Winston v Commonwealth of Australia

Issues

1. At the hearing the parties addressed, in writing and orally, whether Mr Winston required a further extension under s 60G of the Limitation Act. There was also an issue about the operation of s 64 and 65 of the Civil Procedure Act 2005 (NSW), as well as a dispute about whether the discretion to grant the leave sought to file the initially proposed amended pleading and that finally pressed could justly be exercised, given their terms.
2. Whether the withdrawal of the planning claims had been achieved was thus in issue, given what was still contained in the proposed pleading, as was the question of whether the leave sought would be granted, given what the Commonwealth claimed were still pleading deficiencies which warranted its refusal and then, the dismissal of the proceedings, Mr Winston having had a fair opportunity to advance his case and still not having served a pleading which properly put it on notice of the claims he wished to pursue.
3. The deficiencies identified included the absence of necessary particulars of certain aspects of his proposed claims and the failure to disclose the basis on which the duty he alleged was advanced, given caselaw on which it relied.

Settled law

1. It is settled that civil claims cannot be pursued for supposedly negligent acts in the course of actual engagement with an enemy: Shaw Savill & Albion Co Ltd v Commonwealth (1940) 66 CLR 344 at 361; [1940] HCA 40. That case concerned claims of improper navigation of a ship of war of the Royal Australian Navy in time of war, which caused a collision.
2. Claims in negligence are, however, maintainable against the Commonwealth by a service member for damage caused by the negligence of a fellow service member while on duty in peace time, where an action would be available to a civilian in that situation: Groves v Commonwealth (1982) 150 CLR 113; [1982] HCA 2. There left open was the possibility that "public policy may require that, at some point in the continuum from civilian-like duties performed by servicemen in peacetime to active service in wartime, what would otherwise involve actionable negligence should not give rise to a cause of action": at 134.
3. This observation has been referred to in later cases: see for example Haskins v Commonwealth (2011) 244 CLR 22 at 45; [2011] HCA 28. On the Commonwealth's case, this issue is raised by what Mr Winston still seeks to pursue by his finally proposed pleading, which does not explain how his claim in negligence is available.
4. The question which it appears will have to be determined on Mr Winston's final pleading is whether, given that the collision in which he was injured occurred during the SEATO exercise conducted while Australia was at war, the Commonwealth and others for whom he claims it was vicariously liable, now including Rear Admiral Crabb, then owed him a duty of care and are liable in negligence for any breach of those duties.
5. The pleading of the statement of claim is regulated by the Uniform Civil Procedure Rules 2005 (NSW). They relevantly include that: 1. the relief claimed be stated: r 6.12; 2. the pleadings be brief and contain facts, not evidence, with the effect of documents and words spoken stated: rr 14.7 and 14.9; 3. any matter that, if not pleaded specifically, may take the defendant by surprise be pleaded: r 14.14; 4. pleaded facts be consistent: r 14.18; 5. pleadings may raise a point of law: r 14.19; 6. pleadings must give such particulars of any matter pleaded by the party necessary to enable the defendant to identify the case that the pleading requires him or her to meet: r 15.1; and 7. when negligence is claimed the pleading must state the facts and circumstances relied on as constituting the alleged negligent act or omission, and if more than one, must so far as practicable, state separately the facts and circumstances relied on in respect of each alleged negligent act or omission: r 15.5.
6. The function of such particulars is to show the acts or omissions claimed to constitute the negligence alleged: Anchor Products Ltd v Hedges [1966] HCA 70; (1966) 115 CLR 493. The Court may also order the giving of particulars under r 15.10. It provides: (1) The court may order a party to file - (a) particulars of any claim, defence or other matter stated in the party's pleading or in any affidavit relevant to the proceedings, or (b) a statement of the nature of the case on which the party relies, or (c) if the party claims damages, particulars relating to general or other damages. (2) Without limiting subrule (1), if a pleading alleges that a person had knowledge or notice of some fact, matter or thing, the court may order that party to file - (a) if the pleading alleges knowledge, particulars of the facts on which that party relies, and (b) if the pleading alleges notice, particulars of the notice.
7. The Rules are thus concerned with adequate particulars being given by a pleading to put the other party on notice of the case to be advanced and not with whether they are sufficient to establish that case. That depending as it does on what the evidence called at the hearing finally establishes.
8. There is no issue about the Court's powers to grant the leave Mr Winston requires, s 64 of the Civil Procedure Act providing that all necessary amendments be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, subject to s 58. It requires the Court to act in accordance with what the dictates of justice require, as well as have regard to the requirements of ss 56 and 57, and the matters specified in s 58(2).
9. Section 57 specifies the objects of case management to be: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.
10. Section 58(2)(b) also requires the Court to have regard to: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case.

The parties' cases

1. The parties' cases necessarily developed as Mr Winston's position altered. But that, I consider, accorded with the obligations imposed on the parties and their legal advisers by s 56 of the Civil Procedure Act 2005 (NSW), to assist the Court by facilitating the just, quick and cheap resolution of the real issues in the proceedings.
2. The case initially advanced for Mr Winston included that for a trial to be fair, it need not be perfect: Commonwealth of Australia v Smith [2007] NSWCA 168 at [88], quoting Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143 at [79]. What his statement of claim had to do was tell the Commonwealth what claim it had to meet. It was the defence which would define the issues for question at the trial: Multigroup Distribution Services P/L v TNT Aust P/L (1996) ATPR 41-522 at 42-679.
3. Mr Winston urged that he could not "tilt at shadows that may not be there". The material facts he then relied on were pleaded, they identifying the risk of harm which had materialised, as s 5B of the Civil Liability Act 2002 (NSW) required: Garzo v Liverpool / Campbelltown Christian School [2012] NSWCA 151 at [7]. It was thus pleaded that the exercise in which the collision occurred had been set up to mimic a hostile environment, but was governed by the general mandate that all precautions necessary to the safety of life were to be taken.
4. There was submitted to be no principle which permits the Commonwealth to invoke a combat immunity defence during any military exercise. Such a defence is for the Commonwealth to plead. Nor did Mr Winston have to plead all available precautions which might have avoided the risk of injury which materialised. The material facts had been adequately pleaded, they showing the acts and omissions which established that the Commonwealth should be held responsible for them.
5. Mr Winston finally contended that no substantial prejudice would result for the Commonwealth, if he still required a further extension, which he argued he did not and that if he did, it and the leave he required to file his finally proposed pleading would be granted, given the further claims he had abandoned. The Commonwealth's position now being no different to when matter was considered by Harrison J in 2021.
6. The Commonwealth's case was initially that neither the extension nor the leave Mr Winston required could be granted. In the case of the former, because of the problems Mr Kelly had given evidence about. Mr Winston's new claims raising allegations which do not appear to have arisen from historical material available to the Commonwealth to search and about which it was unable to call evidence. If the leave sought was granted, a strike out application was foreshadowed, given its expected inability to defend such allegations.
7. In any event the then proposed pleading was still deficient. What Mr Winston needed to do in respect of the allegations of negligence which he sought to advance included specifically pleading: 1. each of the duties he claims he was owed, on which he relies; 2. who owed him each of those duties; 3. the material facts which gave rise to each of those duties; and 4. how he claimed each duty was breached and by whom.
8. The proposed pleading did not address any of these matters, advancing only the foreseeability of harm to support the existence of a duty to adopt a safe system of work for those participating in the exercise.
9. While it was accepted that there was always a risk that warships manoeuvring in close proximity at sea might collide, pleading the risk of harm at the level of generality contained in the proposed pleading did not assist the parties, or the Court, in assessing what a reasonable response to that risk might have been. Particulars of that also not having been given.
10. The specific risk or risks which Mr Winston claimed had materialised had also not been adequately pleaded. Nor the claim that those who had breached their duties knew or ought to have known of the risk of harm which eventuated.
11. Mr Winston had repeatedly been given opportunities to plead his case but had still failed to produce an adequate pleading. There could be no confidence that one would be forthcoming if given a further opportunity and it was contrary to the interests of justice to permit yet a further attempt.
12. What was finally pressed included that the Commonwealth accepted Harrison J's conclusion that Mr Winston's delay in commencing the proceedings for which he was granted leave, can have caused it no real or actual prejudice, given the negligence which he was then pursuing in relation to the collision.
13. But still it contended that despite how the new claims had been confined, it was prejudiced by their pursuit, particularly in relation to what was advanced about Rear Admiral Crabb. Matters which were largely not addressed by the earlier examinations of the cause of the collision and which all those who could give evidence about were no longer available to give evidence, concerned as they still were with alleged negligence in the planning of the SEATO Exercise Sea Spirit.
14. Further, Mr Winston still required another extension in order to advance the claims he sought to press, which would be refused.
15. Its case was that the finally proposed pleading was still so deficient that the leave sought would be refused and the proceedings would be dismissed.
16. Further, on the Commonwealth's case, the proposed pleading, then the fifth, was still so deficient that the leave sought would be refused and the proceedings would be dismissed.

Is a further extension required?

1. Before Harrison J it was established that Mr Winston knew by 1996 that he suffered from severe chronic PTSD, major depression and had succumbed to alcohol abuse, all as the result of the collision, his psychiatric condition having rendered him totally and permanently unfit for work. Harrison J found that it was not until 2019, however, when he read the report of Associate Professor Batchelor, that Mr Winston became aware that he was suffering from brain damage by way of cognitive impairment as a consequence of the drinking which was part of his alcoholic disorder, a psychiatric injury caused by the collision.
2. Harrison J was satisfied that Mr Winston's case in negligence particularised a series of allegedly negligent acts and omissions that derived from evidence that had been given in the court martial of Captain Stevenson, and in a Board of Investigation into the circumstances surrounding the collision. That evidence and the opinions about it were voluminous and complicated, with the result, Harrison J concluded, that any asserted connection between the mountain of facts and opinions exposed by this material and Mr Winston's injury was "not something that emerges with ease or alacrity": at [21].
3. His Honour was thus also satisfied that Mr Winston never drew a relevant connection between his personal injury and any act or omission of the Commonwealth at any time before he saw the statement of claim. He also had some continuing doubt that Mr Winston had even then become aware of this connection: at [22].
4. By his 2024 affidavit Mr Winston said that it was not until he had read Commander Whitehouse's reports and the matters alleged in the then proposed amended statement of claim that he became aware that they were arguably causes of the collision. It is apparent from his affidavit, so expressed, that he may not have appreciated that what the amendments sought to pursue went beyond such negligence, in order to raise negligence in the planning of the SEATO exercise.
5. Considering what was finally pressed in light of the extension which Harrison J has already granted Mr Winston, I am satisfied that he does not require a further extension of time in order to advance what he finally sought to plead.
6. That follows from what was before Harrison J; how Mr Winston then pleaded his case; how he finally sought to plead his claim for damages for the injuries which he suffered as the result of the Melbourne collision, it being the result of the negligence which he claims the Commonwealth was vicariously liable for; and his abandonment of the additional claims of negligence he had proposed to advance in relation to the planning of the SEATO exercise.
7. True it is that before Harrison J the claims Mr Winston advanced were concerned with the negligence of the officers and crew of the Melbourne of whom Rear Admiral Crabb was not one and his proposed claim includes the claimed negligence of the Admiral, which also contributed to the materialisation of the risk of collision with which his claim is concerned.
8. But given all the evidence that his Honour had to consider and the conclusions which he arrived at about prejudice and a fair trial, I consider that extending the claims of negligence advanced to include those of Rear Admiral Crabb does not go beyond the extension granted. His involvement in the events which led to the collision appear to have been examined during the investigations on which Harrison J's conclusions turned and the additional claim sought to be advanced about his contribution to the materialisation of the risk of prejudice does not seem to me to raise additional prejudice, or the result that the trial cannot be a fair one, if the common law rights on which Mr Winston's claims depend are found to exist.
9. In the result, were it necessary to grant any further leave, given what the Commonwealth accepted in relation to his Honour's conclusions about prejudice and the fairness of any hearing of Mr Winston's claims, I would have granted a further extension.
10. Still, the inclusion of negligence on the part of Admiral Crabb will plainly be an important consideration in the determination of whether the claimed negligence Mr Winston so advances, is capable of being established, given what was decided in Groves and the cases which followed it.
11. This gives rise to a real question about whether that issue should be dealt with as a separate question, given the obligations imposed on the parties and the Court by s 56 of the Civil Procedure Act, to which I will return.

The proposed amended statement of claim

1. Mr Winston's finally proposed pleading, it must be accepted, is not perfect. But that is not required by the Rules. On balance, I am satisfied that the leave which he seeks to file that pleading must be given.

The proposed pleading

1. That amended statement of claim begins with background matters going to Mr Winston's position in the Navy, being a crew member on the Melbourne when it was struck by the USS Evans; the exercise in which the collision occurred; the role of Rear Admiral Crabb as task force commander of the transit phase of that exercise; and RAN regulations issued by the Australian Commonwealth Naval Board and the authority Article 2704 of those regulations invested in Rear Admiral Crabb.
2. It is claimed that the Commonwealth and its servants, including Rear Admiral Crabb, had a duty of care to adopt a safe system of work for those participating in the exercise, "as any accident involving ship at sea could lead to extensive loss of life and injury, as well as significant monetary loss." Particulars of the duty of care given include: "(a) Adjust any exercise instructions to reduce the risk of collision once becoming aware of any serious incidents including near collisions; and (b) Maintain any amended exercise instructions introduced following any near collisions."
3. The pleading then refers to: 1. an earlier 1964 collision between two ships of the Australian Navy, the Melbourne and the Voyager, which resulted in the loss of 82 lives and serious injury to crewmembers and what had contributed to that collision; 2. a special Operation Order 1/69 issued by Admiral Crabb which stipulated precautions necessary to the safety of life in operations and steps which commanding officers could take when doubt existed as to the safety of a ship; 3. warnings Captain Stevens had given other captains in the convoy before the collision, about special precautions to be taken to avoid a repeat of the Voyager collision; 4. despite this, on 31 May 1969 another destroyer, the USS Larson, had still turned towards and nearly collided with the Melbourne; 5. this made it foreseeable to both Admiral Crabb and Captain Stevenson that "to require ships that were acting as Plane Guard to move from a position forward of an aircraft carrier to a position astern of the carrier would substantially increase the risk of a collision, especially at night in conditions of reduced visibility"; 6. Admiral Crabb had thus instructed Captain Larsen to station the plane guard destroyer astern the carrier from dawn to dusk; 7. but on 2 June Admiral Crabb rescinded this and instead instructed that "the designated plane guard destroyer was always positioned in the screen ahead pf the carrier Melbourne until ordered to take up plane guard position astern of the carrier, including at night." This accorded with US Navy practice; 8. as a result, Mr Winston and all those aboard the Melbourne "were exposed to a substantial risk of harm including death or physical and/or mental injury when a plane guard destroyer was transitioning from a position ahead of Melbourne to a position astern of it"; 9. before the collision the Evans had strayed from its assigned screen position ahead of the Melbourne on the starboard side, to the port side, but no adequate action was taken by Captain Stevenson or the crew of the Melbourne to alert the Evans of this; 10. notwithstanding that it was out of position, Captain Stevenson ordered the Evans to take up plane guard position at the rear of the Melbourne; 11. the Evans then turned to its starboard side with the resulting collision, which was caused by the negligence and/or breach of the duty of the Commonwealth, its servants or agents including Rear Admiral Crabb, Captain Stevenson and the officers and crew of the Melbourne. The particulars given are: "(a) Changing the exercise procedures by both Admiral Crabb and Captain Stevenson that were instigated after the Larson incident, for the plane guard vessel to always remain astern of the aircraft carrier during night hours, by instead directing that the destroyer which was to be plane guard should first sail on the forward wig until ordered to make the plane guard manoeuvre; (b) Failing, on the part of Admiral Crabb as OTC or on the part of the commanding officer of the Melbourne, to adhere to the safety procedures detailed in the Maritime Operating Procedures for Exercise Sea Spirit Annex A by not placing the plane guard destroyer in a position abaft of Melbourne; .. (e) Failing to warn the crew of Evans sufficiently or at all of the possibility of a collision; (f) Failing, on the part of commanding Officer of Melbourne to alert the Evans that it had strayed out of its designated position on the starboard bow of Melbourne onto the port side before ordering that shop to take plane guard position; (g) Failing to give warning siren blasts when it became apparent that a collision was possible in sufficient time for the collision to be averted; (h) Upon perceiving that Evans was adopting a course and speed that could lead to a collision, transmitting or causing to be transmitted a warning signal to Evans in code, known as CORPEN Signal, instead of an open warning message in plain language; (i) Failing to clearly and cogently warn Evans as early as possible in clear language that if it maintained its course and speed a collision with Melbourne was likely; (j) Failing to install the means for the commanding officer of the Melbourne to directly transmit messages to the Evans to reduce delay; (k) Failing to implement or utilise if available a means of directly transmitting messages to the Evans to reduce delay;" (l) Failing on the part of Admiral Crabb as OTC or on the part of the commanding officer of the Melbourne, to establish a dedicated exercise safety radio circuit."
4. Particulars given of injury loss and damage are: "PARTICULARS OF INJURIES (a) Post-Traumatic Stress Disorder with symptoms of avoidance, flashbacks, intrusive reminders, a substance abuse disorder through drinking to delete thoughts of the trauma from his mind, detachment with emotional numbing, hypervigilance, exaggerated startle response, intolerance to noise, irritability, and volatility of temper, initial and middle insomnia, poor concentration, chronic malaise, short-term memory loss and poor insight into the nature of his condition. (b) Major Depressive Disorder. (c) Anxiety. (d) Alcohol abuse disorder, chronic. (e) Acquired cognitive impairment secondary to chronic alcohol abuse. (f) Neurological problems caused by alcohol abuse disorder. (g) Brain damage caused by alcohol consumption. (h) Chronic headaches. PARTICULARS OF SPECIAL DAMAGE AND LOSS OF EARNING CAPACITY (a) The Plaintiff was born on 22 May 1948. (b) The Plaintiff joined the Royal Australian Navy on 5 June 1965 for a term of 9 years. As a result of his injuries he was discharged with the rank of Naval Airman Aircraft Handler on 22 November 192, due to being classified physically unfit for Naval Service. Full details of his earnings during this time are within the knowledge of the defendant. (c) Since his discharge from the Navy the Plaintiff has been employed in various capacities: * As a shop assistant with Harvey Norman for some 9 months; * In a car yard for about 9 months; * As a salesman of caravan accessories for about 12 months; * As a sales assistant with Kmart for several years. * With BHP Stainless Steel in various capacities from [a]bout 1978 until 30 May 1997. Full details of his employment and earnings will be supplied prior to trial. (d) The Plaintiff has incurred medical and like expenses, full details of which will be made available prior to the trial of this action. (e) Prior to the said collision the Plaintiff had anticipated a full naval career with regular promotional advancement and, thereafter, to commensurate DFRDB pension entitlements. His career was cut short by reason of his injuries. Further, as a result of his untimely discharge from the Navy and subsequent dislocation in civilian employment the Plaintiff's earning capacity has been adversely affected. From May 1997 he was totally incapacitated for any employment by reason of his injuries. He had anticipated continuing to work until aged 65. He has thereby lost the benefit of continuous employment and earnings whilst in the Navy, the benefits of a DFRDB pension, and has suffered a total loss of income and superannuation benefits from 30 May 1997 until his 65th birthday on 22 May 2013. More precise particulars will be supplied prior to trial."

Why the leave sought must be given.

1. Fairly read, what is pleaded is relatively simple. Namely: 1. that the risk on which Mr Wilson advances his case is that of the Melbourne colliding with another ship during the exercise resulting in injury to crew members such as he; 2. that he was injured was the result of negligence for which the Commonwealth was responsible, given the duty of care which it and its officers, including Rear Admiral Crabb, even though he was not a member of the Melbourne's crew, and other members of the Melbourne's crew, then owed him; 3. that duty required them to keep him safe during the manoeuvres in which the Melbourne engaged in the exercise, they exposing him to the known risk of serious injury in the event of a collision; 4. that specified breaches of that duty established by the acts and omissions on which Mr Winston relied, resulted in the materialisation of the obvious risk of harm to which he was exposed as a result of the collision; 5. that this negligence had resulted in the foreseeable injuries which he had suffered; and 6. that the Commonwealth was responsible not only for its own acts and omissions, but was also vicariously responsible for those of Admiral Crabb, Captain Stevenson and other officers and members of the Melbourne's crew.
2. There is no error in pleading a risk in general terms, without great particularity, ss 5B and 5C of the Civil Liability Act 2002 (NSW) being directed to breach of duty, assuming that an allegation of such breach resulting from negligence "is or can be formulated in terms of a failure to take precautions against a risk of harm": Garzo v Liverpool / Campbelltown Christian School [2012] NSWCA 151 at [22]. There the risk pleaded "that of a person slipping on the painted surface of the crossing and thereby suffering an injury", was sufficient: at [24].
3. Nor is there a conceptual problem with more than one entity or person being claimed to owe a particular duty. The Commonwealth, after all, can only act through human beings. In this case Mr Winston claims that it was Admiral Crabb, Captain Stevenson and other officers and the crew of the Melbourne, through whom it acted.
4. It will be for Mr Winston to prove that they each owed him the claimed duty and that the Commonwealth is vicariously liable for their acts and omissions, which resulted in that duty being breached.
5. Mr Winston claims that the risk of collision was not only foreseeable, but actually foreseen, given the Melbourne's collision with the Voyager and the near miss involving the Larsen, earlier during the exercise.
6. The factual matters on which Mr Winston relies to establish the circumstances in which he was owed the claimed duty and how it was breached are given. They are consistent with the risk of a collision having been identified before the exercise and steps having been taken to avoid that risk materialising, including by directions given by regulations and Captain Stevenson.
7. The function of particulars in an action for negligence is not to define the cause of action, which is negligence, but to show what acts or omissions will be advanced as constituting it. When a general allegation of negligence is advanced, alleging particular faults does not necessarily prevent reliance upon an inference to be drawn from the fact that an accident happened: Anchor Products Ltd v Hedges (1966) 115 CLR 493 at 499; [1966] HCA 70.
8. In this case, the accident pleaded was the collision at sea between the Melbourne, on which Mr Winston was a crew member, and the Evans, another vessel engaged with it in the exercise then under the command of Rear Admiral Crabb and Captain Stevenson.
9. It follows that Mr Winston is entitled to rely on the fact of the collision itself to establish the claimed negligence and the nature of the risk which materialised, as well as on the other pleaded facts on which he relies. The acts and omissions he has pleaded include those of Captain Stevenson and Rear Admiral Crabb. He claims they establish the breach of the duty which the Commonwealth owed him, as well as its vicarious liability for what they and others for whom it was liable did and failed to do, that having contributed to the collision occurring as he claims it did.
10. On the evidence, while these events occurred long ago and neither Admiral Crabb nor Captain Stevenson are any longer alive, a great deal is known about them because of the way in which the collision and Captain Stevenson's conduct was later investigated, as Harrison J has accepted.
11. Undoubtedly not all of what would have been available to the Commonwealth at an earlier time is any longer available. I am not persuaded that the prejudice which the Commonwealth relied on is any greater than at the time Harrison J granted Mr Winston the extension which he required to pursue his claims in respect of the collision.
12. What is pleaded does claim that Mr Winston was owed a duty by the Commonwealth, namely, to adopt a safe system of work for those participating in the exercise in which the collision occurred. It is claimed that others for whom it was vicariously liable also owed him such a duty. The Commonwealth's case is that this ignores the fact that the scope and nature of the duty imposed on it, rather than on its servants or agents or the Naval Board, will be different.
13. I am unable to accept this. Whatever duty the Commonwealth had to Mr Winston while he was a member of the crew of the Melbourne, it can only have met that duty by the actions taken by its officers and agents. If it did not owe him the pleaded duty or was not vicariously liable for those Mr Winston claims it was, his primary case against it will fail. If the others he identifies also did not owe him such a duty, even if vicariously liable for their actions, Mr Winston's case against the Commonwealth will still fail.
14. I am also not satisfied that the pleading which Mr Winston finally pressed still strayed beyond his claims in relation to the collision, into what he had earlier sought to pursue, but finally abandoned in relation to the planning of the SEATO exercise. If what he pursues by way of evidence proves not to be relevant to the narrower claim, no doubt it will be successfully objected to.
15. I am also satisfied that the just, quick and cheap resolution of the real issues in these proceedings does not require a more specific, or different pleading of the claimed duties, nor the material facts on which they are claimed to arise, than that which Mr Winston finally pressed.
16. I am satisfied that they are already sufficiently indicated by what he has pleaded in MFI 10. If further specific particulars are sought, they can be requested and, if necessary, pursued under r 15.10.
17. It is settled that the fact that it is foreseeable, in the sense of being a real and not far-fetched possibility, that a careless act or omission on the part of one person may cause harm to another, does not mean that the first person is subject to a legal liability to compensate the second by way of damages for negligence if there is such carelessness, and harm results: Sullivan v Moody (2001) 207 CLR 562 at 573; [2001] HCA 59. The Commonwealth will thus only be liable to Mr Winston in negligence for failure to take reasonable care to prevent a certain kind of foreseeable harm, namely, where the law imposes on it a duty to take such care.
18. That this is such a case is in issue.
19. But still I am satisfied that this is not a proper basis for refusing the leave Mr Winston finally pressed. To the contrary, I am satisfied that justice requires that he be given that leave, given his pleading of the material facts on which he relies.
20. Even though the pleadings do not deal with what a safe system of operation during the exercise would have involved, I am satisfied that what is pleaded sufficiently puts the Commonwealth on notice of Mr Winston's case. That giving it a fair opportunity to meet his claims and not leaving it in a position where it will be subject to ambush and surprise.
21. His case remains essentially a simple one - that given what was known about the Voyager collision and the resulting steps taken to prevent a similar collision, there should not have been a departure from the operating requirements which had been imposed, that destroyers should remain abaft of the Melbourne's beam whenever possible, and that the abandonment of this requirement as well as the Evan's departure from its assigned position, which was known and not responded to as it needed to be, permitted the materialisation of the known risk of collision, which the abandoned requirements were directed to preventing.

A separate question?

1. Given the applicable case law to which the Commonwealth referred, it is evident that consideration will have to be given to the public policy discussed in Grove, particularly given all the alleged negligence which Mr Winston now pursues in respect of the collision which occurred during the SEATO exercise in which Australia was involved.
2. Grove established that there is a continuum from civilian-like duties performed by servicemen in peacetime, to active service in wartime, which has to be considered when a person such as Mr Wilson seeks to pursue a claim in negligence against the Commonwealth, as he does. From the evidence it would appear to be limited issues which could lie between the parties about the SEATO exercise in which the collision occurred.
3. In resisting his claims, the Commonwealth has indicated that it will also rely on matters such as the South East Asia Treaty Organisation (Privileges and Immunities) Regulations 1967 (Cth) and whether it gives rise to any relevant immunity from suit. Its likely relevance is now underscored by the claims Mr Winston advances in respect of Rear Admiral Crabb.
4. That necessarily raises for consideration whether a separate question could sensibly be determined about these matters, given the obvious, considerable cost of litigating all that lies in issue between these parties.
5. It may thus be that the parties could agree about the relevant facts on which such issues would turn. That would appear to accord with the obligations imposed upon them by s 56 of the Civil Procedure Act.
6. These are matters for them to consider.

Costs

1. Under the Uniform Civil Procedure Rules 2005, costs usually follow the event. In this case that is an order that the Commonwealth bear Mr Winston's costs of the motion he finally pressed. The costs of motions he did not press also need to be dealt with.
2. The parties should confer and approach within 14 days with proposed orders and short written submissions, in the event of any dispute.

Orders

1. For these reasons I order that: 1. Mr Winston have leave to proceed on the pleading marked MFI 10; 2. The parties should confer about costs and the further conduct of the proceedings; 3. They should approach within 14 days with proposed orders and short written submissions in the event of any dispute; and 4. The matter will be listed before me for directions at 9.30 am on 10 May 2024.

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. Decision last updated: 26 April 2024