Commonwealth of Australia v Stankowski; Commonwealth of Australia v May

The proceedings involved the Commonwealth of Australia as the defendant and the respondents, Stankowski and May, as plaintiffs. The dispute concerned the application of limitation periods to claims arising from events that occurred on the high seas, with proceedings initiated in New South Wales. The matter was heard by Handley and Hodgson JJA, and Young CJ in Eq.

The central legal issues before the court were whether the Commonwealth should be permitted to amend its defence to rely on the *Limitation Act 1985* (ACT), particularly when an extension of time had already been sought under the *Limitation Act 1969* (NSW). The court also considered the principles of *Anshun* estoppel in relation to the re-litigation of issues, and whether any leave to amend should be subject to specific conditions. Furthermore, the court was required to determine the applicable law for torts occurring on the high seas, specifically whether it was the law of New South Wales or the law of the state or territory with the closest connection to the events.

The court's reasoning involved a complex interplay of conflict of laws principles and procedural considerations regarding amendments to pleadings and limitation periods. In the matter of Stankowski, leave to appeal was refused. However, in the matter of May, leave to appeal was granted. The court allowed the amendment of the defence to rely on the ACT Limitation Act, but imposed a condition. This condition stipulated that if the Commonwealth sought an extension of the limitation period under the ACT Act in addition to the NSW Act, that application would be determined as if it had been made concurrently with the application under the NSW Act. Leave to amend was granted on the basis that the Amended Defence be filed and served within 21 days, and that by accepting this leave, the Commonwealth agreed to the imposed condition.

Consequently, in the matter of May, leave to appeal was granted and the appeal was allowed, with leave to amend granted subject to the specified conditions. The Commonwealth was ordered to file its Notice of Appeal within 7 days. In both matters, the Commonwealth was ordered to pay the costs of the proceedings below, the application for leave, and the appeal, with exceptions for the Notice of Contention and its supporting written argument.