Commonwealth of Australia v Clark - [2000] NSWCA 174

CITATION: Commonwealth of Australia v Clark [2000] NSWCA 174

FILE NUMBER(S): CA 40930/00

HEARING DATE(S): 11 July 2000

JUDGMENT DATE:
11 July 2000

PARTIES :

Commonwealth of Australia (Appellant)
Peter Lloyd Clark (Respondent)

JUDGMENT OF: Fitzgerald JA at 1, 10, 12; Heydon JA at 2; Brownie AJA at 11

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : 9511/98

LOWER COURT
JUDICIAL OFFICER : Dent DCJ

COUNSEL: R McIlwaine SC/T J Morahan (Appellant)
K Andrews (Respondent)

SOLICITORS: Australian Government Solicitor (Appellant)
W H Parsons & Associates (Respondent)

LEGISLATION CITED: Limitation Act 1969

CASES CITED:
Drayton Coal Pty Limited v Drain (22 August 1995, NSWCA)

DECISION: Application for leave refused with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
40930/99
FITZGERALD JA
HEYDON JA
BROWNIE AJA
Tuesday, 11 July 2000

COMMONWEALTH OF AUSTRALIA v
PETER LLOYD CLARK

JUDGMENT
1    FITZGERALD JA: I ask Heydon JA to deliver the first judgment.
2 HEYDON JA: This is an application for leave to appeal against an order made by Dent DCJ extending the time within which the applicant below, whom I will refer to as the plaintiff, could commence proceedings pursuant to s 60G(2) of the Limitation Act 1969.
3    On 28 April 1971 the plaintiff, a Royal Australian Navy pilot, was participating in his second instructional flight in a jet. The aircraft was a Macchi. The instructor, Lieutenant Kavanagh, intentionally placed the plane into an inverted spin. This caused him to lose control. Both pilots ejected and as a result the plaintiff suffered injury.
4    The only aspect of the primary judge's reasons for judgment which is attacked is his evaluation of the significance of some information that came into the plaintiff's hands in 1997. The background was that the plaintiff knew a significant amount about the deficiencies in the aircraft, most of which he recorded in a lengthy and detailed submission in 1993 to the Department of Veterans Affairs in order to obtain compensation, an endeavour which was substantially unsuccessful. The new material, according to the primary judge, had this significance:

"Until the plaintiff's conversation with Mr Siebert he was unaware of the fact that the pilots at Albatross [that is to say Royal Australian Navy pilots] had been made aware of the RAAF's orders in respect of inverted spins in the Macchi aircraft and of the RAAF's knowledge of the particular vice of that plane when placed in an inverted spin."

5    The task for the plaintiff below was to demonstrate that he gained awareness of some material act or omission which would constitute a substantial ground upon which reliance could be placed in any proceedings.
6    According to Gleeson CJ in a decision given in this Court in Drayton Coal Pty Limited v Drain (22 August 1995, NSWCA) establishment of that matter is sufficient to satisfy s 60I of the Limitation Act.
7    Before 1997 the plaintiff had two possible cases. He could have contended that the information which the RAAF had about 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.

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Details

Case: [2000] NSWCA 174
Decision Date: 11 July 2000

CaseChat Overview and Summary

The Commonwealth of Australia sought leave to appeal against a decision of the Supreme Court of New South Wales. The dispute concerned the interpretation and application of the *Defence Force Retirement and Death Benefits Act 1978* (Cth) and its predecessor legislation, specifically in relation to the calculation of a pension entitlement for Mr. Clark, a former member of the Australian Defence Force. The primary issue was whether Mr. Clark was entitled to a pension calculated on the basis of his final salary, or on a lower notional salary, as contended by the Commonwealth.

The central legal question before the Court of Appeal was whether the Supreme Court had erred in its construction of the relevant provisions of the *Defence Force Retirement and Death Benefits Act 1978* (Cth) and the *Defence Force Retirement Benefits Act 1948* (Cth). Specifically, the court had to determine whether Mr. Clark's pension entitlement should be calculated by reference to his actual final salary or a notional salary, as determined by the Commonwealth. This involved an examination of the legislative framework governing retirement benefits for defence force members and the circumstances under which a notional salary could be applied.

The Court of Appeal considered the legislative history and the plain wording of the statutes. It found that the provisions governing the calculation of pensions were clear and that Mr. Clark's entitlement was to be based on his actual final salary. The court rejected the Commonwealth's argument that a notional salary was applicable in Mr. Clark's circumstances, finding no statutory basis for such an interpretation. The court therefore concluded that the Supreme Court had correctly determined the matter.

The application for leave to appeal was refused, and the Commonwealth was ordered to pay Mr. Clark's costs.

Orders

Orders of the court

Application for leave refused with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Commonwealth of Australia v Clark [2000] NSWCA 174
FILE NUMBER(S):	CA 40930/00
HEARING DATE(S):	11 July 2000
JUDGMENT DATE:	11 July 2000
PARTIES :	Commonwealth of Australia (Appellant) Peter Lloyd Clark (Respondent)
JUDGMENT OF:	Fitzgerald JA at 1, 10, 12; Heydon JA at 2; Brownie AJA at 11

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	9511/98
LOWER COURT JUDICIAL OFFICER :	Dent DCJ

COUNSEL:	R McIlwaine SC/T J Morahan (Appellant) K Andrews (Respondent)
SOLICITORS:	Australian Government Solicitor (Appellant) W H Parsons & Associates (Respondent)
LEGISLATION CITED:	Limitation Act 1969
CASES CITED:	Drayton Coal Pty Limited v Drain (22 August 1995, NSWCA)
DECISION:	Application for leave refused with costs