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 dangers of the aircraft and its own prohibitions of the manoeuvre which Lieutenant Kavanagh executed had been conveyed to the Royal Australian Navy, and on that basis the Commonwealth via the Royal Australian Navy was negligent. Alternatively, he could have contended that the Royal Australian Air Force's information had not been conveyed to the Royal Australian Navy, and on that basis the Commonwealth via the Royal Australian Air Force was negligent.
8    The material that he learned from Mr Siebert in 1997 which concerned Mr Siebert having communicated to Navy pilots before the time of the plaintiff's accident, information of the RAAF’s knowledge of the dangers and of the RAAF’s prohibition of deliberate inverted spins, was greatly to increase the strength of the first way in which the plaintiff might put his case. In short, to adopt the Chief Justice's language, the "material act" was Mr Siebert's acts in telling the Royal Australian Navy pilots before April 1971 of what he passed on.
9    Despite the earnest and persistent submissions, which for my part I found helpful, of Mr R S McIlwaine SC and Mr T J Morahan, in my judgment no error has been demonstrated in the process of fact finding adopted by Dent DCJ, nor any error in his evaluation of the facts communicated in 1997 as being material facts of which the plaintiff was previously unaware. For those reasons I would refuse the application for leave with costs.
10    FITZGERALD JA: I agree.
11    BROWNIE AJA: I agree.
12    FITZGERALD JA: The application is refused with costs.

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