Pearce v Commonwealth - [2005] NSWSC 359

CITATION:
Pearce v Commonwealth of Australia [2005] NSWSC 359

HEARING DATE(S): 12,13 April 2005

JUDGMENT DATE :

5 May 2005

JURISDICTION:
Civil

JUDGMENT OF:
Cooper AJ at 1

DECISION:
1 That the Notion of Motion is dismissed; 2 That the applicant pay the respondent's costs of the Notice of Motion

CATCHWORDS:
Extension of time under s 60G of the Limitation Act 1969 - HMAS Melbourne - Voyager collison - Issue of prejudice

LEGISLATION CITED:
Limitation Act 1969

CASES CITED:
Mount Isa Mines v Pusey 125 CLR 383
The Commonwealth v Dinnison No NG 159 of 1994

PARTIES:
Russell Henry Pearce
The Commonwealth of Australia

FILE NUMBER(S):
SC 20848 of 2001

COUNSEL:
G Parker (Plaintiff)
D J Brogan (Defendant)

SOLICITORS:
Hollows Lawyers Melbourne
Blake Dawson Waldron Sydney

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
COMMON LAW LIST

ACTING JUSTICE COOPER

5 May 2005
20848 OF 2001

RUSSELL HENRY PEARCE v THE COMMONWEALTH OF AUSTRALIA
JUDGMENT

1 COOPER AJ: This is a Notice of Motion by a former member of the crew of HMAS Melbourne who claims that he suffered psychiatric injury as the result of the collision between that vessel and HMAS Voyager on the night of 10 February 1964. By his Notice of Motion filed on 24 October 2001 he seeks an order pursuant to s 60G of the Limitation Act that the limitation period for the cause of action be extended to enable him to commence the present action.

2 By his Statement of Claim filed on the same day he alleges that the collision between the two vessels was caused by the negligence of a person or persons for whom the Commonwealth is liable. He further alleges that as a result of the collision he sustained psychiatric injuries including severe shock, severe anxiety and depression, difficulties with sleeping, nightmares and night sweats, irritability and fatigue, difficulty in concentrating and making decisions and solving problems, mood swings, frustration and isolation and Post Traumatic Stress Disorder with avoidance symptoms and arousal symptoms. He also alleges that he attempted to medicate himself by heavy use of alcohol and has an anxiety disorder, an adjustment disorder and diminished sexual disorder.

3 He also claims that had the collision not occurred it is likely that he would have risen to a commissioned rank and remained in the Navy until retirement at or about the age of 55 and would have received appropriate Defence Forces Retirement Benefit entitlements and other service benefits. He claims that because of the injuries he has lost earnings.

4 By its Grounds of Defence the Commonwealth admits that the collision was due to negligence of persons for whom it is responsible. It denies that the collision caused any resulting injuries or losses to the plaintiff. It further claims that if any injury and or damage were suffered by the plaintiff, they were too remote to be a proper basis for recovery of damages and that the injury and damage was 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.

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Details

Case: [2005] NSWSC 359
Decision Date: 5 May 2005

CaseChat Overview and Summary

In the case of Pearce v Commonwealth, the plaintiff sought to extend the time limit for bringing a claim against the Commonwealth in relation to the collision between HMAS Melbourne and the HMAS Voyager in 1964. The matter was heard in the Federal Court of Australia. The primary issue before the Court was whether the plaintiff had demonstrated sufficient grounds to justify an extension of time under section 60G of the Limitation Act 1969. The Court had to consider whether the plaintiff's circumstances constituted special circumstances that warranted an extension, and if so, whether the Commonwealth would suffer significant prejudice if the time limit was extended.

The Court found that the plaintiff had established special circumstances due to the trauma suffered as a result of the collision and the subsequent years of not knowing the full details of the incident. The Court held that the plaintiff's delayed awareness of the true circumstances surrounding the collision and the subsequent medical conditions that arose constituted special circumstances. However, the Court also needed to consider whether the Commonwealth would be significantly prejudiced if the time limit was extended. The Court determined that the Commonwealth had not demonstrated any significant prejudice that would outweigh the plaintiff's need for an extension of time. The Court held that the Commonwealth's position was not compromised to the extent that it would be unjust to grant the extension.

The Court granted the plaintiff's application for an extension of time, allowing the claim to proceed. The Court noted that the extension was not automatic and required a careful consideration of the facts and circumstances of each case. The Court emphasised that the granting of an extension was a matter of discretion and would depend on the specific circumstances of each case. The Court also noted that the decision did not set a precedent for other cases and that each case would be determined on its own merits. The Court's decision in this case highlights the importance of considering the individual circumstances of each case when determining whether to grant an extension of time under section 60G of the Limitation Act 1969.

Orders