Commonwealth v Verwayen

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.