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Commonwealth v Nelson

Commonwealth v Nelson

Case [2001] NSWCA 443 30 November 2001

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CITATION: Commonwealth of Australia v William Richard Nelson [2001] NSWCA 443

FILE NUMBER(S): CA 41062/00

HEARING DATE(S): 16 November 2001

JUDGMENT DATE:
30 November 2001

PARTIES :

Commonwealth of Australia
v
William Richard Nelson

JUDGMENT OF: Sheller JA at 1; Hodgson JA at 2; Rolfe AJA at 3

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : 8272/98; 7684/99

LOWER COURT
JUDICIAL OFFICER : Robison DCJ

COUNSEL: Appellant - C R R Hoeben SC
Respondent - J A Loxton

SOLICITORS: Appellant - Australian Government Solicitor
Respondent - Low Doherty & Stratford Blacktown

CATCHWORDS: LIMITATION OF ACTIONS - postponement of bar - appeal against grant of extension of time under s 60G Limitation Act 1969 - cause of action to recover damages for post traumatic stress disorder - whether applicant was aware, or ought to have been aware, of "nature [and] extent of injury" more than 3 years before making application to extend time - aware of symptoms but not aware of diagnosis as post traumatic stress disorder - s 60I(1)(a)(ii), s 60I(1)(b) - exercise of discretion under s 60G(2) - relevant considerations - what applicant knew or ought to have known about nature and extent of injury

LEGISLATION CITED: Limitation Act 1969

CASES CITED:
CRA v Martignago & Anor [1996] 39 NSWLR 13
Harris v Commercial Minerals Limited & Ors (1996) 186 CLR 1
Commonwealth of Australia v Dinnison (1995) 56 FCR 389
Drayton Coal Pty Limited v Drain (C/A 22/8/95 unrep)

DECISION: That the Application for Leave to Appeal be granted; That the appeal be allowed ; That the orders made by Robison DCJ on 15 December 1999 be set aside, and in lieu thereof that the opponent's Notice of Motion be dismissed with costs; That the opponent pay the claimant's costs of the application for leave and the appeal, and have a certificate if otherwise qualified.

CA 41062/00
DC 8272/98

SHELLER JA
HODGSON JA
ROLFE AJA

30 November 2001

Commonweath of Australia v William Richard Nelson

Judgment

1 Sheller JA: I agree with Rolfe AJA.

2 Hodgson JA: I agree with Rolfe AJA.

3 Rolfe AJA:

The General Nature Of The Proceedings

The claimant, Commonwealth of Australia, (“the Commonwealth”), for which Mr C R R Hoeben of Queen’s Counsel appeared, has sought leave to appeal against orders made by Robison DCJ on 15 December 1999, pursuant to a Notice of Motion, which, it was conceded for the purposes of this application, was filed on 6 November 1998, extending the limitation period within which the opponent, Mr William Richard Nelson, for whom Mr J A Loxton of Counsel appeared, might sue it. Mr Nelson opposed the grant of such leave, but the parties agreed that if leave is granted this Court should determine the appeal and, if it is of the opinion that the appeal should be allowed, re-exercise the trial Judge’s discretion, rather than remitting the matter to him.

The Factual Background

4 Mr Nelson was born on 27 December 1960 and joined the Royal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Commonwealth v Nelson

Details

AGLC: Commonwealth v Nelson [2001] NSWCA 443
Case: [2001] NSWCA 443
Decision Date: 30 November 2001

CaseChat Overview and Summary

The appeal in *Commonwealth v Nelson* concerned an application for an extension of time under section 60G of the *Limitation Act 1969* (NSW). The applicant sought to bring a claim for damages for post-traumatic stress disorder. The central dispute revolved around whether the applicant was aware, or ought to have been aware, of the "nature and extent of the injury" more than three years prior to making the application to extend time.

The court was required to determine two primary legal issues. Firstly, whether the applicant's awareness of certain symptoms constituted awareness of the "nature and extent of the injury" for the purposes of the limitation period, even in the absence of a formal diagnosis of post-traumatic stress disorder. Secondly, the court had to consider the proper exercise of the discretion granted under section 60G(2) of the *Limitation Act*, including what factors were relevant to the applicant's knowledge or constructive knowledge regarding the nature and extent of their injury.

The court reasoned that mere awareness of symptoms, without an understanding of their nature and extent as constituting a specific injury like post-traumatic stress disorder, was insufficient to trigger the limitation period. The principles applied focused on the applicant's subjective and objective knowledge of the injury's character and impact. The court found that the primary judge had erred in exercising the discretion under section 60G(2). Consequently, the application for leave to appeal was granted, the appeal was allowed, and the orders made by the District Court granting the extension of time were set aside, with the opponent's notice of motion being dismissed.

Orders

Orders of the court

That the Application for Leave to Appeal be granted; That the appeal be allowed ; That the orders made by Robison DCJ on 15 December 1999 be set aside, and in lieu thereof that the opponent's Notice of Motion be dismissed with costs; That the opponent pay the claimant's costs of the application for leave and the appeal, and have a certificate if otherwise qualified.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Commonwealth v Nelson [2001] NSWCA 443

Most Recent Citation

O'Hagan v Sakker [2011] NSWDC 60

Cases citing this decision · 16 of 16 shown

Doughty v Hillier
[2024] NSWSC 1220

…106 The Commonwealth relied on Commonwealth v Nelson [2001] NSWCA 443. Mr Nelson received psychological counselling and consulted a psychiatrist a few years after a submarine malfunction. He continued to have counselling for about 10 years. The Court of Appeal found that even if Mr Nelson was not subjectively aware…
Lewicki v Hunter New England Local Health District
[2020] NSWSC 1037 Para 147

…Citing Commonwealth of Australia v Smith [2005] NSWCA 478 and Commonwealth v Nelson [2001] NSWCA 443, the defendant submitted the evidence established that the plaintiff was aware of his symptoms from which he was suffering following surgery, for which he had sought medical treatment over many years prior to Novemb…
Hamilton v State of New South Wales
[2020] NSWSC 700

…nando (2012) 200 FCR 1; [2012] FCAFC 18 Commonwealth v Nelson [2001] NSWCA 443 Commonwealth v Smith [2005] NSWCA 478 Cornwall v Rowan [2004] 90 SASR 269; [2004] SASC 384 CRA Ltd v Martignago; Costain Australia Ltd v Martignago (1996) 39 NSWLR 13 Cran v New South Wales [2004] NSWCA 92 De Reus v Gray (2003) 9 VR 432;…
O'Hagan v Sakker
[2011] NSWDC 60 Para 1

…should not be held to have had recourse to the means of acquiring the requisite knowledge, such as was the case in Commonwealth of Australia v Nelson [2001] NSWCA 443 at [89]. This is because the plaintiff did not have relevant access to Dr Simpson for the purpose of discussion in consultation in the period between…
Williams v Commonwealth of Australia
[2007] NSWSC 679

…o be able to take legal action, until quite recently.' [Vol 1, page 305] [106] The Commonwealth relied on Commonwealth v Nelson [2001] NSWCA 443. Mr Nelson received psychological counselling and consulted a psychiatrist a few years after a submarine malfunction. He continued to have counselling for about 10 years.…
Cooke v State of NSW
[2006] NSWSC 655

…NSWCA 472 Coal & Allied Operations Pty Ltd t/as Hunter Valley Operations (Howick Mine) v Stringer [2003] NSWCA 271 Commonwealth of Australia v Nelson [2001] NSWCA 443 Commonwealth v Smith [2005] NSWCA 478 Delta Pty Ltd v Whitefield [2004] NSWCA 220 Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty L…
JX v GX & Others
[2006] NSWCA 167

…LEGISLATION CITED: Limitation Act 1969 CASES CITED: Commonwealth of Australia v Dinnison (1995) 56 FCR 389 Commonwealth of Australia v Nelson [2001] NSWCA 443 Commonwealth of Australia v Smith [2005] NSWCA 478 Harris v Commercial Minerals Ltd & Ors (1996) 186 CLR 1 McGloin v Magann [2005] NSWCA 358 PARTIES: "JX" (C…
Commonwealth of Australia v Smith
[2005] NSWCA 478 Para 4

…)failed to follow and/or apply, or to correctly apply, the relevant authorities relied upon by the Commonwealth, namely Commonwealth v Nelson [2001] NSWCA 443; CRA Ltd v Martignago [1996] 39 NSWLR 13 to the facts as established on the evidence.…
Eijkman v Magann; McGloin v Magann; Trustees of the Roman Catholic Church of the Diocese of Parramatta v Magann
[2005] NSWCA 358

…ommonwealth of Australia v Dinnison (1995) 56 FCR 403; The Commonwealth of Australia v Diston [2003] NSWCA 51; The Commonwealth of Australia v Nelson [2001] NSWCA 443; Cranbrook School v Stanley [2002] NSWCA 290; Drayton Coal Pty Ltd v Drain (Court of Appeal, 22 August 1995, unreported); Harris v Commercial Mineral…
Shaw v Commonwealth of Australia
[2005] NSWSC 1027

…nsion would result in significant prejudice to the defendant. LEGISLATION CITED: Limitation Act 1969 - ss 60G, 60I CASES CITED: Commonwealth v Nelson [2001] NSWCA 443 Commonwealth of Australia v Dinnison (1995) 56 FCR 389 CRA Ltd v Martignago (1995) 39 NSWLR 13 Harris v Commercial Minerals Ltd & Ors (1996) 186 CLR…
Baragwanath v Commonwealth of Australia
[2005] NSWSC 575

…1996) 186 CLR 541 Commonwealth v Dinnison (1995) 56 FCR 389 Commonwealth of Australia v McLean (1997) 41 NSWLR 389 Commonwealth of Australia v Nelson [2001] NSWCA 443 Dedousis v Water Board (1994) 181 CLR 171 Drayton Coal Pty Limited v Drain (Court of Appeal, unreported, 22 August 1995) Harris v Commercial Minerals…
Lymbery v The Commonwealth of Australia
[2005] NSWSC 523

…rity v Taylor (1996) 186 CLR 541; 139 ALR 1 Commonwealth of Australia v McLean (1996) 41 NSWLR 389 Commonwealth of Australia v William Richard Nelson [2001] NSWCA 443 CRA v Martignago (1996) NSWLR 13 Drayton Coal Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995) Gretton v The Commonwealth [2005] NS…
Gretton v The Commonwealth
[2005] NSWSC 437

…CLR 541 Commonwealth of Australia v Diston [2003] NSWCA 51 Commonwealth of Australia v McLean (1997) 41 NSWLR 389 Commonwealth of Australia v Nelson [2001] NSWCA 443 CRA Ltd & Costain Australia Ltd v Martignago (1996) 39 NSWLR 13 Harris v Commercial Minerals Limited (1996) 186 CLR 1 Hill v Commonwealth of Australi…
Leigh Evans v Commonwealth of Australia
[2005] NSWSC 280

…rt Rules 1970 CASES CITED: Brisbane Regional Health Authority v Taylor (1996) 186 CLR 541 Commonwealth v Diston [2003] NSWCA 51 Commonwealth v Nelson [2001] NSWCA 443 McLean v Sydney Water Corporation [2001] NSWCA 122 PARTIES: Leigh Evans (Plaintiff) Commonwealth of Australia (Defendant) FILE NUMBER(S): SC 20049/02…
Smith v The Commonwealth
[2004] NSWSC 873

…26 Counsel relied on Commonwealth of Australia v William Richard Nelson [2001] NSWCA 443. In that case the members of the Court of Appeal cited with approval the remarks of Clarke JA in an earlier Court of Appeal case, CRA Limited v Martignago (1996) 39 NSWLR 13. In the former case the respondent sustained a neck i…
Cranbrook School v Stanley
[2002] NSWCA 290

…D LEGISLATION CITED: Limitation Act 1969 (NSW) CASES CITED: Commonwealth of Australia v Dinnison (1995) 56 FCR 389 Commonwealth of Australia v Nelson [2001] NSWCA 443 CRA Ltd v Martignagno (1996) 39 NSWLR 13 Harris v Commercial Minerals Ltd (1996) 186 CLR 1 O'Brien v O'Brien (1995) 35 NSWLR 664 Scarcella v Lettice…

View all 16 citing cases →

Cases cited in this decision · 0 of 0 shown

No cases cited.

Legislation cited in this decision · 1

Limitation Act 1969 (NSW)
1 mention

CITATION:	Commonwealth of Australia v William Richard Nelson [2001] NSWCA 443
FILE NUMBER(S):	CA 41062/00
HEARING DATE(S):	16 November 2001
JUDGMENT DATE:	30 November 2001
PARTIES :	Commonwealth of Australia v William Richard Nelson
JUDGMENT OF:	Sheller JA at 1; Hodgson JA at 2; Rolfe AJA at 3

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	8272/98; 7684/99
LOWER COURT JUDICIAL OFFICER :	Robison DCJ

COUNSEL:	Appellant - C R R Hoeben SC Respondent - J A Loxton
SOLICITORS:	Appellant - Australian Government Solicitor Respondent - Low Doherty & Stratford Blacktown
CATCHWORDS:	LIMITATION OF ACTIONS - postponement of bar - appeal against grant of extension of time under s 60G Limitation Act 1969 - cause of action to recover damages for post traumatic stress disorder - whether applicant was aware, or ought to have been aware, of "nature [and] extent of injury" more than 3 years before making application to extend time - aware of symptoms but not aware of diagnosis as post traumatic stress disorder - s 60I(1)(a)(ii), s 60I(1)(b) - exercise of discretion under s 60G(2) - relevant considerations - what applicant knew or ought to have known about nature and extent of injury
LEGISLATION CITED:	Limitation Act 1969
CASES CITED:	CRA v Martignago & Anor [1996] 39 NSWLR 13 Harris v Commercial Minerals Limited & Ors (1996) 186 CLR 1 Commonwealth of Australia v Dinnison (1995) 56 FCR 389 Drayton Coal Pty Limited v Drain (C/A 22/8/95 unrep)
DECISION:	That the Application for Leave to Appeal be granted; That the appeal be allowed ; That the orders made by Robison DCJ on 15 December 1999 be set aside, and in lieu thereof that the opponent's Notice of Motion be dismissed with costs; That the opponent pay the claimant's costs of the application for leave and the appeal, and have a certificate if otherwise qualified.