Wendt v Commonwealth of Australia

Commonwealth of Australia v Smith [2005] NSWCA 478 Jones v Royal Hospital for Women [1998] NSWCA 384 Sydney City Council v Zegarac (1998) 43 NSWLR 195 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Holt v Wynter (2000) 49 NSWLR 128 CASES CITED : South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 CSR Limited v Rendell (C of A, unreported, 7.8.96) Corowa Timber and Moulding Mill Pty Ltd v Wood (C of A, unreported, 11.5.89) Gould v New South Wales [2005] NSWSC 1121 Reeves v New South Wales [2005] NSWSC 1138 Spaulding v Commonwealth of Australia (No 2) [2006] NSWSC 81 Wood v The Commonwealth of Australia [2006] NSWSC 157

PARTIES : Ross Alexander Wendt (Pl) The Commonwealth of Australia (Def)

COUNSEL : G B Beauchamp (Pl) D J Brogan (Def)

SOLICITORS : Hollows Lawyers (Pl) Aust Govt Sol (Def)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20020/2002 ROSS ALEXANDER WENDT v THE COMMONWEALTH OF AUSTRALIA

JUDGMENT 1 KIRBY J: Ross Alexander Wendt (the plaintiff) was a Naval rating on board HMAS Melbourne on 10 February 1964 when it collided with HMAS Voyager. He claims to have suffered injury as a result of that collision. He seeks an extension of time under the Limitation Act 1969 ("the Act"), so that he might bring an action for damages against the Commonwealth of Australia ("the Commonwealth") (the defendant). The Commonwealth opposes his application.

The Collision. 2 The plaintiff was born on 17 June 1945. His father died shortly after his birth. He was then cared for by his aunt. When he was 13 years old she became ill. He then left school and looked after her until she died. After her death he lived with his mother. 3 On 6 July 1961, Mr Wendt joined the Navy. He signed up for 12 years. He described himself as a "healthy and happy fellow". So far as he knows, there was no family history of psychiatric illness. He hoped to make the Navy his career. 4 In 1962 Mr Wendt was posted to HMAS Melbourne, where he undertook further training. He recalled the collision in these terms: (Aff 15.4.03) "8. I was off watch on the night of the collision. I was in 4H Mess. I was lying on my bunk. I felt the whole ship shudder. I didn't know what had happened. I looked around to see what was happening. I remember hearing pipes to close all doors. I hurried to get out of the mess because I was terrified I would be locked in." 5 He went to the Damage Control Centre where he was told of the collision. He was shocked and concerned, especially for the recruits who had undertaken training with him at Flinders, Victoria. He immediately appreciated that, had he been assigned to the Voyager instead of Melbourne, he would most likely have been trapped in the engine room. He said he felt sick and guilty. 6 Mr Wendt described the chaos that followed. People were in panic, running in all directions. He could see the aft section of the Voyager, which was still afloat. Again he felt shocked and helpless. He looked for someone to report to. He was told to stand by. However, simply standing by made him feel worse. He could hear people screaming and yelling for help. 7 Mr Wendt was then directed to assist survivors as they came on board the Melbourne. They were covered in oil. Many were inconsolable. He was given a further order. Mr Wendt said this: (Aff 15.4.03) "14. A short time thereafter I was ordered to get some equipment. I was told this equipment was to be used to shore up HMAS Voyager. The idea of going to a sinking ship and being trapped on board was terrifying." 8 As he was stacking the equipment, there was an announcement. The aft section of the Voyager was sinking. It then sank. Mr Wendt described his reaction in these words: (Aff 15.4.03) "15. ... I felt extremely saddened and physically sick. I was also in a state of shock and disbelief. What made it all the worse, is that I knew there must be men aboard HMAS Voyager, trapped in the engine room, that I had trained with. I was lucky not to be aboard." 9 Mr Wendt sat on the upper deck for a number of hours. He then went below and tried to sleep. However, he could not do so. Grotesque images of being trapped inside the aft section and attempting to swim away haunted him. 10 The Melbourne returned to Sydney. Mr Wendt had no appreciation of the extent of the damage to the Melbourne. He and other crew members discussed whether the ship would make it. Before its arrival at Garden Island, an announcement was made which Mr Wendt described as follows: (Aff 15.4.03) "19. ... I remember being told over the loudspeaker not to speak to journalists or anybody else about anything that had happened. I remember being told to forget about the whole thing and get drunk." 11 Mr Wendt added. (Aff 15.4.03) "20. I avoided talking about my experience as much as possible. I bottled it all up inside me. I just ... tried to get on with the rest of my life." 12 Mr Wendt did not even confide in his wife. After the collision he became withdrawn. He lost confidence in himself and the Navy. He also became hypervigilant. He was very apprehensive. He questioned everything. He said this: (Aff 15.4.03) "22. After the collision I began to double and triple check everything. I became very careful. When I was on a ship, I would always double check my exits and work out how I would get out of any situation." 13 Mr Wendt had, in his youth, been a keen sportsman. At school he had been the captain of the football team for three years in a row. After the collision, sport gave him no pleasure. He also noticed a number of other things. He had difficulty sleeping. He tried, whenever possible, to sleep on the upper decks. He had nightmares although they would come and go. He resorted to alcohol. He found that it helped him sleep and made him less anxious. 14 Mr Wendt did not complain to either doctors or colleagues. Although acutely aware of his symptoms, he considered himself normal. He was anxious that no-one thought him weak or less of a man than the rest. However, Mr Wendt did not like being below decks after the collision. He found night exercises on HMAS Melbourne to be unbearable. He had to come above deck to calm his nerves. 15 In the years that followed, Mr Wendt noticed that he was "jumpy and nervous". He was startled by noise, which had not worried him before the collision. He suffered from rashes. He also had headaches. He started smoking and gambling. 16 Mr Wendt met the woman who was to become his wife in 1962. After the collision, their relationship faltered. He became "self destructive", trying to end the relationship. However, they did marry in September 1964. Once married, he always seemed to have "a short fuse". He found it difficult to express emotion. He would sometimes disappear for days on end, drinking and gambling.

Naval Career. 17 In 1968 Mr Wendt was posted to HMAS Anzac as an Acting Mechanician. He was relieved to find that he was entitled to better accommodation above the waterline. 18 In 1970 or 1971 he was posted to HMAS Perth. He served in Vietnam. He described his service in these words: (Aff 15.4.03) "38. I found Vietnam hard to take. I remember that my anxiety increased tremendously when I was on board HMAS Perth when serving in Vietnam. I found the experience of being locked down off the coast of Vietnam very stressful. Whenever I was ashore in the Philippines and Taiwan I would just wipe myself out with alcohol. I became even more anxious and stressed. My drinking got progressively worse over this period." 19 During this period, HMAS Melbourne collided with the USS Frank E Evans. Mr Wendt described his reaction when he heard of the collision as follows: (Aff 15.4.03) "39. I could not believe what happened to the USS Frank E Evans. I remember that when I hard the news it brought back the experience of the Melbourne/Voyager collision. I became very depressed, began having flash backs again and my nightmares became more frequent." 20 Throughout the period of his service he found it difficult to study. Nonetheless he did study and was promoted. However, he said this: (Aff 15.4.03) "42. I am sure that my rate of promotion was adversely affected. I am sure I would have progressed to a higher rank if I had not suffered the trauma of the collision."

Diagnosis. 21 In about December 1999, at the urging of his wife, Mr Wendt saw a naval doctor in respect of his disturbed sleep. He was referred to a respiratory physician, Dr Joffe. Dr Joffe, questioned him about his naval experience, including the collision with the Voyager. He tentatively suggested that Mr Wendt may be suffering from post traumatic stress disorder . Dr Joffe's report (dated 31.1.2000), after the examination, included these words: (Exhibit 1) "He has significant symptoms of agitated depression and a previous history of Vietnam exposure. He does admit to occasional visual flash-backs and I am reasonably convinced this man has PTSD." 22 Dr Joffe added: "He generally sleeps poorly and wakes repetitively at night. His wife describes substantial motor restlessness, again, a feature of depression in PTSD." 23 Arrangements were made for Mr Wendt to see a psychiatrist, Dr Graham Altman. Dr Altman examined Mr Wendt on 21 September 2000. His report expressed the following view: "In summary, in my opinion the collision between The Melbourne and The Voyager originally caused his Post-traumatic Stress Disorder. This Post-traumatic Stress Disorder was then aggravated by his Vietnam war experience. In my opinion as a result of these above mentioned traumatic events Mr Wendt suffers from a severe chronic Post-traumatic Stress Disorder with an associated Major Depression." 24 Dr Altman added: "Furthermore in my opinion as a result of the above mentioned Post-traumatic Disorder (with associated Major Depression) Mr Wendt is only able to work between eight and twenty hours per week (he is currently working sixteen hours per week) and in my opinion he should be placed on the Intermediate Rate Disability Pension." 25 Mr Wendt retired from the Navy in September 2000 after 44 years service. He joined the Naval Reserve, working part time. He applied for a repatriation pension. He was assessed by Dr Lisa Brown, a psychiatrist, on behalf of the Repatriation Commission. The assessment was undertaken in May 2003. Dr Brown said this: (Exhibit A) "I would not dispute the diagnoses provided by Psychiatrist Dr Altman in that Mr Wendt's history is characteristic of chronic Post Traumatic Stress Disorder, of a mild to moderate nature. Although Mr Wendt did not currently present with symptoms of Major Depression, Dr Altman's recording of such symptoms in the years 2000 and 2002 are consistent with a diagnosis of Major Depression at that time. It is possible that an increase of his antidepressant medication over a previous one year period has helped to resolve residual depressive symptoms and may explain why such features were not marked during the current assessment. Although Dr Altman refers to Mr Wendt's alcohol intake, he does not appear to have specifically made a diagnosis of Alcohol Abuse or Dependence. However, I note that hypertension on the basis of Alcohol Abuse or Dependence is an accepted disability for this gent. I would consider that Mr Wendt has suffered with Alcohol Abuse and probably mild Alcohol Dependence over a many year period. He sounds to have self-medicated symptoms of anxiety related to his PTSD with alcohol and his drinking behaviour has been problematic in terms of causing friction within his marriage, and with him reporting periods of amnesic lack of recall of his behaviour whilst intoxicated. His chronic Post Traumatic Stress Disorder appears to be of a mild severity at present and the Alcohol Abuse and Dependence diagnoses are also current at a mild to moderate level." 26 As a consequence, Mr Wendt was awarded a Repatriation Pension, which he still receives.

Awareness of the Injuries. 27 Mr Wendt, in his affidavit, said this: (Aff 15.4.03) "44. I did not realise that I may be suffering from a psychiatric illness until I saw Dr Joffe who suspected I had post traumatic stress disorder. Dr Joffe then referred me to Dr Altman, Psychiatrist, who diagnosed me as suffering from post traumatic stress disorder." 28 He saw Dr Joffe in January 2000. He first discussed the matter with a solicitor in May 2000. He was approached by Mr Hollows, solicitor, who was then acting for another client. Mr Hollows sought Mr Wendt's assistance in respect of that client's action. The symptoms experienced by that person resonated with Mr Wendt because they were so similar to his own. Mr Hollows recommended that he make an appointment to see him. He did so in August 2001. The Statement of Claim was issued on 21 March 2002. 29 Mr Wendt was not challenged in respect his affidavit. Specifically he was not challenged in respect of his assertion as to the time at which he first realised that he was suffering from a psychiatric condition linked to the collision between the Melbourne and the Voyager. He was cross examined about his service in the Navy and various applications for promotion. He was asked about his time in Vietnam, which he described as "traumatic". He was taken to various entries in his medical records, which he acknowledged.

The Statutory Scheme. 30 The plaintiff's action is in tort. The limitation period is six years (s14(1) of the Act). It expired on 9 February 1970. The Act makes provision for time to be extended in the circumstances defined by s60I, provided it is just and reasonable to do so (s60G(2)). Section 60I is in these terms: " s60 I Matters to be considered by court (1) A court may not make an order under section 60G or 60H unless it is satisfied that: (a) the plaintiff: (i) did not know that personal injury had been suffered, or (ii) was unaware of the nature or extent of personal injury suffered, or (iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and (b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a)(i)-(iii). (2) Subsections (2), (3) and (4) of section 60E apply, with any necessary adaptations, in relation to applications for orders under this Subdivision." 31 "Personal injury" is defined by s11(1) of the Act so that "unless the context or subject matter otherwise indicates", it "includes any disease and any impairment of the physical or mental condition of a person". 32 The section (in the context of a psychiatric claim) has recently been considered by the Court of Appeal (Handley, Santow and Basten JJA) in Commonwealth of Australia v Smith [2005] NSWCA 478. Special leave to appeal was refused by the High Court on 19 May 2006. The case, as it happens, concerned another Naval rating who was on board HMAS Melbourne at the time of the collision with the Voyager. He, likewise, had been diagnosed with post traumatic stress disorder many years after the collision. Barr J, at first instance, made findings which were summarised by Santow JA in these words: "71. The primary judge concluded that none of the symptoms experienced by Mr Smith was likely to make him think that he had been injured or that his symptoms were manifestations of an illness. It was because most people suffer such manifestations without being ill or injured that those matters were unlikely to suggest to him that he was ill or injured." 33 The principle, defining when a person can be said to know of "mental injury" for the purposes of s60I, appears from the headnote, which is in these terms: "Knowledge of a mental injury required knowledge that it constituted a recognisable psychiatric illness." 34 Handley JA said this: "6. A mental injury, that is an impairment to the plaintiff's mental condition, is different because a plaintiff who is aware of his symptoms may not know that he has sustained a mental injury." 35 He added: "16. Thus the law does not recognise that emotional and mental problems constitute an injury unless they constitute a psychiatric illness that has been recognised as such by "professional medical opinion". Accordingly a plaintiff, such as Mr Smith, who is aware of all his symptoms, cannot know that he has suffered a mental injury unless he knows that they constitute a recognisable psychiatric illness. Without this knowledge he cannot know that he has suffered something which the law recognises as an injury." 36 Applying that principle to this case, the preconditions under s60I(1)(a) have been satisfied. I accept that Mr Wendt was not aware that he had suffered personal injury before the tentative diagnosis of post traumatic stress disorder made by Dr Joffe in January 2000. Indeed, he was unaware of the nature and extent of the personal injury suffered (s60I(1)(a)(ii)) and unaware of the connection between that injury and the act or omission of the Commonwealth (s60I(1)(a)(iii)). The application was made within three years after he became aware (21.1.02 cf January 2000). The defendant did not suggest that he ought to have become aware at some earlier point in time. 37 However, before an order for an extension of a limitation period can be made, an applicant must show that "it is just and reasonable" that the limitation period be extended (s60G(2)). That section confers a broad discretion to be exercised in the manner described by Mason P in Jones v Royal Hospital for Women [1998] NSWCA 384, where the President said this: "... a discretion exercisable according to broad notions of justice between the parties in accordance with the purpose of an enactment authorising an extension of the limitation period." 38 (See also Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 222-223; Commonwealth of Australia v Smith (supra) per Santow JA para 122.) 39 Here, the defendant answered the plaintiff's affidavit with an affidavit sworn by the solicitor acting for the defendant. The affidavit described at some length the investigation that had been undertaken in respect of the plaintiff's claim and the potential sources of prejudice arising from the paucity of information which had been uncovered. The plaintiff apparently answered that affidavit with a further affidavit. His solicitor, who had acted for naval personnel in thirty similar claims, also filed an affidavit. 40 However, on 16 May 2006, shortly before the hearing, the solicitor for the defendant wrote to the solicitors for the plaintiff in these terms: (Exhibit B) "2. Having reviewed the defendant's evidence we are now of the view that the matter is likely to conclude within half a day. The defendant will not be relying upon its affidavit evidence." 41 Accordingly, the affidavit by the defendant's solicitor and those in response by the plaintiff and his solicitor were not read. In opposing Mr Wendt's claim, the defendant did not rely upon actual prejudice. It did, however, rely upon presumptive prejudice arising from the very significant delay in bringing the claim. 42 The significance of prejudice, actual or presumptive, was considered by Santow JA in Commonwealth of Australia v Smith (supra). Presumptive prejudice, of itself, does not disentitle a plaintiff to have the extension sought (Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, per McHugh J at 555). Toohey and Gummow JJ in the same case suggested that prejudice to the defendant was a factor to be considered in answering the ultimate question of "whether the delay has made the chances of a fair trial unlikely" (at 550). Sheller JA in Holt v Wynter (2000) 49 NSWLR 128, interpreting this and other cases, formulated the test in these terms: (at 147 para 119) " ... the effect of the decision of the High Court in Brisbane South Regional Health Authority 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." 43 "Significant prejudice" means "such prejudice as would make the chances of a fair trial unlikely" (see Santow JA in Commonwealth of Australia v Smith (supra) para 128). In South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477, Hodgson JA (with whom Beazley JA and Rolfe AJA agreed) said this, in the context of s60G of the Limitation Act 1969: (at [33]) "... the true issue in this matter is whether or not the applicant for the extension discharged the onus of satisfying the Court that there would not be such prejudice as would make the chances of an acceptably fair trial unlikely."

Is it "Just and Reasonable"? 44 The documentary history in respect of the applicant, Mr Wendt, was unusual. He had spent his entire working life in the Navy. He still works part time for the Naval Reserve. Exhibited to his affidavit was his entire medical file. After enlisting in 1961, each time he had a medical problem he consulted a Naval doctor. A record was made. If a test was carried out, the result was placed on the file. If he was referred to a specialist, the report by the specialist was attached to the file. The documents exhibited run to two lever arch folders. The Commonwealth, therefore, has a comprehensive medical history. Whilst that history does not document the evolution of symptoms referable to post traumatic stress disorder, and such fluctuations as occurred (because Mr Wendt kept those issues bottled up), it does provide an account of what was happening, medically, in his life. It is invaluable material, indirectly relevant to matters which are the subject of his claim, as the defendant's cross examination of him on this application demonstrated. 45 Reference was made in the course of the application to employment records. They were not tendered. There is no affirmative evidence that they still exist and are available. If they were available they would also provide an invaluable historical record of Mr Wendt's work history until retirement. Each time Mr Wendt sought promotion, records were created. As he progressed through the ranks, reports on his performance were compiled by his superiors (T7). A copy was furnished to Mr Wendt. Is it safe to assume that such records are still available? I believe it is. First, the opening questions asked of Mr Wendt in cross examination suggested counsel, or those who instructed him, had access to such reports. Secondly, as mentioned, Mr Wendt was given a copy of his superior's remarks. Since his retirement more or less coincides with the commencement of this action, I believe it reasonable to presume that he has preserved them. Thirdly, and in any event, since 1995 the Commonwealth has had to deal with a number of claims by persons on board the Melbourne who claimed to have suffered psychiatric injury as a result of the collision. It would have been foolhardy indeed for the Commonwealth, in those circumstances, to have discarded its records. 46 The medical file and the employment records go a long way, in my view, in overcoming such prejudice as arises through the late notification of a claim, now almost forty years old. The Submissions by the Commonwealth. 47 The defendant made two broad submissions. First, it was submitted that the application should be refused. There was no elaboration beyond a reference to presumptive prejudice arising from the passage of time. It was impossible, according to counsel for the defendant, for the Commonwealth to defend itself because the claim arose so long ago. 48 Secondly, if an extension were granted, it should be on terms. Having regard to the difficulties which the Commonwealth would otherwise face, the Court should confine the plaintiff's claim to the period since, say, late 1999, when he first began to seek assistance in respect of the symptoms, which were later diagnosed as post traumatic stress disorder . Further, the plaintiff should not be allowed to pursue two matters which formed part of the particulars accompanying the Statement of Claim. They were matters said to be unsupported by medical evidence from either Dr Joffe or Dr Altman. The Particulars of Injury included the following: "(l) Anxiety disorder. (m) Adjustment disorder." 49 It is convenient to address the last aspect first. The plaintiff's counsel, in argument, confirmed that his client's claim related to post traumatic stress disorder and major depression. Anxiety was a feature of that condition. The paragraphs relating to anxiety disorder and adjustment disorder were not intended to identify psychiatric conditions separate from post traumatic stress disorder and major depression. 50 The defendant's suggestion that the plaintiff's claim should be delayed, so that he should not be permitted to recover for the period between 10 February 1964 and 31 December 1999, would mean that his right to damages would begin, if it begins at all, on and after, say, 1 January 2000. In support of this suggestion, the defendant pointed to a number of matters. First there was the complication created by Mr Wendt's service in Vietnam. Wartime service, in the nature of things, was stressful. It may lead to post traumatic stress disorder. It was not, however, compensable. Indeed, Dr Altman had expressed the view that although Mr Wendt's post traumatic stress disorder had been caused by the Melbourne/Voyager collision, it had been aggravated by his Vietnam war experience. How, it was asked, could the defendant possibly unravel the difficult issues of causation created by that sequence? 51 Attention was drawn to CSR Limited v Rendell (Court of Appeal, unreported, 7.8.96) where the plaintiff sought an extension of time against two of his former employers, CSR Limited and NSW Sugar Milling Co-Op Limited, in respect of industrial deafness. He alleged that his deafness had been caused by the negligence of both employers. Handley JA (Sheller and Cole JJA agreeing) upheld an appeal against an order extending time against each employer, saying this: "In my judgment given the extent of the plaintiff's knowledge before August 1990 and even in 1982-4, it would not be just or reasonable to expose CSR to an action for industrial deafness when the quantification of the plaintiff's damages would be so speculative and uncertain. There is a real risk that CSR might be ordered to pay damages for industrial deafness it did not cause." 52 However, that was a very different case. The plaintiff unquestionably had suffered industrial deafness. The issue concerned the cause of his deafness and the contribution by two separate employers. Dr Carroll, an ENT specialist, said that, without audiograms, which historically define the extent of the loss, any assessment of the actual loss whilst working for CSR, as opposed to the other employer, was "necessarily conjectural". An audiogram had been undertaken in 1979, but had not been tendered by the plaintiff, as part of the material relied upon in his application. In that context, Handley JA said this: "The 1979 audiogram was not in evidence, and the plaintiff's advisers appear to have made no attempt to secure its production to the Court, or to discover whether it still existed. If it still existed it would substantially fix and limit CSR's liability and limit the liability of the second claimant. On the plaintiff's evidence an audiogram may also have been taken in 1987. Such an audiogram, if still in existence, would identify any further hearing loss which occurred between 1987 and 1989, and thus help fix and limit the liability of the second claimant." 53 Counsel for the plaintiff sought to meet the difficulty occasioned by the absence of the 1979 audiogram by pointing to a decision of the Court of Appeal in Corowa Timber and Moulding Mill Pty Ltd v Wood (Court of Appeal, unreported, 11.5.89). The Court in that case, on limited material, drew an inference as to the degree of hearing loss. Handley JA, in distinguishing this authority, said this: "The facts of the case are remote from those in the present cases. Only one employer was involved, extraneous exposure to loud noise after the employment ceased was not suggested, the plaintiff's hearing had been tested within 3 years of leaving that employment, and he had a cause of action which was within time." 54 Here, there was only one employer, the Navy. There were two potential causes of the post traumatic stress disorder found by Dr Altman in 2000, namely, the collision and the Vietnam war experience (or both). Unravelling the contribution made by compensable and non-compensable causes will depend, no doubt, upon the symptoms before Vietnam, the nature of the Vietnam experience and symptoms after. With the assistance of medical evidence, inferences are no doubt capable of being drawn. The fact that there are competing causes provides no justification for truncating the plaintiff's claim, so that his right to damages begins 35 years after the damage occurred. 55 Moreover, I doubt that I have the power to postpone the right to damages in the way suggested. The defendant could not point to a case where that had been done. It was suggested that it was part of the inherent power to ultimately fashion terms which are just and reasonable. Reference was made to two decisions of Hidden J, Gould v New South Wales [2005] NSWSC 1121 and Reeves v New South Wales [2005] NSWSC 1138 which were said to provide an analogy. However, I do not find support for the defendant's argument in either case. Both concerned policemen who had been diagnosed with a psychiatric condition. The condition was said, in each case, to be attributable to a number of discreet episodes experienced by each officer in his police career. The defendant succeeded, however, in demonstrating significant actual prejudice in respect of some of these episodes, such that his Honour declined to find that it was "just and reasonable" that the plaintiff should be permitted an extension to bring an action based upon such episodes. 56 Here, I believe it is just and reasonable to extend the limitation period. An extension will not result in significant prejudice to the Commonwealth. In my view, a fair trial may still take place, notwithstanding the delay. It would neither be fair, nor reasonable, to limit the duration of the claim as suggested by the defendant, even assuming I had the power to do so.

Costs. 57 In Commonwealth v Smith (supra) the trial Judge, having determined that time should be extended, awarded costs against the Commonwealth. By majority (Handley and Santow JJA, Basten JA (diss)) the Court of Appeal determined that the appeal should be dismissed. Santow JA discussed the statutory framework relevant to the discretion in respect of costs, including Pt 52A r17 Supreme Court Rules 1970, which was in these terms: "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." 58 Each member of the Court appeared to agree that the "extension of time" referred to in that rule was not an application for an extension of the limitation period under the Act, although Basten JA thought that the rule reflected a principle of more general application. 59 The Uniform Civil Procedure Rules apply to the matter before me. Those rules do not reproduce Pt 52A r17. Provision is made under Schedule 6 (the transitional provisions) for the making of certain orders in respect of proceedings commenced before the Civil Procedure Act 2005. However, no application was made under those provisions. 60 Reference was also made in Commonwealth v Smith (supra) to the statement of principle by Sheller JA (with whom Meagher, Handley JJA and Brownie AJA agreed) in Holt v Wynter (supra): (at 147-8 para 121) "... ordinarily a successful applicant, who allowed him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable." 61 Santow JA appeared to adopt this principle when he said this, referring to the costs order of the trial Judge: "160. ... In view of the Commonwealth's failure in so many of these extension cases over six years [para 133] the judge would have been entitled to find that the Commonwealth acted unreasonably in opposing an extension of this case and should pay the applicant's costs. It has not been shown that the primary judge erred in the exercise of his discretion so as to warrant the interference of an appellate court." 62 However, Holt v Wynter, was a very different case. The words in the judgment of Sheller JA that followed the passage quoted above, were as follows: (at 148 para 121) "Although Judge Cantrill was satisfied that the evidence explained and excused the applicant from any responsibility for the delay, the fact remains that one or more of the solicitors she retained were responsible for the delay. The respondent was not. In the circumstances, particularly having in mind the question raised about the availability of medical records, I do not regard the respondent's decision to resist the application as unreasonable." 63 Here, there was no fault on the part of Mr Wendt. He did not allow himself to get out of time. He simply was not aware that his many symptoms were the consequence of a psychiatric injury which Dr Altman attributed (at least in part), to the collision on 10 February 1964. 64 Basten JA in Commonwealth v Smith (supra) also dealt with the issue of costs. He recognised that it may be inappropriate for the Commonwealth to be awarded costs where it had unsuccessfully opposed an application to extend time (unless the plaintiff behaved unreasonably). In his view, in the ordinary case there should be no order as to costs. 65 Basten JA also drew attention to s60L of the Limitation Act, which is in these terms: " 60L Costs Without affecting any discretion that a court has in relation to costs, a court hearing an action brought as a result of an order under Subdivision 2 or 3 may reduce the costs otherwise payable to a successful plaintiff, on account of the expense to which the defendant has been put because the action was commenced outside the original limitation period." 66 However, Bell J in Spaulding v Commonwealth of Australia (No 2) [2006] NSWSC 81, emphasised that the section dealt with the costs of the action. It did not deal with costs on an application to extend time. Her Honour, in that case, did not regard the opposition of the Commonwealth to Mr Spaulding's application as "wholly unreasonable". There were matters which suggested actual prejudice. The plaintiff left the Navy soon after the collision. He worked in many jobs for a number of different employers. There were no records in respect of some of his employers. There were other matters besides. The case was heard before the judgment of the Court of Appeal in Smith was published. This notwithstanding, her Honour made the following order: "15. ... I have concluded that the appropriate order in this case is that the costs of the application be costs in the cause. This does not preclude the respondent from reliance on s60L of the Limitation Act in the event that the applicant is successful in his claim." 67 Patten AJ in Wood v The Commonwealth of Australia [2006] NSWSC 157 made an order in similar terms. In Wood's case, incidentally, the plaintiff had been discharged from the Navy in 1983. He thereafter worked for the State Transit Authority until 2003 when he retired. 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. 69 The defendant is, of course, entitled to deal with each case on its merits. Each case will, no doubt, present unique features. But applications under the Limitations Act must not become a "free kick". As Santow JA demonstrated in the Commonwealth v Smith (supra) (paras 148 ff), the Commonwealth has now accumulated significant experience in such applications. It, like other litigants, must strive for the "just, quick and cheap resolution" of the real issues in each case (s56(3) Civil Procedure Act 2005). 70 Here the Commonwealth must surely have recognised that Mr Wend't case was unusual. He had spent his entire working life with the Navy. His medical records were available and I infer that his employment records, or most of them, are available. The Commonwealth acknowledged there was no actual prejudice. It had the benefit of the Court of Appeal judgment in Smith (23 December 2005). It could be expected to make a realistic assessment. The Commonwealth had litigated the same issue in circumstances much worse than Mr Wendt's application many times, and lost. I believe its opposition to Mr Wendt's application for extension was unreasonable.

Order. 71 The orders I make therefore are as follows:

1. That the limitation period be extended to the date upon which the Statement of Claim was filed.

2. That the defendant should pay the plaintiff's costs. **********

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