Commonwealth of Australia v Shaw

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.