6 In dealing with the other aspect of the appeal, Santow JA set out in detail the results of at least thirty other matters heard in this Court in which former members of the crew of HMAS Melbourne applied for an extension of a limitation period. In each case the application was opposed by the Commonwealth and in only three cases did the Court decline to extend the limitation period, each of these cases having somewhat unusual facts. It is not necessary for me to set out the paragraphs ([148] to [154]) in this judgment. The point is, as I see it, that part of the ratio decidendi of the decision of Santow JA (with which, as I have said, Handley JA agreed) is that the Commonwealth's repeated failure in resisting applications to extend limitation periods over a period of six years was a relevant consideration in determining whether it was reasonable to find that the Commonwealth acted unreasonably in opposing an extension in this particular case and thus should pay the applicant's costs. Basten JA (who dissented on the outcome of the appeal) was of the view that, even if he had not dissented as to the merits, the unsuccessful opposition by the Commonwealth to other applications for extensions of time was immaterial [222]. His Honour also discussed whether an applicant for an extension of the limitation period was seeking an "indulgence" -
"[220] It is fair to say that the Applicant does not in the present proceedings seek an indulgence in the sense of being relieved of some penalty imposed by the law, for relief from which it should pay the costs of the defendant in any case. These proceedings may be contrasted with those which used to be brought by credit providers under s 85 of the Credit Act 1984, to be relieved of civil penalties for contravention of the mandatory requirements of that Act. In such cases, costs orders were routinely made against successful applicants, in favour of borrowers who opposed reinstatement in full of credit charges payable by them: see, eg, Australian Guarantee Corporation Ltd v Stander (1987) ASC 55-546 at p57,155. However, the effect of a successful application for an extension of time is analogous in the sense that the prospective defendant loses an immunity from suit which it would otherwise enjoy as a result of the expiration of the limitation period and the prospective plaintiff obtains a concomitant benefit. The difference lies in the fact that, the applicant having been unaware of the circumstances which gave rise to the cause of action, cannot properly be said to be 'at fault' in failing to proceed earlier."
7 The Commonwealth sought special leave to appeal to the High Court of Australia. The Court (Callinan and Heydon JJ) refused leave: Commonwealth of Australia v Neil Patrick Smith [2006] HCA Trans 242, Callinan JA saying on behalf of the Court -
"On the substantial issues raised by the applicant, we are of the view that any appeal would enjoy insufficient prospects of success to warrant a grant of special leave. In refusing the application we would wish to make it clear, however, that we doubt very much whether we would have exercised our discretion in the way in which the intermediate Court of Appeal did in relation to costs. Our provisional view, at least, is that each case depends upon its own facts and that a party, if it has an arguable basis for defending an application or a claim, is entitled to do so without the penalty of costs."
8 Whilst remarks falling from members of the bench of the High Court of Australia in determining special leave applications deserve great respect, I do not think that, as a first instance judge, I am entitled to prefer them to ratio decidendi in judgments of the Court of Appeal by which I am directly bound. It seems to me, therefore, that I am obliged to consider the application in this case upon the basis that it is relevant to have regard to the body of litigation against the Commonwealth involving members of the HMAS Melbourne crew caught up in the collision with HMAS Voyager claiming to have suffered psychological injury as a consequence.
9 In this case, it is evident that the Commonwealth has not been at fault. At the same time, I think that the plaintiff has also acted reasonably and could not fairly be described as an "applicant who allowed himself … to get out of time".
10 In Brittain v Commonwealth of Australia [No 2] [2006] NSWSC 528, Bell J ordered the Commonwealth to pay the plaintiff's costs of a limitation argument, having found that the Commonwealth had not acted unreasonably in opposing the extension but noting that the plaintiff did not allow himself to get out of time as he was unaware of the nature or extent of his injury prior to July 1995 and commenced proceedings two months later. In Wendt v The Commonwealth (2006) NSWSC 549, Kirby J ordered the Commonwealth to pay the plaintiff's costs of the application noting that there was no fault on the part of the plaintiff: he was simply unaware of the connection between his symptoms and the collision. His Honour also considered that the Commonwealth's opposition to the plaintiff's application for an extension was unreasonable in the situation where the plaintiff had spent his entire working life with the Navy, his medical records were available and his employment records would also be available. The Commonwealth also acknowledged that there was no actual prejudice. It also worth noting the following observation, in light of his Honour's considerable experience in real-world litigation -
"[68] One should not overlook that there are significant advantages to the defendant in a contested application to extend time. First, it offers an opportunity to cross-examine the plaintiff, to secure material useful in the ultimate action, if leave is given. Secondly, potential plaintiffs are, by definition, old men who are psychologically fragile. The prospect of having to fight the Commonwealth at every step would, no doubt, deter some. Thirdly, because the potential plaintiffs are old and sick, expedition is not necessarily in the interests of the defendant."
11 I do not, of course, attribute ulterior motives to the Commonwealth in its opposition to the plaintiff's application. Nevertheless, much of the cross-examination of the plaintiff seemed to have been directed to the substantive issues in a potential trial rather than the issues raised by his application. The decision as to the reasonableness of opposition to the plaintiff's application is not made in a vacuum, nor is it an exercise in theoretical or academic forensics: it is made in the context of the practical realities of conducting real-world litigation.
12 In a number of other cases, however, costs have been reserved: Lewis v The Commonwealth [2005] NSWSC 959; Shaw v The Commonwealth [2005] NSWSC 1027; Gregory v The Commonwealth [2006] NSWSC 82. In Cavanagh v The Commonwealth [2006] NSWSC 382 Studdert J ordered the costs to be costs in the cause whilst in Smith v The Commonwealth [2006] NSWSC 795 Hoeben J ordered each party to pay its own costs.
13 As I mentioned in my judgment on the application (at [76]), it was submitted to me by Mr Barry QC on behalf of the Commonwealth that the "real point in this case…is the difficulties associated with the Vietnam experience…that led to psychiatric treatment initially in Saigon and then the reference when [the applicant] came back to Australia…" Mr Barry submitted "the real issue is, can there be a proper trial of these issues now…in the absence of Dr McGeorge specifically". In light of the substantial documentary medical evidence available to the Commonwealth the only commonsense answer to that question was, "Yes", for all that contrary arguments could be articulated.
14 Accordingly, I consider that the opposition to the plaintiff's application was unreasonable and that the plaintiff should have his costs as agreed or assessed of the application.
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