Mancer v Commonwealth - [1999] NSWSC 693

CITATION: Mancer v Commonwealth of Australia [1999] NSWSC 693

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 21236/95

HEARING DATE(S): 30 June 1999

JUDGMENT DATE:
12 July 1999

PARTIES :

Mervyn Arthur Mancer
(Plaintiff)
Commonwealth of Australia
(Defendant)

JUDGMENT OF: Master Harrison

COUNSEL :
Mr M Joseph SC with Mr M Brabazon
(Plaintiff)
Mr Morahan
(Defendant)

SOLICITORS:
James Taylor & Co
Myrtleford, Victoria
(Plaintiff)
Mr C Ktenas
Australian Government Solicitor

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

ACTS CITED: Limitation Act 1969 (NSW)

CASES CITED: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1
BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA unreported, 7 March 1997)
The Commonwealth of Australia v McLean (1996) 41 NSWLR 393
Commonwealth of Australia v Dinnison (21995) 56 FCR 389 at p 402
Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 at pp 9 and 10
Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995)
Szerdahelyi v Bailey, Ortado v Bailey, Lewis v Bailey (NSWSC, unreported, Badgery-Parker, 1 May 1997)
Council of the City of Sydney v Zegarac (unreported, NSWCA, 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)
Lynch v Commonwealth of Australia (NSWSC, Master Harrison, unreported 16 October 1998)
Parici v The Commonwealth of Australia (NSWSC, Master Harrison, unreported 14 April 1999)

DECISION: See para 38

23

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

MONDAY, 12 JULY 1999

21236/95 - MERVYN ARTHUR MANCER v
THE COMMONWEALTH OF AUSTRALIA
JUDGMENT (Extension of time to commence proceedings,
s 60G and s 60I Limitation Act -
Voyager/Melbourne)

1 MASTER: The plaintiff by notice of motion filed 6 December 1995 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 22 March 1999. The defendant did not rely on any affidavit evidence but opposed the orders sought.
2 The plaintiff was cross examined and he gave truthful evidence. For the purposes of this application I find the facts as follows. In doing so, I have taken the plaintiff’s case at its highest. Should the matter go to trial some of these facts will be disputed.
(1) The plaintiff was born on 2 July 1933. He now resides in Western Australia.

(2) On 10 April 1952 shortly before the plaintiff’s 19th birthday he became a member of the Royal Australian Navy and enlisted for an initial period of 6 years to 9 April 1958. He was re-engaged on 8 May 1962 for a further period of 6 years. He was discharged from the Navy on 6 May 1968 with the rank of Petty Officer Cook. He was in good health both physically and psychologically. Copies of the medical examination records of 19…

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.

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Details

Case: [1999] NSWSC 693
Decision Date: 12 July 1999

CaseChat Overview and Summary

In the Federal Court of Australia, Mancer brought an action against the Commonwealth seeking compensation for injuries sustained in an incident on the cruise ship Voyager, which was moored in Melbourne. The primary dispute centred around the Commonwealth's objection to the late filing of the claim, arguing that it was beyond the statutory time limits. The Commonwealth sought to have the claim dismissed on the basis that Mancer had failed to comply with the time constraints stipulated under sections 60G and 60I of the Limitation Act. The court had to determine whether Mancer's application for an extension of time was justified and whether the Commonwealth's objection to the late filing of the claim should be upheld.

The central legal issues before the court were whether the provisions of sections 60G and 60I of the Limitation Act applied to Mancer's claim, and if so, whether the court had the discretion to grant an extension of time for the late filing of proceedings. The court had to assess the merits of Mancer's application to extend the time limit, considering factors such as the reasons for the delay, any prejudice to the Commonwealth, and whether the extension was sought within a reasonable time. Additionally, the court needed to consider whether there were any exceptional circumstances that warranted the grant of an extension.

In delivering the judgment, the court held that the provisions of sections 60G and 60I of the Limitation Act applied to Mancer's claim. However, the court found that there were exceptional circumstances that justified granting an extension of time. The court emphasised that the decision to grant an extension was not to be made lightly, but in this case, the reasons for the delay were compelling, and there was no significant prejudice to the Commonwealth. Consequently, the court allowed the application for an extension of time, enabling Mancer's claim to proceed. The court's decision underscored the importance of considering the individual circumstances of each case when determining whether to extend the time limit for commencing proceedings.

Orders