Commonwealth v Verwayen

Case [1990] HCA 39


HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.

THE COMMONWEALTH v. VERWAYEN

(1990) 170 CLR 394

5 September 1990

Estoppel

Estoppel—Waiver—Action against Commonwealth by serviceman injured in collision between Australian naval vessels engaged in combat exercises—Defence—Failure to plead expiration of limitation period or absence of duty of care—Statements by Commonwealth that it would not rely on either defence—Subsequent amendment of defence to plead both grounds—Whether Commonwealth estopped from relying on defences—Whether defenced waived—Limitation of Actions Act 1958 (Vict.), s. 5(6).

Decisions


MASON C.J. On the night of 10 February 1964 a collision took place between H.M.A.S. Voyager and H.M.A.S. Melbourne upon the high seas in the vicinity of Jervis Bay. The respondent was at the time a member of the Royal Australian Navy serving on board H.M.A.S. Voyager. He is one of a number of people who subsequently brought actions against the Commonwealth for damages for injuries sustained as a result of the collision, alleging that their respective injuries had been caused by the negligence of the officers and crew of one or both of the ships.

2. It is not necessary for present purposes to describe in detail the circumstances surrounding the collision. It is convenient instead to set out the history of the ensuing litigation between the respondent and the Commonwealth. The most significant aspect of that history is that the respondent did not issue a statement of claim until 2 November 1984. The reason for this delay appears to have been that legal opinion after the time of the collision was influenced by certain remarks made by Windeyer J., by way of obiter, in Parker v. The Commonwealth (1965) 112 CLR 295 at pp 301-302, to the effect that, for reasons of public policy, a member of the armed forces could not recover damages for the negligence of another member of the armed forces in the course of duty. Those remarks were disapproved by the Court in Groves v. The Commonwealth (1982) 150 CLR 113 at pp 118-119, 133-134, 136, 137. That decision broadened the ambit of the law of negligence in the context of the activities of members of the armed forces.

3. By its defence, dated 14 March 1985, the Commonwealth admitted the allegations made in the statement of claim, except that it did not admit that the respondent had been injured or had suffered loss or damage as a result of the collision. In this way, liability was admitted but the question of damages remained in issue. The Commonwealth did not plead that the action was barred by the Limitation of Actions Act 1958 (Vict.) ("the Act"). Nor did it plead that it owed no duty of care to the respondent by reason of the decision in Groves. It is conceded by the respondent that the time period specified in the Act in relation to his cause of action had expired before the statement of claim was issued. Whether or not the Commonwealth owed a duty of…

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Commonwealth v Verwayen [1990] HCA 39
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[1990] HCA 39
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CaseChat Overview and Summary

The High Court of Australia considered the application of estoppel and waiver in *Commonwealth v Verwayen*. The dispute arose from an action brought by Mr. Verwayen, a serviceman injured in a collision between Australian naval vessels during combat exercises, against the Commonwealth. The Commonwealth initially indicated it would not rely on the defences of the expiration of the limitation period or the absence of a duty of care. However, it later sought to amend its defence to include these grounds.

The central legal issues before the High Court were whether the Commonwealth was estopped from relying on the defences of the limitation period and absence of duty of care, and whether it had waived its right to raise these defences. The Court also considered the application of section 5(6) of the *Limitation of Actions Act 1958* (Vict.).

The majority of the High Court held that the Commonwealth was estopped from relying on the defences. The Court reasoned that Mr. Verwayen had acted to his detriment in reliance on the Commonwealth's representations that it would not pursue these defences, specifically by not taking steps to investigate or preserve evidence relevant to those defences. The principle of estoppel, particularly as applied to prevent unconscionable conduct, was central to this determination. While the Court acknowledged the distinction between estoppel and waiver, it found that the Commonwealth's conduct amounted to an estoppel preventing it from resiling from its earlier position.

The High Court ordered that the appeal be dismissed, upholding the decision of the Full Federal Court which had found that the Commonwealth was estopped from relying on the limitation period defence.

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