Barry Thomas Blunden v Commonwealth of Australia

• Jurisdiction: Australian Capital Territory
• Judge: Refshauge J
• Judgment Date: 02 June 2014
• Docket Number: No. SC 324 of 1998
• Court: Supreme Court of ACT
• Date: 02 June 2014

[2014] ACTSC 123

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Refshauge J

No. SC 324 of 1998

Between:

Barry Thomas Blunden

Plaintiff

and

Commonwealth of Australia

Defendant

Counsel for the plaintiff: Mr J L Sharpe

Counsel for the defendant: Mr R Crowe SC

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Blunden v Commonwealth (2007) 224 FLR 257

Blunden v Commonwealth[2000] FCA 1581

Blunden v Commonwealth[2000] FCA 1581

Blunden v Commonwealth (2003) 218 CLR 330

Blunden v Commonwealth[2006] ACTSC 58

Blunden v Commonwealth (2007) 1 ACTLR 1

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Bunyan v Jordan (1937) 57 CLR 1

Cartledge v E Jopling & Sons Ltd[1962] 1 QB 189

Caruso v Jafer (Unreported, Supreme Court of Victoria, Mandie J, 18 June 1998)

Central Trust Co v Rafuse[1986] 2 SCR 147

Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159

Citicorp Australia Ltd v Metropolitan Public Abattoir Board [1992] 1 Qd R 592

Commonwealth v Dinnison (1995) 56 FCR 389

Commonwealth v Diston[2003] NSWCCA 51

Commonwealth v Smith[2005] NSWCA 478

D A Christie Pty Ltd v Baker [1996] 2 VR 582, Nominal Defendant v Manning (2000) 50 NSWLR 139

Donoghue v Stevenson[1932] AC 562

Doyle v Gillespie (2010) 4 ACTLR 188

Equuscorp Pty Ltd (Formerly Equus Financial Services Ltd) v Lah[2009] ACTSC 113

Global Realty Developments Corp (a Delaware Company) v Dominion Wines Ltd (in liq) (2006) 225 ALR 361

Hall v Nominal Defendant (1966) 117 CLR 423

Hawkins v Clayton (1988) 164 CLR 539

Henry v Commonwealth (2012) 264 FLR 381

Hinz v Berry[1970] 2 QB 40

Jaensch v Coffey [1984] 155 CLR 549

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383

Owen v Residual Health Management Unit [2000] 3 NZLR 475

Pullen v Gutteridge, Haskins & Davey Pty Ltd [1993] VR 27

Rumble v GPT Re Ltd (2012) 6 ACTLR 257

R v Meyboom (2012) 256 FLR 450

Singles v Mander Forklift Pty Ltd (No 2) [2013] ACTSC 150

Sorrenti v Crown Corning Ltd (1986) 7 NSWLR 77

Stingel v Clark (2006) 226 CLR 442

Stocks v Retirement Benefits Fund Board (2007) ANZ Con R 254

Tame v New South Wales (2002) 211 CLR 317

Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd[2007] VSCA 75

Tusyn v State of Tasmania (No 2) (2008) 18 Tas R 313

Tyler v Custom Credit Corporation Ltd [2000] QCA 178

Williams v Milotin (1957) 97 CLR 465

Wilson v Horne (1999) 8 Tas R 363

Limitation Act 1985 (ACT), ss 36 100

Limitation Act 1969 (NSW), ss 16, 60G

Supreme Court Act 1933 (ACT), s 9(2)(a)

Court Procedures Rules 2006 (ACT), rr 75, 76, 1304, 1308

Supreme Court Rules 1937 (ACT), Div 2.3, rr 21, 31

Chief Justice JJ Spigelman AC, ‘Measuring Court Performance’ (Speech delivered at the Annual Conference of the Australian Institute of Judicial Administration, Adelaide, 16 September 2006)

J D Heydon, Cross on Evidence (Butterworths: Sydney, 1996) Vol VI (Service 156) 3029; [3075]

Ch 3 of Peter Handford, Mullany and Handford's Tort Liability for Psychiatric Damage (2006, 2^nd ed, Thomson Law Book Co: Sydney).

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders V (2013, 5^th ed, American Psychiatric Association: Arlington, Virginia USA) 271–2

LIMITATION OF ACTIONS — General — Torts — Personal injury — Application to re-instate proceedings — When cause of action arises — Whether Respondent would suffer prejudice were proceedings re-instated — Application dismissed

1 On 10 February 1964, Barry Thomas Blunden, the plaintiff, was a sailor stationed on the aircraft carrier, HMAS Melbourne, for his first sea posting. On that day he was on the ‘Goofer's Deck’, a deck next to the funnel half of the bridge, and watched when the ship on which he was stationed collided with the HMAS Voyager.

2 He says he subsequently saw the HMAS Voyager break in two and injured survivors brought on board. He later discovered that, of the eighty-four people killed, seventeen had been young men with whom he had enlisted some months earlier and had come to know personally.

3 As a result of what Mr Blunden says was the negligence of the Commonwealth, he claims to have suffered injuries of a psychological nature flowing from this experience and, on 14 May 1998, he commenced proceedings against the Commonwealth, the defendant, for damages to compensate him for the injuries he says he suffered.

4 The proceedings have had a long and convoluted history since then, including two appearances in the High Court. It will be necessary to refer to this below.

5 Later, the matter remained relatively dormant.

6 By virtue of r 75 of theCourt Procedures Rules 2006 (ACT) (the Rules), these proceedings have been taken to be dismissed on a date to which I will later turn.

7 By application in proceedings dated 22 March 2013, Mr Blunden sought to have the proceedings re-instated under r 76 of theRules. He supported the application by an affidavit made by his solicitor.

8 The application is opposed by the Commonwealth, which has filed an affidavit in response to which has been annexed extensive material. Mr Blunden's lawyer has filed a short affidavit in reply.

9 It is this application I am required to consider. First, however, I describe the nature of the substantive proceedings themselves.

The issues in the proceedings

10 Mr Blunden alleges in his Statement of Claim that the Commonwealth was negligent in that it failed to

avoid the collision between the two vessels;

offer him any effective post-traumatic counselling or medical treatment; and

warn him that he may develop a mental condition as a result of him having witnessed the collision and its consequences.

11 He claimed that the injuries he suffered and for which he sought damages were:

• • chronic post-traumatic stress disorder (PTSD);

• • major depressive disorder;

• • alcohol abuse; and

• • shock and sequelae.

12 The Commonwealth in its defence, inter alia,

1. (a) admitted a duty of care to avoid collision, but denied a duty of care to Mr Blunden to provide effective post-traumatic counselling;

2. (b) pleaded that Mr Blunden's action was statute barred by reason of theLimitation Act 1985 (ACT);

3. (c) pleaded that the injuries and damage suffered by Mr Blunden were caused by his own acts; and

4. (d) pleaded that the injuries and damage suffered by Mr Blunden due to excessive consumption of alcohol are too remote to provide a basis for the recovery of damages.

13 An important question to be decided in this application is whether the proceedings are statute-barred. The two positions are starkly opposed.

14 The Commonwealth says that any cause of action arose on 10 February 1964 which meant that the limitation period would have barred the proceedings from 10 February 1970 unless an extension of time was granted. No extension of time has been granted.

15 Mr Blunden says that his cause of action arose when his psychiatric condition was diagnosed by Dr Brian White on 22 May 1996, making the commencement of proceedings on 14 May 1998 within time.

Deemed dismissal

16 As noted above (at [6]), these proceedings have been taken to be dismissed. A question arose as to when that happened.

17 Rule 75, under which the deemed dismissal occurred, is in the following terms:

75 When proceeding taken to be dismissed

1. (1) A proceeding is taken to be dismissed in relation to a defendant if –

   1. (a) at the end of 1 year after the day the originating process is issued, an affidavit of service of the process on the defendant has not been filed in the court; or

   2. (b) at the end of 1 year after the day the originating process is served on the defendant —

      1. (i) a notice of intention to respond or defence has not been filed in the court by the defendant; and

      2. (ii) judgment has not been entered in relation to the defendant; and

      3. (iii) the proceeding has not otherwise been disposed of in relation to the defendant.

2. (2) Also, a proceeding is taken to be dismissed in relation to a party if the party does not take a step in the proceeding before the end of 1 year after the day the last step was taken in the proceeding.

3. (3) For subrule (2), the filing in the court of a notice of intention to proceed in relation to a proceeding is taken to be a step in the proceeding.

   Note See approved form 2.84 (Notice of intention to proceed) AF2008–3.

4. (4) A proceeding is taken to be dismissed under subrule ( 1 OR 2 on the day after the day the relevant 1-year period mentioned in the subrule ends.

   Example

   There is 1 plaintiff and 1 defendant to a proceeding. The defendant takes a step in the proceeding on 1 July 2006. If the plaintiff fails to take the next step on or before 1 July 2007, the proceeding is taken to be dismissed on 2 July 2007.

18 The question arises as to when that deemed dismissal occurred.

19 InCiticorp Australia Ltd v Metropolitan Public Abattoir Board [1992] 1 Qd R 592 at 594, McPherson SPJ, with whom Ryan and Dowsett JJ agreed, said of a rule in Queensland, that required notice if three years had lapsed since ‘the last proceeding’ was taken, that

… to constitute a “proceeding” the act or activity must have the characteristic of carrying a cause or action forward …

It need not be a step taken or act done in a court or its registry …

I am, however, unable to accept that acts done in the recesses of a solicitor's office partake of the character of a proceeding simply because they may, from the standpoint of the party for whom that solicitor is acting, be supposed to carry the action forward. That is particularly so where the act in question has, so far as the other party or the court is aware, no readily discernible impact on the progress of the action. Time and effort...