Reported Decision: 66 NSWLR 325
(2006) Aust Torts Reports 81-855
Court of Appeal
CITATION: COMMONWEALTH OF AUSTRALIA v SHAW [2006] NSWCA 209 HEARING DATE(S): 22 June 2006
JUDGMENT DATE:
1 August 2006JUDGMENT OF: Handley JA at 1; Ipp JA at 2; Basten JA at 3 DECISION: (1) Appeal allowed; (2) Order of Howie J made on 14 October 2005 extending the limitation period to the date upon which the statement of claim was filed set aside; (3) In lieu of the orders made below, order that; (a) the application to extend time be dismissed; (b) the proceedings commenced on 4 October 2002 be dismissed; (c) the applicant/plaintiff pay the costs of the Commonwealth in the Court below; (4) The Respondent pay the Commonwealth’s costs of the appeal; (5) Grant the Respondent a certificate under the Suitors’ Fund Act 1951 (NSW) in relation to the costs of the appeal CATCHWORDS: LIMITATION OF ACTIONS – personal injury tort – psychological injuries arising from collision between HMAS Melbourne and HMAS Voyager in 1964 – whether applicant knew he suffered a personal injury – whether he was unaware of the connection between the personal injury and defendant’s act or omission – when he ought to have become aware – whether just and reasonable to extend time – Limitation Act 1969 (NSW), ss60I(1)(a) and (b) and 60G LEGISLATION CITED: Dust Diseases Tribunal Act 1989 (NSW), s11
Limitation Act 1969 (NSW), ss 57B, 58, 60C, 60E, 60F, 60G, 60I
Limitation Act 1980 (UK), s 14
Limitation of Actions Act 1958 (Vic), s 3
Veterans' Entitlements Act 1986 (Cth), ss 68, 70CASES CITED: Anderson v Kaufman (1991) 7 NSWCCR 198
Barker v Wingo 407 US 514 (1972)
Blunden v The Commonwealth (2003) 218 CLR 330
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Burk v Commonwealth of Australia [2004] VSC 210
Central Asbestos Co Ltd v Dodd (1973) AC 518
Collector of Customs v Cliffs Robe River Iron Associates (1985) 7 FCR 271
Commissioner for Superannuation v Miller (1985) 8 FCR 153
Commonwealth of Australia v Smith [2005] NSWCA 478
CRA Ltd v Martignago (1996) 39 NSWLR 13
Dedousis v The Water Board (1994) 181 CLR 171
Drayton Coal Pty Ltd v Drain (22 August 1995, unrep, NSWCA)
Harris v Commercial Minerals Ltd (1996) 186 CLR 1
Holt v Wynter (2000) 49 NSWLR 128
Laminex (Australia) Pty Ltd v Coutts [2006] NSWCA 186
March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506
Purkess v Crittenden (1965) 114 CLR 164
Roncevich v Repatriation Commission (2005) 79 ALJR 1366
Shaw v Commonwealth of Australia [2005] NSWSC 1027
Stingel v Clark [2006] HCA 37
Sydney City Council v Zegarac (1998) 43 NSWLR 195
Taciak v Australian Federal Police (1995) 131 ALR 319
Telstra Corporation Ltd v Rea [2002] NSWCA 49
Tsiadis v Patterson (2001) 4 VR 114
Watts v Rake (1960) 108 CLR 158PARTIES: Commonwealth of Australia (Claimant)
Brian John Shaw (Opponent)FILE NUMBER(S): CA 40876/05 COUNSEL: Mr C. Barry…
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Details
- Case
- [2006] NSWCA 209
- Decision Date
CaseChat Overview and Summary
The Commonwealth of Australia appealed to the New South Wales Court of Appeal against an order of Howie J that extended the limitation period for a claim brought by Mr. Shaw. Mr. Shaw sought to bring proceedings for psychological injury allegedly suffered as a result of the collision between HMAS Melbourne and HMAS Voyager in 1964. The central dispute concerned whether Mr. Shaw had satisfied the requirements of the *Limitation Act 1969* (NSW) for extending the time within which to commence proceedings for personal injury.
The Court of Appeal was required to determine whether Mr. Shaw knew that he suffered a personal injury, whether he was unaware of the connection between that injury and the Commonwealth's act or omission, and when he ought to have become aware of these matters, as required by sections 60I(1)(a) and (b) of the *Limitation Act*. Furthermore, the Court had to consider whether it was just and reasonable to extend the time for commencing proceedings, as contemplated by section 60G of the Act.
The Court allowed the appeal, finding that Mr. Shaw had not established the necessary preconditions for an extension of time. The judges reasoned that Mr. Shaw had been aware of his psychological condition and its connection to the naval collision for a significant period before commencing proceedings. Consequently, the Court set aside the order of Howie J that had extended the limitation period.
In lieu of the orders made below, the Court of Appeal ordered that Mr. Shaw's application to extend time be dismissed, and that the proceedings commenced on 4 October 2002 be dismissed. Mr. Shaw was ordered to pay the Commonwealth's costs in the Court below and the Commonwealth's costs of the appeal, although Mr. Shaw was granted a certificate under the *Suitors' Fund Act 1951* (NSW) in relation to the costs of the appeal.
The Court of Appeal was required to determine whether Mr. Shaw knew that he suffered a personal injury, whether he was unaware of the connection between that injury and the Commonwealth's act or omission, and when he ought to have become aware of these matters, as required by sections 60I(1)(a) and (b) of the *Limitation Act*. Furthermore, the Court had to consider whether it was just and reasonable to extend the time for commencing proceedings, as contemplated by section 60G of the Act.
The Court allowed the appeal, finding that Mr. Shaw had not established the necessary preconditions for an extension of time. The judges reasoned that Mr. Shaw had been aware of his psychological condition and its connection to the naval collision for a significant period before commencing proceedings. Consequently, the Court set aside the order of Howie J that had extended the limitation period.
In lieu of the orders made below, the Court of Appeal ordered that Mr. Shaw's application to extend time be dismissed, and that the proceedings commenced on 4 October 2002 be dismissed. Mr. Shaw was ordered to pay the Commonwealth's costs in the Court below and the Commonwealth's costs of the appeal, although Mr. Shaw was granted a certificate under the *Suitors' Fund Act 1951* (NSW) in relation to the costs of the appeal.
Orders
Orders of the court
(1) Appeal allowed; (2) Order of Howie J made on 14 October 2005 extending the limitation period to the date upon which the statement of claim was filed set aside; (3) In lieu of the orders made below, order that; (a) the application to extend time be dismissed; (b) the proceedings commenced on 4 October 2002 be dismissed; (c) the applicant/plaintiff pay the costs of the Commonwealth in the Court below; (4) The Respondent pay the Commonwealth's costs of the appeal; (5) Grant the Respondent a certificate under the Suitors' Fund Act 1951 (NSW) in relation to the costs of the appeal
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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