Follent v Commonwealth of Australia

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20281 of 1996 WILLIAM CLIVE FOLLENT v THE COMMONWEALTH OF AUSTRALIA JUDGMENT 1 This is yet another of the many proceedings brought before this Court which arise out of the collision between the HMAS Melbourne and the HMAS Voyager on 10 February 1964. 2 The Statement of Claim was filed on 20 March 1996. A Notice of Motion seeking an extension of time pursuant to s 60G of the Limitation Act 1969 (the Act) was filed on the same day. A supporting affidavit was filed on 11 October 1999. 3 In recent times, the proceedings have been before the court on a number of occasions. The defendant has been seeking certain particulars. On 4 April 2000, directions were given in respect of the filing of affidavits for use in the hearing of the Notice of Motion and in respect of a Notice of Motion by the defendant in relation to the particulars. This Notice of Motion came before Deputy Registrar Howe on 10 April 2000. He dismissed the Notice of Motion with costs. 4 On 19 April 2000, Deputy Registrar Haggett allocated a special fixture for the hearing of the plaintiff's Notice of Motion (on 6 July 2000). The special fixture was allocated on the signing on behalf of the parties of the standard special fixture form. The content of this form has been the subject of elaboration in many judgments of this Court (including Sendy v The Commonwealth of Australia (1999) NSWSC 1259). The special fixture documentation identifies the affidavit sworn by the plaintiff as being the only affidavit intended to be relied on at the hearing of the plaintiff's Notice of Motion. 5 The defendant sought a review of the decision of Deputy Registrar Howe. The review took place on 1 June 2000. It was conducted by Master Harrison. The Master upheld the decision of Deputy Registrar Howe. 6 The defendant has not yet brought an appeal against that decision. However, it has sought and has been granted an extension of time for the bringing of an appeal. 7 On 3 July 2000, the defendant applied to Acting Registrar Studdert for a vacation of the hearing date of the plaintiff's Notice of Motion. The application was refused. On 4 July 2000, this application was re-agitated before Justice Bell. Again, the application was refused. 8 I now return to the hearing that took place on 6 July 2000 of the plaintiff's Notice of Motion. The affidavit of the plaintiff was read. The exhibits to that affidavit were tendered (including a copy of a report from Dr McNamara dated 8 September 1995 and a copy of a report from Dr Wu dated 29 February 1996). The plaintiff was subjected to an extremely lengthy cross-examination. The defendant did not read any affidavit material. It did not tender any documentation. 9 Relief is sought pursuant to s 60G of the Limitation Act 1969. Section 60I prohibits the making of an order under s 60G unless the court is satisfied of the matters set forth in paragraphs (a) and (b) of subsection (1) thereof. These are threshold requirements to the making of an order. When the threshold requirements have been satisfied, there is a discretionary power to grant relief if the court is satisfied that it is just and reasonable to do so. 10 Generally speaking, all matters have been placed in issue. In particular it is said that the threshold requirements have not been satisfied. Further, it is said that there are discretionary considerations which should bring about a failure of the application. 11 It is not necessary to recite the detail that appears in the affidavit, the oral evidence and the documentation. It suffices to merely refer to some of that material. This reference is not intended to be exhaustive as a statement of relevant matters. 12 The plaintiff was born on 5 October 1943. He enlisted in the Royal Australian Navy as a recruit on 28 July 1963. He was discharged on 18 April 1967 having a rank equivalent to an ordinary seaman. 13 At the time of the collision the plaintiff was a member of the crew of HMAS Melbourne. There was evidence as to the experiences had by the plaintiff in relation to the collision. There was evidence relating to subsequent naval service. There was evidence dealing with both his personal and employment history after leaving the Navy. 14 Following the collision, he was aware of a change in his behaviour and he regarded that change as abnormal. He began to experience nightmares. He began to drink heavily. He became anxious and confused. He could not get memories and experiences out of his mind. He became irritable and frustrated. He lost confidence in the Navy and was fearful of returning to the HMAS Melbourne. These matters did not cause him concern about his mental state. 15 In 1991, he obtained a pension. This was said to be because of his deteriorating health. There was some contention as to the actual evidence given in relation to the obtaining of the certificate. The effect of the evidence seemed to be that it was given on the basis that he was suffering from stress. 16 He saw his general practitioner (Dr Hudda) in 1995. He was undergoing treatment for diabetes. The matter of the collision came to be raised during consultation. He was referred to a psychiatrist Dr McNamara. During the examination by Dr McNamara he was told that he was suffering from a psychiatric illness called post traumatic stress disorder and depressive disorder. The report from Dr McNamara expresses the opinion that the plaintiff was suffering from major depressive disorder and had symptoms of post traumatic stress disorder. Further, it expressed the view that the plaintiff would require treatment. 17 In about November 1995, he consulted his present solicitor (Mr Taylor). Mr Taylor arranged for him to be examined by a psychiatrist (Dr Wu). Dr Wu confirmed the diagnosis of post traumatic stress disorder. Also, he made a diagnosis of substance abuse. Because of the severity of the disorder, the prognosis of Dr Wu was poor. 18 The evidence from the plaintiff is that prior to the receiving of psychiatric advice, he was unaware that he was suffering from a psychiatric illness and of the nature and extent of that condition. He has said that prior to the reading of the Statement of Claim he had no knowledge of any negligent acts or omissions by the defendant and had not known that those negligent acts or omissions had caused his psychiatric condition. 19 I accept his evidence on these matters. I should add that despite the length of the cross-examination, it has not been submitted that the plaintiff was lacking in credibility. Indeed, there was no direct challenge in cross-examination to the evidence given as to his unawareness of suffering from a psychiatric illness. The distinction needs to be drawn between an awareness that something had gone wrong and awareness of negligent acts or omissions on the part of the defendant. 20 It was sought to attack the psychiatric diagnosis. This was attempted on the basis that the actual evidence contradicted the history upon which the relevant opinions were based. Whilst there may well be some inconsistency between recorded history and evidence given, I do not consider that the expert opinion has been effectively challenged. 21 I am satisfied that the plaintiff has met the relevant threshold requirements. Similar considerations have been addressed in other cases dealt with by this Court (see inter alia Stankowski v The Commonwelath of Australia (1999) NSWSC 1258). It is unnecessary to repeat once again what has been said many times in the earlier cases. 22 The discretionary consideration agitated by the defendant was one of prejudice. At the outset, presumptive prejudice was identified and it was said that there was an expectation that evidence adduced during the hearing would reveal actual prejudice. At that stage, it appeared that the actual prejudice had in mind by the defendant related to the plaintiff's employment history and the unavailability of material in respect thereof. Cross-examination in fact created a contrary impression. It revealed a picture where there was in fact an availability of relevant material. In final submissions, the case of actual prejudice concentrated on an assertion of the unavailability of Commander O'Brien. 23 The plaintiff has identified Commander O'Brien as a superior during a period following the collision. The plaintiff has said that he was persecuted by this officer. The report from Dr McNamara records as part of the history that this persecution led to the plaintiff going AWOL from the Navy. The evidence from the plaintiff (elicited during cross-examination) was to the effect that the cause of his going AWOL was the death of his grandmother. 24 The court is asked to infer that Commander O'Brien is now unavailable to assist the defendant in its investigations and to give evidence if so required. Further, it is said that this is a salient matter. 25 The plaintiff says that the role of Commander O'Brien is not pivotal. In my view, there is force in this submission. There is real doubt as to whether his availability is a matter of significance. 26 Putting the matter of significance to one side, there remains the question of whether or not he is in fact unavailable. If there was some problem, it could be expected that there would be evidence from the defendant to that effect. The defendant has chosen not to put any evidence whatsoever before the court. In the circumstances, I do not draw any inference as to his unavailability. In my view, if an inference can be drawn it is that he is available. 27 Some brief mention was made of prejudice arising from the plaintiff's inability to recall matters. Whilst such memory problems have the potential to throw up some prejudice, they also may create problems for the plaintiff in the prosecution of his claim. 28 A long time has elapsed since the collision. But this is merely one of the many cases in the long running Voyager/Melbourne saga. Whilst there will inevitably be presumptive prejudice, I am not of the view that any actual prejudice is of significance. In the circumstances, I am of the view that a fair trial of the relevant issues can still take place. 29 The plaintiff bears the onus of satisfying the court that he has an entitlement to relief. In the relevant circumstances of this case, I am satisfied that the onus has been discharged. 30 Accordingly, I have reached the decision that it is just and reasonable to make the order sought and that such an order should be made in this case. 31 I extend the limitation period for the cause of action pleaded in the Statement of Claim up to and including 20 March 1996. I reserve the question of costs. The exhibits may be returned. **********

Last Modified: 09/26/2000 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.