Legal Research
Cases
Cavanagh v Commonwealth of Australia

Cavanagh v Commonwealth of Australia

Link copied

Case Copied 12 May 2006 24 min read

Contents

On this page

CITATION: Cavanagh v Commonwealth of Australia [2006] NSWSC 382

HEARING DATE(S): 2 May 2006

JUDGMENT DATE :
12 May 2006

JURISDICTION: Common Law Division

JUDGMENT OF: Studdert J

DECISION: (1) Order that the limitation period be extended until 30 September 2001. (2) Costs of the application are to be costs in the cause.

LEGISLATION CITED: Limitation Act, ss 60G, 60I

CASES CITED: Blyth v Commonwealth of Australia [2005] NSWSC 721
Brisbane South Regional Health Authority v Taylor (1996-1997) 186 CLR 541
Commonwealth of Australia v Diston [2003] NSWCA 51
Commonwealth of Australia v Smith [2005] NSWCA 478
Holt v Wynter (2000) 49 NSWLR 128
Sydney City Council v Zegarac (1998) 43 NSWLR 195

PARTIES: John Edward Cavanagh (Plaintiff)
Commonwealth of Australia (Defendant)

FILE NUMBER(S): SC 20769/01

COUNSEL: Dr K. Sant (Plaintiff)
C. Barry QC/D. Brogan (Defendant)

SOLICITORS: Moyle Legal (Plaintiff)
Blake Dawson Waldron (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Friday 12 May 2006

20769/01
JOHN EDWARD CAVANAGH v COMMONWEALTH OF AUSTRALIA

JUDGMENT

1 HIS HONOUR: By statement of claim filed on 12 September 2001 John Edward Cavanagh commenced proceedings against the Commonwealth of Australia claiming damages for harm allegedly suffered when the "HMAS Melbourne" collided with the "HMAS Voyager" on 10 February 1964. He also made application for an extension of the limitation period for the bringing of his claim by notice of motion filed with the statement of claim.

2 The plaintiff's claim calls for consideration of the provisions of s 60G and s 60I of the Limitation Act 1969.

3 Section 60G provides:

"(1) This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897 .

(2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines."

4 Whilst s 60G(1) applies the section to a cause of action accruing or on after 1 September 1990, the application of the section was extended by Sch 5 cl 4.

5 Section 60I(1) provides:

"(1) A court may not make an order under section 60G or 60H unless it is satisfied that:

(a) the plaintiff:

(i) did not know that personal injury had been suffered, or

(ii) was unaware of the nature or extent of personal injury suffered, or

(iii) was unaware of the connection between the personal injury and the defendant’s act or omission,

at the expiration of the relevant limitation period or at a time…

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.

Keep reading for free

Create a free CaseChat account to read Cavanagh v Commonwealth of Australia and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] NSWSC 382
Decision Date: 12 May 2006

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Cavanagh, the plaintiff, brought a claim against the Commonwealth of Australia, the defendant, for damages stemming from an alleged harm suffered during the collision between the "HMAS Melbourne" and the "HMAS Voyager" on 10 February 1964. The plaintiff also sought an extension of the limitation period for bringing his claim under the Limitation Act 1969. The Commonwealth opposed the plaintiff's application for an extension of time.

The legal issues at hand were whether the plaintiff met the requirements under s 60I of the Limitation Act, and if so, whether it was just and reasonable to extend the limitation period. The plaintiff had to demonstrate that he was unaware of at least one of the matters outlined in s 60I(1)(a) and that he brought the present application within three years after becoming aware, or after he ought to have become aware, of all three matters referred to in s 60I(1)(a).

The Court found that the plaintiff's evidence satisfied the requirements of s 60I of the Limitation Act. The plaintiff was unaware of the matters addressed by s 60I(1)(a) (i) and (ii) before he undertook counselling with Mr Duggan, and he also asserted that he was unaware of the matter addressed in s 60I(a)(iii) before he read the statement of claim. The plaintiff also made his application within three years of acquiring the requisite knowledge.

As for whether it was just and reasonable to extend the limitation period, the Court considered the issue of prejudice to the defendant. The Court found that there could be a fair trial concerning the medical issue, and the issue of loss of earning capacity and loss of pension benefits did not present a barrier to a fair trial. The Court concluded that it was just and reasonable in this case to extend the limitation period.

The final orders were (1) the limitation period be extended until 30 September 2001, and (2) the costs of the application be costs in the cause.

Orders