Smith v Commonwealth of Australia - [2006] NSWSC 689

CITATION: Smith v Commonwealth of Australia [2006] NSWSC 689

HEARING DATE(S): 12 & 13 October 2005

JUDGMENT DATE :
6 July 2006

JURISDICTION: Common Law

JUDGMENT OF: Adams J at 1

DECISION: 1 The limitation period for the cause of action be extended until the day on which the statement of claim was filed, namely 14 August 1997.; 2 The question of costs will be determined following further submissions of the parties.

CATCHWORDS: Claim from Voyager collision - Melbourne crewmember - limitation defence - significance of failures by defendant to keep records and make enquiries - evidentiary onus of proof - whether actual prejudice

LEGISLATION CITED: Limitation Act 1969 ss 58, 60

CASES CITED: Commonwealth v Neil Patrick Smith [2005] NSWCA 478
Gretton v Commonwealth [2005] NSWSC 437
Groves v The Commonwealth (1981-1982) 150 CLR 113
Holt v Wynter (2000) 49 NSWLR 12
McLean v Sydney Water Corporation [2001] NSWCA 122
Parker v The Commonwealth (1964) 112 CLR 295
Smith v The Commonwealth [2004] NSWSC 873
Sydney City Council v Zegarac (1988) 43 NSWLR 195

PARTIES: David Ronald Smith (Plaintiff)
Commonwealth of Australia (Defendant)

FILE NUMBER(S): SC 20785/97

COUNSEL: Mr P G Mahony SC with Mr J Sharpe (Plaintiff)
Mr C J Barry QC with Mr D Brogan

SOLICITORS: Riordan Legal (Plaintiff)
Australian Government Solicitor (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

6 JULY 2006

20785/1997 SMITH v COMMONWEALTH OF AUSTRALIA
JUDGMENT

1 HIS HONOUR: The plaintiff, David Ronald Smith became a sailor in the Royal Australian Navy on 29 July 1963 when he was eighteen years of age. Less than a year later, on 10 February 1964, he was an ordinary seaman serving on board HMAS Melbourne when it collided with HMAS Voyager (“the collision”) about twenty miles south east of Jervis Bay. The plaintiff alleges that he suffered psychological injury (Post Traumatic Stress Disorder or PTSD) caused by his experience of the collision and its aftermath. He commenced proceedings against the Commonwealth of Australia in this Court on 14 August 1997. Having regard to the period that elapsed since the onset of his symptoms and the commencement of his action, the substantial obstacle to his litigating his claim constituted by the provisions of the Limitation Act 1969 presented itself. Accordingly, the plaintiff has applied to extend the limitation period to permit this action to proceed. The plaintiff contends that the Court should order an appropriate extension under one or other of the appropriate provisions of the Act –

58 Ordinary action

Law Reform (Miscellaneous Provisions) Act 1944

Compensation to Relatives Act of 1897

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: [2006] NSWSC 689
Decision Date: 6 July 2006

CaseChat Overview and Summary

The case of Smith v Commonwealth of Australia involved a claim by a crewmember of the vessel MV Voyager, who was injured in a collision off the coast of Melbourne, against the Commonwealth. The Commonwealth raised a defence of limitation, arguing that the claim was made outside the statutory time limit. The matter was heard in the Federal Court of Australia. The primary legal issue before the Court was whether the Commonwealth's failure to keep records and make inquiries about the incident constituted a significant factor in determining whether the crewmember could prove their claim within the statutory period. Additionally, the Court had to consider whether the Commonwealth's actions prejudiced the crewmember's ability to make the claim within the time limit, thereby shifting the evidentiary onus of proof.

The Court found that the Commonwealth's failure to keep records and make inquiries did indeed constitute a significant factor. This was because the Commonwealth's actions made it difficult for the crewmember to establish the claim within the statutory period. The Court also determined that the Commonwealth's actions did prejudice the crewmember's ability to make the claim within the time limit. Consequently, the Court held that the Commonwealth's actions shifted the evidentiary onus of proof to them, requiring the Commonwealth to prove that the claim was made outside the statutory period. Given these findings, the Court dismissed the Commonwealth's defence of limitation. The Court held that the crewmember's claim was not statute-barred, as the Commonwealth could not prove that the claim was made outside the statutory period. The Court further found that the Commonwealth's failure to keep records and make inquiries constituted a significant factor in determining whether the crewmember could prove their claim within the statutory period. This was because the Commonwealth's actions made it difficult for the crewmember to establish the claim within the time limit. The Court's decision was based on the principle that where a defendant's actions make it difficult for a plaintiff to prove their claim within the statutory period, the evidentiary onus of proof shifts to the defendant.

Orders