NEW SOUTH WALES COURT OF APPEAL
CITATION: Commonwealth of Australia v Smith [2007] NSWCA 168
FILE NUMBER(S):
40742/06
HEARING DATE(S): 31 May 2007
JUDGMENT DATE: 13 July 2007
PARTIES:
Commonwealth of Australia - Appellant
David Ronald Smith - Respondent
JUDGMENT OF: Giles JA McColl JA Studdert J
LOWER COURT JURISDICTION: Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S): SC 20785/97
LOWER COURT JUDICIAL OFFICER: Adams J
LOWER COURT DATE OF DECISION: 6 July 2006 & 18 September 2006 (Costs)
LOWER COURT MEDIUM NEUTRAL CITATION:
Smith v The Commonwealth of Australia [2006] NSWSC 689 & [2006] NSWSC 956 (Costs)
COUNSEL:
C Barry QC & D Brogan - Appellant
P G Mahoney SC & J L Sharp - Respondent
SOLICITORS:
Australian Government Solicitor - Appellant
Riordan Legal Lawyers (Vic) - Respondent
CATCHWORDS:
Limitations - Voyager/Melbourne collision - whether error in extending limitation period - leave to appeal refused on issue of awareness of psychiatric injury and connection with collision - appellant did not raise issue at trial - by majority, no error in exercise of discretion to extend limitation period - reference to commonality of issues in many Voyager/Melbourne collision extension cases and whether appellant's current approach should continue.
LEGISLATION CITED:
Limitation Act 1969
Civil Procedure Act 2005
CASES CITED:
Blyth v Commonwealth of Australia [2005] NSWSC 721;
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541;
Commonwealth of Australia v Diston [2003] NSWCA 51;
Commonwealth of Australia v Lewis [2007] NSWCA 127;
Commonwealth v McLean (1996) 41 NSWLR 389;
Commonwealth of Australia v Shaw (2006) 66 NSWLR 325;
Commonwealth of Australia v Smith [2005] NSWCA 478;
Drayton Coal Pty Ltd v Drain (CA, 22 August 1995, unreported);
Holt v Wynter (2000) 49 NSWLR 128;
House v The King (1936) 55 CLR 499;
Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151;
Jones v Royal Hospital for Women (CA, 24 July 1998, unreported);
Mahoney v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522;
McLean v Commonwealth of Australia (Supreme Court of New South Wales, Sperling J, 18 June 1996; unreported);
McLean v Sydney Water Corporation [2001] NSWCA 1222;
Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333;
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274;
Parsons v Douglas (2001) 52 NSWLR 163;
Pearce v Commonwealth [2005] NSWSC 359;
Purkess v Critenden (1965) 114 CLR 164;
Sauer v Allianz Australia Insurance Ltd [2006] NSWCA 364;
Scott v Handley [1999] FCA 404;
Smith v Morton [2004] NSWCA 84
South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477;
State of Queensland v Stephenson (2006) 226 CLR 197;
Sydney City Council v Zegerac (1998) 43 NSWLR 195;
Telstra Corporation Ltd v Rea [2002] NSWCA 49;
Vairy v Wyong Shire Council (2005) 223 CLR 422;
Watts v Rake (1960) 108 CLR 158.
DECISION:
Application for leave to appeal dismissed with…
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- Case
- [2007] NSWCA 168
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court of Appeal was whether the primary judge erred in exercising their discretion to extend the limitation period. Specifically, the appeal focused on the primary judge's findings regarding Mr. Smith's awareness of his psychiatric injury and its connection to the collision, an issue that had not been raised at trial.
The Court, by majority, found no error in the primary judge's exercise of discretion. While acknowledging criticisms of the reliability of Mr. Smith's evidence regarding the onset and nature of his symptoms, and noting that medical reports did not explicitly link his condition to the collision, the majority considered the overall circumstances. The Court also referenced the commonality of issues in many *Voyager/Melbourne* collision cases and the appellant's approach in this instance. The application for leave to appeal was dismissed with costs.
Orders
Orders of the court
Application for leave to appeal dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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