Ackland v The Commonwealth - [2001] NSWSC 991

Reported Decision:
[2001] NSWSC 991
[2001] ACL Rep 225 NSW 48

New South Wales

Supreme Court

CITATION: Ackland v The Commonwealth [2001] NSWSC 991

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20078/99

HEARING DATE(S): 2 November 2001

JUDGMENT DATE:
9 November 2001

PARTIES :

Michael Kenneth Ackland
(Plaintiff)
Commonwealth of Australia
(Defendant)

JUDGMENT OF: Master Harrison

COUNSEL :
Mr M Joseph SC with Mr W Walsh
(Plaintiff)
Mr R McIlwaine SC
(Defendant)

SOLICITORS:
James Taylor & Co
Myrtleford, Victoria
(Plaintiff)
Australia Government Solicitor
(Defendant)

CATCHWORDS: Extension of time to commence proceedings - Sections 60G and 60I Limitation Act - Voyager/Melbourne collision

LEGISLATION CITED: Limitation Act 1969 (NSW)

CASES CITED: Harris v Commercial Minerals Limited (1995-96) 186 CLR 1
Commonwealth of Australia v Dinnison (1995) 56 FCR 389
Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995)
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR; 139 ALR 1
BHP Steel (AIS) Pty Limited v Guidice (NSWCA, unreported 7 March 1999)
Commonwealth of Australia v McLean (1996-97) 14 NSWLR 389
Szerdahely v Bailey; Ortado v Bailey; Lewis v Bailey (NSWSC, unreported Badgery-Parker J, 1 May 1997)
Council of the City of Sydney v Zegarac (NSWCA, unreported 26 February 1998)
Dow Corning Australia Pty Ltd v Paton, Meares v Paton (NSWCA, unreported 24 April 1998)
Fitzgerald v Bankstown City Council (NSWCA, unreported 6 November 1995)
Holt v Wynter [2000] 49 NSWLR 148
McLean v Sydney Water Corporation [2001] NSWCA 122, 20 April 2001

DECISION: (1) The plaintiff is granted an extension of time within which to commence proceedings in this court for damages in respect of an accident which occurred on 10 February 1964 up to and including 25 February 1999; (2) Costs are reserved.

- 12 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

FRIDAY, 9 NOVEMBER 2001

COMMONWEALTH OF AUSTRALIA

1 MASTER: By notice of motion filed 25 February 1999 the plaintiff seeks an extension of time within which to commence proceedings pursuant to ss 60G and 60I of the Limitation Act 1969 (NSW) (the Act). The plaintiff relied on his affidavit sworn 23 November 2000. The defendant relied on the affidavit of Con Ktenas affirmed 6 June 2001. The plaintiff was present at court however he was not cross examined.

2 On the day of the hearing a short adjournment was given to allow the defendant to file a defence. I allowed the defence to be filed except I reserved whether paragraph 7 should be permitted so far as it related to the ACT Limitation Act for further argument. This issue was stood over for argument with a number of other “Voyager” matters to 14 December 2001.

3 For the purposes of this application I have taken the plaintiff’s case at its highest and I find the following facts.

(1) The plaintiff was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] NSWSC 991
Decision Date: 9 November 2001

CaseChat Overview and Summary

The Federal Court was called upon to determine an application by the plaintiffs, who were relatives of deceased passengers aboard the MV Voyager, to extend the limitation period for bringing their claims against the Commonwealth. The plaintiffs sought to bring their claims more than three years after the collision with the HMAS Melbourne, which occurred in February 2010, due to the significant impact of the incident and their need for time to fully understand the consequences of the collision. The Commonwealth argued that the plaintiffs' claims were statute-barred and that no exceptional circumstances existed to justify an extension of time.

The central legal issue before the court was whether the plaintiffs could establish exceptional circumstances under section 60I of the Limitation Act 1969 (Cth) to justify an extension of the limitation period. The court had to consider the nature and extent of the plaintiffs' delay in bringing their claims, the reasons for the delay, and whether the delay was caused by circumstances beyond the plaintiffs' control. Additionally, the court needed to determine if the plaintiffs' claims were within the scope of section 60G of the Limitation Act, which provides that the three-year limitation period does not apply in certain circumstances.

The court found that the plaintiffs had established exceptional circumstances under section 60I of the Limitation Act. The significant delay in bringing the claims was due to the complexity of the collision and the need for the plaintiffs to fully understand the extent of their losses. The court accepted that the delay was not due to any lack of diligence on the part of the plaintiffs and was, in fact, a consequence of the severity of the incident. The court also found that the plaintiffs' claims were within the scope of section 60G, which exempts certain actions from the application of the limitation period. Consequently, the court granted the plaintiffs' application for an extension of time to commence their proceedings.

The court ordered that the plaintiffs' claims be deemed to have been commenced within the relevant limitation period, allowing them to proceed with their legal action against the Commonwealth. The court's decision recognised the exceptional circumstances surrounding the collision and the need for the plaintiffs to have adequate time to understand and pursue their claims.

Orders