Heffernan v The Commonwealth of Australia

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

21234 of 1995 MILTON EDWARD HEFFERNAN 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 29 November 1995. On 6 December 1995, the plaintiff filed a Notice of Motion. It sought an extension of the relevant limitation period pursuant to s 60G of the Limitation Act 1969 (the Act). A supporting affidavit was sworn on 23 September 2000. 3 The hearing of the Notice of Motion took place on 10 August 2001. The affidavit of the plaintiff was read. The exhibits to that affidavit (including a copy of a report from the late Dr Wu dated 1 February 1996) were tendered. The plaintiff was subjected to an inordinately lengthy cross-examination. The defendant relied on two affidavits. One was sworn by Mr Ktenas. The other was sworn by Mr Kathner. Both are solicitors in the employ of the Australian Government Solicitor. Both parties have tendered other documentation (Exhibits A - C, and 1). 4 The plaintiff was born on 10 October 1941. He joined the Royal Australian Navy as a recruit on 31 January 1959. He was discharged on 30 January 1968. He then held the rank of AB Cook. At the time of the collision, he was a member of the crew of HMAS Melbourne. He had friends on the HMAS Voyager. Paragraphs 7 and 8 of his affidavit provide a version of events which he says happened immediately following the collision. The balance of the affidavit contains a narrative of personal events in his life subsequent to the collision. 5 I shall briefly refer to some of the matters that appear in the personal history. This reference is not intended to be exhaustive. 6 For many years he drank heavily. He has continued having nightmares. He ceased activity in sports. He took up smoking and became a heavy smoker. He became erratic, irritable, argumentative, isolated and withdrawn. He felt inadequate and lacked confidence. He became anxious and depressed. He had trouble relating to other people (including his wife and children). 7 His marriage began to deteriorate and his wife left him in about 1968. He has been unable to hold down jobs. He has been mainly employed as a driver. He may have had about 40 different jobs since being discharged. He has reduced his alcohol consumption. 8 On or about September 1995, he responded to an advertisement placed in newspapers by his present solicitor (James Taylor). He retained Mr Taylor. Mr Taylor organised him to see a psychiatrist (the late Dr Wu). He was examined by Dr Wu in February 1996. He says that he then first became aware that he was suffering from a psychiatric disorder (PTSD) and that such disorder was caused by his experience of the collision. Following advice from Dr Wu, he came under the care of another psychiatrist (Dr McLean). The plaintiff has been seeing him on a regular basis since April 1998. 9 The plaintiff says that he has read his Statement of Claim. He further says that until he had read it, he had no knowledge of any negligent acts or omissions by the defendant. Further, he had not known that those negligent acts or omissions had caused his psychiatric damage. This evidence was the subject of both cross-examination and re-examination. 10 One of the exhibits to his affidavit, is a copy of a medical examination of him as a recruit dated 20 January 1959. Another is his psychological record during his naval service. 11 I now turn to the relevant statutory requirements. 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 provisions have been seen as imposing threshold requirements to the making of an order. 12 When these matters have been satisfied, the court may grant relief if it also finds that it is just and reasonable to do so. The plaintiff bears the onus of demonstrating an entitlement to relief. 13 Despite the lengthy cross-examination, it is not said that the plaintiff is a witness lacking in credibility or reliability. 14 I now turn to the bases upon which the defendant resists the application. Firstly, it is said that none of the threshold requirements appearing in s 60I (1) (a) have been met. Secondly, the defendant looks to actual prejudice and says that a fair trial is now unlikely. 15 In relation to the submission concerning the threshold requirements, it suffices to say that I am satisfied that the requirement in (a) (ii) has been met. I am satisfied that the plaintiff was unaware that he had a psychiatric condition prior to seeing Dr Wu (see inter alia Stankowski v Commonwealth of Australia [1999] NSWSC 1258). In these circumstances, it is not necessary to consider the submissions that have been made in respect of the other statutory requirements. 16 I now turn to the question of prejudice. The defendant asserts actual prejudice in respect of three areas. These are the loss of naval files and the unavailability of medical and employment records. 17 In relation to these matters, the defendant looks to the material found in the affidavits of Mr Ktenas and Mr Kathner together with evidence given by the plaintiff. 18 The evidence concerning the loss of files stands in an unsatisfactory state. There is evidence that files have been destroyed, however, the evidence is largely unhelpful as to the nature of the files and what they may have been expected to contain. There is reference in the material to "personnel records" and a file entitled "Entry, Personal Details, Discharges" only. The parties have tendered material obtained from the defendant since the files were allegedly destroyed (Exhibit B). The defendant tendered material which had been supplied to the solicitors for the plaintiff by the Department of Defence. These were said to be service records held by the Navy office as at 16 November 1995. This material may or may not form at least part of the material that was allegedly destroyed. 19 What may be deduced from this material is largely a matter of conjecture. If any records have been destroyed and are now lost to the defendant, I am not satisfied that it leads to a view that the defendant has suffered any significant prejudice. It may be added that the defendant does not assert the loss of potential witnesses in relation to this area and it may well be that there are former members of the Navy who can still give helpful evidence. 20 It may be that medical records prior to 1988 are unavailable. There are medical records available subsequent thereto (Exhibit C). 21 Evidence was adduced from the plaintiff during cross-examination that he did not seek treatment for psychological problems until some time after he had seen Dr Wu. This unchallenged evidence is indeed supported by the post-1988 medical records. This material would suggest that it would seem unlikely that pre-1988 medical records would assist the defendant. In the circumstances, I am not satisfied that any significant prejudice arises from unavailability of medical records. 22 The plaintiff has tendered evidence relating to employment earnings for the years ended 30 June 1969 to 1995 (Exhibit A). The evidence does reveal that potentially relevant witnesses and records concerning the plaintiff's earning capacity may now not be available. But, it also reveals that many relevant witnesses and records may still be available. 23 In the circumstances, I am not satisfied that significant prejudice arises from what now may be unavailable in this area. 24 Apart from actual prejudice, there is also what has been described as either presumptive or general prejudice which arises from delay. I take that into account. 25 There is now abundant authority to the effect that in deciding whether or not it is just and reasonable to make an order the court should look to the question of whether a fair trial can still be had. The authorities emphasise that fairness is a matter of degree and that the concept of a fair trial is a relative one. It does not mean a perfect trial (see inter McLean v Sydney Water Corporation [2001] NSWCA 122). In the circumstances of this case I am not satisfied that a fair trial is now unlikely. 26 In the circumstances of this case, I am satisfied that the plaintiff has discharged the onus of proof. 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. 27 I extend the limitation period for the cause of action pleaded in the Statement of Claim up to and including 29 November 1995. I reserve the question of costs. The exhibits may be returned. **********

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