice to the opponent when he was applying to Veterans Affairs for a pension not to make mention of the disabilities caused to him by the collision because "any such injuries were not pensionable as that collision occurred in peace time". 32 The claimant tendered part of the transcript of the proceedings of a Naval Court of Inquiry about the Tarakan explosion. This was directed to counter the opponent's claim that he had been made to feel like one of the scapegoats at the inquiry. 33 O'Meally AJ referred to Devries & Anor v Australian National Railways Commission & Anor (1993) 177 CLR 472 at 478-9 and quoted the High Court's stricture "that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' ( SS Hontestroom v SS Sagaporack [1927] AC 37 at 47) or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable' ( Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 at 844 ."

His Honour also referred to R v White (1922) 17 CAR 60 at 64. His Honour said: "25 The Master doubted the veracity of the plaintiff and characterised his evidence as unreliable by reason of his answers in the questionnaire, by reason of his failure to inform Dr Seabridge of events occurring at the time of the collision between Melbourne and Voyager and by reason of his failure to include in his affidavit in support of the application to extend time any reference to the explosion occurring on Tarakan . I am conscious that the Master had the advantage of observing the plaintiff in the witness box. I have no such advantage, but I do not believe that because of an earlier inconsistent statement the plaintiff is not to be trusted, particularly when it was not put to him that his evidence before the Master was false. With all respect to the Master, I am unable to agree that her conclusions concerning the veracity of the plaintiff make it more difficult for the defendant to investigate his claims nor that those conclusions were justified by the three matters upon which she based them."

Argument on appeal 34 In its submissions on appeal the claimant said that O'Meally AJ's reasons for upholding the appeal were obscure. His Honour failed to indicate why the Master was wrong in concluding that the evidence of the opponent was unreliable and did not indicate why the Master had erred in exercising her discretion. He seemed to treat the abandonment by the opponent of his claim for economic loss as a complete answer to the actual prejudice found by the Master. It was suggested that his Honour misunderstood the onus which the opponent had to establish that a fair trial was possible from the claimant's point of view and therefore it was just and reasonable for an extension of time to be granted. 35 The claimant submitted that the issue of whether the opponent left his various employments because of post-traumatic stress disorder symptoms was specifically raised before the Master and expressly referred to by her. 36 On unreliability, it was said that his Honour misunderstood the basis for the Master's finding. Her concern was not as to which factual version was correct but with the opponent's willingness deliberately to tell untruths for his own benefit, as for example falsely completing the questionnaire, deliberately misleading Dr Seabridge, deliberately telling half-truths in his affidavit and making no reference to the Tarakan incident on the advice of his solicitor. The affidavit of Mr Curran exacerbated rather than cured the problem. The Judge did no more than list some of the difficulties which would confront the opponent in proving his case.

Judge in error 37 In R v White, Crown witnesses had made unsworn statements to the police implicating the appellant. At the trial they swore that these statements were untrue. The Crown was allowed to treat them as hostile witnesses and they were cross-examined but maintained that their sworn deposition at the trial was truthful. The Crown was permitted to put the unsworn statements to the witnesses. In this context, Hewart LCJ said, at 64: "Quite obviously it is one thing to say that, in view of an earlier statement, the witness is not to be trusted: it is another thing to say that his present testimony is to be disbelieved and his earlier statement, which he now repudiates, is to be substituted for it." 38 That statement neatly points up what the Master was saying on this application. Because of variations between his statements and his evidence the opponent was an unreliable witness and remained so whichever account is ultimately accepted at the hearing. Quite rightly the Master took the opponent's case at its highest and did not make findings of fact on the dispute about which version of events by the opponent was true. The Master correctly said: "This factual dispute is one which would need to be resolved at trial." For the same reason, counsel, as O'Meally AJ pointed out, did not put to the opponent that his evidence before the Master was false. It remained open to the Master to conclude as she did that the opponent's evidence was unreliable. 39 O'Meally AJ overturned the Master's credibility finding because he did not "believe that because of an earlier inconsistent statement the plaintiff is not to be trusted, particularly when it was not put to him that his evidence before the Master was false". O'Meally AJ was "unable to agree that her conclusions concerning the veracity of the plaintiff make it more difficult for the defendant to investigate his claims nor that those conclusions were justified by the three matters upon which she based them". He held that the Master acted upon evidence that was "inconsistent with facts established by the evidence". With due respect, the Judge quoted from Devries but failed to apply the principle there stated. His Honour set aside the Master's finding about the opponent's credibility because he thought or believed that his own view of it should be preferred. His Honour did not believe that the opponent was not to be trusted. His Honour did not say, and could not possibly have said, that the Master had misused her advantage of seeing the opponent in the witness box or that her conclusion was glaringly improbable. 40 By the time the appeal came before O'Meally AJ the opponent's claim for economic loss had been abandoned. Criticism was directed at the claimant's attempts through an investigator to obtain details of the opponent's supervisors or fellow employees at relevant times and at the failure to subpoena nominated employers or to cross-examine the opponent to identify supervisors or fellow employees by name. This criticism took no account of the onus on the opponent to demonstrate that it was just and reasonable to extend the limitation period. 41 According to O'Meally AJ the opponent's claim was, as a result of the abandonment, limited to general damages and some items of special damages for aggravation of pre-existing PTSD. An argument that the claimant would be prejudiced by being deprived of the opportunity to verify or investigate the opponent's allegation that he left employment because of PTSD symptoms was rejected on the basis that it had not been raised before the Master. His Honour cited Nowlan v Marson Transport Pty Limited (2001) 53 NSWLR 116 at 126 para 19, a case concerned with a respondent to an application for an extension of time that sought to rely upon matters, not raised in a way and at a time where the applicant could meet them, to make a case of prejudice. Such a forensic tactic by a respondent creates an injustice which in that case was met by permitting the applicant to call further evidence. 42 In the present case, by abandoning his claim for economic loss, the opponent changed the extent and nature of his claim. Having done so, he persuaded O'Meally AJ that, in re-considering the application and although there was substance in the suggestion that how the opponent managed his work in various employments, how he coped and how he presented were of significance in determining whether, and if so how he was affected by PTSD, it was not open to the Judge to consider any prejudice to the claimant by losing the opportunity to verify or investigate the opponent's allegation that he left employment because of PTSD symptoms. What the Master described as the actual and significant prejudice to the claimant because of lack of medical and employment records was in issue before her and led her to find that the missing records meant that there were significant gaps for the claimant seeking to investigate the reasons why the opponent left employment. Before the Master the opponent had every opportunity to call evidence or otherwise deal with this prejudice. O'Meally AJ, in saying that the matter had not been raised before the Master and that some opportunity was denied to the opponent, overlooked the Master's finding that the missing records meant that there were significant gaps for the claimant seeking to investigate the reasons why the opponent left employment. Accordingly, O'Meally AJ erred in not considering this ground of prejudice when he dealt with the application to extend time afresh. 43 After referring to House v The King (1936) 55 CLR 499 at 505 and Parsons v Doukas (2001) 52 NSWLR 162 his Honour concluded that such difficulties of proof as might exist affected the plaintiff's case rather than the defendant's. The Judge was of the view that an extension of time would not result in significant prejudice to the claimant and was satisfied that it might have a fair trial. His Honour said that the Master should have concluded that it was just and reasonable to order that the limitation period be extended and extended it until 14 August 1997. Again, with due respect, the Judge referred to House v The King but failed to apply the principle it stands for. If his Honour did address the question of whether the Master had failed properly to exercise the discretion which s66G of the Act reposed in the Court, he did not identify the error and did no more than express his own view that an extension of time would not result in significant prejudice to the claimant. 44 As the Master appreciated but O'Meally AJ did not, in the absence of any records relating to why the opponent left his various employments and identifying who he was working with and because of the failure of the opponent to provide information to enable enquiries to be made, the claimant had no way of challenging or verifying the opponent's evidence. This actual prejudice was compounded by the Master's finding that this evidence was unreliable because the opponent was willing to tell untruths where he perceived he would gain an advantage by doing so. In such a situation the question of onus was fundamental; Uniting Church in Australia Property Trust v Lea (2002) NSWCA 55 paras 28, 36, 40-43 per Ipp AJA. 45 I have no doubt that, with due respect, O'Meally AJ erred in the way he approached the appeal from the Master. Erroneously he simply substituted for those of the Master his own preferred views of the reliability of the opponent and about whether or not the claimant would be prejudiced. Accordingly, it is necessary for this Court to consider the appeal from the Master's decision afresh.

Reconsideration 46 The Court may order that the limitation period for the cause of action be extended if it decides that it is just and reasonable to do so; s60G(2). In Salido v Nominal Defendant (1993) 32 NSWLR 524, in considering the power of the Court to give leave to a claimant to commence proceedings outside the time limitation pursuant to s52(4) of the Motor Accidents Act 1988, Gleeson CJ at 532 said the question for the Court was what was fair and just. At 532-3 he described guidelines of assistance. The immediate purpose of the legislation, as with any limitation period, was to protect defendants against the injustice of stale claims and promoting forensic diligence. Against that purpose the question was whether, in the circumstances of each individual case, the applicant for leave had demonstrated that it was fair and just that leave should be granted. The diligence, or lack of diligence, shown by the plaintiff or the plaintiff's representatives, in ascertaining and asserting his or her rights, would ordinarily be a material factor, as would the extent of the relevant delay and the reasons for it. Fourthly, the Chief Justice said: "The nature and extent of any forensic disadvantage to a defendant resulting from a plaintiff's delay will also be material. The effect, if any, of the delay upon the defendant's ability to defend an action is a matter to be taken into account, and may in some cases be of decisive importance." 47 In Brisbane South Regional Health Authority v Taylor the High Court emphasised the real possibility of significant prejudice. At 555 McHugh J said that legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. "When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action." 48 Thus it seems to me that a finding that there is a real possibility of significant prejudice to a defendant will lead to the application being refused though it does not follow that in the absence of that possibility the application will be necessarily granted; Holt v Wynter at 147 para 119; Parsons v Doukas at 163 and 190. 49 In my opinion, Master Harrison clearly had the appropriate principles in mind and sought to apply them. The Master recognised that with the passing of thirty-seven years there was the real possibility that some witnesses may not be available to give evidence at the trial. Memories will have faded with the effluxion of time and some witnesses may no longer be alive or able to be located. "Indisputably there is presumptive prejudice." However the events surrounding the collision between the Melbourne and the Voyager were well-known and there was documentary evidence; see The Commonwealth of Australia v McLean. The matters which weighed particularly with the Master were the gaps in employment records and the veracity of the opponent's evidence. 50 As I have already indicated it was well open to the Master to find that the missing records meant that there were significant gaps for the claimant seeking to investigate the reasons why the opponent left employment. Further, the opponent had left it to the claimant to discover who worked with the opponent and what those persons had observed about his behaviour during these years of employment which extended from the time he left the Navy in 1971 with a few exceptions until 1996 when he left Armaguard. 51 Again, as I have said, it was open to the Master to find that the opponent could not be relied upon to give a true account of events. His unreliability may indeed tell against him in the eyes of the jury that will hear his claim if the time is extended. But what is relevant is that his unreliability makes it more important than usual that the claimant have available material against which it can test what the claimant says about his heavy drinking and his injuries and treatment. An example of the problem is the history he gave to Dr Seabridge at an interview on 12 December 2000 when he denied any anxiety-provoking or traumatic experiences during his naval career apart from the explosion on the Tarakan. In his affidavit of 26 October 2000 no mention is made of the Tarakan and he described his symptoms as those consequent upon the Voyager collision. He said in particular "my drinking had increased from that of being a moderate social drinker before the collision to drinking about seven stubbies a night in order to help me to get some restful sleep." Further, the opponent deposed "that prior to the collision I would smoke about five cigarettes per day on average. After the collision I quickly went up to about forty cigarettes per day." 52 The opponent said that he had read Dr Holwill's report and that the doctor had accurately recorded what the opponent told him. The opponent deposed that what he told Dr Holwill was true and correct. He told Dr Holwill that he began drinking after the incident on the Tarakan and had drunk daily ever since. Somewhere between the differences exposed by these examples lies the truth. Inevitably the claimant is prejudiced to the extent that those matters cannot be properly investigated. That prejudice is heightened by the unreliability of the opponent as a witness of truth. 53 I detect no error in the Master's reasoning. The Master was vested with the jurisdiction to determine the application. This she did without error. It is not enough that this Court might, had it been sitting and hearing the application for itself, have reached a different conclusion. In my opinion, no reason has been advanced which would enable this Court, re-hearing the appeal from the Master, to set aside the Master's decision.

1. Extend the time for the claimant to apply for leave to appeal up to and including the date of the filing of the summons for leave to appeal;

5. The opponent to pay the claimant's costs of the appeal to O'Meally AJ;

6. Restore the order of Master Harrison dismissing the opponent's notice of motion filed on 14 August 1997 with costs;

7. The opponent to pay the claimant's costs of this appeal but have a certificate under the Suitors' Fund Act 1951 if so entitled.

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