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Burk v The Commonwealth (No 2)

Burk v The Commonwealth (No 2)

Case [2002] VSC 464 31 October 2002

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5597 of 1999

RODNEY ARTHUR BURK	Plaintiff
v
THE COMMONWEALTH OF AUSTRALIA	Defendant

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JUDGE:	BONGIORNO J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21, 22 & 23 October 2002
DATE OF JUDGMENT:	31 October 2002
CASE MAY BE CITED AS:	Burk v The Commonwealth (No 2)
MEDIUM NEUTRAL CITATION:	[2002] VSC 464

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TORT – Personal injuries - Limitation of actions – Extension of time – Matters to be considered - Extent of actual or presumptive prejudice to defendant – s. 36 Limitations Act 1985 (ACT); s. 23A Limitation of Actions Act 1958

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J.L. Kaufman Q.C. with Mr C. Thomson	Hollows Lawyers
For the Defendant	Mr M.R. Titshall Q.C. with Mr P. Hanks Q.C. Mr T. Howe and Mr A. Moulds	Australian Government Solicitor

HIS HONOUR:

On 21 October 2002 the Court delivered a judgment in this proceeding to the effect that the law to be applied in determining it was to be the common law of Australia, the content of which, in this instance, was to be derived from the law of the Australian Capital Territory[1]. Following that judgment the defendant was given conditional leave to amend its defence to plead that the plaintiff's claim against it for alleged injuries suffered as a result of the collision of HMAS Melbourne with HMAS Voyager on 10 February 1964 was not maintainable by virtue of s. 11(1) of the Limitations Act 1985 (ACT). To eliminate any prejudice that might otherwise have affected the plaintiff as a result of the defendant being given such leave, it was granted on condition that the defendant undertake to treat an application pursuant to s. 36 of the Limitations Act 1985 (ACT) for an extension of time in which to bring his proceeding (which application he had instituted by summons filed 10 October 2001) as if it had been made on 12 July 1999; the date upon which the defendant filed and served its original defence.
[1][2002] VSC 453.

On 21 October 2002, upon the defendant giving the required undertaking, and thus fulfilling the condition upon which leave to amend was granted it amended its defence to plead the statutory bar provided by s. 11 of the ACT Act[2].

The Court then proceeded to hear the plaintiff's application pursuant to s. 36 of the ACT Act. It is this application with which this judgment is concerned.

[2]S. 11 of the Limitations Act 1985 (ACT) provides:

"11. General

(1)Subject to subsection (2), an action on any cause of action is not maintainable if brought after the expiration of a limitation period of 6 years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom he or she claims.

(2)Subsection (1) does not apply to a cause of action in respect of which another limitation period is provided by this Act."

The…

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.

Continue reading Burk v The Commonwealth (No 2)

Details

AGLC: Burk v The Commonwealth (No 2) [2002] VSC 464
Case: [2002] VSC 464
Decision Date: 31 October 2002

CaseChat Overview and Summary

The parties involved in this case were Burk, the plaintiff, and the Commonwealth of Australia, the defendant. The dispute centered around a claim for personal injuries suffered by the plaintiff, which was subject to statutory limitation periods. The matter was heard in the Supreme Court of the Australian Capital Territory. The plaintiff sought an extension of time to institute proceedings, arguing that the statutory limitations period should be extended due to certain circumstances.

The primary legal issue before the court was whether the statutory limitations period could be extended under the provisions of the Limitations Act 1985 (ACT) and the Limitation of Actions Act 1958. Specifically, the court had to consider whether the plaintiff had demonstrated sufficient actual or presumptive prejudice to the defendant, as required by s. 36 of the Limitations Act 1985 (ACT) and s. 23A of the Limitation of Actions Act 1958. The court also needed to assess whether the plaintiff had acted with reasonable diligence in bringing the claim.

The court held that the statutory limitations period could indeed be extended if the plaintiff could demonstrate that there was actual or presumptive prejudice to the defendant. In this instance, the plaintiff had not adequately demonstrated such prejudice. Furthermore, the plaintiff had not acted with reasonable diligence, which was a crucial factor in determining whether an extension of time should be granted. As a result, the court declined to extend the limitation period, and the plaintiff's claim was dismissed.

Orders