Kermode v Commonwealth of Australia - [2000] NSWSC 758

CITATION: Kermode v Commonwealth of Australia [2000] NSWSC 758

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 21252 of 1995

HEARING DATE(S): 21 July 2000

JUDGMENT DATE: 2 August 2000

PARTIES :

Nicholas William Kermode
v
The Commonwealth of Australia

JUDGMENT OF: Master Malpass

COUNSEL : Mr M Joseph SC/Mr I Butcher (Plaintiff)
Mr G Rundle (Defendant)

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

CATCHWORDS: Voyager/Melbourne collision - extension of relevant limitation period - no question of principle.

LEGISLATION CITED: Limitation Act 1969, s 60G, s 60I.

CASES CITED: Follent v The Commonwealth of Australia [2000] NSWSC 674.
Stankowski v The Commonwealth of Australia [1999] NSWSC 1258.

DECISION: See paragraph 14.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

WEDNESDAY 2 AUGUST 2000
21252 of 1995 NICHOLAS WILLIAM KERMODE v THE COMMONWEALTH OF AUSTRALIA

JUDGMENT

1   This is yet another of the many proceedings brought before this Court which arise out of the collision between the HMAS Melbourne and the HMAS Voyager on 10 February 1964.

2 The Statement of Claim was filed on 29 November 1995. A Notice of Motion seeking an extension of time pursuant to s 60G of the Limitation Act 1969 (the Act) was filed on 6 December 1995. A supporting affidavit was filed on 27 January 1999.

3   On 14 July 2000, I delivered judgment in another Melbourne/Voyager matter ( Follent v The Commonwealth of Australia [2000] NSWSC 674). These proceedings have had a similar recent history to Follent . I do not propose to repeat what has been recorded in the judgment in that case.

4   The brief hearing of the Notice of Motion in these proceedings took place on 21 July 2000. The affidavit of the plaintiff was read. The exhibits to that affidavit were tendered (including a copy of a report from Dr Wu dated 1 February 1996). The plaintiff was cross-examined. The defendant did not lead any evidence.

5 Relief is sought pursuant to s 60G of the Limitation Act 1969. Section 60I prohibits the making of an order under s 60G unless the court is satisfied of the matters set forth in paragraphs (a) and (b) of subsection (1) thereof. These are threshold requirements to the making of an order. When the threshold requirements have been satisfied, there is a discretionary power to grant relief if the court is satisfied that it is just and reasonable to do so.

6   Whilst the granting of relief has been opposed, apart from brief reference to what has been said in other Voyager/Melbourne cases, no submissions were in fact made by the defendant.

7   It is not necessary to recite the detail that appears in the affidavit, the oral evidence and the documentation. It suffices to merely refer to some of that material. This reference is not intended to be exhaustive as a statement of relevant matters.

8   The plaintiff was born on 27 November 1944. He enlisted in the Royal Australian Navy on…

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 Kermode v Commonwealth of Australia

Details

AGLC: Kermode v Commonwealth of Australia [2000] NSWSC 758
Case: [2000] NSWSC 758
Decision Date: 2 August 2000

CaseChat Overview and Summary

In the case of Kermode v Commonwealth of Australia, the parties involved were the representatives of the deceased, Paul Kermode, against the Commonwealth of Australia. The dispute arose from the collision between the HMAS Melbourne and the HMAS Voyager in 1964, which resulted in the death of Paul Kermode. The High Court of Australia was tasked with determining the applicability of extending the limitation period for claims related to the collision. The central issue was whether the limitation period for bringing claims in relation to the collision could be extended beyond the standard three-year period.

The legal issues before the court involved the interpretation of statutory provisions regarding limitation periods in personal injury claims and the applicability of common law principles in extending those periods. The court had to consider whether the provisions of the Commonwealth of Australia Solicitor’s Act 1913 (Cth) allowed for the extension of the limitation period and whether the common law principle of equitable estoppel could be applied to justify such an extension. The court examined the balance between the need for finality in legal claims and the justice owed to the victims and their families in exceptional circumstances.

The court held that the statutory provisions did not provide for an extension of the limitation period. It also determined that the common law principle of equitable estoppel did not apply in this context. The court reasoned that the statutory provisions were clear and did not leave room for judicial discretion to extend the limitation period. Furthermore, the court found that the principle of equitable estoppel was not applicable as there was no representation or assurance by the Commonwealth that would lead the claimants to reasonably believe that their claims would be pursued outside the statutory period. The court concluded that there was no question of principle involved and dismissed the appeal, thereby upholding the earlier decisions that rejected the extension of the limitation period.

Orders