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Johnson v DOCS

Johnson v DOCS

Case [1999] NSWSC 1156 2 December 1999

Limitation Periods

Breach of Common Law Duty

Breach of Statutory Duty

Breach of Fiduciary Duty

Civil Litigation & Procedure

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Reported Decision: (2000) Aust Torts Reports 81-540

New South Wales

Supreme Court

CITATION: Johnson v DOCS [1999] NSWSC 1156

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): 20729/97

HEARING DATE(S): 24/11/99, 25/11/99

JUDGMENT DATE:
2 December 1999

PARTIES :

Christopher Johnson - Appellant
Department of Community Services - First Respondent
Minister for Community Services - Second Respondent
State of New South Wales - Third Respondent

JUDGMENT OF: Rolfe J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 20729/1997

LOWER COURT JUDICIAL OFFICER: Master Harrison

COUNSEL : Mr T.K. Tobin QC/Mr P.W.J. Gray - Appellant
Mr J.A. McCarthy QC/Ms R. Druitt - Respondents

SOLICITORS: Carroll & O'Dea - Appellant
I.V. Knight, Crown Solicitor - Respondents

CATCHWORDS: An Aboriginal boy was made a ward of the State as an infant. After the expiration of the limitation period he sought to bring proceedings against the respondents alleging common law negligence, and breach of statutory and fiduciary duties. The Master refused to extend the time on the basis that he had not established the requirements of s.58(2) and ss.60G and I. Held the Master was in error in this regard, but not in finding that he had available causes of action and it was otherwise just and reasonable to grant the extension.; Test to be applied as to the extent to which the applicant must show an available cause of action in an application to extend time:-; Williams v Minister, Aboriginal Land Rights Act 1983 and Anor (1994) 35 NSWLR 497; Commonwealth of Australia v McLean (1997) 41 NSWLR 389.; Exercise of discretion in extending time under Limitation Act:-; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Sydney City Council v Zegarac (1998) 43 NSWLR 195.; The Nature of the Appellant's Case; Breach of Common Law Duty:-; Williams v Minister, Aboriginal Land Rights Act 1983 and Anor (1999) 25 FamLR 86; Hahn v Conley (1971) 126 CLR 276; Perre v Apand Pty Limited (1999) 73 ALJR 1190; Cubillo v Commonwealth of Australia (1999) 163 ALR 395.; Breach of Statutory Duty; Policy or operational:-; Pyrenees Shire Council v Day (1998) 192 CLR 330, Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; Air Services Australia v Zarb (Court of Appeal - 26 August 1998 - unreported); TC v New South Wales (1999) NSWSC 31; X (Minors) v Bedford County Council [1995] 2 AC 633.; Breach of Fiduciary Duty:-; Bennett v Minister of Community Welfare (1992) 176 CLR 408; Henderson v Mevrett Syndicates [1995] AC 145; Secretary, Department of Health and Community Services v J.W.B. and S.M.B. (Marion's Case) (1992) 175 CLR 218 at 317; Williams v Minister, Aboriginal Land Rights Act 1983 and Anor (1994) 35 NSWLR 497; Paramasivan v Flynn (1998) 160 ALR 203; M(K) v M(H) (1992) 96 DLR (4th) 289; Breen v Williams (1996) 186 CLR 71; Northern Land Council v The Commonwealth (No 2) (1987) 75 ALR 210

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 Johnson v DOCS

Details

AGLC: Johnson v DOCS [1999] NSWSC 1156
Case: [1999] NSWSC 1156
Decision Date: 2 December 1999

CaseChat Overview and Summary

The case of Johnson v DOCS involved an Aboriginal boy who had been made a ward of the State as an infant and who, after the expiration of the limitation period, sought to bring proceedings against the respondents for common law negligence and breaches of statutory and fiduciary duties. The Master had refused to extend the time for bringing the proceedings on the grounds that the applicant had not established the requirements of sections 58(2) and 60G and I of the relevant legislation. The applicant appealed this decision. The legal issues before the court were the extent to which the applicant must demonstrate an available cause of action in an application to extend time and the exercise of discretion in extending time under the Limitation Act.

The court examined the test to be applied in determining the extent to which the applicant must show an available cause of action in an application to extend time. It referenced cases such as Williams v Minister, Aboriginal Land Rights Act 1983 and Anor and Commonwealth of Australia v McLean. The court found that the Master had erred in their interpretation of the relevant provisions of the Limitation Act. While the Master had correctly identified that the applicant had available causes of action, they had not properly considered the other factors that should be taken into account when exercising discretion to extend time. The court held that it was just and reasonable to grant the extension of time in this case.

In conclusion, the court held that the Master was in error in not granting the extension of time as it was just and reasonable to do so, and the applicant had available causes of action. The court emphasised the importance of considering all relevant factors when exercising discretion to extend time under the Limitation Act. The final order of the court was that the appeal be allowed, and the extension of time be granted to the applicant.

Orders