Diston v The Commonwealth of Australia

Australian Government Solicitor (Respondant) CATCHWORDS : Appeal from Master - Limitation Act Ss60G and 60I - discretion to extend time - finding by Master plaintiff lacked veracity - finding based on inconsistencies between document and evidence - finding not justified - finding by Master absence of employment records affect defendant's capacity to investigate economic loss - argued by defendant absence of records affect its capacity to investigate claims for general damages - not considered before Master - no prejudice to defendant - fair trial awarded to defendant - time extended - appeal upheld LEGISLATION CITED : Limitation Act 1969 Ss60G and 60I Devries and Anor v Australian National Railways Commission and Anor [1992-1993] 177 CLR 472. Rex v White (1992) 17 CrAppR CASES CITED : Howlan v Marson Transport Pty Ltd [2001] NSWCA 346 House v The King (1936) 55 CLR 449 Parson v Doukas (2001) 52 NSWLR 162 DECISION : (1)Appeal upheald (2) Time within which appellant may bring proceedings extended to 14 August 1997 (3) Respondent to pay appellant's costs.

• 4 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

v THE COMMONWEALTH OF AUSTRALIA

JUDGMENT 1 HIS HONOUR: This is an appeal against the decision of Master Harrison refusing to extend the time within which Walter Clive Diston might bring proceedings against the Commonwealth of Australia. 2 By a statement of claim filed on 14 August 1997, the appellant, whom I shall call the plaintiff, alleged that, whilst serving in the Royal Australian Navy on board HMAS Melbourne, he suffered injury, being a post-traumatic stress disorder, as a result of a collision which occurred between HMAS Melbourne and HMAS Voyager on 10 February 1964.

3 It is now a fact of notorious repute that on the evening of 10 February 1964, Melbourne and Voyager were engaged in naval exercises some 18 or 20 miles off the New South Wales coast when Voyager passed in front of Melbourne, and was cut in two. Eighty-two of Voyager's compliment lost their lives. Many of those on Melbourne and survivors from Voyager were engaged in rescuing and attending to the needs of the injured and others in the sea.

4 The plaintiff's application to extend the time within which proceedings might be brought was filed with his statement of claim on 14 August 1997.

5 On 9 November 2000, an affidavit in support of his application was filed. In his affidavit, the plaintiff recited his service with the Navy and said that, on 10 February 1964, he was, at the time of the collision, off duty and walking around 2 deck on the starboard side "getting a breath of fresh air". He swore that he "felt a shudder and then a violent jolt and was almost thrown off" his feet. He proceeded to say that he feared for his life and the lives of his fellow servicemen, particularly those who had been or were on Voyager.

6 He heard the pipe "hands to collisions stations" and proceeded in panic quickly to his mustering point. He said that he began to help in getting survivors from Voyager on to Melbourne. They looked terrified, nervous and shocked and were covered in oil. He proceeded to describe other aspects of what he observed before the Melbourne returned to Sydney.

7 He alleges that after these events he began to drink very heavily, became depressed, felt shame and guilt and was nervous and anxious. He recited in his affidavit that the reason for his beginning to drink heavily was to assist him to sleep. He had nightmares, which he still experiences. He said he had a fear of confined spaces and crowds.

8 He continued in the Navy, experiencing symptoms of the type I have referred to, and became "more distrustful of the Navy". He lost confidence in the Navy and his ability to continue to serve in it.

9 When the time arrived for re-engagement, he determined not to re-engage and he was discharged from the Navy in April 1971. Thereafter he had a succession of employments and he continued to experience the symptoms of post-traumatic stress disorder, in particular heavy drinking. In his affidavit he said that, because of the symptoms he was experiencing, he was unable to maintain himself constantly and satisfactorily in employment.

10 Exhibited to the plaintiff's affidavit in support of his application to extend time was a report of Dr Holwill, a psychiatrist. To him the plaintiff gave a history of two incidents which caused the plaintiff great distress during his navy service: The first was an explosion on HMAS Tarakan in 1950 and the second was the collision between Melbourne and Voyager.

11 Soon after the collision between Melbourne and Voyager, the great bulk of those who were on Melbourne on the evening of 10 February 1964 were handed a questionnaire and asked to complete it. The questionnaire consisted of three pages and was headed "Royal Commission into loss of HMAS Voyager and Rescue Operations Form of Questionnaire". The questionnaire sought an answer to these, amongst other, questions: Did you see Voyager after 20.30 hours after the collision? If so, at what time did you see Voyager Was Voyager darkened? What lights were showing?

12 None of these questions was answered by the plaintiff, and a line was scored through those parts where answers could be written. 13 A further question was, "Where were you at the time of the collision?" To this, the plaintiff replied, "In delta starboard petty officers' mess". To the question, "What were you doing at the time of the collision?", he answered, "In bed". He was also asked, "What part did you play in the rescue operations?" and answered, "Made tea and coffee for survivors".

14 It will be appreciated immediately that the answers given in the questionnaire are in marked contrast with what he said in his affidavit and inconsistent with it. The account of the collision and his activity afterwards was generally confirmed in his evidence before the Master, but because of the inconsistency between his answers to the questionnaire and his evidence, the Master concluded his evidence was unreliable. She observed that this made it more difficult for the respondent, whom I shall call the defendant, to investigate the plaintiff's claim. 15 The version given in the affidavit was the subject of cross-examination of the plaintiff on the application before the Master. It should be observed that it was not put to the plaintiff before the Master that the account given in his affidavit was false. 16 It is significant also to note that the 1950 event occurred when the plaintiff was 18 years old and serving on HMAS Tarakan. An explosion occurred within the confines of the ship. Seven members of the crew and one waterside worker were killed; others were injured. The plaintiff suffered burns and with a number of survivors was admitted to hospital. 17 He failed to give an account of this episode in his affidavit in support of the application to extend time and, when cross-examined about this failure, said this was because of advice of his solicitor. 18 It is significant also to record that in 1997, the plaintiff sought a veteran's pension and a consultation was arranged by or on behalf of the Department of Veterans Affairs with a psychiatrist, Dr Seabridge. His report is before me. It contains a history of the explosion on Tarakan and of the death and injury occasioned as a result. The doctor obtained a history of other postings of the plaintiff until his discharge from the Navy. Relevantly, his report contains this observation: Mr Diston denies any anxiety-provoking or traumatic experience during his naval career, apart from the one documented above. That documented above was the event occurring on Tarakan in 1950. The plaintiff made no mention of the Melbourne/Voyager collision to Dr Seabridge. 19 Further evidence has been admitted on this appeal. Firstly, is the affidavit of Paul Curran, the Pension Officer of Ringwood RSL in Victoria. Mr Curran swore that it was he who assisted the plaintiff in making his application for a Veterans Affairs pension. Paragraph 2 of Mr Curran's affidavit contains the following: I advised him and stated to him that as he was applying for a pension related to operational service, he should confine himself solely to informing the examining doctors of the circumstances of that service that caused injury to that.

Further he said: I specifically told and strongly advised Mr Walter Diston that when he saw any psychiatrist or doctors from Veterans Affairs, he was not to mention any disabilities that he thought had been caused to him by the HMAS Melbourne/HMAS Voyager collision. I told him that any such injuries were not pensionable as that collision occurred in peace time. Mr Walter Diston stated that he would follow my advice and I believe he did. 20 Secondly, the defendant tendered what was agreed to be a transcript of part of the proceedings of a Naval Court of Inquiry conducted into the explosion on HMAS Tarakan. The transcript contains but four questions addressed to the plaintiff and his answers. Relevantly he was asked one question, namely, "What happened to you when the blast occurred?" And he responded: I just got knocked over. I was sitting at the table at the time. The mess deck filled up with smoke. The doorway was blocked up and I tried to get out of the porthole on the starboard side while I was waiting for them to calm down. 21 The purpose of placing that material before me was to counter the plaintiff's evidence during cross-examination. He had said in cross examination that he gave the responses he did in the questionnaire concerning the Melbourne/Voyager collision because he had been made to feel like one of the scapegoats at an inquiry about the Tarakan. The plaintiff's evidence before the Court of Inquiry is said to throw doubt upon his assertion that he was made to feel like a scapegoat. 22 Immediately it should be observed that the defendant concedes it is not known whether the plaintiff was recalled to give evidence before the Court of Inquiry nor whether and, if so, with what results he was interviewed before or after the Court of Inquiry. Learned and gallant Senior Counsel for the defendant, who is experienced in these matters, conceded that such interviews are commonly associated with Courts of Inquiry conducted in the Defence Force of the Commonwealth. The transcript of the plaintiff's appearance before the Court of Inquiry does not destroy his evidence that he was made to feel like a scapegoat, nor does it suggest that his explanation for the failure to mention the Tarakan incident should be rejected. Whatever one might think of the quality of the advice given by Mr Curran, the plaintiff's explanation for his failure to mention the Melbourne/Voyager collision to Dr Seabridge was corroborated by Mr Curran. It should also be borne in mind that the consultation with Dr Seabridge on behalf of the Department of Veteran Affairs took place on 12 December 2000, after he had seen Dr Holwill on 1 October 1997 and to whom he did give a history of the Tarakan explosion and the collision on 10 February 1964. A copy of Dr Holwill's report was exhibited to the plaintiff's affidavit sworn 26 October 2000 and it is fair to assume it was in the hands of the defendant before the consultation with Dr Seabridge in December 2000. 23 Because of the inconsistency between the questionnaire and his evidence, and because of his failure to mention the Voyager collision to Dr Seabridge, the Master found that the plaintiff's evidence was unreliable and seemingly lacked veracity. In her reasons, she observed: In terms of testing the veracity of the plaintiff's evidence, he has given two differing accounts of the role he played on the night of the collision. The plaintiff has shown that his evidence is unreliable and this makes it more difficult for the defendant to investigate his claims, particularly in relation to the most important issue of 'did he actually witness the collision or was he in bed? 24 The approach I am to take in considering the findings of the Master has been the subject of much authority. That approach is set out in the decision of the High Court of Australia in Devries and Anor v Australian National Railways Commission and Anor [1992-1993] 177 CLR 472. At 478. Brennan, Gaudron and McHugh JJ said: No doubt the inconsistencies between the plaintiff's out-of-court statements and his evidence at the trial were matters which might make a tribunal of fact hesitate to accept his evidence. But the trial Judge had the great advantage of seeing the plaintiff in the witness box over several days. This gave the trial Judge an incomparable advantage over an appellate court in determining what reliability could be placed on the sworn evidence having regard to the out-of-court statements of the plaintiff.

More than once in recent years, this Court has pointed out that a finding of fact by a trial Judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial Judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial Judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which has 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'.

In Rex v White (1992) 17 CrAppR 60 at 64, Hewitt LJ said:

Quite honestly, it is one thing to say that in view of the earlier statement, the witness is not to be trusted: It is another thing to say that his present testimony is to be disbelieved and his earlier statement, which he now repudiates, is to be substituted for it. 25 The Master doubted the veracity of the plaintiff and characterised his evidence as unreliable by reason of his answers in the questionnaire, by reason of his failure to inform Dr Seabridge of events occurring at the time of the collision between Melbourne and Voyager and by reason of his failure to include in his affidavit in support of the application to extend time any reference to the explosion occurring on Tarakan. I am conscious that the Master had the advantage of observing the plaintiff in the witness box. I have no such advantage, but I do not believe that because of an earlier inconsistent statement the plaintiff is not to be trusted, particularly when it was not put to him that his evidence before the Master was false. With all respect to the Master, I am unable to agree that her conclusions concerning the veracity of the plaintiff make it more difficult for the defendant to investigate his claims nor that those conclusions were justified by the three matters upon which she based them. 26 It is true there is a difference between the plaintiff's answers in the questionnaire on the one hand, and his affidavit and oral evidence on the other, but that does not mean he is not to be trusted, nor that his evidence is to be disbelieved. He has offered an explanation for his answers in the questionnaire and, impliedly at least, repudiated them. He has explained his failure to mention the Tarakan incident in his affidavit and the Voyager collision to Dr Seabridge. It is unlikely, as has been conceded, that he drafted the affidavit, but it is likely that it was drafted by his solicitor who, for whatever reason, took the decision to exclude mention of the Tarakan. The inconsistency and omissions are matters to be pursued at a trial, if a trial is to occur. It seems to me that, in this respect, the Master did act upon evidence which was "inconsistent with facts established by the evidence". 27 Another factor influencing the Master in declining to exercise her discretion in favour of the plaintiff was the absence of material which would enable the defendant to investigate the plaintiff's claim for economic loss. Before the Master, it was the plaintiff's case that he would seek damages for loss of income since leaving the Navy. His claim for economic loss is now abandoned and he will make no claim for economic loss. 28 In providing particulars, his solicitor had identified the plaintiff's post-Navy employers and the places of their operations. His solicitor declined to furnish particulars identifying his supervisors and from which the identity of fellow workers could have been established. The defendant engaged an investigator to make inquiries of a series of nominated employers. A draft of the investigator's report was annexed to an affidavit filed on behalf of the defendant in opposition to the application. The investigator's place of business is in Chatswood, a suburb of Sydney. It seems their investigations were carried out from Chatswood by electronic means, that is by telephone and by computer inquiry. It is not evident that any face-to-face contact was made with nominated employers though, where successful, as it was in five instances, contact seems to have been made by telephone. What was sought by the investigators, was information concerning the fact of the plaintiff's employment and his employment records. In respect of only two of the eleven nominated post-navy employers it is apparent the information was sought concerning supervisors or fellow employees. No attempt was made to identify the officers of those companies, said to have employed the plaintiff, which are now de-registered. Inquiries made by the investigators were scant and ineffective as they were bound to be by reason of their nature. 29 At no stage were subpoenas served upon nominated employers and at no stage during his cross-examination before the Master was the plaintiff asked to identify supervisors or fellow employees by name. It was the absence of this information which caused the Master to conclude that: The missing records mean that there are significant gaps for the defendant seeking to investigate the reasons why the plaintiff left employment.

30 Before the Master, the defendant argued that the absence of the plaintiff's records affected its ability to investigate the plaintiff's claim for economic loss. Senior counsel for the plaintiff, who appeared also before the Master, has informed me the absence of the plaintiff's wage records was relevant then only insofar as they related to his claim for economic loss. The employment records were not referred to in connection with the claim for general damages. 31 Before me Senior Counsel for the plaintiff emphasised that the plaintiff would not seek damages for economic loss. The plaintiff will seek general damages, and presumably some items of special damages, for the aggravation of a pre-existing post-traumatic stress disorder. He will allege his post-traumatic stress disorder was caused by the Tarakan incident and aggravated by the Voyager collision, but his claim before this Court relates only to the consequences of the Voyager collision. 32 Senior Counsel for the defendant has argued that the defendant is prejudiced by being deprived of the opportunity to verify or investigate the plaintiff's allegation that he left employment because of post-traumatic stress disorder symptoms. 33 This was not an issue before the Master. It was raised, as I have been informed, for the first time on this appeal. While it seems to me there is some substance in the suggestion that how the plaintiff managed his work in various employments, how he coped, and how he presented are of significance in determining whether, and if so how, his post-traumatic stress disorder was affecting him, it is not open to me to consider a matter which was not raised before the Master and which could easily have been raised either in argument or by cross-examination of the plaintiff. Because the point was not raised before the Master, no opportunity was given to the plaintiff to call evidence on the matter or otherwise deal with it. (See Howlan v Marson Transport Pty Ltd [2001] NSWCA 346 at #19). 34 I should earlier have recited, as now I do, that the sole ground of appeal is based upon section 60G of the Limitation Act, it having been accepted that the plaintiff had satisfied the criteria of section 60I(1)(a). No challenge has been made to the Master's finding in that respect. 35 The only matter for my consideration is whether the Master was correct in declining to exercise her discretion and extend time. The approach I am to take is referred to in House v The King (1936) 55 CLR 449 at 505. The discretion is one to grant an extension, not to refuse: Parson v Doukas (2001) 52 NSWLR 162. 36 The defendant has argued that it would not be just and reasonable to order that the limitation period be extended because it would be deprived of a fair trial. The plaintiff will be required to prove his assertion that he was on deck when the collision occurred. The plaintiff must prove the existence and aggravation of the symptoms of post-traumatic stress disorder. The plaintiff must prove an inability to work to which post-traumatic stress disorder made a material and relevant contribution. The defendant may challenge the plaintiff's assertion he was on deck at the time of the collision, and each may call evidence on this issue. The plaintiff must prove aggravation of post-traumatic stress disorder and the defendant may challenge his assertion. Such difficulties of proof as may exist affect the plaintiff's case rather then the defendant's. 37 I am of the view that an extension of time would not result in significant prejudice to the defendant and I am satisfied that it may have a fair trial. The plaintiff has discharged the onus of showing that the justice of the case requires that the discretion be exercised in his favour. 38 In my view, the Master should have concluded that it was just and reasonable to order that the limitation period be extended. 39 Accordingly, the appeal is upheld. I order the time within which the appellant may bring proceedings against the respondent be extended to 14 August 1997. 40 The respondent is to pay the appellant's costs as agreed or assessed.

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