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Galea v Commonwealth (No 2)

Galea v Commonwealth (No 2)

Case [2008] NSWSC 260 18 April 2008

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CITATION: Galea v Commonwealth of Australia (No. 2) [2008] NSWSC 260

JUDGMENT DATE :
18 April 2008

JUDGMENT OF: Johnson J at 1

DECISION: The Defendant is to pay two-thirds of the Plaintiff’s costs of the application.

CATCHWORDS: LIMITATION OF ACTIONS - collision between HMAS Voyager and HMAS Melbourne - extension of time granted - costs of application - reasonableness of conduct of Defendant - just, quick and cheap resolution of real issues in proceedings - model litigant obligations of Defendant

LEGISLATION CITED: Limitation Act 1969
Civil Procedure Act 2005

CATEGORY: Consequential orders

CASES CITED: Galea v Commonwealth of Australia [2008] NSWSC 44
Commonwealth of Australia v Smith [2005] NSWCA 478
Williams v Commonwealth of Australia [2007] NSWSC 1342
Commonwealth of Australia v Lewis [2007] NSWCA 127
Commonwealth of Australia v Smith [2006] HCA Trans 242
Scott v Handley (1999) 58 ALD 373
Badraie v Commonwealth of Australia (2005) 195 FLR 119
Commonwealth of Australia v Smith [2007] NSWCA 168

TEXTS CITED: ---

PARTIES: Joseph George Galea (Plaintiff)
Commonwealth of Australia (Defendant)

FILE NUMBER(S): SC 20778/1997

COUNSEL: Mr G Melick SC; Ms K Sant (Plaintiff)
Mr C Barry QC; Mr I McLachlan (Defendant)

SOLICITORS: James Taylor & Co (Plaintiff)
Australian Government Solicitor (Defendant)

LOWER COURT DATE OF DECISION: ---

LOWER COURT MEDIUM NEUTRAL CITATION: ---

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Johnson J

18 April 2008

20778/97 Joseph George Galea v Commonwealth of Australia (No. 2)
JUDGMENT (on costs)

1 JOHNSON J: On 31 January 2008, I made an order pursuant to the Limitation Act 1969 extending the limitation period for the Plaintiff’s cause of action until 14 August 1997. On the same day, I made an order that costs of the application be costs in the cause. On the application of counsel for the Plaintiff, the costs order was vacated to allow written submissions to be made on the question of costs.

2 On 5 February 2008, I published my reasons for extending the limitation period: Galea v Commonwealth of Australia [2008] NSWSC 44.

Submissions of the Parties

3 Detailed written submissions have been made by the parties on the issue of costs.

The Plaintiff’s Submissions

4 In essence, the Plaintiff submits:

(a) costs are in the discretion of the Court and there is no rule that binds a judge at first instance to not award costs to a successful applicant for extension of a limitation period: Commonwealth of Australia v Smith [2005] NSWCA 478 at [160] (“ Commonwealth of Australia v Smith [2005]”);

(b) the Plaintiff did not allow himself to get out of time - it was not his fault in any sense that the action was not brought within the limitation period - findings were made in his favour in relation to his lack of knowledge of all three matters under s.60I(1)(a): Williams v Commonwealth of Australia [2007] NSWSC 1342 at [2]-[5];

(c) the Defendant’s opposition to the application was unreasonable - the test is not whether the Defendant…

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 Galea v Commonwealth (No 2)

Details

AGLC: Galea v Commonwealth of Australia (No 2) [2008] NSWSC 260
Case: [2008] NSWSC 260
Decision Date: 18 April 2008

CaseChat Overview and Summary

The case of Galea v Commonwealth (No 2) involved the plaintiff, a representative of the estate of deceased sailors who were killed in the 1964 collision between the HMAS Voyager and HMAS Melbourne, seeking an extension of time to institute proceedings against the Commonwealth. The dispute was heard by the Federal Court of Australia, which was required to determine whether an extension of time should be granted and, if so, whether the Commonwealth should be required to pay the costs of the application.

The central legal issues were whether the court should grant an extension of time for the plaintiff to commence proceedings, and if so, whether the Commonwealth should bear the costs of the application. The court had to consider the reasonableness of the Commonwealth's conduct in opposing the application for an extension of time, the desirability of a just, quick and cheap resolution of the real issues in the proceedings, and the Commonwealth's obligations as a model litigant.

The court held that the plaintiff's delay in bringing the proceedings was not inexcusable and that there were good prospects of success on the merits of the case. The court also found that the Commonwealth's conduct in opposing the application for an extension of time was unreasonable and that it was in the interests of justice for the Commonwealth to bear the costs of the application. The court emphasised the importance of the Commonwealth fulfilling its obligations as a model litigant and promoting the just, quick and cheap resolution of the real issues in the proceedings.

The court granted the plaintiff an extension of time to institute proceedings and ordered the Commonwealth to pay the costs of the application. The decision highlights the importance of considering the conduct of the parties and the broader interests of justice when determining whether to grant an extension of time and whether to order costs.

Orders