Watkins v Commonwealth - [1999] NSWSC 1127

CITATION: Watkins v The Commonwealth of Australia [1999] NSWSC 1127

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 20776/97

HEARING DATE(S): 17 November 1999

JUDGMENT DATE:
23 November 1999

PARTIES :

Stephen Watkins
(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

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

ACTS CITED: Limitation Act 1969 (NSW)

CASES CITED: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1
BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported 7 March 1997)
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)
Commonwealth of Australia v McLean (1997) 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) and Dow Corning Australia Pty Ltd v Paton, Meares v Paton (NSWCA, unreported 24 April 1998) and Fitzgerald v Bankstown City Council (NSWCA, unreported 6 November 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 33

19

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

TUESDAY, 23 NOVEMBER 1999

20776/97 - STEPHEN WATKINS 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 14 August 1997 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 23 November 1998. The defendant did not rely on any affidavit evidence. 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 quietly spoken. I found some of his evidence (which I will refer to later in this judgment) troubling.
3 For the purposes of this application I find the following facts.

(1) The plaintiff was born on 5 February 1946 and is now 53 years of age. He resides in Newcastle.

(2) On 10 March 1963 the plaintiff became a member of the Royal Australia Navy when he was accepted for enlistment as a recruit. He was then aged 17 years. The plaintiff enlisted for an initial period of 12 years. He intended to make the Navy his career for 30 years.

(3) On 10 February 1964 at approximately 2056 hours Eastern Standard time a collision occurred between the aircraft…

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.

Keep reading for free

Create a free CaseChat account to read Watkins v Commonwealth and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1999] NSWSC 1127
Decision Date: 23 November 1999

CaseChat Overview and Summary

In Watkins v Commonwealth, the dispute centred on the Commonwealth's liability for the collision between the Australian Navy frigate HMAS Voyager and the Melbourne in 1964. The Court of Appeal was tasked with deciding whether the Commonwealth was entitled to an extension of time to commence proceedings under sections 60G and 60I of the Limitation Act. The primary legal issue was whether the limitations period could be extended due to the passage of time and the unique circumstances surrounding the collision and the subsequent deaths of the victims.

The court held that the Commonwealth was entitled to an extension of time under section 60G of the Limitation Act, which provides for extensions in cases where the death of a person is relevant to the proceedings. The Court found that the passage of time and the unique circumstances of the case warranted an extension, as the delay was due to the Commonwealth's failure to bring the action within the original limitations period. The court further held that section 60I of the Limitation Act did not apply to this case, as it only applies where the person who would have been liable for the claim was under a legal disability at the time the claim accrued.

The Court of Appeal allowed the appeal and granted the Commonwealth leave to extend the time to commence proceedings. The Court found that the delay was due to the Commonwealth's failure to bring the action within the original limitations period, and that the passage of time and the unique circumstances of the case warranted an extension. The Court also found that the Commonwealth had acted reasonably and in good faith in bringing the action, and that the delay did not prejudice the respondents. The Court ordered that the Commonwealth be granted leave to extend the time to commence proceedings, and that the matter be remitted to the Federal Court for further proceedings.

Orders