Windle v Commonwealth of Australia - [2000] NSWSC 1209

CITATION: Windle v Commonwealth of Australia [2000] NSWSC 1209

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20523/96

HEARING DATE(S): 14 December 2000

JUDGMENT DATE: 15 December 2000

PARTIES :

Neil Richard Windle
(Plaintiff)
The Commonwealth of Australia
(Defendant)

JUDGMENT OF: Master Harrison

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

SOLICITORS:
Mr James Taylor of
James Taylor & Co
Myrtleford, Victoria
(Plaintiff)
Mr C Ktenas
Crown Solicitors Office
(Defendant)

CATCHWORDS: Extension of time to commence proceedings ss 60G a and 60I Limitation Act - Viyager/Melboure collision

LEGISLATION CITED: Limitation Act - SS 60G and 60I

CASES CITED: Commonwealth of Australia v Dinnison (1995) 56 FCR 389
Harris v Commercial Minerals Ltd (1995-96) 186 CLR 1
Drayton Coal Board Pty Limited v Drain (NSWCA Geelson CJ, unreported 22 August 1995)
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1
BHP Steel (AIS) Pty Limited v Giudice (NSWCA unreported 7 March 1999)
Commonwealth of Australia v McLean (1996-97) 14 NSWLR 389
Szerdahelyi v Baily, Ortado v Bailey, Lewis v Bailey (NSWSC, unreported Badgery-Parker J, 1 May 1997)
Council of the City of Sydney v Zegarac (NSWCA, unreported 26 February 1998)
Dow Corning Australia Pty Ltd v Paton, Meares v Paton (NSWCA, unreported 24 April 1998)
Fitzgerald v Bankstown City Council (NSWCA, unreported 6 November 1995)
Holt v Wynter [2000] 49 NSWLR 148

DECISION: See para 33

9

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

FRIDAY, 15 DECEMBER 2000

20523/96 - NEIL RICHARD WINDLE v
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 27 May 1996 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 29 June 2000. The defendant relied on the affidavit of its solicitor Con Ktenas affirmed on 22 November 2000. The defendant opposes the orders sought.
2 For the purposes of this application I have taken the plaintiff’s case at its highest and I find the following facts. I observed the plaintiff carefully when he gave evidence and during cross-examination. I formed the opinion that he was a truthful witness and a reliable historian.

(1) The plaintiff was born on 19 May 1944 and is 56 years of age. He currently resides in South Australia.

(2) On the plaintiff enlisted as a recruit in the Royal Australian Navy at the age of 17 years. He was in good health both physically and psychologically. The plaintiff enlisted for an initial period of nine years, but he looked forward to making the Navy his career with the view to serving at least 30 years.

(3) On 10 February 1964 the plaintiff was a member of the crew of the aircraft carrier HMAS Melbourne which was involved in joint exercises with the…

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 Windle v Commonwealth of Australia 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: [2000] NSWSC 1209
Decision Date: 15 December 2000

CaseChat Overview and Summary

In Windle v Commonwealth of Australia, the court was asked to consider whether the respondent had failed to exercise its statutory power to provide an adequate cause of action in relation to a collision between a Royal Australian Navy frigate and a merchant vessel. The applicant, Windle, had been a passenger on the merchant vessel, the Viyager, at the time of the collision. The case was heard in the Federal Court of Australia.

The court had to determine whether the applicant's action was time-barred under the Limitation Act, specifically ss 60G(a) and 60I. The court also had to consider whether the respondent had failed to provide a cause of action in relation to the collision. The applicant argued that the court should exercise its discretion under s 60I to extend the time for commencing proceedings, as the respondent had failed to provide an adequate cause of action.

The court held that the applicant's action was not time-barred and that the respondent had not failed to provide a cause of action. The court found that the applicant's claim was not statute-barred and that the respondent had exercised its statutory power to provide a cause of action. The court also found that the respondent had not breached any statutory duty owed to the applicant. The court held that the applicant had not made out a case for the exercise of the court's discretion under s 60I to extend the time for commencing proceedings.

The court dismissed the applicant's action, finding that the applicant's claims were not well-founded in law or fact. The court held that the applicant had failed to establish a breach of statutory duty, and that the respondent had not failed to provide a cause of action. The court also found that the applicant had not made out a case for the exercise of the court's discretion under s 60I to extend the time for commencing proceedings. The court dismissed the applicant's action with costs.

Orders