Just and reasonable
16 The plaintiff relies on s 60G and s 60I (1)(a)(i)(iii) of the Act. The approach to be adopted in dealing with applications for extension of limitation periods is that which has been expounded in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1; BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported, 7 March 1997); Sydney City Council v Zegarac (1998) 43 NSWLR 195; Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143; McLean v Sydney Water Corporation [2001] NSWCA 122; and Milperra Marketing Pty Ltd & Ors v Bayliss [2001] NSWCA 315. The onus rests with the applicant. In addition to satisfying the relevant threshold requirements, it must be shown that in the circumstances it is just and reasonable to make an order. The major issue in this case is that of prejudice.
17 The defendant did not make a submission that the plaintiff had no real case to advance but rather that it is actually prejudiced and will not obtain a fair trial, particularly in relation to the plaintiff's claim for economic loss.
18 The principles concerning prejudice have been considered in Holt v Wynter in which the Court of Appeal (per Sheller JA with whom Meagher, Handley JJA and Brownie AJA agreed) at 147 para 119 stated that the effect of the High Court decision in Taylor is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. Fairness is a matter of degree. The concept of a fair trial is a relative one; to be fair it need not be ideal - see McLean v Sydney Water Corporation.
19 I accept that with the passing of 40 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 and some witnesses may no longer be alive or able to be located. Indisputably there is presumptive prejudice.
20 The events surrounding the collision between the Melbourne and Voyager are well known and there is documentary evidence available - see Commonwealth of Australia v McLean (1996) 41 NSWLR 389.
21 After the collision, the plaintiff remained in the Navy until 1983, almost 20 years after the collision. There are extensive Navy records for the plaintiff still in existence. They cover such varied topics as what crockery and cutlery he and his wife owned when they moved house. There are detailed records of his medical treatment in existence.
22 The plaintiff claims that but for the collision he would have continued to progress through the Naval ranks with promotion ultimately to senior commander. The plaintiff alleges that he would have retired at about age 55 years in this senior position and would have been entitled to appropriate DFRB entitlements and other service benefits. At trial, it will be necessary to examine what steps the career path entailed and how many positions on each promotional level were available.
23 After the plaintiff left the Navy in 1983 he was employed by Telecom, Adelaide as a technician from June 1983 to September 1983; Thorn EMI Electronic, Salisbury as a technical officer from late 1983 until 1989; from late 1989 to June 1990 he worked for Interior Joinery & Furniture, Kilburn as a planner; from 1990 to June 1995 the plaintiff worked for Havler De Havilland, Salisbury as a quality manager and from 1995 to 2003 the plaintiff was employed as a marketing director with Advance Systems Pty Ltd, Hindmarsh. Jenkins Engineering currently employs the plaintiff.
24 The plaintiff does not have wage records from those employers but copies of his tax returns for these periods are in existence. The defendant has subpoenaed wage records and personnel files from the prior employers but so far only Telecom has supplied some material. Some of the prior employers' records no longer exist.
25 The defendant refers to the following documents as being crucial to its case which are missing or have been destroyed: File 10/93935 entitled "Promotions" was raised on 19 February 1979 but may have included papers from previous promotion files and documents for the administration of the plaintiff's promotion. It may also have included reports on the plaintiff's suitability for promotion, that is, performance reports, divisional officer and commanding officer comments on his pending promotion, including details of delay if promotions were delayed for any reason; File 19/93935 entitled "Resettlement of Member" raised on 27 January 1981 would likely have contained documents administering the plaintiff's resettlement preparations for discharge from the Navy, including requests and nominations and perhaps financial documents relating to that training; File 351/20/1869 entitled "Correct Date for promotion" raised on 24 January 1966 would likely have contained documents for administration of the plaintiff's promotion, and would likely have included details of time gained from good performance or time lost for poor performance. If promotion was delayed for disciplinary reasons there would have been papers on this file explaining this. Commander Hartcher [minutes dated 16/1/01) detailed the difficulties he would face analysing the plaintiff's career. The plaintiff was considered for commissioned rank and appeared before an initial selection board. There is a document to this effect. The plaintiff agreed that he was told to obtain a mathematics qualification before he could proceed further. He did not do this. The Court would need to assess the plaintiff's promotional path and assess what he would have earned less than his current earning capacity. It is my view that the Navy will still be able to carry out this task.
26 After I have taken into account all of these matters, I am satisfied that there will be a fair trial between the parties. The defendant does not suffer significant prejudice. It is my view that 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.
27 Costs are discretionary. In Holt v Wynter, Sheller JA stated that in relation to costs ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable. The opposition was not wholly unreasonable. Costs are reserved.
28 The orders I make are: