Andrew v Commonwealth - [2001] NSWSC 733

CITATION: Andrew v Commonwealth of Australia [2001] NSWSC 733

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 21251/95

HEARING DATE(S): 20 August 2001

JUDGMENT DATE:
30 August 2001

PARTIES :

Plaintiff - Barry John Andrew
Defendant - Commonwealth of Australia

JUDGMENT OF: Master Harrison

COUNSEL : Plaintiff - M Joseph SC; W Walsh
Defendant - R McIlwaine SC; A Coleman

SOLICITORS: Plaintiff - James Taylor & Co.
Defendant - Australian Government Solicitor

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

LEGISLATION CITED: Limitation Act 1969 (NSW)
Limitation Act (Qld)

CASES CITED: Harris v Commercial Minerals Limited (1995-96) 186 CLR 1
Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995)
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
BHP Steel (AIS) Pty Limited v Guidice (NSWCA unreported 7 March 1999)
Commonwealth of Australia v McLean (1996-97) 14 NSWLR 389
Szerdahelyi v Bailey (NSWSC, unreported Badgery-Parker J, 1 May 1997)
Ortado v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997)
Lewis v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997)
Council of the City of Sydney v Zegarac (NSWSC, 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

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 6 December 1995; (2) Costs are reserved.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

30 AUGUST 2001

21251/95 - BARRY JOHN ANDREW v
COMMONWEALTH OF AUSTRALIA
JUDGMENT (Extension of time to commence proceedings,
Ss 60G and 60I Limitation Act -
Voyager/Melbourne collision)

1 MASTER: By notice of motion filed 6 December 1995 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 affidavits sworn 3 June 2000, 14 February 2001 and 2 March 2001. The defendant relied on affidavit of Con Ktenas affirmed 22 November 2000.

2 I observed the plaintiff carefully when he gave evidence and during cross-examination. Despite the defendant’s counsel’s submission that the plaintiff was not giving truthful evidence, I did not find this to be the case. The plaintiff when giving evidence became visibly upset at times.

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 born on 22 November 1946 and is 54 years of age. He presently resides in Deception Bay, Queensland.

(2) The plaintiff enlisted with the Royal Australian Navy on 8 January 1963 at the age of 16 years. At the time of enlistment, he 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 733
Decision Date: 30 August 2001

CaseChat Overview and Summary

The case of Andrew v Commonwealth involved a dispute between the Commonwealth and the plaintiff, Andrew, regarding the extension of time to commence proceedings. The underlying dispute arose from the collision between the HMAS Voyager and the HMAS Melbourne in 1964. The plaintiff sought an extension of time to bring the proceedings, arguing that there were exceptional circumstances that prevented timely action. The court was required to determine whether the provisions of the Limitation Act, specifically sections 60G and 60I, applied to extend the time limit for the plaintiff's claim.

The central legal issues before the court were whether the plaintiff could rely on the provisions of the Limitation Act to extend the time limit for bringing the proceedings and whether the circumstances of the case constituted exceptional circumstances that warranted an extension of time. The court had to examine the specific provisions of the Limitation Act and the factual circumstances surrounding the collision to determine if the plaintiff's application for an extension of time was justified.

In reaching its decision, the court carefully considered the language of the Limitation Act and the precedents set by previous cases. It found that the provisions of sections 60G and 60I applied to the circumstances of the case, as the plaintiff had demonstrated exceptional circumstances that prevented timely action. The court concluded that the plaintiff's application for an extension of time was valid and granted the extension. The court's decision was based on the specific facts of the case and the application of the Limitation Act to those facts.

The final orders of the court included granting the plaintiff an extension of time to commence the proceedings against the Commonwealth. The court found that the provisions of the Limitation Act applied to the circumstances of the case and that the plaintiff had demonstrated exceptional circumstances that warranted an extension of time. The court's decision allowed the plaintiff to bring the proceedings within the extended time limit, ensuring that the plaintiff's claim was not barred by the limitations period.

Orders