Sandstrom, L.D.W v Commonwealth of Australia - [1994] FCA 86

LEOLD DUNGATE WILLIAM SANDSTROM v COMMONWEALTH OF AUSTRALIA
No. NG564 of 1991
FED No. 86/94
Number of pages - 10
Limitation Of Actions - Torts

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
FOSTER J

CATCHWORDS

Limitation Of Actions - application to extend time for bringing of an action - s 58(2) Limitation Act 1969 (NSW) - whether "material facts of a decisive character" within applicant's knowledge - s 60F - whether applicant "was unaware of the fact, nature, extent or cause of injury ... at the relevant time" - s 60G - whether "just and reasonable" to extend time - whether reasonable prospect of success - effect of ss 60F, 60G and Cl 4 of Schedule 5.

Torts - claim for and meaning of "nervous shock" - indications of "post traumatic stress disorder".

Limitation Act 1969 (NSW) - s 58(2), s 60F, s 60G, cl 4 of Schedule 5

John Lysaght Australia Limited v Butfield (unreported, New South Wales Supreme Court, Court of Appeal, 8 December 1993)

Jaensch v Coffey (1984) 155 CLR 549

Alcock v Chief Constable of South Yorkshire Police (1992) 1 AC 310

Campbelltown City Council v Mackay (1989) 15 NSWLR 501

Chiaverini v Hockey and Anor (1993) Aust. Torts Reports Para. 81-223

PD v The Australian Red Cross Society (NSW Division) and Anor (1993) Aust. Torts Reports Para. 81-205

Martin v Abbott Australasia Pty Limited (1981) 2 NSWLR 430

HEARING

SYDNEY, 9-11 February 1994
#DATE 4:3:1994

Counsel For The Applicant: Mr A.F. Puckeridge QC

With Mr R. Wilkins Instructed By: Maurice May And Co

Counsel For The Respondent: Mr J. McCarthy QC

With Mr P. Jones Instructed By: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. The application be dismissed.

2. There be no order as to costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

FOSTER J The applicant in these proceedings brings this notice of motion to obtain an extension of time for the bringing of his action against the respondent, the Commonwealth of Australia, in respect of injury and damage allegedly suffered by him at Maralinga, South Australia in 1956. At that time, the applicant was a member of the Australian Army and was classified as a Class 1 driver in the Royal Australian Army Service Corp. He was performing driving duties at Maralinga, having driven his army vehicle to that area from Hampstead in South Australia. He was present at Maralinga in July 1956 and witnessed the detonation of an atomic device as part of the atomic testing then being conducted. He claims that his exposure to this experience caused him injury and damage in circumstances rendering the respondent liable to him in tort for negligence or trespass.

The applicant brings his claim under ss 58(2), 60F 60G and cl 4 of Schedule 5 of the Limitation Act 1969 (NSW). There is no dispute that the question of extension of time to sue is…

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 Sandstrom, L.D.W v Commonwealth of Australia

Details

AGLC: Sandstrom, L.D.W. v. Commonwealth of Australia [1994] FCA 86
Case: [1994] FCA 86
Decision Date: 04 MARCH 1994

CaseChat Overview and Summary

The case of Sandstrom, L.D.W v Commonwealth of Australia involved an application by the applicant to extend the time for bringing an action against the Commonwealth. The applicant sought relief under the Limitation Act 1969 (NSW), specifically sections 58(2), 60F, and 60G, as well as clause 4 of Schedule 5. The central issue before the court was whether the applicant was unaware of the fact, nature, extent or cause of their injury at the relevant time, and if it was just and reasonable to extend the time for bringing the action. Additionally, the court had to consider whether there was a reasonable prospect of success on the merits of the application.

The court examined the relevant provisions of the Limitation Act and determined that the applicant had knowledge of the material facts of a decisive character at the relevant time. Therefore, the applicant did not satisfy the requirements of section 60F. Furthermore, the court held that the application did not meet the criteria for an extension under section 60G, as it was not just and reasonable to extend the time for bringing the action. The court also found that there was no reasonable prospect of success on the merits of the application. As a result, the court dismissed the application and made no order as to costs.

In accordance with Order 36 of the Federal Court Rules, the court ordered that the application be dismissed and there be no order as to costs. The court's decision was based on the applicant's knowledge of the material facts of a decisive character, the unlikelihood of success on the merits, and the lack of just and reasonable grounds for extending the time for bringing the action. The dismissal of the application meant that the applicant could not proceed with their claim against the Commonwealth within the extended time period.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The application be dismissed.

2. There be no order as to costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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