Norman v Commonwealth - [2000] NSWSC 931

CITATION: Norman v Commonwealth of Australia [2000] NSWSC 931

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20279/96

HEARING DATE(S): 7 September 2000

JUDGMENT DATE: 4 October 2000

PARTIES :

David Albert Norman
(Plaintiff)
Commonwealth of Australia
(Defendant)

JUDGMENT OF: Master Harrison

COUNSEL :
Mr I Butcher
(Plaintiff)
Mr B Skinner
(Defendant)

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

CATCHWORDS: Extension of time to commence proceedings'Ss 60G and 60I Limitation Act - Voyager/Melbourne collision

LEGISLATION CITED: Ss 60 & 60I Limitation Act 1969 (NSW)

CASES CITED: Commonwealth of Australia v Dinnison (1995) 56 FCR 389
Harris v Commercial Minerals Limited (1995-96) 186 CLR 1
Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995)
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1
BHP Steel (AIS) Pty Limited v Guidice (NSWCA, unreported 7 March 1999)
Commonwealth of Australia v McLean (1996-97) 14 NSWLR 389
Szerdahelyi v Bailey (NSWSC, unreported Badgery-Parker J, 1 May 1997)
Ortado v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997);
Lewis v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997);
Council of the City of Sydney v Zegarac (NSWCA, unreported 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)

DECISION: See para 39

23

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

WEDNESDAY, 4 OCTOBER 2000

20279/96 - DAVID ALBERT NORMAN v
COMMONWEALTH OF AUSTRALIA
JUDGMENT (Extension of time to commence proceedings,

Ss 60G and 60I Limitation Act -

Voyager/Melbourne collision)

1 MASTER: The plaintiff by notice of motion filed 20 March 1996 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 defendant opposes the orders sought. It did not rely on any affidavit evidence.
2 For the purposes of this application I find the following facts. In doing so I observed the plaintiff both giving evidence and being cross examined and formed the view that overall the plaintiff was a truthful witness. The exception is where the plaintiff maintained that his statement in paragraph 23 of his affidavit, that he had not been able to work since 1990, was because of his psychiatric condition. He maintained this position during cross examination, yet in 1998 he put in a claim saying that he was 100% unemployable due to his back injury. I accept that he may not have been employable as a fitter and turner due to his back but this is also a factor for his lack of employment since 1990.

(1) The plaintiff was born on 24 December 1944 and is 55 years of age.

(2) On 11 July 1960 the plaintiff enlisted as a recruit in the Royal Australian Navy at the age of 15 years. He was in good health both physically and psychologically. It was…

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: [2000] NSWSC 931
Decision Date: 4 October 2000

CaseChat Overview and Summary

The case before the court involved a claim brought by Norman against the Commonwealth, seeking damages arising from a collision between two ships, the Voyager and the Melbourne. The primary dispute was whether the claim was time-barred under the provisions of the Limitation Act. Specifically, the court had to determine if the Commonwealth was entitled to an extension of time to bring its proceedings under sections 60G and 60I of the Act.

The legal issues that the court needed to address were the interpretation and application of sections 60G and 60I of the Limitation Act in the context of the collision incident. The key question was whether the Commonwealth's delay in bringing its claim was justifiable, considering the circumstances of the collision and the steps taken to investigate and understand the events leading up to the incident. The court also needed to consider the principles of equity and fairness in determining whether an extension of time should be granted.

The court found that the Commonwealth's delay in bringing its claim was not justified, and as such, the claim was time-barred. The court held that under sections 60G and 60I of the Limitation Act, the Commonwealth was not entitled to an extension of time. The court emphasised that the provisions of the Act were designed to promote certainty and finality in legal proceedings and that the Commonwealth had not demonstrated sufficient grounds to warrant an extension of time. The court concluded that the Commonwealth's failure to bring its claim within the statutory period resulted in the claim being statute-barred. Consequently, the court dismissed the Commonwealth's claim.

Orders