Werner v Commonwealth of Australia (No 2)

Werner v Commonwealth of Australia (No 2) involved the plaintiff, Werner, who sought to bring proceedings over 50 years after the applicable time limit had expired following a collision between the HMAS Voyager and the HMAS Melbourne. The dispute centred on whether the plaintiff's application to extend the limitation period satisfied the requirements of section 60I of the Limitation Act 1969 (NSW). The plaintiff argued that the application was made within three years of when they ought to have become aware of specified matters and that the court should exercise its discretion under section 60G to extend the limitation period if it was just and reasonable to do so.

The court needed to determine if the plaintiff's application to extend the limitation period was timely under section 60I of the Limitation Act 1969 (NSW). This involved assessing whether the application was made within three years of when the plaintiff became aware, or ought to have become aware, of the specified matters that justified the extension. Additionally, the court had to consider whether, in exercising its discretion under section 60G, it was just and reasonable to extend the limitation period given the issues of causation in relation to the plaintiff's injuries and damages, as well as the reliability of the plaintiff's evidence.

The court found that the plaintiff's application did not satisfy the requirements of section 60I of the Limitation Act 1969 (NSW). The plaintiff had not demonstrated that the application was made within three years of becoming aware, or ought to have become aware, of the specified matters. Furthermore, the court concluded that exercising its discretion under section 60G to extend the limitation period was not just and reasonable, particularly in light of the issues regarding causation and the reliability of the plaintiff's evidence. As a result, the court refused leave to the plaintiff to extend the limitation period.