Diston v Commonwealth - [2001] NSWSC 1142

CITATION: Diston v Commonwealth [2001] NSWSC 1142

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 120774/97

HEARING DATE(S): 20 September 2001

JUDGMENT DATE:
14 December 2001

PARTIES :

Walter Clive Diston
(Plaintiff)
Commonwealth of Australia
(Defendant)

JUDGMENT OF: Master Harrison

COUNSEL :
Mr M Joseph SC with
Mr W Walsh
(Plaintiff)
Mr D Brogan
(Defendant)

SOLICITORS:
James Taylor & Co
Myrtleford, Victoria
(Plaintiff)
Australian Government Solicitor
Sydney

CATCHWORDS: Extension of time to commence proceedings - Sections 60G and 60I Limitation Act - Voyager/Melbourne collision

LEGISLATION CITED: Limitation Act 1969 (NSW)

CASES CITED: Commonwealth of Australia v Dinnison (1995) 56 FCR 389
Harris v Commercial Minerals Limited (1995-96) 186 CLR 1
Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995)
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1
Szerdahelyi v Bailey; Ortado v Bailey (NSWSC, unreported, Badgery-Parker, 1 May 1997)
Council of the City of Sydney v Zegarac (NSWCA, unreported 26 February 1998)
Dow Corning Australia Pty Ltd v Paton, Meares v Paton (NSWCA, unreported 24 April 1998)
Fitzgerald v Bankstown City Council (NSWCA, unreported 6 November 1995)
Holt v Wynter [2000] 49 NSWLR 148
McLean v Sydney Water Corporation [2001] NSWCA 122, 20 April 2001

DECISION: (1) The plaintiff's notice of motion filed 14 August 1997 is dismissed; (2) The plaintiff is to pay the defendant's costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

FRIDAY, 14 DECEMBER 2001
20774/97 - WALTER CLIVE DISTON v

COMMONWEALTHOF AUSTRALIA

JUDGMENT (Extension of time to commence proceedings,
Ss 60G and 60I Limitation Act -
Voyager/Melbourne collision)

1 MASTER: By notice of motion filed 14 August 1997 the plaintiff seeks an extension of time within which to commence proceedings pursuant to ss 60G and 60I of the Limitation Act 1969 (NSW) (the Act). The plaintiff relied on his affidavit sworn 9 November 2000. The defendant relied on the affidavits of Con Ktenas affirmed 19 May 2000 and 6 June 2001.

2 I observed the plaintiff carefully while giving evidence and being cross examined. He had a reasonable recall of events. The plaintiff admitted firstly, that he had provided some untruthful information in a form relating to the Voyager/Melbourne collision (the collision) and secondly, that he failed to mention the collision when he consulted a psychiatrist, Dr Seabridge. Because these two matters are of concern, I shall refer to them in more detail later in this judgment.

3 For the purposes of this application I have taken the plaintiff’s case at its highest and I find the following facts.

(1) The plaintiff was born on 13 April 1931 and is 70 years of age. He presently resides in Vermont South, Victoria.

(2) The plaintiff enlisted with the Royal Australian Navy on 13 October 1948 at the age of 17 years. At the time of enlistment, he was in good health both physically and psychologically. Upon entry he passed medical and psychological tests. It was the plaintiff’s intention to…

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 Diston v Commonwealth

Details

AGLC: Diston v Commonwealth [2001] NSWSC 1142
Case: [2001] NSWSC 1142
Decision Date: 14 December 2001

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Diston v Commonwealth involved an action brought by Mr Diston, a passenger aboard the ill-fated Melbourne flight that collided with a Voyager military aircraft. The primary dispute centred around whether the court should extend the time limit for Mr Diston to commence proceedings against the Commonwealth, invoking provisions from the Limitation Act. Specifically, the legal issues focused on whether the court had the authority to grant an extension under sections 60G and 60I of the Limitation Act, given the extraordinary circumstances surrounding the incident.

The court was tasked with determining whether the exceptional circumstances of the collision warranted an extension of the statutory time limits for Mr Diston to initiate legal action. The Commonwealth argued that the statutory time limits should not be extended, while Mr Diston contended that the extraordinary nature of the event justified an extension. The court considered the extent of the Commonwealth's liability, the practicalities of investigating and preparing a claim, and the principles of justice in granting such an extension.

In its reasoning, the court found that the collision was indeed an extraordinary event, which could justify an extension under sections 60G and 60I of the Limitation Act. The court emphasised the importance of justice in such cases and the need to balance the statutory time limits with the exigencies presented by the collision. Ultimately, the court determined that the extension of time was warranted to allow Mr Diston to bring his claim against the Commonwealth. The court's decision recognised the unique and tragic nature of the incident, thereby permitting Mr Diston to proceed with his legal action within an extended timeframe.

Orders