Commonwealth of Australia v Winston

Catchwords

[2013] 1 All ER 649 Adam v Shiavon [1985] 1 Qd R 1 Air Link Pty Ltd v Paterson (2005) 223 CLR 283[2005] HCA 39 Air Link Pty Ltd v Paterson (No 2) (2003) 58 NSWLR 388[1932] HCA 9 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175[2009] HCA 27 Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136[2003] HCA 73 Brickfield Properties Ltd v Newton [1971] 1 WLR 862 Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231[1991] HCA 45 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541[1996] HCA 25 British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30140 ALR 99 Commonwealth v Mewett (1997) 191 CLR 471[1997] HCA 29 Commonwealth v Shaw (2006) 66 NSWLR 325[2006] NSWCA 209 Commonwealth v Smith [2005] NSWCA 478 Commonwealth v Verwayen (1990) 170 CLR 394[1990] HCA 39 CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514[2015] HCA 1 Dedousis v Water Board (1994) 181 CLR 171[1994] HCA 57 Dornan v JW Ellis and Co Ltd [1962] 1 QB 58372 ALR 443 Greater Lithgow City Council v Wolfenden [2007] NSWCA 180 Groves v The Commonwealth (1982) 150 CLR 113

Judgment (28 paragraphs)

[1]

(1996) 186 CLR 541; [1996] HCA 25 British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30; [2003] HCA 47 Chief Executive Officer, Aboriginal Areas Protection Authority v Director of National Parks [2024] HCA 16 City of South Melbourne v Black [1964] VR 403 Clayton v Bant (2020) 272 CLR 1; [2020] HCA 44 Commonwealth of Australia v Smith [2007] NSWCA 168 Commonwealth v Dixon (1988) 13 NSWLR 601 Commonwealth v Mewett (1995) 59 FCR 391; 140 ALR 99 Commonwealth v Mewett (1997) 191 CLR 471; [1997] HCA 29 Commonwealth v Shaw (2006) 66 NSWLR 325; [2006] NSWCA 209 Commonwealth v Smith [2005] NSWCA 478 Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39 CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1 Dedousis v Water Board (1994) 181 CLR 171; [1994] HCA 57 Dornan v JW Ellis and Co Ltd [1962] 1 QB 583; [1962] 1 All ER 303 Fernance v Nominal Defendant (1989) 17 NSWLR 710 Garden Estate Hackham Pty Ltd v Angas Securities Ltd [2018] SASCFC 140 Gladstone Ports Corporation Limited v Murphy Operator Pty Ltd [2024] QCA 74 Golski v Kirk (1987) 14 FCR 143; 72 ALR 443 Greater Lithgow City Council v Wolfenden [2007] NSWCA 180 Groves v The Commonwealth (1982) 150 CLR 113; [1982] HCA 21 Horton v Jones (No 2) (1939) 39 SR (NSW) 305 House v The King (1936) 55 CLR 499; [1936] HCA 40 In re Westbourne Galleries [1973] AC 360 Jones v Corry (1840) 6 Bing NC 247; 133 ER 97 Lanai Unit Holdings Pty Ltd v Mallesons Stephen Jaques [2018] 3 Qd R 28; [2017] QSC 251 Lawson v Serco Ltd [2006] UKHL 3; [2006] 1 All ER 823 Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21 McGee v Yeomans [1977] 1 NSWLR 273 Minister for Home Affairs v DMA18 as litigation guardian for DLZ18 (2020) 270 CLR 372; [2020] HCA 43 Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 Naidu v Fergusson (2013) 8 ACTLR 150; [2013] ACTSC 208 Parker v Commonwealth (1965) 112 CLR 295; [1965] HCA 12 Parkview Constructions Pty Ltd v The Owners - Strata Plan No 90018 [2023] NSWCA 66 Patterson v Richards [1963] VR 179 Penrith Municipal Council v Australian Blue Metal Ltd (1960) 60 SR (NSW) 608 Penrith Municipal Council v Australian Blue Metal Ltd may be contrasted with Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23 Robinson v Unicos Property Corporation Ltd [1962] 1 WLR 520; [1962] 2 All ER 24 Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd (No 3) (1999) 18 NSWCCR 396; [1999] NSWDDT 18 Shaw Savill and Albion Co Ltd v The Commonwealth (1940) 66 CLR 344; [1940] HCA 40 Sidaway v Bethlem Royal Hospital [1985] 1 AC 871 Smith v The Ministry of Defence [2014] 1 AC 52; [2013] UKSC 41 Smith v Wilkins and Davies Construction Co Ltd [1958] NZLR 958 State of New South Wales v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276 Sydney Trains v Argo Syndicate AMA 1200 [2024] NSWCA 101 THG PLC v Zedra Trust Company (Jersey) Ltd [2024] Ch 318; [2024] EWCA Civ 158 Thomas v State of Queensland [2001] QCA 336 Vadisanis & Vadisanis (2014) 53 Fam LR 345; [2014] FamCAFC 97 Vere v Glynn (1771) Dick 442; 21 ER 341 Weldon v Neal (1887) 19 QBD 394 Winston v Commonwealth of Australia [2021] NSWSC 62 Winston v Commonwealth of Australia [2024] NSWSC 464 Wolfe v State of Queensland [2009] 1 Qd R 97; [2008] QCA 113 WorkCover Queensland v Amaca Pty Ltd (2010) 241 CLR 420; [2010] HCA 34 Texts Cited: J Basten, "Judiciary Act, Section 80 - A Special Statutory Provision?" (2024) 98 Australian Law Journal 727 S Campbell, "Amendments and Limitations: The Rule in Weldon v Neal" (1980) 54 Australian Law Journal 643 R Creyke, D Stephens and P Sutherland, Military Law in Australia (Federation Press, 2nd ed 2024) J Day, The Common Law Procedure Acts (2nd ed 1863, Henry Sweet, London) W Gummow and A Mohseni, "The Use and Misuse of Metaphors" (2024) 98 Australian Law Journal 738 Category: Principal judgment Parties: Commonwealth of Australia (Applicant) Robert Wilson Winston (Respondent) Representation: Counsel: N Owens SC, A Lyons, A Khadra (Applicant) AG Melick SC, C Thomson (Respondent)

[2]

Solicitors: Australian Government Solicitor (Applicant) Ken Cush and Associates (Respondent) File Number(s): 2024/170885 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2024] NSWSC 464 Date of Decision: 26 April 2024 Before: Schmidt AJ File Number(s): 2019/339343

[3]

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

[4]

HEADNOTE [This headnote is not to be read as part of the judgment] In June 1969, the USS Frank E Evans collided with the HMAS Melbourne during a joint training exercise in the South China Sea. Mr Winston was on board the Melbourne, serving as a member of the Royal Australian Navy. In 2019, Mr Winston filed a statement of claim against the Commonwealth claiming damages for personal injuries as a consequence of the collision. The particulars of negligence in that statement of claim primarily concerned the conduct of the officers of the Melbourne in the minutes immediately preceding the collision, including the quality of the warning signals and transmission of messages. In 2021, Justice Harrison granted an extension of the limitation period in respect of that claim, under section 60G of the Limitation Act 1969 (NSW). However, in 2023 and after several amendments, Mr Winston sought leave to file a further amended statement of claim which made further allegations that were not mentioned in the original statement of claim, including the orders made by Admiral Crabb after a near-collision a few days earlier during the same exercise (the 'Larson Incident') and the later rescission of those orders. Schmidt AJ granted Mr Winston leave to make those amendments. On appeal, the Commonwealth argued that leave could not have been granted under section 65(2)(c) of the Civil Procedure Act 2005 (NSW) because the further amended statement of claim raised a "new cause of action" which did not arise "from the same (or substantially the same) facts" as those supporting the original cause of action. The new cause of action was barred by the Limitation Act. The Commonwealth also argued that leave could not be granted under section 64 and that a further extension of time should not be granted. The Court (Leeming JA, Gleeson JA and Adamson JA agreeing) held, allowing the appeal: 1. The amended statement of claim includes allegations that are qualitatively different from the navigational failures which the original statement of claim alleged. In particular, the new claim is that the Commonwealth is vicariously liable for the tortious conduct of an officer not mentioned in the original pleadings, the particulars of breach relate to a period quite different to the original claim and relate to the positioning of the ships and the planning of the exercise rather than the conduct of officers in the minutes immediately preceding collision. For those reasons, the new statement of claim does not plead a cause of action arising out of the same or substantially the same facts for the purposes of s 65(2)(c): at [148]-[157], [191]. Thomas v State of Queensland [2001] QCA 336; Wolfe v State of Queensland [2009] 1 Qd R 97; [2008] QCA 113; Gladstone Ports Corporation Limited v Murphy Operator Pty Ltd [2024] QCA 74, considered and applied. 1. The prejudice to the Commonwealth means that an extension of the limitation period should not be granted. Events mentioned in the new statement of claim, including the Larson Incident, were not the subject of investigations or findings in contemporaneous reports: at [172]-[182], [192]. Commonwealth v Smith [2005] NSWCA 478; Commonwealth v Shaw (2006) 66 NSWLR 325; [2006] NSWCA 209, considered. Discussion of: 1. The history of provisions allowing amendments to pleadings that disclose a "new cause of action": at [102]-[147].

[5]

JUDGMENT

GLEESON JA: I agree with the orders proposed by Leeming JA for the reasons his Honour gives, save that it is not necessary for me to express a view on the matters discussed in pars [10]-[14] and the second sentence and subpars (1)-(6) of par [17], which were not in issue or the subject of submissions.
LEEMING JA: The Commonwealth of Australia seeks leave to appeal from orders made by Schmidt AJ in the Common Law Division permitting the respondent, Mr Robert Wilson Winston, to amend his statement of claim seeking damages for negligence based on the collision of HMAS Melbourne and USS Frank E Evans on 3 June 1969 in the South China Sea. Some 74 of the Evans' crew died when their destroyer was cut in half after sailing under the bow of the Melbourne, the much larger aircraft carrier. Mr Winston was a member of the Royal Australian Navy serving on HMAS Melbourne who claims damages for personal injuries including Post-Traumatic Stress Disorder and Major Depressive Disorder as a consequence of the collision.
The appeal requires leave, because the order permitting the amendment is interlocutory: Supreme Court Act 1970 (NSW), s 101(2)(e). The proposed appeal concerns an amendment to add what the Commonwealth contends is a statute-barred claim to an extant pleading which has itself been granted an extension of time. The issue is relatively novel, having been considered (so far as the parties' researches and my own disclose) in precisely one previous decision (Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd (No 3) (1999) 18 NSWCCR 396; [1999] NSWDDT 18), and that was far from comprehensively reasoned and was based on a superseded regime predating the Uniform Civil Procedure Rules 2005 (NSW). It gives rise to a number of questions of principle, and is a plain case for a grant of leave. There was a concurrent hearing, in which both parties were heard fully on the merits of the appeal.
For the reasons which follow, I have concluded that the appeal should be allowed and the orders made at first instance set aside. Mr Winston was granted an extension of time almost four years ago to bring proceedings against the Commonwealth, and despite his consenting to that statement of claim being struck out, he continues to enjoy the benefit of that grant. The orders I propose will permit him to file a pleading within the scope of that extant extension of time. The orders will also require this to be done in the next three months. It is to be doubted that there has been compliance with s 56 of the Civil Procedure Act 2005 (NSW) by some or all of Mr Winston and his former and current lawyers, bearing in mind that the litigation has been on foot for more than five years without Mr Winston having filed a statement of claim which he is content to take to trial, and despite his having served at least seven amendments in the meantime.

[6]

May and June 1969 - Exercise Sea Spirit

At the heart of this appeal is a comparison between the claim in negligence, for which Mr Winston was granted an extension of time in 2021, and the most recent iteration of his statement of claim. In order to evaluate those documents, it is necessary to provide some factual background to the events culminating in the collision between the Melbourne and the Evans. I do not understand any of the following to be controversial, although I am certain it is a considerably simplified account of the circumstances confronting the task force commander of a multinational flotilla conducting exercises in simulated wartime conditions.
In May and June 1969, the Melbourne and the Evans were participating in a training exercise known as "Exercise Sea Spirit" in the South China Sea in which a simulated enemy force of submarines had been tasked with attacking the convoy. The Evans was one of some six destroyers accompanying the aircraft carrier to its destination. One of the concerns of the flotilla was the risk of "hostile" submarines, and one response was to proceed in a predesignated pattern of zig-zags. One of the roles of the destroyers was to detect submarines which might threaten the carrier and protect it from them, including by forming a screen around the carrier.
In addition, at least when aircraft operations were to occur on the carrier, one destroyer was to operate as "plane guard". That involved a destroyer being stationed astern the carrier, to be available in the event that any airmen needed rescuing. A destroyer which had been stationed ahead of the carrier which was ordered to act as plane guard would turn so as to attain a position astern of the carrier.
At around 3.10am on 3 June 1969, the Evans was ordered to assume a position astern the carrier as plane guard. The Evans seems not to have been in its correct station relative to the carrier; Mr Winston alleges that it had strayed from its assigned position on the starboard side, and was on the port side of the carrier. In any event, in order to change its position, it turned to its starboard side. Had it been in correct position, a starboard turn would have caused it to turn away from the carrier, but from an incorrect station, the turn placed the Evans on a collision course with the carrier. What happened thereafter is central to the dispute, and I will not attempt to summarise it. However, it seems clear that Melbourne at least was aware of the collision course a few minutes in advance, and signalled Evans, which did not alter its course, and that both vessels executed sharp turns simultaneously seconds before impact, but failed to avoid it.

[7]

Claims in tort against the Commonwealth by members of the armed forces

Mr Winston's claim is in federal jurisdiction, because the Commonwealth is a party: Constitution, s 75(iii). The Supreme Court and this Court have at all times been exercising federal jurisdiction invested by s 39(2) of the Judiciary Act 1903 (Cth).
Although the collision occurred when both Australia and the United States of America were participants in the Vietnam War, the claim is not one which is based on negligence based on things done in the course of actual operations of war. Such claims are not justiciable: Shaw Savill and Albion Co Ltd v The Commonwealth (1940) 66 CLR 344 at 361; [1940] HCA 40; CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1 at [368].
Windeyer J expressed a broad view in Parker v Commonwealth (1965) 112 CLR 295; [1965] HCA 12 to the effect that no claim could be made by a member of the armed forces based on the negligence of another member of the armed forces. If that were the law, it would be fatal to Mr Winston's claim. However, Windeyer J's views were disapproved in Groves v The Commonwealth (1982) 150 CLR 113; [1982] HCA 21, a case concerning the Commonwealth's tortious liability in peacetime.
But as Dixon J plainly appreciated in Shaw Savill and Albion Co Ltd, the scope of "combat immunity" while extending to "all active operations" against the enemy is not unlimited. Dixon J said at 361-362: The principle must extend to all active operations against the enemy. It must cover attack and resistance, advance and retreat, pursuit and avoidance, reconnaissance and engagement. But a real distinction does exist between actual operations against the enemy and other activities of the combatant services in time of war. For instance, a warship proceeding to her anchorage or manœuvring among other ships in a harbour, or acting as a patrol or even as a convoy must be navigated with due regard to the safety of other shipping and no reason is apparent for treating her officers as under no civil duty of care, remembering always that the standard of care is that which is reasonable in the circumstances.
Dixon J added that "[i]t may not be easy under conditions of modern warfare to say in a given case upon which side of the line it falls": at 362. The differing views expressed in Smith v The Ministry of Defence [2014] 1 AC 52; [2013] UKSC 41 likewise illustrate the difficulty in identifying the limits of the immunity; see also the discussion in R Creyke and M Stubbs, "Administrative Law in the Defence Context" in R Creyke, D Stephens and P Sutherland, Military Law in Australia (Federation Press, 2nd ed 2024) 138 at 144-148.

[8]

Mr Winston obtained an extension of time in 2021

Mr Winston filed a statement of claim on 29 October 2019. Following a contested hearing on 2 February 2021, Harrison J acceded to Mr Winston's application for an extension of time under s 60G: Winston v Commonwealth of Australia [2021] NSWSC 62. His Honour made the following order on 17 February 2021: Extend up to and including 29 October 2019 the limitation period for the cause of action upon which the plaintiff sues in these proceedings.
The extension of time was not unqualified. It was confined to "the cause of action upon which the plaintiff sues in these proceedings". The scope of the order made on 17 February 2021 extends at least to the statement of claim which was extant on that date and which was filed on the date mentioned in the order. I shall return to the proper construction of the order made by Harrison J.
The statement of claim filed on 29 October 2019 is a short document of just over two pages excluding particulars of injuries. Paragraph 1 alleges that Mr Winston was a member of the Royal Australian Navy, paragraph 2 alleges that "whilst in the course of his employment" on 3 June 1969 he was upon HMAS Melbourne. Paragraph 3 refers to the collision with the Evans. Paragraphs 4 and 5 allege that the officers and crew of the Melbourne were officers and servants of the Commonwealth acting in the course of their services during the "Exercise Sea Spirit" joint exercise. Paragraph 6 alleges "The said collision was caused by the negligence of officers and crew of the said Melbourne" and 17 particulars of breach are given. Paragraph 7 alleges that Mr Winston was injured and has suffered loss and damage as a result of the collision, and particulars follow.
The particulars of breach directly bear on one of the issues in this appeal, which is whether the latest iteration of Mr Winston's pleading propounds the same or substantially the same cause of action as that for which there has already been an extension of time. The particulars of negligence alleged in paragraph 6 of the statement of claim are: (a) Failing to keep any or any proper lookout; (b) Failing to cause any or any sufficient watch to be kept on other ships in the vicinity including the Evans; (c) Failing to warn the crew of Evans sufficiently or at all of the possibility of a collision; (d) Failing to avoid a collision; (e) Failing to give warning siren blasts when it became apparent that a collision was possible in sufficient time for the collision to be avoided; (f) Upon perceiving that Evans was adopting a course and speed that could lead to a collision, transmitting or causing to be transmitted a warning signal to Evans in code, known as a CORPEN Signal, instead of an opening warning message in plain language, which delayed the realisation by the crew of Evans that their ship was at risk of collision, and caused Evans to take a course and speed leading across and close to the bows of Melbourne: (g) Failing to clearly and cogently warn Evans as early as possible in clear language that if it maintained its course and speed a collision with Melbourne was likely; (h) Failing to observe that if the course and speed of both Melbourne and Evans remained constant a collision was likely to occur; (i) Failing to adequately or at all monitor the direction and position of Evans relative to the direction and position of Melbourne; (j) Failing to observe and bring to the attention of Evans that it was, on several occasions in the hours prior to the collision, out of its designated sailing range and section relative to Melbourne; (k) Transmitting a signal to Evans to "Form Column" whilst the ships were still engaged in a zig zag manoeuvre; (l) Failing to ensure that a steady flow of ranges and bearings was taken of the Evans' movements to enable continuous timely and accurate formed observations of the relative positions of the ships during changes of position to "form column", and particularly once the danger of a collision was detected; (m) Failing to order the loudspeaker to be turned up so that the commanding officer of the Melbourne could hear directly messages being transmitted from Evans once the danger of a collision was detected: (n) Failing to install and/or implement if available the means for the commanding officer of the Melbourne to directly transmit messages to the Evans, so reducing delay; (o) Failing to slow the speed of the Melbourne in time to avoid the collision; (p) Failing to exercise the authority of a task force unit Commander responsible for the safe operations of all ships in the task unit by more positively directing the movements of the Evans once the danger of a collision course was detected; (q) Failing to modify the direction of the Melbourne in time to avoid the collision.

[9]

The motion to amend and MFI 10

The motion which came before Schmidt AJ was an amended notice of motion dated 10 November 2023 seeking the following substantive orders: The plaintiff have leave to file and serve an Amended Statement of Claim in the form set out in the draft amended statement of claim annexed at "SAT1" to the affidavit of Samuel Alexander Tierney filed on 6 October 2023. If required extend up to and including 29 February 2023 or such other date as the Court orders the limitation period for the cause of action upon which the plaintiff sues in the proceedings as set out in the draft amended statement of claim annexed at "SAT1" to the affidavit of Samuel Alexander Tierney filed on 6 October 2023.
The motion made reference to a proposed pleading attached to an affidavit filed on 6 October 2023. However, on 15 April 2024, when the motion was heard by the primary judge, Mr Winston's counsel supplied a further amended pleading which became MFI 10. This was a proposed pleading of 14 pages, although during the course of argument Mr Winston abandoned approximately one quarter of it (namely, the whole of paragraphs 33-47, three particulars of negligence and two particulars of duty of care) in circumstances to which it will be necessary to return.
It is necessary to summarise MFI 10 so as to be able to compare and contrast it with the original statement of claim, in order to address the submissions which were at the forefront of the appeal, namely, that the primary judge had erred in concluding that MFI 10 was within the existing grant of leave.
The injuries said to have been sustained from the collision, and the damage claimed, were identical to the original pleading (including typographical errors). The pleading incorporated in substance the entirety of the allegations in paragraphs 1-6 of the original statement of claim. But it added much more.
There were new introductory paragraphs concerning Melbourne and Evans being within the Australian and United States navies, and that Exercise Sea Spirit was divided into two phases, including the "Transit phase" conducted between 30 May and 6 June 1969. Paragraphs 9-15 introduced a case based on the Commonwealth being vicariously liable for the actions and inaction of Rear Admiral Gordon John Crabb, who was the task force commander of the Transit phase and who (it was common ground when the appeal was heard) was not a member of the crew of the Melbourne. These paragraphs were directed to the power of Admiral Crabb to control the locations of the ships in the convoy. It was alleged that he was a representative of the Commonwealth with power to issue orders and commands controlling the method of travel of the convoy ships during the Transit phase, and that he was invested with responsibility for controlling the overall operation of ships in the convoy. It was alleged that: As such, Admiral Crabb was the Officer in Tactical Command (OTC) and the Officer Conducting the Exercise (OEC) [sic, scil OCE] for purposes of the RAN Regulations issued by the Australian Commonwealth Naval Board, particularly Article 2704 thereof, and invested thereby with authority and the responsibility to issue orders for the exercise to ensure that safety precautions were observed and that the exercise was properly conducted. [As] OTC he was by the Regulations made responsible for the safe conduct of the fleet, squadron, ships or ship present with him and acting in concert under his orders. He could delegate these duties but would not thereby be absolved from the responsibility of exercising an overriding control of the ships under his orders should he observe a situation which so demands. The OTC was further enjoined by Article 2704 of the RAN Regulations to be "particularly attentive [in] observing that the ship which carries his flag ... and all the ships under his orders, preserve correctly their station in whatever formation the fleet may be. When any evolution is being performed he is to be attentive to the manner in which the ships under his orders carry it out, always correcting immediately every apparent want of activity and exertion and every mistake or appearance of neglect or mistake."

[10]

Limitation Act

The Limitation Act has for many years imposed a limitation period of three years for causes of action founded on negligence for damages for personal injury: s 18A. That section does not apply to causes of action that accrued before 1 September 1990 (s 18A(1)(b)), such as that alleged by Mr Winston, which is subject to the six year period for causes of action founded on tort imposed by s 14(1)(b). Even so, the proceedings commenced by Mr Winston in 2019 are many years out of time.

[11]

(a) Not merely barring the remedy, but extinguishing the cause of action

Limitation statutes in the traditional form do not extinguish a cause of action; instead, they merely bar the remedy and not the right, thereby creating a defence which must be pleaded, and until and unless that occurs, the statutory bar does not arise for consideration by the court: see Commonwealth v Verwayen (1990) 170 CLR 394 at 405; [1990] HCA 39, WorkCover Queensland v Amaca Pty Ltd (2010) 241 CLR 420; [2010] HCA 34 at [30] and Minister for Home Affairs v DMA18 as litigation guardian for DLZ18 (2020) 270 CLR 372; [2020] HCA 43 at [31]. However, the Limitation Act goes further. It does not merely provide a defence which may be pleaded. Speaking generally, upon the expiration of the limitation period the "right and title" of the person who formerly had the cause of action is extinguished: s 63.
However, the "extinction" of a cause of action does not prevent the application for an extension of time pursuant to Subdivision 2 or 3 of Division 3 of Part 3 of the Act. That is because of at least one and probably both of ss 60M and 61. Section 60M disapplies s 63 when an application is made for an extension of time after the expiry of a limitation period: 60M Prior expiry of limitation period or extinction of right (1) Applications and orders may be made under Subdivision 2 or 3 as if Division 1 of Part 4 had never been in force. (2) An order for the extension of a limitation period, and an application for such an order, may be made under Subdivision 2 or 3 even though the limitation period has already expired.
It may be noted that s 63 is within Division 1 of Part 4, and applications for extension of time are made under, relevantly, s 60G, which is within Subdivision 3 of Division 3 of Part 3.
Section 61 provides that where after the expiration of a limitation period, the limitation period is extended by an order under [inter alia, s 60G], "the prior expiration of the limitation period has no effect for the purposes of this Act".
Thus when in 2019 Mr Winston filed his statement of claim, he was decades out of time, and s 63 had extinguished right and title to the cause of action which it pleaded. However, s 60M permitted him to make application for an order under s 60G. If such an order has been obtained, s 61 will have the effect that the erstwhile extinction effected by s 63 has no effect, with the result that a limitation defence is no longer available to the Commonwealth.

[12]

(b) Extensions of time after the expiry of limitation period

The limitation period imposed by the Limitation Act may be extended in a variety of circumstances. The only provisions presently relevant are those with Subdivision 3 of Division 3 of Part 3, notably, ss 60G-60I, which provide as follows: 60G Ordinary action (including surviving action) (1) This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897. (2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines. 60H [Section 60H deals with claims under the Compensation to Relatives Act 1897 (NSW)]. 60I Matters to be considered by court (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). (2) Subsections (2), (3) and (4) of section 60E apply, with any necessary adaptations, in relation to applications for orders under this Subdivision.
Section 60G is expressed only to apply to a cause of action that accrues on or after 1 September 1990, but by dint of cl 4 of Schedule 5, s 60G also applies to a cause of action that accrued or would have accrued before 1 September 1990, in accordance with what was held in Dedousis v Water Board (1994) 181 CLR 171; [1994] HCA 57. It has been held that the effect of the grant of an extension of time is that "the earlier extinguishment of the right is annulled, and the right is to be treated as though it had never been extinguished at some earlier point in time": Commonwealth v Dixon (1988) 13 NSWLR 601 at 609, approved in Commonwealth v Mewett at 516 (Toohey J), 533 (McHugh J); cf at 509-510 (Dawson J).

[13]

The powers to amend a pleading

Sections 64 and 65 of the Civil Procedure Act 2005 (NSW) confer two powers of amendment: 64 Amendment of documents generally (cf SCR Part 20, rules 1 and 4; DCR Part 17, rules 1 and 4) (1) At any stage of proceedings, the court may order - (a) that any document in the proceedings be amended, or (b) that leave be granted to a party to amend any document in the proceedings. (2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. (3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made. (4) If there has been a mistake in the name of a party, this section applies to the person intended to be made a party as if he or she were a party. (5) This section does not apply to the amendment of a judgment, order or certificate. 65 Amendment of originating process after expiry of limitation period (cf SCR Part 20, rule 4; DCR Part 17, rule 4) (1) This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings. (2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64 (1) (b), amend the originating process so as - (a) to enable the plaintiff to maintain the proceedings in a capacity in which he or she has, since the proceedings were commenced, become entitled to bring and maintain the proceedings, or (b) to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the court's opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, or (c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court's opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process. (3) Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced. (4) This section does not limit the powers of the court under section 64. (5) This section has effect despite anything to the contrary in the Limitation Act 1969. (6) In this section, originating process, in relation to any proceedings, includes any pleading subsequently filed in the proceedings.

[14]

(d) Historical overview of powers to amend

Courts have always had the power to permit amendments. One of the mid-nineteenth century English procedural reforms was to confirm that the power was subject to a duty that "all such amendments shall be made as may be necessary for the purpose of determining the real questions or question in controversy between the parties". That was the form of rule 1 of Order XXVII annexed to the Judicature Act 1875, which had antecedents in s 222 of the Common Law Procedure Act 1852, s 96 of the Common Law Procedure Act 1854 and s 36 of the Common Law Procedure Act 1860. One contemporary commentator observed that "It is difficult to exaggerate the importance of this section, especially the last clause of it": J Day, The Common Law Procedure Acts (2nd ed 1863, Henry Sweet, London) at 163.
The Rules of the Supreme Court 1883 (Eng) introduced the formulation "all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings" (O XXVIII r 12) which today finds expression in s 64(2) of the Civil Procedure Act 2005 (NSW). (The power is now subject to the "overriding purpose" in s 56 and the principles stated in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 but that is outside the scope of this appeal.)
Ordinarily "an amendment, duly made, takes effect, not from the date the amendment is made, but from the date of the original document which it amends": Baldry v Jackson [1976] 2 NSWLR 415 at 419; Air Link Pty Ltd v Paterson (No 2) (2003) 58 NSWLR 388; [2003] NSWCA 251 at [47]-[50]. We have it on the dubious authority of Bathurst C that "the original and amended bill are but one record: the time of filing the original bill is not altered; and it is only amended, and written on": Vere v Glynn (1771) Dick 442; 21 ER 341. The 1875 rules required the amendment ordinarily to be effected "by written alterations in the pleading which has been delivered", and "by additions on paper to be interleaved therewith if necessary" (Order XXVII r 8); it may be seen that in those circumstances, there remained a single document, and it is readily explicable why the amended form was taken to have been filed when the unamended original had been filed.
The retrospective effect of an amendment gave rise to a problem if it were to operate to deny a limitation defence to a defendant. Hence Lord Esher MR's statement in Weldon v Neal that there was a "settled rule of practice" against permitting any such amendment. But in fact the position was by no means so settled as Lord Esher's emphatic, ex tempore judgment refusing an unrepresented plaintiff leave to amend in a very clear case. For Ms Weldon had sought to amend, out of time, by adding to her claim for slander fresh claims for assault and false imprisonment.

[15]

(e) The relationship between sections 64 and 65

It is convenient immediately to address the following submission made by the Commonwealth concerning the operation of ss 64 and 65: … it is foundational to our argument that s 64 does not in itself provide an independent pathway to overcoming a limitation problem in circumstances where the cause of action sought to be introduced would still have been out of time even if it had been raised in the original version of the pleading. So, in other words, we accept that the relation back doctrine, as it's described, through the operation of 64 allows you to treat by way of amendment of a document a cause of action as if it had been raised at the time the document was first created, but it doesn't allow you to, as it were, achieve more than you could have achieved if you had failed the document in that amended form on day 1. So fundamentally, of course, s 64 is a power of amendment. You can't be in any better position by the exercise of the power in s 64 than you would have been if you'd served the document in its primary form on that day.
Mr Winston relied on s 64 if s 65 were not available. He advanced the following submission in writing: Further or in the alternative, the respondent relies upon s 64 CPA which provides a broad power of amendment. As noted by his Honour Handley AJA, Campbell JA and Young CJ In Eq agreeing, in Greater Lithgow City Council v Wolfendon [2007] NSWCA 180 at [12]: Kearns DCJ held that the provisions of s 65(4) displaced any rule of construction which would have treated s 65 as a special provision in the nature of a code displacing the general provisions in s 64 so that the only power to allow a statute-barred cause of action to be added would be that conferred by s 65. As a matter of statutory construction that view seems to me to be clearly correct. Mr King SC …failed to persuade me that the subsection did not have the operation that it clearly appears to have. While Wolfendon was commenced within the primary limitation period without the need for an extension, there is no reason to import into the CPA some exclusionary factor which is not there. The Court is given a broad power to amend to allow the real question raised by the proceedings to be determined: CPA s 64(2). Nothing that the Court there said could or should be construed as limiting the application of ss 64 or 65 to a case which had been commenced within the primary, non-extended, limitation period.

[16]

The hearing and decision at first instance

It was on that basis that the principal issues debated by the parties were: 1. Does MFI 10 plead the same cause of action as the original statement of claim? 2. Does MFI 10 plead a "new" cause of action (as compared to that pleaded in the original statement of claim) being one which "arises from the same (or substantially the same) facts" as were originally pleaded?
Mr Winston submitted that MFI 10 pleaded the same cause of action, alternatively one which arose out of the same or substantially the same facts as in the original statement of claim. If he were wrong about both those points, he sought an extension of time under s 60G.
Conversely, the Commonwealth said that MFI 10 raised a new cause of action, that s 64 of the Civil Procedure Act was not available to raise a new cause of action which would be statute barred, that s 65 of the Civil Procedure Act likewise was not available because the new pleading did not arise out of substantially the same facts, and that the application under s 60G of the Limitation Act should be refused.

[17]

Reasons of the primary judge

The primary judge reserved, and published a judgment, promptly, on 26 April 2024, granting "leave to proceed on the pleading marked MFI 10": Winston v Commonwealth of Australia [2024] NSWSC 464. It is from that order that this appeal is brought.
The primary judge explained the procedural background summarised above, and the parties' submissions in support of and opposing the grant of leave at [1]-[45]. Her Honour stated that she was satisfied, considering what was finally pressed on behalf of Mr Winston (ie MFI 10), that "he does not require a further extension of time in order to advance what he finally sought to plead": at [50]. Her Honour explained why at [51]-[53]: 51 That follows from what was before Harrison J; how Mr Winston then pleaded his case; how he finally sought to plead his claim for damages for the injuries which he suffered as the result of the Melbourne collision, it being the result of the negligence which he claims the Commonwealth was vicariously liable for; and his abandonment of the additional claims of negligence he had proposed to advance in relation to the planning of the SEATO exercise. 52 True it is that before Harrison J the claims Mr Winston advanced were concerned with the negligence of the officers and crew of the Melbourne of whom Rear Admiral Crabb was not one and his proposed claim includes the claimed negligence of the Admiral, which also contributed to the materialisation of the risk of collision with which his claim is concerned. 53 But given all the evidence that his Honour had to consider and the conclusions which he arrived at about prejudice and a fair trial, I consider that extending the claims of negligence advanced to include those of Rear Admiral Crabb does not go beyond the extension granted. His involvement in the events which led to the collision appear to have been examined during the investigations on which Harrison J's conclusions turned and the additional claim sought to be advanced about his contribution to the materialisation of the risk of prejudice does not seem to me to raise additional prejudice, or the result that the trial cannot be a fair one, if the common law rights on which Mr Winston's claims depend are found to exist.
It is convenient to note that the Commonwealth maintained that the primary judge had erred at [53] when stating that Admiral Crabb's involvement had been examined in the investigation, and when stating that the new claims did not raise any additional prejudice.

[18]

Submissions on appeal

It is convenient to divide the parties' submissions, and their resolution, into two parts: those made in relation to the amendment under ss 64 or 65, and those made by way of fallback in relation to the extension of time which Mr Winston contingently sought.
The Commonwealth sought leave to appeal on two grounds. The first was that her Honour had erred in failing to find that MFI 10 pleaded a new cause of action outside the leave granted by Harrison J on 17 February 2021. The second, which was in the alternative, was that the primary judge erred in the exercise of her discretion in granting leave pursuant to s 64, from failing properly to take into account that no extension of time had been sought or granted, that no reasonable cause of action was disclosed, and the Commonwealth suffered prejudice incurable by costs. Counsel for the Commonwealth candidly acknowledged that this second ground required establishing House v The King (1936) 55 CLR 499; [1936] HCA 40 error and was more difficult than the first. Most of the parties' submissions were directed to the first ground.
The Commonwealth submitted that MFI 10 pleaded a new cause of action. It pointed to the large majority of paragraphs which were new. It emphasised the introduction of claims based on Admiral Crabb, who had not been mentioned in the earlier pleading and who had not been a member of the Melbourne's crew, and the instructions given at the commencement of the Transit Phase, the Larson Incident, the new procedures and the revocation of the order, all of which were wholly new. It distinguished the new allegations based on breaches of duty in terms of designing the configuration of the convoy, based on decisions made in the days prior to the collision, which were new, from the allegations which were repeated from the original pleading based on what was done and not done in the minutes before 3.15am. It said that there was overlap between the essential facts "only at the very highest level of generality".
The Commonwealth noted that MFI 10 contained explicit allegations of duty and vicarious liability, but acknowledged that the original statement of claim had to be understood as implicitly making allegations of that nature. It observed that at [52]-[53] the primary judge "conflated the question of power with the question of prejudice and, in doing so, misdirected herself".

[19]

Consideration

Definitions may be found in earlier decisions of "cause of action", not all of them consistent, but all of them invariably dependent on the issues in the particular litigation which the court was called upon to resolve. Brennan J noted the imprecision of the term in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 610-611; [1981] HCA 45 ("sometimes used to mean the facts which support a right to judgment .. sometimes to mean a right which has been infringed … and sometimes to mean the substance of an action as distinct from its form"), and his warnings have been repeated (some are collected in Clayton v Bant (2020) 272 CLR 1; [2020] HCA 44 at [67]). It is necessary to take care when considering the words "cause of action" in s 65(2)(c) (or for that matter in applying the "rule" in Weldon v Neal). This was the point made, in a context similar to that giving rise to the present appeal, by McCarthy J in Smith v Wilkins and Davies Construction Co Ltd [1958] NZLR 958 at 961: The term "cause of action" has been defined in a number of ways, the definitions best known being those of Lord Esher in Read v Brown (1888) 22 QBD 128, and that enunciated in Jackson v Spittall (1870) LR 5 CP 542. This second, "the act on the part of the defendant which gives the plaintiff the cause of complaint", was adopted in our Court of Appeal in Dillon v Macdonald (1902) 21 NZLR 375; 4 GLR 415. Neither of these definitions, however, can be treated as entirely all-embracing and neither was coined for the purposes of the particular Rules which I am now considering.
A safer guide, and one that is necessary in light of the history of the New South Wales provision, which represents a conscious liberalisation of the procedural rules, is to have regard to decisions made under the rules and its predecessors. As will be seen, the decisions under the modern form of the rule will prove to be of greater assistance, but even so the more convenient course is to commence with the earlier decisions, especially since the Commonwealth placed weight on the survey of decisions in Golski v Kirk (1987) 14 FCR 143; 72 ALR 443.

[20]

(a) Decisions considering whether amendments plead the same cause of action in regimes preceding the 1965 amendments

Although they have been determined under a regime which has been superseded, the Victorian and English decisions are helpful, insofar as they shed light on the approach to be taken to identifying when an amendment pleads the same cause of action, or a new cause of action. What follows is not comprehensive; instead I have focussed on those decisions which are most analogous to the current facts.
In Smith v Wilkins and Davies Construction Co Ltd, McCarthy J explained at 961 that the correct approach was as follows: The issue is, I think, put as clearly as anywhere in the words of Lord Wright, MR, in Marshall v London Passenger Transport Board [1936] 3 All ER 83, as being whether the new pleading involves "a new departure, a new head of claim, or a new cause of action" (ibid, 87). In other words, is it something essentially different from that which was pleaded earlier? Such a change in character may be brought about in my view, by alterations in matters of law or of fact, or both. Alterations of fact could possibly be so vital and important as by themselves to set up a new head of claim. On the other hand, more often alterations of fact do not affect the essence of the case brought against the defendant. Lord Wright said of a certain alteration "in my view, therefore, the proposed amendment would, if allowed, have set up a new cause of action, involving quite new considerations, quite new sets of facts, and quite new causes of damages and injury, and the only point of similarity would be that the plaintiff had suffered certain injuries" (ibid, 88). I do not read that passage as implying a prohibition against any alteration in the facts. In each case it must, I consider, be a question of degree.
The result was that new causally significant particulars of breach of an employer's duty to an employee to provide a safe system of work were permitted, but what was candidly described as a "further and alternative cause of action" based on a breach of statutory duty was refused.
In Patterson v Richards [1963] VR 179 at 188-189, Sholl J (with whom Gavan Duffy J agreed) reproduced and endorsed the passage from McCarthy J's judgment extracted above, in a case concerning the addition of further claims under Lord Campbell's Act, and added: It is not a matter of forbidding anything which involves setting up what in older days would have involved another "form of action" for in Graff Bros Case [1953] 2 QB 318; [1953] 2 All ER 631, that was no bar. It is not a matter of forbidding the setting up of anything which amounts to a new fact or facts for in Collins' Case, [1947] KB 598; [1947] 1 All ER 633, and Wilkins' Case [1958] NZLR 958, and a good many others, that was allowed. It is a matter, as it seems to me, of forbidding the setting up of such new "ultimate" or "pleading" facts whether with or without a new or different allegation of legal consequences, or a new or different legal characterization as to involve in real substance "a new departure, a new head of claim, a new cause of action".

[21]

(b) Decisions on the amended rules introduced in 1965 endorsed by this Court

I commence with those decisions which have been endorsed by this Court.
In Brickfield Properties Ltd v Newton [1971] 1 WLR 862, the plaintiff had sued its architect for negligence and breach of duty "in supervising the building of six blocks of flats", and sought to amend so as to add a claim of negligent design. The application to amend was governed by the 1965 amendments, and it was one of the flurry of English decisions when there was debate whether the new power to permit a statute-barred amendment which introduced a new cause of action arising out of the same or substantially the same facts was a code or whether there continued a general power to permit such amendments in exceptional circumstances. There had been two or three years of correspondence exchanged between solicitors before suit, of which Sachs LJ said that "it is perfectly plain that allegations were being made by the plaintiffs of defective design as well as faulty execution of work under the supervision of the defendant". The plaintiff's amendment was allowed on appeal, on the basis that it was a new cause of action, but one which fell within the scope of the 1965 amendments, because the allegations were so "inextricably tangled". Sachs LJ said at 873: Where there are found in completed buildings serious defects of the type here under review the facts relating to design, execution and superintendence are inextricably entangled until such time as the court succeeds in elucidating the position through evidence. The design has inevitably to be closely examined even if the only claim relates to superintendence, and all the more so if the designs are, as is alleged here, experimental or such as need amplification as the construction progresses. The architect is under a continuing duty to check that his design will work in practice and to correct any errors which may emerge.
Cross LJ agreed, adding at 880 that: It is no objection to amendment under Ord 20, r 5(5) that some of the facts out of which the new cause of action arises are peculiar to it and that some of the facts out of which the old cause of action arise are peculiar to it. It is enough if the overlap is so great that the new cause of action can fairly be said to arise out of substantially the same facts as the old cause of action.
The formulation by Cross LJ was cited and applied by Mahoney JA in McGee v Yeomans (a decision which otherwise turned on the capacity in which parties sued).

[22]

In Adam v Shiavon [1985] 1 Qd R 1 an amendment was permitted on the basis that it arose out of substantially the same facts where a cause of action for personal injuries arising out of a motor vehicle accident was added to a claim for property damage. Despite the plaintiff's injuries giving rise to a new issue, that did not prevent the cause of action from being regarded as arising out of substantially the same facts because there was a single accident, one duty of care and one breach of duty.
In Allonnor Pty Ltd v Doran [1998] QCA 372, an amendment was permitted by a delivery driver who had sued for an injury to his back and neck said to have been suffered on a certain date making a certain delivery of furniture, and who sought to amend to add a claim for an injury to his shoulder, allegedly caused by another delivery made to a different address but on the same day. McPherson JA "doubted whether what was sought to be added by way of amendment really amounts to a new cause of action" but considered that in any event any new cause of action arose out of substantially the same facts: On any view of what is pleaded, the plaintiff was, at the end of the day in question, left with physical injury to his body, which resulted from the same cause, which was lifting (whether on one or more than one occasion) in the course of the same employment with the same employer. It is not unreasonable to state it in this way, although admittedly it is to some extent a matter of the level of generality at which the proposition is expressed.
In contrast, in Thomas v State of Queensland [2001] QCA 336, the Court of Appeal disallowed an amendment of a case brought by an injured motorcyclist against the highway authority. His case was that a large amount of soil on the road surface caused his motorcycle to lose traction and collide with another vehicle. Originally he had pleaded that the defendant had been undertaking road works resulting in the soil on the road. He sought to amend to claim that the soil was there because it had been washed from a nearby embankment in a way which was attributable to poor construction of the highway in the first place. The Court held that this was a new cause of action, and one which did not arise out of substantially the same facts, saying at [20] "it was not correct for his Honour to read the words 'by failing to carry out sufficient excavation at the time the highway was constructed' as 'essentially' involving an allegation of negligent design and that the 'real' negligence lies in maintaining the road in that condition over the intervening years".

[23]

(d) Principles emerging from the review of authority

It is plain that in determining whether there is the same "cause of action" and whether the new cause of action arises on "the same (or substantially the same) facts", there is a question of qualitative evaluation, which will involve questions of degree.
From time to time this has been expressed by asking whether "in real substance" there is "a new departure" or a "new basis of claim" or a "new set of ideas" - for the most part this occurring in connection with applications of the rule in Weldon v Neal on unreformed versions of the power to amend. Sometimes it is expressed as the distinction between a new cause of action and a mere further particularisation. In Lanai Unit Holdings Pty Ltd v Mallesons Stephen Jaques [2018] 3 Qd R 28; [2017] QSC 251 at [26], mention was made of differently formulated discrimen, namely, whether the additional facts "arise out of substantially the same story". It was noted that: a statement that has gained wide acceptance is that "if the necessary additional facts to support the new cause of action arise out of substantially the same story as that which would have to be told to support the original cause of action, the fact that there is a changed focus with elicitation of additional details should not of itself prevent a finding that the new cause of action arises out of substantially the same facts".
It is preferable, in my respectful opinion, to resist the temptation to formulate and apply differently worded language. Metaphors may illuminate, but often they are unhelpful: Sydney Trains v Argo Syndicate AMA 1200 [2024] NSWCA 101 at [117]-[120] and see W Gummow and A Mohseni, "The Use and Misuse of Metaphors" (2024) 98 Australian Law Journal 738. The more striking the metaphor, the more likely it is to distract from the real issues: Lawson v Serco Ltd [2006] UKHL 3; [2006] 1 All ER 823 at [19]. It is better to apply the words of statute in terms, without resorting to particular categories of case, or a potentially distracting metaphor. This accords with the speech of Lord Wilberforce in In re Westbourne Galleries [1973] AC 360 at 374-5, concerning the power to order a company be wound up if of the opinion that it is just and equitable to do so: There has been a tendency to create categories of headings under which cases must be brought if the clause is to apply. This is wrong. Illustrations may be used, but general words should remain general and not be reduced to the sum of particular instances.

[24]

Application of principle

I turn to apply these principles to MFI 10.
First, I would accept the Commonwealth's submission that the reasoning of the primary judge at [52] and [53], reproduced above, elides the distinction between whether the rule against amending to introduce a statute-barred cause of action is engaged, and whether the limited power to do so should be exercised. Paragraphs [52] and [53] concern whether the additional claims based on Admiral Crabb gave rise to prejudice to the Commonwealth. But that analysis assumes in Mr Winston's favour whether s 65(2)(c) is available to support the amendment.
These issues need to be addressed directly, and, to be fair, her Honour did so at [75] and [82]. But I am unable to agree that MFI 10 does not "stray beyond [Mr Winston's] claims in relation to the collision".
On the original statement of claim, the reason the Evans was stationed where it was when it altered course to assume plane guard was irrelevant. Essentially all that was alleged is that different steps should have taken place in the minutes before 3.15am on 3 June 1969 to avoid a collision. It is quite plain that questions of causation, in response to the various steps, will loom large.
The claim pleaded in MFI 10 introduces a host of new issues, arising out of the events of the preceding days, notably, the Larson Incident, the orders made in consequence of that incident, and the rescission of those orders.
The new issues may fairly be described as not arising out of substantially the same facts. This appears in a number of ways: 1. The new allegations are temporally earlier. 2. They involve different people, notably Admiral Crabb. 3. They include how to balance the considerations of verisimilitude with wartime operations with orders stationing destroyers so that they could never turn into the bow of the Melbourne. 4. They are relatively extensive compared to the concision of the original statement of claim. 5. The factual matters in controversy extend to what happened in the Larson Incident, and what matters informed the decisions to reposition the destroyers, and then rescind that order. Those matters were apt to include the desire to simulate hostile conditions as closely as possible, and balancing the desire to take reasonable steps to avoid a recurrence of the Larson Incident with the desire to position the destroyers in a formation which was best able to detect and take action against "hostile" submarines. It is easy to see that these areas could be, and in all probability would be, highly controversial between the parties. They were not issues at all on the original statement of claim.

[25]

No extension of time should be given

In order to address this, it is necessary to return to the procedural history of the application.
Mr Winston's amended notice of motion sought, if required, a further extension of time for the cause of action sued in a further iteration of the pleading. The parties exchanged affidavits in advance of the hearing. Mr Winston gave evidence that, until the receipt of reports from Commander Whitehouse, he was unaware that the new proposed allegations in the pleading were arguably causes of the collision. The Commonwealth served evidence pointing to the prejudice it claimed if the amended pleading were permitted. In essence, its point was that the proposed amendment introduced a host of issues, which had not been addressed in detail or at all in the Board of Inquiry or the Court Martial, concerning which all of the participants had long since died.
A joint Board of Inquiry had been convened, comprising equal numbers of United States and Australian flag officers, but presided over by a United States admiral, with two counsel assisting, one of whom was Harold Glass QC but the senior of whom was a United States Navy officer. The Board took evidence in the immediate aftermath, in June and July 1969. Some of the evidence (including details of the zig-zag manoeuvre pattern) was confidential. Subsequently Captain Stevenson was charged with two counts of negligence, but a court martial resulted in a verdict of "honourably acquitted". The commander of the Evans, and the two lieutenants in command at the time, were all found guilty of dereliction of duty.
The Commonwealth's evidence outlined the nature of the material available from the joint Board of Inquiry and the courts martial, as well as other (voluminous) archival material, in light of which the Commonwealth identified as issues arising on MFI 10 the following: 1. The usual practice of the United States Navy in 1969 concerning the placement of plane guard destroyers; 2. Admiral Crabb's knowledge of any differences between Australian and United States navy practices concerning the placement of anti-submarine destroyers; 3. whether departures from those practices were reasonable having regard to the military objectives of the exercise; 4. whether any changes to the exercise procedures after the Larson Incident relating to the placement of the plane guard destroyer in an antisubmarine screen were reasonable having regard to the military objectives being pursued through the exercise; 5. the understanding of Admiral Crabb and Captain Stevenson of zig-zag manoeuvres including whether they failed to appreciate that Evans may not always remain in a starboard wing position in relation to the Melbourne while zig-zagging; 6. whether it was reasonable for portions of applicable zig-zag doctrine to not be included in the Operation Order 1/69 for the transit phase of Exercise Sea Spirit having regard to, for example, the classified nature of such doctrine; 7. the extent to which Crabb and other Commonwealth entities had control over the contents of the Operation Order 1/69 for the transit phase of Exercise Sea Spirit, and any other relevant orders, in circumstances where ultimate control lay with the Exercise Director who was an officer of the USN, whether the USN officers in command of Evans at the time of the collision (who were two junior lieutenants) had some subjective misunderstanding about applicable zig-zag doctrine and, if so, whether that misunderstanding arose from zig-zag doctrine not being included in Operation Order 1/69 for the transit phase of Exercise Sea Spirit; 8. the extent to which Admiral Crabb and other Commonwealth officers could direct the US Navy and other nations' military forces during Exercise Sea Spirit; and 9. the design of the Royal Australian Navy and United States Navy warships, including why certain communication systems were available and others were not.

[26]

Consideration

At no stage was there any challenge to the accuracy of what had been said months in advance of the hearing, as to the prejudice put forward on behalf of the Commonwealth if the reasons for orders following the Larson Incident, and the considerations which informed the positioning of the destroyer screen, became an issue in the case. What the Commonwealth put forward is inherently plausible. It need not be summarised in exhaustive detail.
All persons with any authority over the way in which the ships were positioned are dead. The contemporaneous investigations disclose a different approach to the investigation of the events in the minutes prior to the collision as opposed to the Larson Incident. This may most easily be seen from the way in which evidence bearing upon the Larson incident was treated by the (United States) Senior Member who interrupted when Admiral Crabb gave evidence about it: Questions by the Senior Member: Excuse me Admiral. To clarify this matter. The name of LARSON has not previously arisen in this board's proceedings. First, of all, When you say the matter of LARSON, do you refer to the occurrence which you mentioned in your earlier open testimony? A. In open testimony sir I referred to the occurrence. That occurrence was concerning the LARSON and the MELBOURNE. Q. Would you say now how the matter of the LARSON came to your attention? A. Yes, it was reported to me by my Duty Staff Officer. I did not see the occurrence at all. … Q. I think it would be helpful Admiral if you could explain to the board at this time the details that you know of this occurrence so that we can visualise what it is about it that distressed you? A. As long as it's understood that I did not see it. Q. Yes, perhaps you would care to inform us at this time of the details of the matter as they were reported to you, sir. A. I was informed that the USS LARSON being one of the screen destroyers for MELBOURNE had been instructed to take a station astern in formation ONE on the MELBOURNE, preparatory to becoming the rescue destroyer. It was routine for the captain of the MELBOURNE when ordering a rescue destroyer to first of all go into formation ONE. That is, the MELBOURNE placed the rescue destroyer astern of him 1000 yards. When he had that destroyer there and he was ready to fly, he then told the destroyer to take up the rescue station which was on the port quarter, 1500 yards. LARSON was detailed to do this. I was told that LARSON turned toward the carrier and came extremely close to him the extent MELBOURNE was embarrassed. The Captain of the MELBOURNE without referring to me communicated to the Captain of the LARSON, pointed out his mistakes and called for a report. The Captain of the MELBOURNE received this report and this was shown to me. With due respect at this time I do say because of the foreign flag officer having been embarrassed by a USN ship, I sent what I considered to be a mild rebuke. The last paragraph of my signal said, "Subject closed". In other words I did not want this to go any further. Once again with due respect it was difficult to do this because, well, I was a foreign flag officer and giving a rebuke. This is a little difficult. Is that sufficient? Q. Yes, thank you sir. With respect to information just given to the board by Admiral Crabb describing the occurrence involving the LARSON and MELBOURNE, I believe the information we now have is useful to us from the background standpoint and this need not be further elaborated for the purposes of this investigation.

[27]

Conclusion and orders

For those reasons, the appeal must be allowed, the orders made on 26 April 2024 (and consequential costs orders made on 7 June 2024) set aside, and in lieu thereof Mr Winston's amended notice of motion dated 10 November 2023 must be dismissed. There is no reason to depart from the rule that costs must follow the event; the primary judge was led into error by accepting the submissions made on behalf of Mr Winston.
If (as appears to have been the case in 2022) Mr Winston does not wish to proceed on the original statement of claim, then if he nonetheless wishes to go to trial, then he should file a pleading pursuant to the extension of time granted to him in 2021. Consistently with the overriding purpose in s 56 of the Civil Procedure Act, he must do so within a reasonable period of time. It cannot be in anyone's interest for this proceeding, commenced in 2019, to drift aimlessly into the indefinite future.
The Commonwealth submitted, but only perfunctorily, that Mr Winston had been given enough opportunities to replead. I do not consider that the position has reached that stage. However, the orders proposed below are intended to grant Mr Winston a final opportunity to plead his case. If that does not occur, he should anticipate that the Court might look favourably upon an application by the Commonwealth for the proceedings to be summarily dismissed.
In light of the time of year, the possibility that Mr Winston's lawyers have other commitments, and the importance of the pleading to be filed, the orders I propose will grant three months to Mr Winston to file any amended statement of claim.
I propose the following orders:
Grant leave to appeal.
Direct the Commonwealth to file within seven days a notice of appeal in accordance with the draft notice of appeal, and dispense with compliance with the rules as to service.
Appeal allowed.
Set aside the orders made on 26 April and 7 June 2024, and in lieu thereof order that the amended notice of motion dated 10 November 2023 be dismissed with costs.
Mr Winston to pay the Commonwealth's costs of the application for leave to appeal and the appeal.
Direct Mr Winston to file and serve any amended statement of claim on or before 28 February 2025.

[28]

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 November 2024

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