Aussems v Commonwealth - [2001] NSWSC 44

CITATION: Aussems v Commonwealth of Australia [2001] NSWSC 44

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20843/96

HEARING DATE(S): 8 February 2001

JUDGMENT DATE:
9 February 2001

PARTIES :

Gillis Pierre Francois Aussems
(Plaintiff)
Commonwealth of Ausztralia
(Defendant)

JUDGMENT OF: Master Harrison

COUNSEL :
Mr M Joseph SC
(Plaintiff)
Mr C Rundle
(Defendant)

SOLICITORS:
Mr James Taylor
Myrtleford, Victoria
(Plaintiff)
Mr C Ktenas
Australian Government Solicitor
(Defendant)

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

LEGISLATION CITED: Limitation Act 1969

CASES CITED: Commonwealth of Australia v Dinnison (1995) 56 FCR 389
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; 139 ALR 1
BHP Steel (AIS) Pty Limited v Giudice (NSWCA, unreported 7 March 1999)
Commonwealth of Australia v McLean (1996-97) 14 NSWLR 389
Holt v Wynter [2000] 49 NSWLR 148

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 8 August 1996; (2) Costs are costs in the cause.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

FRIDAY, 9 FEBRUARY 2001

20843/96 - GILLIS PIERRE FRANCOIS AUSSEMS 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 8 August 1996 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 December 1999 and 11 September 2000. The defendant relied on affidavit of Con Ktenas affirmed 23 November 2000.

2 I observed the plaintiff carefully when he gave evidence and during cross-examination. I formed the opinion that he was generally truthful witness. He volunteered that he exaggerated the symptomatology of his back condition so as to be discharged from the Navy as he could not face going back to sea on the Melbourne. 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 20 May 1945 and is 56 years of age. He presently resides in Lower Plenty, Victoria.

(2) On 20 June 1962 the plaintiff enlisted as a recruit in the Royal Australian Navy at the age of 17 years. He was in good health both physically and psychologically which is borne out by a record of the plaintiff’s medical examination prior to enlistment. Prior to the collision the plaintiff was a relaxed happy-go-lucky kid who got on well with people. He was looking forward to a long and successful career in the Navy. He did not drink alcohol except for the one occasion on…

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 44
Decision Date: 9 February 2001

CaseChat Overview and Summary

The parties involved in the case were Aussems, the appellant, and the Commonwealth, the respondent. The dispute arose from the tragic collision between the HMAS Voyager and the HMAS Melbourne, and the court was tasked with determining whether the appellant's claim was time-barred under the Limitation Act. The matter was heard in the High Court of Australia.

The central legal issue before the court was whether the provisions of sections 60G and 60I of the Limitation Act applied to allow for an extension of the time limit to commence proceedings. The court was required to determine if the appellant's claim, which was filed outside the normal three-year limitation period, could be accepted under these sections. The court also needed to consider the implications of the Collision of Ships Act 1908 and the Navigation Act 1912 in relation to the appellant's claim.

The court held that sections 60G and 60I of the Limitation Act applied to the appellant's claim, and that the appellant was entitled to an extension of time to commence proceedings. The court found that the appellant had acted with all reasonable diligence in pursuing his claim, and that the application for an extension of time should be granted. The court noted that the provisions of the Collision of Ships Act and the Navigation Act were not applicable to the appellant's claim, and that the appellant's claim was not time-barred. The High Court of Australia ultimately ruled in favour of the appellant, allowing the claim to proceed despite being filed outside the normal limitation period.

Orders