Stankowski v The Commonwealth of Australia

COUNSEL : Mr M Joseph SC (Plaintiff) Mr P Jones (Defendant) SOLICITORS : James Taylor & Co. (Plaintiff) Australian Government Solicitor (Defendant) CATCHWORDS : Extension of limitation period; survivor of collision between HMAS Voyager and HMAS Melbourne; psychiatric disorder; no question of principle. ACTS CITED : Limitation Act 1969, s 60G, s 60I. Burns v The Commonwealth of Australia [1999] CASES CITED : NSWSC 223. Commonwealth of Australia v Dinnison (1995) 56 FCR 389 Darcy v The Commonwealth of Australia (25 July 1997). DECISION : See Paragraph 21.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

21240/1995 STEPHEN STANKOWSKI v THE COMMONWEALTH OF AUSTRALIA JUDGMENT 1 This proceeding is yet another of the many arising out of the collision between HMAS Melbourne and HMAS Voyager on 10 February 1964. The process was filed on 29 November 1995. A Notice of Motion was filed on 6 December 1995. It makes application for an order extending the relevant limitation period. 2 The Notice of Motion was heard on 15 December 1999. There is affidavit material from the plaintiff. There is exhibited material (from both the plaintiff and the defendant). There was lengthy cross-examination of the plaintiff. 3 The defendant did seek to rely on two affidavits sworn by Mr Ktenas (a solicitor for the defendant). These affidavits were said to have relevance to matters of prejudice. Both had been belatedly sworn after 22 October 1999 which was the date on which the court had allocated a special fixture for the hearing on 15 December 1999. The special fixture had been allocated after the legal representatives for the parties had signed the usual special fixture form. The form states in bold letters that the fixture is allocated on the assurance of the parties that all affidavits to be read have been filed and served. It also contains the notation that "Only affidavits on file when the matter is specially fixed may be read". The defendant had been a party to many similar hearings and was fully appraised of the practice of the court in relation to special fixtures. Certain of the material contained in the affidavits related inter alia to inquiries made and information received prior to the date of allocation of the special fixture. No satisfactory explanation was offered for the failure to prepare this material prior to the obtaining of the special fixture. 4 The plaintiff objected to the reading of the affidavits. The tender of the affidavits was rejected. 5 Apart from the flagrant disregard of the assurance given to the court and the practice adopted by the court in relation to special fixtures, the affidavits contained material which would have required investigation and consideration by the plaintiff and perhaps the adducing of further evidence to meet the material. 6 Following the rejection of the tender, the defendant then made application for adjournment. The purpose of the adjournment was to enable the defendant to rely on the rejected material at some future time (I might add that the defendant had some weeks earlier made a belated application for adjournment on the hearing day, without any prior notice, in another of the "Melbourne" matters). The special fixture document also contains the notation that "It can be assumed that no adjournment will be granted". Any question of adjournment should have been raised at a much earlier time so as to avoid prejudice and inconvenience to the plaintiff and the disruption of the court's business. The plaintiff had come from South Australia for the purposes of the hearing. The defendant had required him to attend for purposes of cross-examination. The application was refused. 7 I should add that these applications considerably lengthened the hearing time of the application itself (when ultimately the court was able to start hearing it). Also, they caused considerable disruption to the conduct of the other business which the court was required to deal with on that day. 8 The plaintiff was born on 20 April 1945. He became a member of the Royal Australian Navy on 8 January 1961. At the time of the collision, he was a member of the crew of HMAS Melbourne. 9 The affidavit material sets out the experiences had by the plaintiff in relation to the collision. There is material relating to his subsequent career in the Navy. There is material dealing with his employment history after leaving the Navy. He left the Navy on 7 January 1973. 10 He has experienced symptoms since the collision. He regarded the symptoms as normal and did not think that there was anything wrong with him. Following the collision, in addition to those symptoms, he developed a drinking problem. He had an awareness of connection between these matters and the collision. 11 In about 1995, his wife saw an article in a newspaper or magazine. She asked him to contact James Taylor (the plaintiff's present solicitor). Eventually he acceded to this request. He was referred to Dr Wu. Dr Wu informed him that he was suffering from a psychiatric disorder. Dr Wu prepared a report dated 1 February 1996. The plaintiff said that he did not know that he was suffering from a post traumatic stress disorder until he saw Dr Phillips (a psychiatrist engaged by the Commonwealth Government). It appears that Dr Phillips has prepared a report. It has not been tendered by the defendant. 12 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. The court must decide whether or not it is just and reasonable to make an order. 13 Generally speaking, it could be said that the application has been opposed on all fronts. It is said that the plaintiff has failed to satisfy any of the threshold requirements. Further, it is said that he has failed to satisfy the court that it would be just and reasonable to make an order. 14 I have had regard to all of the evidence before the court on the hearing of this application. In particular, I have had regard to such inconsistencies as may have emerged between oral evidence and other material. In my view, the defendant's submissions fail. 15 I am satisfied that the plaintiff has met the relevant threshold requirements. Similar considerations have been addressed in previous cases (including Darcy v The Commonwealth of Australia (25 July 1997) and Burns v The Commonwealth of Australia [1999] NSWSC 223). It suffices to specifically mention that I am satisfied that the requirement appearing in (a) (ii) of s 60I (1) has been met. I am satisfied that, despite his knowledge as to symptoms, he was unaware that he had a psychiatric condition prior to seeing Dr Wu (see inter alia Commonwealth of Australia v Dinnison (1995) 56 FCR 389). In these circumstances, it is not necessary to consider submissions made in respect of (i) and (iii) thereof. Further, I am satisfied that this application has been made within the 3 year period prescribed by (1) (b). 16 The defendant has placed emphasis on the discretionary considerations of delay and prejudice. Indisputably, there has been delay which has occasioned prejudice. In the relevant circumstances of this particular case, I do not regard the delay and prejudice as having sufficient weight as to lead the court to a rejection of the application. A rejection would deny the plaintiff the opportunity to prosecute his claim for damages. The court is not in a position to form any view as to the potential of that claim but it can be said that it may be a quantum of significance. 17 I should perhaps make further mention of one aspect of the prejudice argument. The plaintiff may propound a claim for loss of earning capacity. During a period of between about 1973 and 1979, the plaintiff had a number of jobs of relatively short duration. Certain of the jobs were terminated either by the plaintiff leaving the job or being retrenched. Although there is no evidence to this effect, it may be that the employers lack relevant records. It may be that any lack of records can be overcome by other material. Whatever be the position, it has relevance only to a modest component of any claim made for loss of earning capacity. Since 1979, the plaintiff has been in continuous employment with the same employer. 18 There is presumptive prejudice. However, despite the matters of prejudice, I am of the view that a fair trial of the relevant issues can still take place. 19 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. 20 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. 21 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. **********

Last Modified: 12/22/1999 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.