Lewis v Commonwealth of Australia

Lewis v Commonwealth of Australia - [2005] NSWSC 959 - NSWSC 2005 case summary — Zoe

[34]

16 In considering the fundamental question, whether there can be a fair trial, it is necessary to bear in mind that 'fair' does not mean 'ideal': McLean . An analysis and resolution of that fundamental question requires a consideration of all the circumstances of the case: South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477. It is not to be answered simply by balancing the relevant prejudice to the plaintiff and the defendant: Sydney City Council v Zegarac (1998) 43 NSWLR 195." 8 In McLean v Sydney Water Corporation [2001] NSWCA 122, Giles JA (Stein JA and Hodgson CJ in Eq agreeing) observed at paragraph 27 that fairness is a matter of degree and that the concept of a fair trial is a relative one: "I do not exclude as a consideration properly to be taken into account as part of, or together with, considerations such as these, in appropriate cases, that there has been a particularly long lapse of time since the events material to the claim. In such circumstances there will commonly be an element of general prejudice, even if not such as to make a trial unfair, meaning thereby the dimming of memories and other such consequences of the passage of time. Fairness is a matter of degree. As Priestley JA said in Holt v Wynter at 142, the concept of a fair trial is a relative one, and must in any particular case mean a fair trial between the parties in the circumstances of that particular case. As well, for the trial to be fair it need not be perfect or ideal. That degree of fairness is unattainable, and that a trial may be held for which not all relevant evidence is before the court does not mean that it is not a fair trial." 9 In the present case, the Commonwealth submitted that the Plaintiff was a witness who could not be relied upon to give a true and reliable account of events. Accordingly, the Commonwealth submitted that the principles in Commonwealth of Australia v Diston [2003] NSWCA 51 have application. In Diston, Sheller JA (Mason P and Grove J agreeing), said at paragraphs 44, 48 and 51: "As the Master appreciated but O'Meally AJ did not, in the absence of any records relating to why the opponent left his various employments and identifying who he was working with and because of the failure of the opponent to provide information to enable enquiries to be made, the claimant had no way of challenging or verifying the opponent's evidence. This actual prejudice was compounded by the Master's finding that this evidence was unreliable because the opponent was willing to tell untruths where he perceived he would gain an advantage by doing so. In such a situation the question of onus was fundamental; Uniting Church in Australia Property Trust v Lea [2002] NSWCA 55 paras 28, 36, 40-43 per Ipp AJA. … Thus it seems to me that a finding that there is a real possibility of significant prejudice to a defendant will lead to the application being refused though it does not follow that in the absence of that possibility the application will be necessarily granted; Holt v Wynter at 147 para 119; Parsons v Doukas at 163 and 190. … Again, as I have said, it was open to the Master to find that the opponent could not be relied upon to give a true account of events. His unreliability may indeed tell against him in the eyes of the jury that will hear his claim if the time is extended. But what is relevant is that his unreliability makes it more important than usual that the claimant have available material against which it can test what the claimant says about his heavy drinking and his injuries and treatment."

[42]

The Plaintiff's Account 13 The Plaintiff was born in Sydney on 29 March 1946. His father and grandfather had served with the Royal Australian Navy ("RAN"). The Plaintiff joined the RAN on 5 January 1962, at the age of 15 years, for an initial term of 12 years. He undertook initial training at HMAS Leeuwin. On 10 January 1963, he was transferred to HMAS Albatross at Jervis Bay. On 6 January 1964, he was transferred to HMAS Melbourne as a Navy Airman, Aircraft Handler. 14 On the night of 10 February 1964, the Plaintiff was working on the flight deck on the starboard quarter in an area where aircraft were parked. His function was to accept aircraft onto the carrier which were performing "touch and go" operations. The Plaintiff's task was to chock the wheels of the aircraft when they landed. He was relieved to go on a break to go to the canteen on 4 Deck. He had a locker space on 5 Deck below the canteen. He was at his locker, changing his boots, at about 9.00 pm on 10 February 1964 when the collision occurred. He gave the following description of what followed (Affidavit, 9 October 2001, paragraphs 9-12): "9. I was by myself [in the locker space on 5 Deck]. It was a narrow passage when the collision occurred but I did not know that at the time. As I was changing the boots, I felt the collision, the crunching the vibration and shaking under my feet and in front of me and in panic, I was making my way up to the canteen. At that stage the ship had gone to damage control and they were closing the watertight compartments. I got very scared. I thought I would be locked in. I made my way to the hatch in the canteen and there was chaos in the canteen. People were scrambling to get out. People were yelling different things. I went up to the forecastle and that was when I bumped into a mate, Fisher. He was very stressed. I then went up to the fight [sic] deck and I saw the result of what had happened. I saw steam shooting high up into the air and half a ship. The first half must have gone down within a few minutes. By the time I got up there, half of it had already gone. It was noisy and chaotic.

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I was then discharged on 25 October 1967, services no longer required, having been involved in a number of disciplinary infractions. Since the collision I had problems with trying to avoid my duties and breaching discipline due to my unruly behaviour and drunkenness. My total attitude had changed toward the Navy, causing me to become disrespectful. My records show that I was discharged from the Navy because I was a bad example and influence on younger sailors and was considered to have low moral worth." 20 A number of the matters referred to in these paragraphs of the Plaintiff's Affidavit were the subject of close cross-examination at the hearing of the application. 21 Between his discharge from the Navy in 1967 and December 1970, the Plaintiff worked as a taxi driver or as a driver with a number of employers. On 23 January 1969, a daughter, Linda, was born to his marriage. 22 On 11 December 1970, he was sentenced to imprisonment for three years for armed robbery. The Plaintiff's first marriage broke down. 23 Following his release from prison in December 1973, the Plaintiff moved to Adelaide and was employed as a factory hand by Bonair Airconditioning in Edwardstown. He met his second wife, Sylvia, and they married on 10 September 1976. A son, Robert, was born of the marriage on 26 December 1977. Between 1975 and 1979, the Plaintiff worked as a car salesman with different employers in South Australia. 24 In October 1979, the Plaintiff moved back to live in Sydney where he worked as a car salesman until returning to Adelaide in September 1980. He separated from his second wife, Sylvia, in March 1982. 25 In July 1982, the Plaintiff ceased work because of a back problem and underwent a laminectomy in late October 1983. He worked as a car salesman from time to time, between August 1982 and July 1986. 26 In December 1983, he met his third wife, Helen, whom he married in August 1985. Following employment as a casual barman and doorman, and then as a car detailer, between November 1986 and November 1988, the Plaintiff sustained a back injury at work on 15 November 1988 and was on worker's compensation, totally incapacitated, until 16 June 1992. He received a worker's compensation award on 17 June 1992 and commenced receiving weekly worker's compensation payments at that time. Worker's compensation payments ceased on 16 October 1995 and the Plaintiff thereafter received a disability support pension. 27 From 1995, the Plaintiff worked as a subcontractor and then as a part-time cleaner. As at September 2004, the Plaintiff was employed as a part-time cleaner and subsequently as a courier earning approximately $600.00 per week. 28 The Plaintiff states that an event occurred in December 1999 which has culminated in the present application (Affidavit, 9 October 2001, paragraphs 43-46: "43. At the end of 1999 I was watching a television programme about the previous century, a millennium story. They showed a picture of the HMAS Melbourne coming back to port with a hole in it. I burst into tears and my wife said to me that there was something wrong. She said that I got upset too often about things and that I should see my general practitioner to talk about it.

[59]

The night of the television programme was the start of my realising that a range of my problems are related to the collision. However, it was the talk with Mr Tuckfield in June 2000 that really brought things into focus. I started to appreciate that my physical and psychological symptoms, my heavy drinking and my smoking, problems that I had experienced for so long since shortly after the collision, are all connected with that night of 10th February 1964." 29 Annexed to the Plaintiff's Affidavit of 11 March 2005 is a report dated 31 October 2000 of Mr Brian Tuckfield, Clinical Psychologist, Department of Psychiatry, University of Adelaide which is located at the Queen Elizabeth Hospital, Woodville, South Australia. Mr Tuckfield's report contained the following conclusions (pages 5-7): "The symptoms reported by Mr Lewis are consistent with a diagnosis of chronic Post Traumatic Stress Disorder (PTSD), lifetime and current according to the Diagnostic and Statistical Manual of Psychiatric Disorder (DSM IV) criteria. The nature of the collision meets the criterion that requires Mr Lewis to have experienced or witnessed an event in which either his or another person's life or physical integrity is threatened. Secondly his response to the event was one of intense fear, helplessness or horror. The diagnosis also specifies 3 categories of symptoms: re-experiencing, avoidance and hyperarousal. Re-experiencing the memory of the collision occurs both in waking and dreaming state. He has attempted to avoid the intrusiveness through a range of cognitive and behavioural strategies and most particularly by excessive use of alcohol. Moreover he exhibits a range of hyperarousal symptoms, including an exaggerated startle response, sleep disturbance and physical symptoms consistent with panic attacks. He believes that he has experienced most of these symptoms while in the Navy within the first twelve months after the collision. In addition to the diagnosis of PTSD, the self-reported drinking behaviour meets criteria for diagnosis of substance abuse disorder onset 1964, in remission since 1989. Furthermore he currently exhibits features of depression. He views many aspects of his life as a failure, is self critical, feels punished and has lost most of his interest in others. … Mr Lewis believes that he began to experience disturbing memories of the collision within six months after the collision. His recollection is that his drinking escalated rapidly after the collision as did his use of cigarettes. Keane et al (1998) points out that the parallel development of substance abuse and PTSD is not uncommon with the substance abuse being a form of self-medication either to suppress disturbing recollections particularly nightmares or to numb distressing emotions as they arise. Mr Lewis describes life as series of crises and personal difficulties subsequent to the Melbourne-Voyager collision. He describes an increasing propensity to abuse cigarettes and alcohol but more particularly describes increasing abuse and violence towards his spouses. Additionally he describes his lack of control over gambling and his deterioration in judgement and decision to engage in further antisocial acts of fraud and armed robbery. While McFarlane (1998) asserts that 'there is sufficient evidence to argue that alcohol abuse is a predictable consequence of PTSD' (p823), to argue that his criminal behaviour was a predictable consequence of PTSD would be more difficult. Nonetheless Pitman (1996, p385) does point to three possible dynamic aspects of PTSD that might account for a person's diminished capacity to make moral judgements in relation to a criminal act. He explains the behaviour as arising from (1) sensation seeking or so-called 'addiction to the trauma, (2) need for punishment to appease a sense of guilt connected with the traumatic event and (3) substance abuse in an attempt to numb post traumatic psychic pain with resultant disinhibited actions. In the absence of evidence of antisocial behaviour prior to joining the navy, the self-destructive and nihilistic behaviour of Mr Lewis after the collision is explicable as one type of response to trauma."

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The Plaintiff's Approach to the Application 30 Mr Sharpe, Counsel for the Plaintiff, submitted that the Plaintiff has established, on the balance of probabilities, each of the gateway issues under s.60I(1)(a) and (b) Limitation Act 1969. He submitted that, on the evidence adduced in the application, it is just and reasonable to extend the relevant limitation period: s.60G(2). 31 Mr Sharpe submitted that, despite the attack launched upon the Plaintiff in cross-examination, the Court should reject the Commonwealth's submissions that the Plaintiff was an untruthful or unreliable witness. Emphasis was placed by Mr Sharpe upon the statutory issues arising for determination in the present application. He contended that the Commonwealth had, contrary to the principles in McLean, used the hearing as a type of dress rehearsal for a trial. Mr Sharpe acknowledged that the question whether the Plaintiff could succeed in his claim for damages at a trial was an open question. However, for the purposes of the present application, Mr Sharpe emphasised that the Plaintiff had demonstrated, in accordance with McLean, that there were serious questions to be tried. 32 With respect to the just and reasonable issue, Mr Sharpe emphasised that, despite the Commonwealth's arguments, a large number of documents remained in existence concerning the Plaintiff's service in the RAN, his medical treatment in the RAN and concerning other aspects of his life since his discharge from the RAN. Despite the fact that a number of medical practitioners who had examined the Plaintiff at various times in the RAN were now deceased, a medical practitioner (Dr Edmonds) who had undertaken such a task was alive and had provided a lengthy report to the Commonwealth concerning the Plaintiff. 33 Mr Sharpe contended that, in reality, any medical witness called in personal injury proceedings would have little recollection of a particular patient. The medical records concerning the examination and treatment of the patient would be the critical items and those records remain in existence in the present case. Mr Sharpe emphasised that, as the cases make clear, a fair trial does not mean an ideal or perfect trial.

[61]

The Commonwealth's Approach to the Application 34 Mr Barry QC, for the Commonwealth, submitted that the Court would not be satisfied, on the balance of probabilities, of the s.60I(1)(a) and (b) gateway issues because the Plaintiff was not a credible and reliable witness. 35 In making this submission, Mr Barry QC referred to areas of the Plaintiff's evidence to which reference will be made later in this judgment. 36 With respect to the just and reasonable issue, Mr Barry QC placed particular emphasis upon passages in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 544, 547, 551 and 555 concerning prejudice resulting from delay and the rationale for a limitation period with respect to personal injury claims. He pointed to the death of a number of persons, including medical practitioners, who had dealings with the Plaintiff and the fact that a number of RAN documents relating to the Plaintiff were destroyed or missing. He relied upon evidence that some potential Commonwealth witnesses could not be located or had no current recollection of relevant events. 37 It was the Commonwealth's submission that the Plaintiff had not discharged the onus of demonstrating that it would be just and reasonable to extend the limitation period. Reliance was placed upon the principles in Diston in submitting that the Plaintiff was an unreliable witness and that this compounds the prejudice which the Commonwealth would be subjected to at any trial. 38 Mr Barry QC for the Commonwealth identified several areas in which the Plaintiff was said to have not been truthful. It is appropriate to turn to these areas to assess the attack which has been made upon the Plaintiff's credibility by the Commonwealth. Although it is the Plaintiff who bears the onus of satisfying the statutory requirements of the Limitation Act 1969 and it is not for the Commonwealth to negative any entitlement to an extension, an examination of the Commonwealth's submissions which criticise the Plaintiff will assist a process culminating in a determination whether the Plaintiff has discharged the onus which he bears.

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A. No, I don't agree with that". 62 It is necessary to bear in mind that the Plaintiff, having joined the RAN at the age of 15 years, experienced the Melbourne-Voyager collision at 17 years of age. 63 The RAN Service Classification Records for the Plaintiff (Exhibit C) contain a number of entries which are presently relevant for the period before the Melbourne-Voyager collision. On 6 November 1961, a psychiatric or psychological comment to the following effect appears on the record: "A good type of lad, although not outstanding intellectually. Seems keen and industrious. I rate him 'C+' for JR [junior recruit] . Educational: Average. Study-Tolerance: Average. Peer Group Acceptability: Good. Emancipation: Adequate. Motivation: Acceptable. Authority - Adjustment: Good. Not a bad type of lad." 64 In the same record (Exhibit C), a report made on 12 January 1962 includes the following: "He tells a long story of a disturbed early life. Parents separated when he was very young. He remained with M [mother] who took to the drink. He spent some time in a children's home (Carlingford) and was later cared for by his uncle. Parents came together again and he returned to them but mother contracted TB and he was this time taken by his G/father [grandfather] . M [mother] dies 6/12 ago. He apparently felt this rather deeply. Has a lot of respect for G/father [grandfather] . Says father was in RAN, thinks he was a … . For this reason, x [the plaintiff] is particularly anxious to make a success of his service life. …". 65 On a date that appears to be in December 1962, the record contained the following notation: "Good kid. Sincere. A good trier (?). Reliable and trustworthy. Could be the typical three badge able rank". 66 Further entries in December 1962 in the report state: "JR Lewis has made a lot of effort to improve his educational standard during this term, and although his results are not up to the standard that I would like, I feel that this lad has done his best. Failure to reach the required standard for educational Test 1 is not through lack of trying on the part of JR Lewis. … Has made steady improvements throughout his time at LEEUWIN. Although he has not been outstanding he has always done his best. A clean, honest and reliable JR who should continue to make a satisfactory progress in his service career. Selected as an Aircraft Handler". 67 Reference has been made at paragraph 16 of this judgment to the Plaintiff's disciplinary record on the RAN in 1963 and 1964. Viewed objectively, the record cannot be regarded as serious for matters predating the Melbourne-Voyager collision. 68 There is no record of the Plaintiff complaining of or exhibiting signs of any psychiatric disorder before the collision. There is a reference in his service record (Exhibit C) to a possible sleep-walking episode in 1961, but this incident does not appear to have given rise to any concern, let alone treatment on the part of naval authorities. 69 There is nothing that points to excessive alcohol consumption or other behavioural difficulties on the part of the Plaintiff prior to the collision on 10 February 1964, although he appears to have had a disturbed early life with a family history of alcohol abuse. In reciting these features of the evidence, of course, I make no finding of any causal link between the Plaintiff's later behavioural problems and the collision. That issue is one for the trial court at the hearing of the Plaintiff's claim if an extension of the limitation period is granted. However, it is appropriate to record these matters given the challenge which is made to the Plaintiff's credibility and reliability on the present application. 70 The Commonwealth records disclose a number of medical attendances upon the Plaintiff, following the collision, in and after 1964. These include diagnoses of psychiatric conditions and abuse of alcohol. The RAN records do not suggest that these conditions were linked to the Melbourne-Voyager collision. The Plaintiff does not assert that he complained to any RAN medical practitioners that his problems were, in some way, linked to the collision. Indeed, it is the Plaintiff's case on the present application that he did not associate his problems with the collision. 71 The Plaintiff was discharged from the RAN "services no longer required" in October 1967 (Exhibit C). 72 The Plaintiff acknowledged that he had a chequered employment history following his discharge from the RAN. He acknowledged a gambling problem which contributed to his loss of employment on at least one occasion. 73 On 17 December 1970, the Plaintiff pleaded guilty in Sydney Quarter Sessions to two counts of armed robbery, one count of robbery and one of robbery in company. He was sentenced to penal servitude for a total of nine-and-a-half years with a non-parole period of three years. The Commonwealth has access to a detailed pre-sentence report dated 17 December 1970 concerning the Plaintiff which was prepared by Mr K Hindle, Probation Officer, (Annexure "F", Affidavit, Ms DA Robinson, 15 March 2005). Following his release from prison in 1973, the Plaintiff was fined on one occasion for indecent language in the 1980s and has incurred speeding offences, but has otherwise not been in conflict with the criminal law. 74 He conceded readily under cross-examination (T128) that, following his release from prison in 1973, his gambling caused difficulty with employment. He has worked in some 28 different positions between 1973 and 2000 (T128). 75 In summary:

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(d) Dr Mitchell who cannot be located - he examined the Plaintiff in 1966-1967 whilst serving as an RAN medical officer. 78 Dr Grainger, Dr Treloar, Dr Vauback and Dr Cilento are alive, but have no recollection of the Plaintiff - they examined the Plaintiff in the years following the collision whilst serving as RAN medical officers. Another medical practitioner from that period, Dr Gilmore, has not responded to a letter from the Commonwealth's solicitors. 79 Dr Carl Edmonds was present when Dr McGeorge examined the Plaintiff in 1967 and made his own observations and notes in RAN records concerning the Plaintiff. Dr Edmonds is still alive and has provided the Commonwealth with a report dated 3 November 2002 concerning the Plaintiff. In that report, Dr Edmonds has expressed an opinion about the Plaintiff based upon "my observations and memory of the claimant during my full-time employment in the Royal Australia Navy, 1967-75" and "perusal of the copious documents supplied to me, including his Navy Medical Records". According to Dr Edmonds' report, some 125 pages of written material was provided to him concerning the Plaintiff. Accordingly, and perhaps unusually, the Commonwealth has available to it a medical practitioner who examined the Plaintiff some 38 years ago and who has a current recollection of him and is available to provide opinions and evidence concerning the Plaintiff. The availability of the "copious documents" and the opinions and evidence of Dr Edmonds operates against the Commonwealth's submission that there cannot be a fair trial of the Plaintiff's claim. 80 The Commonwealth points to a range of documents relating to the Plaintiff which are missing or destroyed and a range of persons who may have been potential witnesses who cannot be located or have no recollection of events. See the Affidavits of Ms DA Robinson sworn 30 August 2002 (paragraphs 8-26, 50-53, 73-77), 9 March 2005 (paragraphs 7-17, 25-42) and 15 March 2005 (paragraphs 2-3, 5-8); Affidavit of Mr GG Kathner sworn 11 August 2003 (paragraphs 6, 9, 10, 17-44); Affidavit of Mr AJ Melrose sworn 24 June 2004 (paragraphs 3-9). Counsel for the Plaintiff did not seek to cross-examine these persons upon their affidavits. It is apparent, nevertheless, from the evidence before me that a very substantial body of documentation remains in existence surrounding the Plaintiff's period of service in the RAN. Further, the evidence concerning efforts made by the investigator for the Commonwealth to locate and interview contemporaries of the Plaintiff within the RAN between 1962 and 1967 is somewhat superficial. Although some persons have been located who are said to have no recollection of the Plaintiff, the evidence does not suggest that the investigation extended beyond an inquiry of these people as to whether they recalled the Plaintiff (letter of D Campanella, 28 July 2003; Exhibit "GGK-1", Tab 4, Affidavit GG Kathner, 11 August 2003). 81 The Commonwealth points to deficiencies in documentation relating to the Plaintiff's employment between 1967 and the present time. See the Affidavits of Ms DA Robinson sworn 30 August 2002 (paragraphs 27-49) and 9 March 2005 (paragraphs 23-24) and Mr GG Kathner sworn 11 August 2003 (paragraphs 11-16). 82 A range of documents does exist which touches upon aspects of the Plaintiff's employment history since his discharge from the RAN in 1967. A number of these documents, including medical reports prepared between 1989 and 1991, have their origin in compensation proceedings brought by the Plaintiff. The Commonwealth points to missing medical records relating to this period (Affidavit, Ms DA Robinson, 30 August 2002, paragraphs 54-72). The Affidavit of the Plaintiff's solicitor, Ms LAS Veldman, sworn on 8 March 2005 demonstrates that extensive particulars have been provided to the Commonwealth with respect to the Plaintiff's employment history.

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Conclusions Concerning s.60I and s.60G Issues 83 I turn to express my conclusions concerning the issues under s.60I(1) and s.60G(2) Limitation Act 1969. 84 With respect to s.60I(1)(a)(i), it seems to me that the Plaintiff had some awareness that he suffered "personal injury", at least with respect to some of the conditions referred to in paragraph 4(b) of this judgment. I am inclined to accept that the Plaintiff has satisfied s.60I(1)(a)(i) with respect to, at least, some of the conditions referred to in paragraph 4. Given the conclusion I have reached with respect to s.60I(1)(a)(iii), it is not necessary that I come to a settled view with respect to s.60I(1)(a)(i) of the Act. 85 With respect to 60I(1)(a)(ii), it is clear that a person may not know the medical description or diagnosis of his or her condition, but nonetheless be aware for the purposes of that provision of the nature and extent of injury: CRA Limited v Martignago (1995) 39 NSWLR 13 at 20. I am inclined to conclude that the Plaintiff was unaware of the nature and extent of at least some of the injuries that are the subject of this claim and which are particularised in paragraph 3 of this judgment. In light of the view to which I have come concerning s.60I(1)(a)(iii), it is not necessary to come to a concluded view concerning whether the Plaintiff has satisfied me of the matters contained in s.60I(1)(a)(ii) of the Act. 86 With respect to s.60I(a)(iii), the test is whether the Plaintiff knows the facts, not whether he is aware of the legal significance of those facts: State of New South Wales v Judd [2003] NSWCA 355. The question is one of actual subjective knowledge or awareness: Harris v Commercial Minerals Limited (1996) 186 CLR 1. 87 I accept the Plaintiff's evidence that it was not until the period of December 1999 to June 2000 that he became aware of the connection between his personal injury and the Commonwealth's act or omission. Accordingly, I am satisfied, on the balance of probabilities, that the Plaintiff has established the matters contained in s.60I(1)(a)(iii) of the Act. 88 I am satisfied, on the balance of probabilities, that the application for extension of the limitation period was made within three years after the Plaintiff became aware (or ought to have become aware) of all three matters contained in s.60I(1)(a) and that, accordingly, the requirements of s.60I(1)(b) have been satisfied. 89 I am satisfied, on the balance of probabilities, that it is just and reasonable to extend the limitation period in this case: s.60G(2) of the Act. I have referred earlier in this judgment to the Commonwealth's submissions and evidence concerning prejudice. There is evidence that documents have been destroyed or lost. However, there is a significant body of documentary material in evidence before me which relates to the Plaintiff's employment, disciplinary history and medical history in the RAN both before and after the collision. It is true that a number of medical practitioners and other persons who would have been potential Commonwealth witnesses are dead, cannot be located or have no current recollection of events. However, Dr Edmonds has been provided with, to use his words, "copious documents" of the RAN and has provided a report to the Commonwealth expressing his recollection and opinion concerning events surrounding the Plaintiff. It is true that documents concerning parts of the Plaintiff's employment history and medical history since leaving the RAN cannot be located. However, the Plaintiff's solicitors have provided detailed particulars to the Commonwealth with respect to the Plaintiff's employment and a substantial body of documentary material, including medical reports, concerning the Plaintiff's medical condition since 1967 is available to the Commonwealth. 90 It is undesirable that I should express any concluded view on the Plaintiff's credibility. However, I have formed the view that, in his evidence before me, he was attempting to answer questions directly and frankly, and to the best of his ability. I am not satisfied that the Plaintiff was an unreliable witness so as to attract the principles in Diston to this case. 91 I have had regard to the Commonwealth's evidence and submissions. The fundamental question, in considering whether it is just and reasonable to extend the limitation period, is whether there can be a fair trial: Holt v Wynter (2000) 49 NSWLR 128 at 142-143 (paragraphs 79-84). It is necessary to bear in mind that, in this context, fairness is a matter of degree and that the concept of a fair trial is a relative one. For the trial to be fair, it need not be perfect or ideal: McLean v Sydney Water Corporation at paragraph 27. 92 I am satisfied that the Plaintiff has demonstrated that there are serious questions to be tried: Commonwealth of Australia v McLean (1997) 41 NSWLR 389 at 395. 93 Accordingly, I propose to make an order, pursuant to s.60G(2) of the Act, that the limitation period for the cause of action in this proceeding be extended to the date on which the Statement of Claim was filed, namely 18 October 2001.

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Costs 94 Mr Barry QC submitted that, in the event that the Plaintiff was granted an extension of time, an order should be made that the Plaintiff pay the Commonwealth's costs of the application. Reliance was placed upon Part 52A r 17 Supreme Court Rules which provides as follows: "Where a party applies for an extension of time, unless the Court otherwise orders, he or she shall, after the conclusion of the proceedings, pay the costs of and occasioned by the application, or any order made on or in consequence of the application." 95 The Plaintiff submitted that, as occurred in Smith v The Commonwealth of Australia [2004] NSWSC 873, the Commonwealth ought be ordered to pay the Plaintiff's costs of the application. In this respect, Mr Sharpe relied upon an aspect of the conduct of the matter on behalf of the Commonwealth whereby an alteration was made to an original RAN record which was used in the hearing. 96 That issue arose in this way. The Plaintiff was being cross-examined concerning a medical attendance for abdominal pain which was said to have taken place on 18 January 1965 (T83-85). A photocopy of an RAN medical record, which appeared to bear that date, was tendered on behalf of the Commonwealth (Exhibit 4; T84.30). The Plaintiff was cross-examined on this document upon the basis that, if he had been suffering some adverse effects as a result of the collision, he would have spoken to the RAN doctor about it in January 1965, that is some 11 months after the collision (T85.7-15). Counsel for the Plaintiff sought access to Exhibit 4 and compared it with a document in his brief which had been provided to the Plaintiff's legal representatives by the Commonwealth. That document bore the date "18-1-64" and not "18-1-65". Mr Barry QC sought a short adjournment to clarify the position and, upon resumption, it became apparent that the true date of the consultation was 18 January 1964, a date preceding the Melbourne-Voyager collision (T86-89). On the following morning of the hearing, Mr Barry QC, having obtained instructions, provided the following explanation for the alteration (T147.48): "Could I then hand up the original on which someone, as yet unidentified, has changed the date or written over the date from the '4' to the '5' on the original and one would infer they did that at some stage after the photocopying. I'm afraid we can't assist your Honour as to who did it, but that is the explanation as to why."

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