COMMONWEALTH OF AUSTRALIA v MCLEAN [1997] NSWCA 76

The trial judge's decision to extend the limitation period was given on 28 June 1996, prior to the High Court's decision in Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1. Counsel for the Commonwealth submitted that the principles enunciated in that case applied here and that his Honour's approach to the exercise of discretion, particularly in so far as his Honour engaged in a "weighing process" of the respective prejudice to the Commonwealth and Mr McLean, was in conflict with the proper approach to the exercise of the discretion as prescribed by the High Court in Taylor.

The legislation under consideration in Taylor was the Queensland equivalent of s58 of the Limitation Act. That section confers a discretion to make an order if, in the exercise of the Court's discretion it is proper to do so, provided the pre-conditions specified in the section have been satisfied. The High Court stated that the decisive consideration in the exercise of the discretion was whether a fair trial could be had and that that question had to be determined as at the date of application for extension. There is a question as to whether the s60G discretion

excludes consideration of prejudice which occurred within the limitation period. However, this is not the occasion to determine that question.

S60G provides that the Court may extend the limitation period "if [the court] decides it is just and reasonable " to do so. As a matter of construction of s60G (as is the case with s58), the satisfaction of the preconditions specified in the section does not give rise to a presumptive right to the exercise of discretion in favour of the applicant for extension. Nor does s60G involve a "weighing of prejudices". To this extent, Taylor directly applies to s60G. Thus, his Honour erred when he said

"the plaintiff would suffer a serious prejudice if the limitation period were not extended. It also followed that the defendant would suffer a serious detriment if the benefit of the time bar were removed However, the impact of the prejudice on the plaintiff would be considerably greater than the impact of the prejudice on the defendant."

Notwithstanding this error in the trial judge's approach, we are of the opinion that, applying the principles in Taylor, his Honour's order was correct. There was no "prejudice of a significant kind" (per McHugh J at 11) to the defendant in granting the extension. There was nothing of substance in the suggestion that a fair trial would not be possible. Negligence was not in issue, Mr McLean had, since the Voyager/Melbourne collision, been under regular medical care or supervision at the behest of the Commonwealth. He had consulted Naval doctors on a number of occasions prior to his discharge in 1968. After his discharge, he was monitored by medical practitioners at the request of the Commonwealth on an annual or almost annual basis. The medical records and witnesses are available except for Dr McGeorge a psychiatrist who saw the respondent once, prior to his discharge from the Navy. Mr McLean was seen by other Naval psychiatrists during his period of service. Dr McGeorge's unavailability did not, in the circumstances, prejudice the appellant, or if there was any prejudice it was not "prejudice of a significant kind", given the availability of the other medical evidence in the case. For the same reasons, it did not make the "chances of a fair trial unlikely": per Toohey and Gummow JJ at 7.

The Commonwealth also relied upon the loss of Mr McLean's seaman's file. We do not consider that this could cause significant prejudice or make it unlikely that the Commonwealth could get a fair trial. The seaman's file apparently contained evidence as to Mr McLean's work capacity but there was other evidence on this point available to the Commonwealth. Mr McLean would not have been discharged in 1968 on a pension, and thereafter retained on a pension unless he was assessed as having suffered a loss of work capacity.

Finally, the Commonwealth relied upon the long delay since the accident and the fact that this was a psychiatric case, with the need for reliance on memory. We do not consider that this was a factor which should preclude the exercise of the discretion in Mr McLean's favour. As we have said, there was ample documentary material available against which to test the oral evidence. In the event, the evidence was not of such a kind where recollections of specific events was of significant importance.

In all the circumstances, we decided not to interfere with the trial judge's exercise of his decision to extend time notwithstanding his error in approach to which we have referred.

The purpose of this judgment is to express our reasons on the discretion issue. The only other order we will make is that the Notice of Motion is dismissed with costs.

\WROMMONWEALTH OF AUSTRALIA v MCLEAN (Handley, Beazley JJA and Santow AJAB

In all the circumstances, we decided not to interfere with the trial judge's exercise of his decision to extend time notwithstanding his error in approach to which we have referred.

The purpose of this judgment is to express our reasons on the discretion issue. The only other order we will make is that the Notice of Motion is dismissed with costs.

Counsel for the appellant: M Joseph SC/M Brabazon Solicitors for the appellant: Australian Government Solicitors Counsel for the respondent: J McCarthy/B Knox