Legal Research
Cases
Gretton v The Commonwealth

Gretton v The Commonwealth

Case [2005] NSWSC 437 27 April 2005

No judgment structure available for this case.

Type to search within this case.

CITATION:
Gretton v The Commonwealth [2005] NSWSC 437

HEARING DATE(S): 26, 27 April 2005

JUDGMENT DATE :

27 April 2005

JURISDICTION:
Common Law Division

JUDGMENT OF:
McDougall J at 1

DECISION:
See para [99] of judgment

CATCHWORDS:
LIMITATION OF ACTIONS - extension of time - whether plaintiff knew personal injury suffered - whether plaintiff unaware of nature and extent of personal injury - whether plaintiff unaware of connection between personal injury and act or omission of defendant - whether just and reasonable to grant an extension of time - whether granting an extension of time would cause significant prejudice to defendant - whether fair trial possible - meaning of "fair trial" - COSTS - where plaintiff conceded that SCR Pt 52A r 17 applicable to limitation question dealt with separately and plaintiff succeeded - whether litigation unduly extended - whether s 60G Limitation Act provides another regime for costs order

LEGISLATION CITED:
Limitation Act 1969 (NSW)

CASES CITED:
Brisbane South Regional Health Authority v Taylor (1996) 186 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 Australia [2005] NSWCA 94
Holt v Wynter (2000) 49 NSWLR 128
Parsons v Doukas (2001) 52 NSWLR 163
Salido v Nominal Defendant (1993) 32 NSWLR 524
Smith v Commonwealth of Australia [2004] NSWSC 873
South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477
State of New South Wales v Judd [2003] NSWCA 355
Sydney City Council v Zegarac (1998) 43 NSWLR 195

PARTIES:
Cecil Eric Gretton (Plaintiff)
Commonwealth of Australia (Defendant)

FILE NUMBER(S):
SC 20821/01

COUNSEL:
J L Sharpe (Plaintiff)
P S Jones/W P Y Austron (Defendant)

SOLICITORS:
Hollows Lawyers, Melbourne (Plaintiff)
Australian Government Solicitor (Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McDOUGALL J

Wednesday 27 April 2005 Ex tempore (revised 4 May 2005)

COMMONWEALTH OF AUSTRALIA

JUDGMENT

1 HIS HONOUR: The plaintiff (Mr Gretton) served in the Royal Australian Navy from 30 June 1961 until 23 August 1968. He was serving as an engineering mechanic first class on board HMAS Melbourne when, on 10 February 1964, it collided with HMAS Voyager. Mr Gretton says that, as a result of the events of that dreadful night, he suffers from post traumatic stress disorder and other “injuries”. He claims damages for those matters, and for their impact on his life. Before he can succeed, he must (among other things), obtain an order extending the limitation period to 9 October 2001, when these proceedings were commenced. These reasons deal with his application for that order.

The nature of Mr Gretton’s claim

2 Mr Gretton alleges, in substance, the matters to which I have referred. He gives detailed particulars of negligence. Some, but not all, of those particulars are admitted; the effect of…

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 Gretton v The Commonwealth

Details

AGLC: Gretton v The Commonwealth [2005] NSWSC 437
Case: [2005] NSWSC 437
Decision Date: 27 April 2005

CaseChat Overview and Summary

The case of Gretton v The Commonwealth involved a dispute between the plaintiff, Gretton, and the defendant, The Commonwealth, regarding a personal injury claim. The plaintiff sought damages for injuries sustained during his military service. The primary legal issue was whether the plaintiff was aware of the personal injury, the nature and extent of the injury, and the connection between the injury and the defendant's actions or omissions. This was pivotal in determining whether the plaintiff's action was within the limitation period and if an extension of time should be granted. The court was also tasked with assessing whether granting an extension would cause significant prejudice to the defendant, and if a fair trial was possible under the circumstances.

The court examined the concept of when a plaintiff is deemed to have knowledge of their injury for limitation purposes. It was established that the plaintiff was unaware of the personal injury, the nature and extent of the injury, and the connection between the injury and the defendant's actions. The court then considered whether it was just and reasonable to grant an extension of time, balancing the plaintiff's lack of knowledge against the potential prejudice to the defendant. The court held that a fair trial was possible and that the extension of time would not significantly prejudice the defendant. Consequently, the court ruled in favour of the plaintiff, granting an extension of time and dismissing the defendant's limitation defence.

The final issue pertained to costs. The plaintiff conceded that the applicable rules regarding limitation were to be dealt with separately, and since the plaintiff succeeded in the main proceedings, the court needed to determine if the litigation had been unduly extended. The court found that the litigation was not unduly extended and that the plaintiff's conduct was not unreasonable. The court then considered whether section 60G of the Limitation Act provided another regime for the costs order. Ultimately, the court ruled that the plaintiff was entitled to costs under the general costs provision, and the defendant was ordered to pay the plaintiff's costs of the proceedings.

Orders