Commonwealth of Australia v Leonard Lewis

DECISION: 1. Appeal allowed in part; 2. Confirm Order 1 made by the trial judge extending the limitation period to 18 October 2001; 3. Set aside the costs order made by the trial judge; 4. Order the respondent to pay the costs of the appellant of the application to extend the limitation period; 5. Order the appellant to pay the respondent's costs of the trial.

CATCHWORDS: APPEAL - interference with exercise of discretion by trial judge - circumstances where appellate court will intervene - whether trial judge fell into error in exercise of discretion - LIMITATION OF ACTIONS - Limitations Act 1969 (NSW) s 60G - power of court to extend period where just and reasonable - underlying principle in extension of time is fairness of the trial - whether appellant significantly prejudiced if extension of time granted - prejudice alleged by appellant due to loss of evidence and inability to investigate cause of action - LIMITATION OF ACTIONS - costs - successful applicant for extension of time to pay unless respondent's opposition wholly unreasonable - whether trial judge erred in reserving question of costs

LEGISLATION CITED: Limitation Act 1969 (NSW) ss 14, 60G, 60I, Schedule 5 Supreme Court Rules 1970 (NSW) Pt 52A r 17

Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 Commonwealth of Australia v Smith [2005] NSWCA 478 Gretton v The Commonwealth [2005] NSWSC 437 CASES CITED: Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143 House v The King (1936) 55 CLR 499; [1936] HCA 40 Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Nominal Defendant v Manning (2000) 50 NSWLR 139; [2000] NSWCA 80 Smith v Commonwealth of Australia [2004] NSWSC 873 Wayne Sauer v Allianz Australia Insurance Limited [2006] NSWCA 364

PARTIES: Commonwealth of Australia (Appellant) Leonard Lewis (Respondent)

COUNSEL: CT Barry QC; D Brogan (Appellant) I Roberts SC; J Sharpe (Respondent)

SOLICITORS: Australian Government Solicitor (Appellant) Hollows Lawyers (Respondent)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT DATE OF DECISION: 23 September 2005

LOWER COURT MEDIUM NEUTRAL CITATION: Lewis v Commonwealth of Australia [2005] NSWSC 959

• 35 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40832/05

BEAZLEY JA SANTOW JA IPP JA

6 June 2007 Commonwealth of Australia v Leonard Lewis Headnote Facts Leonard Lewis (the respondent) was an aircraft handler attached to HMAS Melbourne and was on board that ship on 10 February 1964, when it collided with HMAS Voyager, cutting it in two and causing it to sink with the loss of 82 lives. On 18 October 2001, the respondent filed a Statement of Claim, alleging that as a result of the negligence of the Commonwealth of Australia (the appellant), he suffered injury in the form of post-traumatic stress disorder and depression and consequential loss and damage.

The limitation period for the respondent's claimed cause of action in negligence was six years. As the respondent's claim was made just over 30 years after the expiration of the limitation period, he required an extension of the limitation period under s 60G of the Limitation Act 1969 (NSW), otherwise his claim was not maintainable.

On 23 September 2005, Johnson J extended the limitation period in which to commence the proceedings to 18 October 2001, the date upon which the statement of claim had been filed. His Honour reserved the question of costs of the application. On 20 June 2006, the Court granted leave to the appellant to appeal from the trial judge's decision. The matter before the Court is the hearing of the appeal.

Held: Per Beazley JA (Santow and Ipp JJA agreeing): (i) The issue on the appeal was whether the trial judge erred in the exercise of his discretion in determining that it was just and reasonable to extend the limitation period under s 60G of the Limitation Act 1969 (NSW). In order to succeed on the appeal, the appellant was required to establish error by the trial judge in the exercise of his discretion: [7]-[8]

House v The King (1936) 55 CLR 499; [1936] HCA 40; Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52; Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25 (cited) (ii) Any attack on a discretionary decision must fail unless it can be demonstrated that the decision-maker: made an error of legal principle; made a material error of fact; took into account some irrelevant matter; failed to take into account, or gave insufficient weight to, some relevant matter; or arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning: [9]

Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 (applied) (iii) In determining whether to grant an application for an extension of time, the underlying principle governing the decision relates to the fairness of the trial: [28]

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25; Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143; Wayne Sauer v Allianz Australia Insurance Limited [2006] NSWCA 364 (considered) (iv) His Honour in analysing the evidence did not fall into the error of engaging in a balancing exercise as between the prejudice the respondent would find himself in, in prosecuting his claim, as compared to the prejudice suffered by the appellant due to the delay and the difficulties that flowed from that: [69]

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25; Nominal Defendant v Manning (2000) 50 NSWLR 139; [2000] NSWCA 80 (cited)

(v) His Honour was required to determine whether the ability to investigate any pre-existing psychiatric problem or other matters that might be relevant to the development of a mental illness, which are matters relevant to causation, was impaired because of a delay and or absence of evidence to such an extent that a fair trial could not be had. His Honour did not sidestep that issue in his judgment and clearly had that question in focus as the matter he was required to determine: [74]-[75] (vi) The availability of Dr Edmonds was a relevant matter to be assessed in determining whether or not the appellant, in meeting the respondent's claim, was in a position of significant prejudice, so that a fair trial could not be had. His Honour considered that the availability of Dr Edmonds was a factor which tended to the conclusion that a fair trial was possible and in that he was correct: [79] (vii) It has not been established that his Honour made an error of legal principle or made a material error of fact or took into account irrelevant matters. Apart from the failure to refer to one comment from one of the available witnesses, no specific error in the trial judge's reasons was demonstrated. As a result, the decision to grant the extension of the limitation period was not so unreasonable that it could be said that an error in the exercise of discretion had been established: [83], [86]

(viii) Ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable. In this case, the appellant's conduct was not unreasonable so as to deprive them of the order that would normally flow, that is, that the respondent pay the appellant's costs on the application: [94]-[95]

Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143 (applied) IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40832/05

BEAZLEY JA SANTOW JA IPP JA

6 June 2007 Commonwealth of Australia v Leonard Lewis Judgment 1 BEAZLEY JA: Leonard Lewis (the respondent) was a 17 year old aircraft handler attached to HMAS Melbourne and was on board that ship on 10 February 1964, when HMAS Melbourne collided with HMAS Voyager, cutting it in two and causing it to sink with the loss of 82 lives. On 18 October 2001, the respondent filed a statement of claim, alleging that as a result of the negligence of the Commonwealth of Australia (the appellant), he suffered injury, loss and damage. The principal injury alleged was that he had suffered a post traumatic stress disorder. 2 The limitation period for the respondent's claimed cause of action in negligence was six years: the Limitation Act 1969 (NSW) (the Limitation Act) s 14. 3 As the respondent's claim was made just over 30 years after the expiration of the limitation period, he required an extension of the limitation period under s 60G of the Limitation Act, as otherwise his claim was not maintainable. 4 On 23 September 2005, Johnson J extended the limitation period in which to commence the proceedings to 18 October 2001, the date upon which the statement of claim had been filed. On 20 June 2006, the Court granted leave to the appellant to appeal from the trial judge's decision. The matter before the Court is the hearing of the appeal.

Statutory provisions relating to extension of time: s 60G of the Limitation Act 5 Section 60G of the Limitation Act permits a court to extend the limitation period for the brining of a cause of action if it decides it is just and reasonable to do so. Section 60G applies to the respondent's claim by the combined operation of s 60F and Schedule 5. Section 60I prescribes the matters of which a court must be satisfied before it makes an order for an extension of time. Sections 60G and 60I provide, relevantly: "60G Ordinary action (including surviving action)

(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.

(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 "Personal injury" for the purposes s 60G is defined in s 11 of the Limitation Act as including "any disease and any impairment of the physical or mental condition of a person".

Issue on the appeal 7 The issue on the appeal is whether the trial judge erred in the exercise of his discretion in determining that it was just and reasonable to extend the limitation period: s 60G. The satisfaction of the requirements in s 60I are not in issue on the appeal. 8 In order to succeed on the appeal, the appellant needs to establish error by the trial judge in the exercise of his discretion: see House v The King (1936) 55 CLR 499; [1936] HCA 40; Lovell v Lovell (1950) 81 CLR 513 at 518-519 and 532-533; [1950] HCA 52; Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 at 627; [1953] HCA 25 and Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274. 9 In Micallef, Heydon JA (Sheller JA and Studdert AJA agreeing) said at [45]: "Any attack on [a discretionary decision] must fail unless it can be demonstrated that the decision-maker:

(d) failed to take into account, or gave insufficient weight to, some relevant matter, or

(e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning."

Heydon JA pointed out that where the law commits the exercise of a discretion to a trial judge, interference with the exercise of the discretion is only available in the limited circumstances specified. 10 The appellant accepted that the trial judge correctly stated the law that applies in respect of applications to extend the limitation period. In particular, the appellant accepted that his Honour correctly had regard to the test stated in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 544, 547, 551 and 555; [1996] HCA 25 (Brisbane South v Taylor). The appellant contends, however, that the trial judge's discretion miscarried because it is substantially prejudiced by the delay, so that a fair trial is not now possible. Senior counsel for the appellant identified five essential errors in the trial judge's approach to the determination of the question whether there had been such significant prejudice caused by delay that the prospect of an acceptably fair trial was unlikely. 11 First, it was submitted that given the nearly 40 year delay, the appellant could not adequately investigate, if at all, the respondent's personal and medical (including psychiatric) history following the collision. In particular, it was submitted that it was not fair, given the long effluxion of time, for the appellant to be put to the task of investigating the cause of the respondent's aberrant behaviour subsequent to the collision. In short, it was submitted that the prejudice to the appellant in having to do so was so great that his Honour's discretion in granting the application miscarried. This alleged error is really an overarching complaint based upon the balance of the alleged errors. 12 Secondly, the appellant contended that his Honour failed to adequately take into account the fact that evidence had been lost in the intervening period. 13 Thirdly, it was submitted that his Honour erred in that he failed to give appropriate weight to the fact that the respondent had significant memory difficulties, particularly relating to his various attendances with medical practitioners. 14 Next, it was submitted that his Honour erred in considering that it was not necessary to make any finding as to a causal link between the respondent's later behavioural problems and the collision. It was submitted that it was an error for his Honour to consider that that issue was a matter for trial if an extension was granted. 15 Finally, it was submitted that his Honour placed undue weight upon the fact that Dr Edmonds, who had first been present at an examination of the respondent in 1967, was still available to be called to give evidence. 16 There is a separate issue as to whether his Honour's order as to costs was based upon a wrong factual finding.

I propose to deal with each of these issues in turn, although, as will become apparent, their cumulative effect and particularly the combined effect of the first, second and third alleged errors, needs to be considered. The first to third alleged errors are also more conveniently considered in chronological sequence, both during the respondent's time in the Navy and subsequent to his discharge. 17 Before doing so, it is convenient to first refer to the report of Mr Tuckfield, clinical psychologist, dated 31 October 2000, upon which the respondent relied in support of his application as it provides an analysis of the condition from which the respondent claims he suffers as a result of the collision, as well as an overview of his claim. I will then reproduce his Honour's summary of findings as to the state of the evidence which is available, as well as his Honour's conclusion as to why he considered the application should be granted. 18 Dr Tuckfield stated in his report: "The symptoms reported by Mr Lewis are consistent with a diagnosis of chronic Post Traumatic Stress Disorder (PTSD), lifetime and current according to the Diagnostic and Statistical Manual of Psychiatric Disorder (DSM IV) criteria. The nature of the collision meets the criterion that requires Mr Lewis to have experienced or witnessed an event in which either his or another person's life or physical integrity is threatened. Secondly his response to the event was one of intense fear, helplessness or horror.

The diagnosis also specifies 3 categories of symptoms: re-experiencing, avoidance and hyperarousal. Re-experiencing the memory of the collision occurs both in waking and dreaming state. He has attempted to avoid the intrusiveness through a range of cognitive and behavioural strategies and most particularly by excessive use of alcohol. Moreover he exhibits a range of hyperarousal symptoms, including an exaggerated startle response, sleep disturbance and physical symptoms consistent with panic attacks.

He believes that he has experienced most of these symptoms while in the Navy within the first twelve months after the collision.

In addition to the diagnosis of PTSD, the self-reported drinking behaviour meets criteria for diagnosis of substance abuse disorder onset 1964, in remission since 1989.

Furthermore he currently exhibits features of depression. He views many aspects of his life as a failure, is self critical, feels punished and has lost most of his interest in others.

Mr Lewis believes that he began to experience disturbing memories of the collision within six months after the collision. His recollection is that his drinking escalated rapidly after the collision as did his use of cigarettes. Keane et al (1998) points out that the parallel development of substance abuse and PTSD is not uncommon with the substance abuse being a form of self-medication either to suppress disturbing recollections particularly nightmares or to numb distressing emotions as they arise.

Mr Lewis describes life as series of crises and personal difficulties subsequent to the Melbourne-Voyager collision. He describes an increasing propensity to abuse cigarettes and alcohol but more particularly describes increasing abuse and violence towards his spouses. Additionally he describes his lack of control over gambling and his deterioration in judgement and decision to engage in further antisocial acts of fraud and armed robbery. While McFarlane (1998) asserts that 'there is sufficient evidence to argue that alcohol abuse is a predictable consequence of PTSD' (p823), to argue that his criminal behaviour was a predictable consequence of PTSD would be more difficult. Nonetheless Pitman (1996, p385) does point to three possible dynamic aspects of PTSD that might account for a person's diminished capacity to make moral judgements in relation to a criminal act. He explains the behaviour as arising from (1) sensation seeking or so-called 'addiction to the trauma, (2) need for punishment to appease a sense of guilt connected with the traumatic event and (3) substance abuse in an attempt to numb post traumatic psychic pain with resultant disinhibited actions. In the absence of evidence of antisocial behaviour prior to joining the navy, the self-destructive and nihilistic behaviour of Mr Lewis after the collision is explicable as one type of response to trauma." 19 Johnson J, at [75], summarised briefly the medical and other evidence which was available as follows: "In summary:

(a) the [respondent] acknowledges, and RAN records confirm, that the [respondent] had a disturbed family background prior to his entry into the RAN at the age of 15 years;

(b) RAN records indicate that the [respondent] had an unremarkable but not unsatisfactory service history prior to the Melbourne-Voyager collision on 10 February 1964;

(c) the evidence does not indicate that the [respondent] was engaging in excessive alcohol consumption or gambling or was otherwise demonstrating behavioural problems prior to the collision, although given his family background, he may have been at greater risk of developing such difficulties;

(d) in the months and years following 10 February 1964, the [respondent] manifested behavioural difficulties including excessive alcohol consumption, acts of violence and psychiatric or psychological disturbance on more than one occasion; these incidents gave rise to medical treatment or disciplinary action and incarceration by the RAN." 20 His Honour at [89] then stated the basis upon which he considered that it was just and reasonable to extend the limitation period. He said: "… There is evidence that documents have been destroyed or lost. However, there is a significant body of documentary material in evidence before me which relates to the [respondent's] employment, disciplinary history and medical history in the RAN both before and after the collision. It is true that a number of medical practitioners and other persons who would have been potential [appellant] witnesses are dead, cannot be located or have no current recollection of events. However, Dr Edmonds has been provided with, to use his words, ' copious documents ' of the RAN and has provided a report to the [appellant] expressing his recollection and opinion concerning events surrounding the [respondent]. It is true that documents concerning parts of the [respondent's] employment history and medical history since leaving the RAN cannot be located. However, the [respondent's] solicitors have provided detailed particulars to the [appellant] with respect to the [respondent's] employment and a substantial body of documentary material, including medical reports, concerning the [respondent's] medical condition since 1967 is available to the [appellant]."

The law 21 As I have indicated, the parties were not in dispute as to the law which applies to an application to extend the limitation period, nor as to his Honour's statement of the law. The contention is that the result is, given the circumstances in this case, so unreasonable that error must have occurred in the application of principle. It is necessary, therefore, in the first instance, to refer to the principles that apply to an extension of time under a provision such as s 60G. 22 In Brisbane South v Taylor, McHugh J at 554 said: "… when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension." 23 Toohey and Gummow JJ at 550 said that: "The real question is whether the delay has made the chances of a fair trial unlikely." 24 McHugh J placed significant emphasis on prejudice caused by delay, whether that prejudice be presumptive by reason of the effect of the delay, or by actual evidence. His Honour said at 555: "… the justice of a plaintiff's claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action …

… 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 … 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. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice." (Emphasis added) 25 In addition to the principles stated by the Court in Brisbane South v Taylor to which I need to return briefly, a body of caselaw has developed in respect of applications for extension of the limitation period, relevantly, under s 60G. In Gretton v The Commonwealth [2005] NSWSC 437, McDougall J at [9]-[16] summarised the principles that have emerged from the authorities. Those paragraphs of his Honour's judgment have been reproduced by the trial judge at [7] of his judgment and it is not necessary to reproduce those paragraphs again. 26 In Wayne Sauer v Allianz Australia Insurance Limited [2006] NSWCA 364 this Court (Beazley, Santow and Bryson JJA) was again concerned with the principles that apply when considering an application for an extension of a limitation period. An Application for Special Leave to Appeal to the High Court has been lodged in Sauer, but not relating to the matters subject of the present discussion. 27 At [17] of Sauer I said (Santow and Bryson JJA agreeing) that it is now well established that at least the following matters govern the exercise of the discretion in determining whether to grant the extension: "… First, the applicant seeking an extension of the limitation period must satisfy the Court that grounds exist for exercising discretion in his or her favour: Toohey and Gummow JJ at 547 [of Brisbane South v Taylor ]; McHugh J at 551. Secondly, there is an evidentiary onus on a prospective defendant to raise any consideration which might tell against the exercise of the discretion: Toohey and Gummow JJ at 547; McHugh J at 555. Thirdly, the ultimate onus of establishing that the time should be extended at all times remains with the applicant: Toohey and Gummow JJ at 547; McHugh J at 554." 28 As was further explained in Sauer, although the approaches of the members of the Court in Brisbane South v Taylor differed in certain respects, particularly as between Justices Toohey and Gummow in their joint judgment and Justice McHugh, it is apparent that the underlying principle relates to the fairness of the trial. This, in my opinion, as I also discussed in Sauer, was the underlying basis of the decision in Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143. 29 In Holt v Wynter, Sheller JA (Meagher and Handley JJA and Brownie AJA agreeing) analysed the respective views of the members of the Court in Brisbane South v Taylor. Again, I do not consider that it is necessary to reproduce those passages. They are to be found in Holt v Wynter itself and are considered by me at [25] in Sauer. However, importantly for present purposes, in Holt v Wynter, Sheller JA said at [116]: "… I do not think an applicant would demonstrate that it was fair and just that leave should be granted if to do so would result in significant prejudice to the potential defendant ." (Emphasis added) 30 Sheller JA concluded at [119] that, in his opinion, the effect of the decision in Brisbane South v Taylor was that an extension of time should be refused "if the effect of granting the extension would result in significant prejudice to the potential defendant". However, as I explained in Sauer, that was because of the underlying lack of fairness. 31 Priestley JA, who adopted a slightly different approach to Sheller JA, observed at [79] that it was apparent from Brisbane South v Taylor that different judges have different ideas as to what constitutes a fair trial. His Honour then said: "… One thing seems to be clear; that is that the term is a relative one and must, in any particular case, mean a fair trial between the parties in the case in the circumstances of that particular case. Further, for a trial to be fair it need not be perfect or ideal. That degree of fairness is unattainable. Trials are constantly held in which for a variety of reasons not all relevant evidence is before the court. Time and chance will have their effect on evidence in any case, but it is not usually suggested that that effect necessarily prevents a fair trial." (Emphasis added) 32 In Holt v Wynter, the prejudice alleged was that certain medical records of some of the doctors whom the applicant had consulted about her injuries were unavailable. The records of six doctors were in question. Priestley JA pointed out that it had become apparent that the records of two doctors had recently become available. A third doctor, a general practitioner, had a note of advice given by an orthopaedic specialist whom the applicant had consulted on one occasion only and it was likely that the records from at least two other doctors would be available. As to the last doctor, whom the appellant had seen about five years before the application, his Honour considered that it was possible, but not necessarily probable, that such records would exist. His Honour considered that in that circumstance, the proposed defendant would be able to reasonably prepare its case for trial. The other members of this Court agreed with this conclusion.

Consideration of alleged errors: lost evidence 33 In this case, the appellant alleges that it has suffered significant prejudice because much of the evidence that would have been available had the proceedings been brought in a timely manner has been lost and the respondent's own recollection of many of his personal circumstances which are relevant to determining whether he suffered post traumatic stress disorder as claimed, or, whether his mental condition from which he undoubtedly suffers, was caused by the collision, is unreliable. The appellant contends that it is seriously impeded in being able to investigate the respondent's claim and, therefore, that it has suffered significant prejudice. 34 The appellant has available to it the respondent's medical records from the time he entered the Navy on 5 January 1962, until his discharge on 25 October 1967. During the course of both the hearing and the appeal, attention was drawn to the fact that the respondent was receiving medical treatment shortly prior to the collision for which he needed follow-up care in the weeks following the collision, but that the respondent did not raise any question of suffering from distress as a result of what he witnessed during the immediate aftermath of the collision. 35 The respondent gave evidence that he was in a distressed state immediately after the collision. He said: "I was crying the night I was carrying the stretcher with the bodies and I was told to 'shut up and get on with it. We've got a job to do'. I bawled my bloody eyes out."

The respondent said he cried " all bloody night " and cried after that too. He said he " drank and drank " and " the Navy told me to go and get pissed with my mates and forget about the whole incident ". He said he was still crying 41 years later and that he had been " crying ever since ", although in cross-examination he conceded that he had not cried every day. 36 The respondent's medical records reveal that in the ten days prior to the collision, the respondent was seen by a senior medical officer, Surgeon Commander Treloar, for the treatment of gonorrhoea. He was reviewed by Dr Treloar on 10 February 1964. The collision occurred that night. 37 The respondent's first medical attendance after the collision was on 17 February 1964, when he again saw Surgeon Commander Treloar for ongoing treatment of gonorrhoea. However, there is no mention of the respondent's mental state in Dr Treloar's notes of the consultation. 38 The appellant's contention is that if the respondent was in the emotional state that he asserts, it is likely that a medical practitioner would have observed that to be the case. Dr Treloar is still alive, but has no recollection of the respondent. The respondent's own evidence is that he has no recollection himself of his mental condition on 17 February 1964 when he saw Dr Treloar, but his overall evidence was that at about this time nobody said anything to him about his tearfulness and apparent distress. 39 The appellant submitted that Dr Treloar could have been an available source of evidence and if the claim had been made much earlier to enable timely investigation, some relevant response from Dr Treloar may have been forthcoming. Accordingly, the appellant submitted that Dr Treloar's lack of recollection means that whatever evidence he may have been able to give was now "lost". 40 Thereafter, the respondent was seen by Naval medical officers for a number of conditions, including a fractured wrist and appendicitis. The Naval medical officers who treated him for these conditions, Drs Vauback and Swain, do not have any recollection of the respondent. (The appellant submits that this evidence is also "lost evidence".) 41 On 18 February 1965, the respondent was seen by Dr Gilmore, a Surgeon Lieutenant, who diagnosed depression. This was the first diagnosis of any mental condition suffered by the respondent. According to Dr Gilmore's note of the consultation, the respondent did not relate that depression to the collision. Rather, the note records that the respondent felt "that he is not wanted in the Navy and everybody is against him, those who are not, they only pity him". Dr Gilmore recorded that the respondent reported he had no previous history of depression but had a rather sad family history. 42 The appellant wrote to Dr Gilmore for the purposes of this application. However, he did not respond. The appellant submitted that Dr Gilmore is a highly relevant witness because of his diagnosis of depression. It was said his unavailability means that there is relevant evidence unavailable to the appellant so that the appellant is thereby prejudiced. Again, the appellant categorises this as another example of "lost evidence". 43 The next relevant incident in the respondent's medical history occurred in May 1965. On 8 May 1965, the respondent presented at Balmoral Naval Hospital "in a state of extreme agitation, weeping and asking 'please help me'". The immediate pre-presentation history involved the respondent having observed his fiancée in the company of another man, that man having fathered the fiancée's child. The respondent has little recollection of this period. He remembers the incident of seeing his fiancée with another man and becoming jealous, upset and angry. He does not remember anything after that until he got married, about one month later. The respondent recalls his wedding day, but not the day before; he can remember the wedding itself and the reception but not, for example, walking down the aisle. 44 The respondent was admitted to the Naval Hospital at Balmoral on 8 May 1965 for ten days and was diagnosed with acute anxiety with hysteria. During this time, he was treated with Tryptanol. The clinical notes for this admission were signed off by Dr Treloar. However, Dr J McGeorge's name is also typed on the bottom of the notes and it would appear that he was the attending psychiatrist. 45 The respondent had a further psychiatric episode in July 1966. He was admitted to Balmoral Naval Hospital on 24 July 1966 and was discharged on 2 August 1966. The precipitating episode to the admission was the appellant having hit his wife and other Naval personnel. The respondent was again attended by Dr McGeorge during this period of hospitalisation. The respondent underwent an EEG at this time which was reported to be normal. The respondent was diagnosed as having suffered acute alcoholic delirium, and having a psychopathic personality. The respondent has no memory of his hospitalisation on this occasion. 46 According to the hospital notes, Dr McGeorge considered that it was possible jealousy might have been the motive behind the violence. He recorded a history of the respondent not being happy in the service, but considered there did not appear to be any psychiatric justification for him to be discharged from the Navy. Dr McGeorge considered that he was not in any further need of treatment, but was fit for trial and punishment. The respondent has no memory of his hospitalisation on this occasion. Dr McGeorge died in 1979. Dr McGeorge's evidence of his treatment of the respondent at this time is thus also "lost" to the appellant. 47 It appears that a Dr Grainger also treated the respondent during this period of hospitalisation. Dr Grainger is now a neurologist practicing in Western Australia. Dr Grainger does not remember the respondent personally. However, he provided a report to the appellant on 21 August 2002 in respect of his consultations with the respondent on 24 and 25 July 1966. It is apparent from its terms that this report is based upon the information that was provided to Dr Grainger for the purposes of this application. That report is relatively fulsome and for that reason, it is appropriate to set it out in full, as it provides a significant account of the respondent's mental state at that time by an attending doctor. Dr Grainger said: "From my report [of the consultation on 24 and 25 July 1966] I felt that he had an underlying personality problem, namely a psychopathic personality with the inference that it was learned behaviour from his father whom he had stated had a similar personality and expressed violence to his wife with [the respondent] also having a history of violent outbursts.

It is possible that a head injury at the age of 18 months may have injured his frontal lobes and aggravated the situation and a normal EEG would not rule this out.

My comments about the absence of any cerebellar damage or tremor would suggest that there is unlikely to be any chronic effects of alcohol affecting his brain to the extent that it would alter his personality or a long term effect in contrast to the acute use of alcohol providing a temporary deterioration in his behaviour as had occurred prior to his admission to Balmoral Naval Hospital with acute alcohol induced deterioration and possibly hallucinations.

There was the history that he appeared to have a significant problem with jealousy over his wife apparently having a baby prior to their marriage with [the respondent] not being the father.

The absence of any comments by [the respondent] on his being on the HMAS Melbourne when it collided with HMAS Voyager on 10 February 1964 would indicate that he did not feel there was any causal relationship to his behaviour and drinking and I would have documented this if it had been brought up during the consultation." 48 On 5 August 2003, Donna Robinson, a senior solicitor in the office of the Australian Government Solicitor, had a telephone conversation with Dr Grainger in which he said: "In my opinion it would not now be possible to assess the effect, if any, that the collision had upon the cause of, or the aggravation of the psychopathic personality disorder that I diagnosed in July 1966. In my opinion, the fact that the [respondent] did not mention the collision as a cause of his behavioural problems and drinking, and because of the passage of time that has elapsed since the collision, any opinion given today would be unreliable and would amount to speculation, bordering on guessing." 49 The appellant contends that Dr Grainger's comments to Ms Robinson demonstrate that it would not now be possible to assess the effect of the collision upon the cause or aggravation of the respondent's psychiatric condition for which he was treated in 1966. It was submitted that this further demonstrates that there was significant prejudice to it should the matter proceed to trial. 50 Complaint is also made that the trial judge did not refer in his judgment to Dr Grainger's comments to Ms Robinson to which I have referred in which Dr Grainger had expressed a strong view that it would not be possible to express any opinion on that today, given the passage of time and the absence of any mention of the collision at the time. 51 The appellant also submitted that there are other witnesses who are not available and who could have otherwise provided relevant evidence. For example, a Naval Chaplain, James Trainer, forwarded a letter, dated 1 August 1966, to the Surgeon Captain of Balmoral Naval Hospital during the course of the respondent's hospitalisation on that occasion. Reverend Trainer said in the letter that he had known the respondent for two years and had seen him frequently with his wife in counselling sessions. He set out the respondent's history of occasional violent outbursts, immaturity, frustration with his apparent lack of prospects in the Navy and vivid dreaming, largely about violence and dereliction. Reverend Trainer raised the question whether it was possible that a neurological examination might reveal an old head injury. However, as I have already noted, the respondent did have an EEG, which was normal. 52 Reverend Trainer is dead, both the respondent's spouses are dead and, as I have mentioned, the respondent himself has no recollection of this hospital admission. Accordingly, the appellant submitted that it is unable to investigate the history of these matters from the witnesses who were involved in or with them, directly or indirectly. It was submitted these are all matters which are relevant to an assessment of the cause of the respondent's mental state. In particular, it was submitted that this material indicated that the cause of his mental state lay elsewhere, but it was impeded in being able to establish that to be the case by its inability to appropriately investigate the circumstances relevant to this episode of mental illness.

Discharge from the Navy 53 The respondent was discharged from the Navy on 25 October 1967, having been found guilty of a disciplinary offence for which he was sentenced to 42 days detention. The circumstances of the discharge were contained in a letter from Rear Admiral Momson dated 11 October 1967 to the Secretary, Department of the Navy. The respondent's claim for economic loss, as pleaded, was based upon the loss of his Naval career, which he alleges was caused by the psychiatric injury occasioned by the Melbourne/Voyager collision. The appellant contends that in facing the respondent's claim for economic loss, it is significantly prejudiced in being unable to investigate the circumstances surrounding the incident in September 1967 which led to the disciplinary charge and subsequent discharge of the respondent from the Navy. 54 The appellant contends that there were other matters and incidents relating to the respondent's discharge which also require investigation to enable it to adequately meet the claim for economic loss. For example, on 21 September 1967, the respondent was seen by a Naval psychiatrist, Surgeon Lieutenant Commander Edmonds, who had been asked by the Captain of the HMAS Waterhen to see the respondent, because the respondent had been "in a lot of disciplinary trouble" and had told his Captain that he had been taking a number of drugs, including heroin. Dr Edmonds reported that the respondent wasn't under the influence of drugs and his problem was not psychiatric, but disciplinary. Dr Edmonds saw the respondent a week later. On that occasion, he recorded that the respondent had "self-confessed homosexual tendencies" and there had been an incident in the cells with another Naval rating. 55 This incident was the subject of significant cross-examination during the course of the hearing of the respondent's application for extension of time. The respondent said in cross-examination that the alleged homosexual activity had been a concoction between himself and the other rating who wanted to get out of the Navy. 56 Dr Edmonds provided a report to the appellant dated 3 November 2002. Dr Edmonds had been provided with, inter alia, the respondent's Naval medical records for the purposes of enabling him to provide the report. He commented that he did not consider the information available to him was either "comprehensive or complete" and, therefore: "… some qualification must be made regarding the completeness and accuracy of this report. The reason for this relates to insufficient documented clinical and social history, investigation, examination or other data and the absence of any psychological reports." 57 Dr Edmonds said that he had little memory of the respondent, but did have a reasonably good memory of the incidents which involved him. He expressed his opinion that, although the respondent: "… had multiple behavioural problems, including aggressive outbursts, histrionic and mood disorder (anxiety, depression and paranoid reactions) based on a psychopathic personality, alcohol and drug misuse and sexual propensities contrary to the naval mores at that time"

he did not consider there was any " actual psychiatric disease (neurosis or psychosis) that developed during his naval career ".

Events post-Navy 58 Following his discharge from the Navy, the respondent continued to have personal difficulties. On 11 December 1970, the respondent was sentenced to a period of imprisonment of nine and a half years for offences of armed robbery, robbery in company and robbery. He was released on parol in December 1973. His release on parole had been recommended by an officer of the Probation and Parole Board who recorded as part of the respondent's personal background, the reasons he was discharged from the Navy. In particular, it was recorded that, having joined the Navy in 1962, the respondent enjoyed it and did well, but that his wife objected to him being in the Navy, which led him to committing a breach of the regulations, so as to secure his discharge and it was subsequent to that he lapsed into regular gambling and lost numerous jobs. The Probation and Parole officer also reported on the respondent's difficult marital history involving jealousy and assaults on his wife. 59 The appellant contends that it is not now in a position to properly investigate the discrepancies in the history taken by the Probation and Parole officer as compared to the Naval records. It was not alleged that the Probation and Parole officer was unavailable. However, as already noted, both the respondent's wives are deceased so that there the appellant has lost the opportunity to verify the information in the Probation and Parole Report. 60 In November 1988, the respondent was injured at work when he twisted his back whilst working as a car detailer. He had had a previous non-compensable back problem which had necessitated surgery in 1983. When the respondent sustained the work injury, he returned to his previously treating back doctor. Initially, the respondent was treated conservatively, but eventually underwent operative treatment, which gave him considerable relief. However, in the period leading up to the operation, the respondent was "quite depressed about his pain and his general situation". He was eventually referred to Dr Radeski, psychiatrist, whom he saw in July 1991. 61 Dr Radeski provided a report to the solicitors handling the respondent's work related injury claim. In doing so, he answered specific questions asked by the solicitors. The correspondence from the solicitors to Dr Radeski is not available. However, Dr Radeski's responses are reasonably self-explanatory. He said: "1. I believe there is a relationship between the injury and [the respondent's] present condition in that there was no evidence of a depressive reaction prior to that injury . He does have a history of somatic complaints which could be related to stress, e.g. migraine and peptic ulcer symptoms, but no evidence of frank depression which has been recorded since his injury in 1988.

2. His suitability for work at this stage is mostly related to his continuing physical symptoms , though I believe that there is some augmentation of those symptoms as a result of his psychiatric state.

3. It follows that the effects of the injury are still persistent.

4. I believe that [the respondent], as a result of the injury to his back, suffers from a state of mixed anxiety and depression which is partly consequent on his loss of self-image and perfectionistic traits in his personality." (Emphases added) 62 Dr Radeski concluded that the respondent suffered from "stress and anxiety and depression" as a result of his injury. 63 In Dr Radeski's report, there is a brief history of the respondent's background including his Naval service. There is also reference to his being in the Navy at the time of the Melbourne/Voyager collision. However, there is little elaboration in the report of matters relating to the respondent's Naval service or of the effect that the collision had upon him. Dr Radeski died in 1996. The respondent has no recollection of attending Dr Radeski. The appellant has attempted, unsuccessfully, to obtain Dr Radeski's notes as Dr Radeski had said in his report that he had obtained a more detailed history than was set out in his report. The appellant submitted that this was therefore another instance of 'lost evidence' whereby its ability to adequately investigate the respondent's claim was impaired.

The respondent's lack of recollection 64 I have referred, at various times above, to the respondent's lack of recollection of significant personal and medical episodes that are relevant to an assessment of his claim. The appellant submitted that the prejudice that flows from evidence having been "lost" in the sense I have described and its consequent inability to investigate the cause or causes of the respondent's post traumatic stress disorder, is further aggravated by the unreliability of the respondent's own memory. In particular, it was submitted that the respondent's lack of recollection relating to the significant psychiatric episodes he has had whilst in hospital means its ability to forensically penetrate the underlying cause or causes of those episodes is significantly impeded, if not totally impaired. 65 As a result, the appellant contends that it is not in a position to answer the respondent's allegation that his present psychiatric condition, in whole or in part, is attributable to what he witnessed on the night of the collision, nor is it in a position to be able to meet his claim for economic loss, which, the appellant asserts, the respondent seeks to causally relate to the disabilities he suffers as a result of being involved in the collision. It is also an aspect of this submission that there have been so many factors impacting upon the respondent's mental health as well as on his working capacity, that it is not now possible, due to the delay as well as the absence of evidence, for the appellant to be able to untangle the various contributing elements. 66 It followed, on this submission, that the trial judge's discretion miscarried in granting an extension of the limitation period. 67 The appellant makes a further complaint in respect of the approach taken by the trial judge to the respondent's lack of memory. At [59] of the judgment, the trial judge referred to the respondent's lapse of memory, particularly in relation to consultations with medical practitioners and to particular events that were referred to in contemporaneous Naval records. His Honour commented that that "may constitute a difficulty for the [respondent's] prospects of success at the trial of this matter". His Honour observed that the appellant has the respondent's contemporaneous medical records, as well as Dr Edmond's evidence to which I have referred. He considered, therefore, that the respondent's memory difficulties did not represent an impediment to a fair trial. He added, "[a] fair trial is not a perfect trial". 68 The appellant submits that it was irrelevant to the consideration of whether or not there could be a fair trial as to whether the respondent's memory difficulties would impede the respondent's own successful prosecution of his claim. Rather, it was submitted that the test was whether the appellant would, because of that or other factors, be significantly prejudiced, so that a fair trial could not be had. It submitted that a fair trial was not possible because the appellant would not be able effectively to cross-examine the respondent so as to demonstrate that his psychiatric condition was not associated with the accident in circumstances where the respondent had no relevant memory of the significant life events discussed above, nor the psychiatric episodes which he suffered whilst in the Navy. 69 When properly examined, I am of the opinion that there is no error in his Honour's reasons in this passage. In particular, I do not consider that his Honour has fallen into the error of engaging in a balancing exercise as between the prejudice the respondent would find himself in as compared to the prejudice suffered by the appellant due to the delay and the difficulties that have flowed from that: Brisbane South v Taylor per Toohey and Gummow JJ at 549; Nominal Defendant v Manning (2000) 50 NSWLR 139; [2000] NSWCA 80. Rather, his Honour's comment was a statement of the obvious, namely, that if the respondent doesn't have a relevant memory, he may not be able to prove his case. 70 The trial judge had to consider whether, given that the appellant had available to it a significant body of contemporaneous medical reports and the evidence of two medical practitioners who were able to comment on the respondent's presentation in the years after the collision, a fair trial could be had, notwithstanding that there were other doctors who were not available or who had no relevant recollection and the respondent's own memory was unreliable. In stating that there were two doctors who could comment on his condition, I do so in the respects I have discussed above, that is, Dr Grainger did not remember the respondent but was able to provide a report based on the contemporaneous reports, and Dr Edmonds had some memory of the respondent but more so of the incidents surrounding his coming into the Doctor's care. In my opinion, there was no error in the manner in which his Honour dealt with his evaluation of these matters. 71 The appellant then complained that his Honour's comment at the end of his consideration of this issue, that a "fair trial was not a perfect trial", involved the application of a wrong test, or, alternatively, the taking into account of an irrelevant consideration. His Honour's reference to a "fair trial … not a proper trial" is clearly a reference to the observation of Priestley JA in Holt v Wynter that "for a trial to be fair it need not be perfect or ideal". As Priestley JA further observed in that case, "that degree of fairness is unattainable": see [31]. Johnson J was not only stating a truism well known to trial judges, he was doing so against a background of a statement to that effect, in this Court's judgment, in Holt v Wynter. This complaint should be rejected.

Failure to consider link between later behavioural problems and the collision 72 The next error upon which the appellant relied was his Honour's statement at [69] of his judgment. His Honour was dealing with the respondent's psychiatric and other problems, including excessive alcohol consumption, prior to the collision. His Honour recorded that there was nothing in the evidence that pointed to psychiatric problems prior to the collision, although he recorded the respondent's disturbed early family life, which included his father's alcohol abuse. His Honour then made the comment about which complaint is made. He said: "In reciting these features of the evidence, of course, I make no finding of any causal link between the [respondent's] later behavioural problems and the collision. That issue is one for the trial court at the hearing of the [respondent's] claim if an extension of the limitation period is granted." 73 The error, as submitted by the appellant, was that a trial judge, in determining whether or not there is significant prejudice to a defendant in relation to the investigation and proof of matters of causation cannot sidestep that issue on the basis that those matters are matters for the trial. It was submitted that proof of causation is fundamental to the success or otherwise of the claim and if such matters could not properly be investigated, it followed that the appellant is prejudiced. 74 I do not consider that his Honour erred in the respects alleged. His Honour, in my view, was seeking to ensure that there was no misunderstanding as to what he was saying in referring to early family difficulties. His Honour was not seeking to determine whether there was a causal link between those matters and the respondent's present psychiatric condition. As his Honour indicated, that was not a matter for determination on this application. Rather, the question he had to determine was whether the ability to investigate any pre-existing psychiatric problem or other matters that might be relevant to the development of a mental illness, which are matters relevant to causation, was impaired because of delay and/or absence of evidence to such an extent that a fair trial could not be had. 75 Likewise, his Honour was not required to determine whether there was a causal link between the respondent's later behavioural problems and the collision. It may be that in a given case, if the evidence establishes that the causal link was tenuous, that might be a relevant consideration, along with the other matters of prejudice. However, that is not the basis of the complaint made by the appellant. The complaint is that his Honour by stating that "causation" was a matter for trial, sidestepped the matter for determination, namely, whether there could be a fair trial in the sense I have been discussing. In my opinion, his Honour, in the course of his judgment clearly had that question in focus as the matter he was required to determine.

The evidence of Dr Edmonds 76 The final complaint that is made is that the trial judge placed excessive weight upon the availability of Dr Edmonds. 77 At [77] and following, his Honour examined the evidence which was no longer available to the appellant, and in particular, made reference to the medical witnesses who had died or who could not be located. His Honour then referred to those doctors who were alive, being Drs Grainger, Treloar Vauback and Cilento, but who had no recollection of the respondent. His Honour then dealt with the availability of Dr Edmonds. The trial judge, at [79], set out portions of the medical report to which I have referred above, and recorded the availability to Dr Edmonds of 125 pages of written material concerning the respondent. His Honour then said: "… Accordingly, and perhaps unusually, the [appellant] has available to it a medical practitioner who examined the [respondent] some 38 years ago and who has a current recollection of him and is available to provide opinions and evidence concerning the [respondent]. The availability of the 'copious documents' and the opinions and evidence of Dr Edmonds operates against the [appellant's] submission that there cannot be a fair trial of the [respondent's] claim." 78 The appellant submitted that this passage of his Honour's judgment does not deal with its complaints as to the significant prejudice that it would suffer. It was submitted that his Honour gave undue weight to the availability of Dr Edmonds and used the availability of his evidence, in effect, to counterbalance any prejudice it might otherwise have identified. 79 The availability of Dr Edmonds is a relevant matter to be assessed in determining whether or not the appellant, in meeting the respondent's claim, is in a position of significant prejudice, so that a fair trial could not be had. His Honour considered that the availability of Dr Edmonds was a factor which tended to the conclusion that a fair trial was possible. In that he was correct. It was of course but one of a number of considerations. His Honour referred to the other matters including those that pointed in the other direction. 80 A matter raised during the course of the argument on the appeal was whether any issue of prejudice had been raised before the trial judge due to the fact that the behavioural problems of which the respondent complains were not typically related to post traumatic stress disorder as is more commonly the case today. It appears that no complaint of that type was made, so that it is not necessary to deal with that as an area of prejudice.

Conclusion 81 A fair trial requires that the appellant be in a reasonable position to meet the respondent's claim. The appellant's primary submission is that the delay has been so long that it cannot adequately undertake the investigations that will enable it to do so. Its investigations would be hampered by the unavailability of medical practitioners and other witnesses and the respondent's own unreliable and at times completely absent memory of relevant events. These have been referred to in some detail above. 82 Against that there are detailed Naval records, both medical and disciplinary, for the period prior to the collision up to the respondent's discharge. There are ongoing records after that time, including medical and other records relating to the appellant's subsequent work and other history which is relevant to his claim, including his claim for economic loss. What is missing is the evidence from most medical witnesses, either because those witnesses are deceased or because they cannot remember the respondent. To the extent that doctors are still available, the appellant contends that their evidence is qualified and not sufficient to ameliorate the significant prejudice arising from the absence of the other witnesses sufficiently to allow there to be a fair trial as required by the principles in Brisbane South. 83 The trial judge took all these matters into account and evaluated them. There were aspects of the appellant's contention that tended towards a conclusion that the appellant would suffer significant prejudice in meeting the respondent's claim. There were other matters that indicated the contrary. It has not been established that his Honour made an error of legal principle or made a material error of fact or took into account irrelevant matters. Rather, it is alleged that his Honour failed to have regard to Dr Grainger's opinion that it would not now be possible now to assess the effect of the collision as a cause or aggravation of the respondent's psychopathic personality disorder due to the failure of the respondent to mention it at the time and because of the delay. It is also alleged that his Honour placed too much emphasis upon the availability of Dr Edmonds. It followed on this submission that the prejudice it suffered by not being able to properly investigate the respondent's circumstances both pre- and post-collision was not properly evaluated by his Honour. 84 In my opinion, the failure to refer to the comment made by Dr Grainger to the appellant's solicitor does not undermine his Honour's evaluation or provide a basis to say that his Honour failed to take a relevant consideration into account. It was a significant part of the appellant's resistance to the respondent's application that having regard to the delay and the intervening history, it was not possible to properly or adequately assess the effect of the collision on the respondent's mental state and in particular to determine whether it had caused his now diagnosed post traumatic stress disorder. 85 I am also of the opinion that his Honour did not place undue emphasis upon the availability of Dr Edmonds to give evidence. As I have said, his availability was a relevant consideration in his determination as to whether it would be just and reasonable to extend the limitation period. 86 The discretion to grant or refuse the respondent's application was vested in the trial judge. Apart from the failure to refer to one comment from one of the available witnesses, no specific error in the trial judge's reasons has been established. In my opinion, the decision to grant the extension of the limitation period was not so unreasonable that it could be said that an error in the exercise of discretion has been established.

Costs 87 The appellant also appeals against his Honour's decision to reserve the question of costs of the application. 88 His Honour's decision to reserve the costs was based upon his finding that the appellant had cross-examined the respondent on a false premise. I will explain that shortly. The appellant had sought an order for costs in its favour, based upon Pt 52A r 17 of the Supreme Court Rules 1970 (NSW) (the Supreme Court Rules). That rule provided that, on an application for an extension of time, an applicant is to pay the costs of the application, unless the Court otherwise orders. 89 However, the respondent resisted an order for costs against him and, in turn, argued before the trial judge that the appellant ought to be ordered to pay his costs. In this respect, the respondent relied upon Smith v Commonwealth of Australia [2004] NSWSC 873. 90 His Honour, at [96], described the issue as arising in the following way: "The [respondent] was being cross-examined concerning a medical attendance for abdominal pain which was said to have taken place on 18 January 1965 (T83-85). A photocopy of an RAN medical record, which appeared to bear that date, was tendered on behalf of the [appellant] (Exhibit 4; T84.30). The [respondent] was cross-examined on this document upon the basis that, if he had been suffering some adverse effects as a result of the collision, he would have spoken to the RAN doctor about it in January 1965, that is some 11 months after the collision (T85.7-15). Counsel for the [respondent] sought access to Exhibit 4 and compared it with a document in his brief which had been provided to the [respondent's] legal representatives by the [appellant]. That document bore the date ' 18-1-64 ' and not ' 18-1-65 '. Mr Barry QC sought a short adjournment to clarify the position and, upon resumption, it became apparent that the true date of the consultation was 18 January 1964, a date preceding the Melbourne-Voyager collision (T86-89). On the following morning of the hearing, Mr Barry QC, having obtained instructions, provided the following explanation for the alteration (T147.48): 'Could I then hand up the original on which someone, as yet unidentified, has changed the date or written over the date from the '4' to the '5' on the original and one would infer they did that at some stage after the photocopying. I'm afraid we can't assist your Honour as to who did it, but that is the explanation as to why.'" 91 His Honour, at [98], said that he accepted that the appellant's legal representatives had no knowledge that senior counsel's cross-examination of the respondent on that topic was being "undertaken upon a false premise based upon an altered document". His Honour considered, however, that it was unfortunate that the cross-examination had proceeded in that way and the document had been altered and was misleading in a material respect. In the circumstances, his Honour considered that the respondent had not made out a case for an order for costs in his favour, but considered that costs should be reserved. 92 The appellant submitted that his Honour's finding at [96], that it had become apparent that the true date of the consultation relating to the appendectomy was 18 January 1964, was wrong and that it followed, that his conclusion at [98], that the cross-examination of the respondent had proceeded "upon a false premise based upon an altered document" was also, thereby, wrong. 93 As is apparent from his Honour's explanation of this matter at [96], there was a confusion as to the date of the consultation and it does appear that there had been an alteration of a document. However, during the course of cross-examination, the matter was clarified and it was finally agreed that the consultation had occurred on 18 January 1965 and the transcript reveals that the respondent agreed to that. Accordingly, by the time the cross-examination had concluded, there was no continuing confusion about the correct date of the consultation relating to the appendectomy. 94 Senior counsel for the respondent conceded on the appeal that his Honour's findings at [96] and [98] to which I have referred, were erroneous. He submitted, however, that there was no error in his Honour's decision to reserve the costs. He relied upon the decision of Santow JA in this Court in Commonwealth of Australia v Smith [2005] NSWCA 478. In that case, Santow JA was of the opinion that Pt 52A r 17 of the Supreme Court Rules did not govern an application for an extension of a limitation period, but only governed matters relating to an extension of time. Accepting this to be correct, I am of the opinion, in any event, that in the ordinary course, a court would order a successful applicant for an extension of time to pay the costs. In Holt v Wynter, Sheller JA said at [121]: "… ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable." 95 In this case, the appellant's conduct was not unreasonable. There was for a short period during the cross-examination of the respondent a confusion as to the date of a particular consultation, that confusion arising from the respondent's own documents. However, that was a small glitch during the hearing of the matter as a whole and is not sufficient, in my opinion, to deprive the appellant of the order that would normally flow in an application of this type, namely, that the respondent pay the appellant's costs. 96 The result of my consideration of the appeal is that the appeal should be dismissed in so far as it related to the challenge to the trial judge's order extending time but allow the appeal in so as it relates to the costs order made by his Honour. As the issue relating to costs involved a small part of the hearing time, I would propose that the appellant pay the respondent's costs of the appeal. 97 Accordingly, I would propose the following orders:

2. Confirm Order 1 made by the trial judge extending the limitation period to 18 October 2001;

3. Set aside the costs order made by the trial judge;

4. Order the respondent to pay the costs of the appellant of the application to extend the limitation period;

5. Order the appellant to pay the respondent's costs of the trial. 98 SANTOW JA: I agree with Beazley JA. 99 IPP JA: I agree with Beazley JA. **********

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