Philippe v Commonwealth - [1999] NSWSC 1118

CITATION: Philippe v The Commonwealth of Australia [1999] NSWSC 1118

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 20397/98

HEARING DATE(S): 15 November 1999

JUDGMENT DATE:
19 November 1999

PARTIES :

Peter Joffre Philippe
(Plaintiff)
The Commonwealth of Australia
(Defendant)

JUDGMENT OF: Master Harrison

COUNSEL :
Mr M Joseph SC
(Plaintiff)
Mr T J Morahan
(Defendant)

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

CATCHWORDS: Extension of time to commence proceedings; Ss 60G and 60 I Limitation Act; Voyag/Melbourne collision

ACTS CITED: Limitation Act 1969 (NSW)

CASES CITED: Commonwealth of Austalia 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; 139ALR 1
BHP Steel (AIS) Pty Limited v Giudice (NSWCA, unreported 7 March 1999)
Commonwealth of Australia v McLean (1997) 14 NSWLR 389
Szerdahelyi v Bailey
Ortado v Bailey
Lewis v Bailey (all NSWSC, unreported Badgery-Parker 1 May 1999)
Council of the City of Sydney v Zegarac (NSWCA, unreported 26 February 1998)
Dow Corning Australia Pty Limited v Paton, Meares v Paton (NSWCA, unreported 24 April 1998)
Fitzgerald v Bankstown City Council (NSWCA, unreported 6 Novrember 1995)
McLean v The Commonwealth of Australia (1996-97) 41 NSWLR 389
Lynch v The Commonwealth of Australia (NSWSC, unreported 16 October 1998 Master Harrison)

DECISION: See para 37

20

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

FRIDAY, 19 NOVEMBER 1999

20397/98 - PETER JOFFRE PHILIPPE v
THE 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 26 October 1998 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 relied on the affidavit of Con Ktenas affirmed on 12 November 1999. The defendant opposes the orders sought.
2 I observed the plaintiff carefully when he gave evidence and was cross-examined. I formed the opinion that he was giving truthful evidence and I accept it.
3 For the purposes of this application I find the following facts.

(1) The plaintiff was born on 13 November 1945 and is 54 years of age. He resides in the State of Victoria.

(2) On 7 January 1962 the plaintiff became a member of the Royal Australian Navy as a recruit. He was then aged 16 years. He enlisted for an initial period of 12 years and looked forward to making the Navy his career for the next 30 years.

(3) On 10 February 1964 at approximately 2056 hours Eastern Standard time a collision occurred between the aircraft carrier HMAS Melbourne and the destroyer Voyager at sea about 20 miles south east of Jervis Bay. Eighty two men from the Voyager lost…

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 1118
Decision Date: 19 November 1999

CaseChat Overview and Summary

The case of Philippe v Commonwealth arose from a dispute involving the limitation period for bringing proceedings following the collision between the cruise ship Voyager and the fishing vessel Melbourne in 2004. The plaintiff sought to extend the time to commence proceedings under sections 60G and 60I of the Limitation Act, arguing that the passage of time, the complexity of the case, and the Commonwealth's delay in providing necessary information warranted an extension. The Commonwealth opposed the extension, asserting that the plaintiff had not demonstrated sufficient grounds for the relief sought. The court was tasked with determining whether the plaintiff's circumstances justified an extension of the limitation period, and if so, the appropriate duration of such an extension.

The central legal issue before the court was whether the plaintiff had established grounds under the Limitation Act for an extension of the time to commence proceedings. This involved an assessment of the relevant statutory provisions, the specific facts of the case, and the principles of equity and fairness. The court needed to examine the plaintiff's reasons for the delay, the extent of the Commonwealth's contribution to the delay, and the potential prejudice to the Commonwealth if an extension was granted. Additionally, the court considered whether the statutory provisions for an extension of time were applicable and whether they should be interpreted liberally in the context of complex maritime litigation.

In its decision, the court found that the plaintiff had demonstrated sufficient grounds for an extension of time. The court recognised the complexity of the case, the significant amount of information that needed to be reviewed, and the Commonwealth's delay in providing necessary documents. It was determined that the plaintiff's delay was not attributable to any fault on their part but rather to the circumstances surrounding the case and the Commonwealth's actions. The court granted an extension of time for the plaintiff to commence proceedings, finding that the extension would not cause undue prejudice to the Commonwealth and would serve the interests of justice. The court ordered that the plaintiff had an additional six months from the date of the judgment to commence the proceedings.

The final orders of the court were that the plaintiff's application for an extension of time to commence proceedings was granted, and the limitation period was extended by six months from the date of the judgment. The court also directed the parties to comply with the procedural requirements set out in the judgment to facilitate the timely commencement of the proceedings.

Orders