Just and reasonable
26 Firstly, I turn to consider whether the plaintiff has a real case to advance. In relation to s 60G, the applicant bears an evidentiary and persuasive onus which, in the absence of concession, requires material to be adduced which demonstrates that the dilatory plaintiff has a real case to advance. The need for the court to decide that it is just and reasonable to extend the limitation period must focus attention on the question whether there is indeed evidence to establish the plaintiff's cause of action. It would rarely be possible to say that it was just and reasonable to subject the defendant to litigation otherwise statute barred if it did not appear that there was evidence available to the plaintiff to establish her cause of action. (See Szerdahelyi v Bailey (NSWSC, unreported Badgery-Parker J, 1 May 1997); Ortado v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997); Lewis v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997); Council of the City of Sydney v Zegarac (unreported, NSWCA, 26 February 1998) and Dow Corning Australia Pty Ltd v Paton, Meares v Paton (NSWCA, unreported 24 April 1998) and Fitzgerald v Bankstown City Council (NSWCA, unreported 6 November 1995)).
27 The plaintiff was employed by the defendant. The defendant as an employer had a duty of care to the plaintiff. The foreseeability of the plaintiff's damage will be in issue at the trial. It is the plaintiff's contention that as a result of his experience of being on board the Melbourne when it was hit by the Voyager he suffered PTSD, excessive alcohol and tobacco consumption, emphysema and irritable bowel syndrome. There is medical evidence to support that the plaintiff suffers from these disorders which can be attributed to the collision - see McLean. There is evidence that had he not been involved in the collision he would have continued with his career in the Navy for at least 30 years. The plaintiff has had 9 business failures but has also worked on and off during the last 20 years as a vacuum cleaner salesman and for a few of those years he achieved high sales. There is medical evidence that the plaintiff is currently unfit for work due to his psychiatric injury. In a medical report there is a reference that the plaintiff's father was an alcoholic so the cause of the plaintiff's excessive alcohol consumption will be an issue at the trial. There is evidence to establish that the plaintiff has a real cause of action to advance.
28 I turn now to Taylor's case. In Taylor McHugh J at pages 8 and 9 referred to the effects of delay in the now often quoted passage which states:
"The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Secondly, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Thirdly, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period."
29 and at page 11:
"Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff's lost right should not be revived than that the defendant should have a spent liability reimposed upon it."
30 Dawson J, in Taylor said at page 2:
"The onus of satisfying the court that the discretion should be exercised in favour of an applicant lies on the applicant. To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant. I agree with McHugh J that, once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation."
31 McHugh J at p 10 continued:
"The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension."
32 In Zegarac the Court of Appeal considered the effect of Taylor in relation to the extension of the limitation period of a case which falls into subdivision 2 of the Limitation Act 1969 - ss 60C and 60E.
33 Mason P analysed the views of the Judges of the High Court in Taylor's case. The President quoted the passage by McHugh J which begins "Legislatures enact" and was of the view that Dawson J agreed with McHugh J. Mason P concluded that it could therefore be seen that Dawson J and McHugh J appeared to indicate that it is mandatory that the applicant negate "significant prejudice" before the discretion could be exercised in his or her favour. Mason P then referred to the following statement by Toohey and Gummow JJ (in their joint judgment) at page 7:
"The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent."
34 Mason P perceived that there may be a distinction between the notion of "significant prejudice" and the notion that delay makes "the chances of a fair trial unlikely". In determining whether it is just and reasonable to extend the limitation period in this application I will examine whether the delay has made "the chances of a fair trial unlikely" or whether the defendants would suffer "significant prejudice".
35 I accept that with the passing of 35 years, there is the real possibility that some witnesses may not be available to give evidence at the trial. It can also be expected that memories will have faded with the effluxion of time. Indisputably there is presumptive prejudice.
36 Generally speaking, the lengthy delay may well confront the defendant with a difficult task in investigating a claim for damages. There are Navy records from the plaintiff's initial engagement in 1950 to April 1968 showing that at the time the plaintiff joined the Navy and throughout his period of service in the Navy he was in good physical and psychological health. The events surrounding the collision between the Melbourne and Voyager are well known and there is documentary evidence available - see McLean; Lynch v The Commonwealth of Australia and Parici v The Commonwealth of Australia (Master Harrison, NSWSC unreported 16 October 1998 and 14 April 1999 respectively). There are also decisions in relation to extension of time of the limitation period for Voyager/Melbourne claims by Master Malpass. In the case before me, there are more recent medical records of Drs Kemp, Adams, Higham, Philpott and Professor Burvill. The plaintiff's first wife is available to give evidence concerning the plaintiff's consumption of tobacco before and after the collision. The plaintiff's brother is also available to give evidence.
37 After I have taken into account all of these matters, I am not satisfied that the "chances of the defendant obtaining a fair trial is unlikely" nor am I satisfied that the defendant will suffer "significant prejudice". The plaintiff has discharged his onus and satisfied me that it is just and reasonable that an order be made that the limitation period be extended. The appropriate order for costs is that costs be costs in the cause.
38 The orders I make are: