Beasley v Commonwealth - [2001] NSWSC 998

Reported Decision:
[2001] NSWSC 998
[2001] ACL Rep 255 NSW 49

New South Wales

Supreme Court

CITATION: Beasley v Commonwealth of Australia [2001] NSWSC 998

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20786/97

HEARING DATE(S): 1 November 2001

JUDGMENT DATE:
9 November 2001

PARTIES :

Noel Francis Beasley
(Plaintiff)
Commonwealth of Australia
(Defendant)

JUDGMENT OF: Master Harrison

COUNSEL :
Mr P Blacket SC with Mr M Walsh
(Plaintiff)
Mr R McIlwaine SC
(Defendant)

SOLICITORS:
James Taylor & Co
Mrytleford Victoria
(Plaintiff)
Australian Government Solicitor
(Defendant)

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

LEGISLATION CITED: Limitation Act

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
Denning No 456 Pty Ltd v Brisbane Unit Development (1983) 155 CLR 129

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 14 August 1997; (2) Costs are reserved.

- 11 -

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 14 August 1997 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 October 2000. The defendant relied on the affidavit of Con Ktenas affirmed 7 June 2001.

2 Not surprisingly the plaintiff became visibly overcome with grief in the witness box when he was asked to recall the events surrounding the collision. Of all the Voyager cases I have heard, this is the most tragic. 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 9 February 1938 and is presently 63 years of age. He resides in Dubbo.

(2) On 4 May 1956 the plaintiff entered the Royal Australian Navy as a…

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 998
Decision Date: 9 November 2001

CaseChat Overview and Summary

In the Federal Court of Australia, Beasley brought a claim against the Commonwealth regarding the collision between the HMAS Voyager and HMAS Melbourne in 1964. The central dispute was whether the court should extend the limitation period under Section 60G and 60I of the Limitation Act 1969 (Cth) to allow the claim to proceed. The court was required to decide whether exceptional circumstances existed to justify an extension of time beyond the statutory limits set by the Act.

The primary legal issue before the court was whether the applicant's delay in commencing proceedings could be excused due to exceptional circumstances. The applicant argued that the delay was due to a combination of factors, including the complexity of the case, the need for expert evidence, and the Commonwealth's refusal to provide relevant documents. The court had to balance the statutory limitation periods with the principles of justice and fairness in exceptional circumstances.

The court acknowledged the tragic nature of the incident and the difficulties faced by the applicant in bringing the claim. It found that the Commonwealth's refusal to provide documents and the complexity of the case constituted exceptional circumstances. The court further held that the statutory limitation periods could be extended if it was just and equitable to do so. Consequently, the court granted the extension of time, allowing the applicant to proceed with the claim.

Orders