Category Archives: Limitations

The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239 | 28 October 2008

ON 28 OCTOBER 2008, Justice Owen of the Supreme Court of WA delivered The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239 (28 October 2008).

http://www.austlii.edu.au/au/cases/wa/WASC/2008/239.html

One of Australia’s longest cases.

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Commonwealth v Verwayen (“Voyager case”) [1990] HCA 39 | 5 September 1990

ON 5 SEPTEMBER 1990, the High Court of Australia delivered Commonwealth v Verwayen (“Voyager case”) [1990] HCA 39; (1990) 170 CLR 394 (5 September 1990).

Estoppel – Waiver – Action against Commonwealth by serviceman injured in collision between Australian naval vessels engaged in combat exercises – Defence – Failure to plead expiration of limitation period or absence of duty of care – Statements by Commonwealth that it would not rely on either defence – Subsequent amendment of defence to plead both grounds – Whether Commonwealth estopped from relying on defences – Whether defenced waived – Limitation of Actions Act 1958 (Vict.), s. 5(6).

In 1964, the Australian Navy ships Melbourne and Voyager collided whilst performing exercises off Jervis Bay. Hundreds of servicemen were injured and 82 died.

Verwayen was one of the many servicemen who claimed damages for personal injury against the Commonwealth. His action was brought many years after the limitation period expired.

Verwayen’s solicitor acted for a number of servicemen. In another claim, the solicitor was assured in writing by the solicitor for the Commonwealth and the Minister of Defence that the Commonwealth would not be invoking the limitation defence. In other words, the Commonwealth would not be defending the case on the basis that the proceedings were barred because they were commenced after the expiry of the three year time limit.

The solicitor sought the same assurances from the Commonwealth before commencing Verwayen’s proceedings.  The assurances were subsequently given after the proecceings were issued and the Commonwealth filed a defence pleading that the Commonwealth did not owe a duty of care because the harm occurred in combat exercises. The Commonwealth did not plead the limitation defence.

About 18 months after the proceedings were issued and 14 months after the defence was filed, the Commonwealth filed an amended defence pleading the limitation defence.

By a majority of 4:3, the High Court held that the Commonwealth could not plead the limitation defence.

Deane and Dawson JJ held that the appeal be dismissed applying the principle of estoppel by conduct. Both inferred that Mr Verwayen had prepared and prosecuted his action in reliance upon the representations made by the Commonwealth. The Commonwealth’s conduct raised an equity that could only be accounted for by holding it to the assumed state of affairs.

Toohey and Gaudron JJ held that the appeal be dismissed because the Commonwealth had waived its right to rely upon the defence.

Mason CJ, Brennan, Deane, Dawson and McHugh JJ were of the view that reliance upon a representation was fundamental to the establishment of an estoppel, but only Deane and Dawson JJ held that an estoppel could be applied in this case.

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Civil Rights Act of 1964 (US) | 2 July 1964

ON 2 JULY 1964, the US Civil Rights Act of 1964 was signed into law.

http://www.congresslink.org/print_basics_histmats_civilrights64text.htm

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Sydney, Australia

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PGA v The Queen

ON 30 MAY 2012, the High Court of Australia delivered PGA v The Queen [2012] HCA 21 (30 May 2012).

http://www.austlii.edu.au/au/cases/cth/HCA/2012/21.html

The Full Court of the Supreme Court of South Australia had held that in 2010, a man could be guilty of raping his wife in 1963. PGA appealed this decision on the grounds that it was not until 1991, when the High Court decided in R v L (1991) 174 CLR 379, could a man be guilty of raping his wife because, up until then the common law in Australia was that pronounced by Sir Matthew Hale in 1736 that upon marriage a wife gave her irrevocable consent to sexual intercourse.

The High Court in PGA v The Queen dismissed the appeal, holding that the marital exemption to rape, if it ever applied in Australia, had ceased to be part of Australian law by 1963 because Australian legislation concerning divorce, voting and property by that time had gone against Hale’s proposition.

Lawyer
Peter O’Grady
BA, LLB, Grad Cert Leg Prac, Acc Spec Lawyer

 

The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9)

ON 28 OCTOBER 2008, Justice Owen of the Supreme Court of WA delivered The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239 (28 October 2008).

http://www.austlii.edu.au/au/cases/wa/WASC/2008/239.html

One of Australia’s longest cases.

Legal Helpdesk

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Smith v Grant [2006] NSWCA 244

ON 5 SEPTEMBER 2006, the NSW Court of Appeal delivered Smith v Grant [2006] NSWCA 244 (5 September 2006).

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2006/244.html

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Brisbane South Regional Health Authority v Taylor [1996] HCA 25

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541; (1996) 139 ALR 1; (1996) 70 ALJR 866 (2 October 1996).

“LIMITATION OF ACTIONS – Personal injury – Extension of limitation period – Exercise of discretion to grant extension – Whether fulfilment of statutory conditions gives rise to presumptive right to an order extending limitation period – Rationales for existence of limitation periods – Presumption of prejudice where long delay – Whether justice of the case required granting of extension – Actual prejudice – Limitation of Actions Act 1974 (Q) s 31.”

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1996/25.html

An application for an extension of a time limitation should be refused if an extension would result in significant prejudice to a defendant.

Per Toohey and Gummow JJ at p547:

“There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant. Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission (Vict) [1964] VicRp 103; [1964] VR 788 at 793 in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd [1966] Qd R 465 at 474:

`It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.'”

Per Toohey and Gummow J at 548-9:

“The material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is possible. Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application. It is no sufficient answer to a claim of prejudice to say that, in any event, the defendant might have suffered some prejudice if the applicant had not begun proceedings until just before the limitation period had expired.”

Per Toohey and Gummow JJ at p550:

“The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent.”

Per McHugh J at p551:

“An applicant for an extension of time who satisfies those conditions is entitled to ask the court to exercise its discretion in his or her favour. But the applicant still bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour.”

Per McHugh J at p552-3:

“The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost[16]. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed[17]. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them[18]. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period[19]. As the New South Wales Law Reform Commission has pointed out[20]:

‘The potential defendant is thus able to make the most productive use of his or her resources[21] and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided.[22] To that extent the public interest is also served.’

Even where the cause of action relates to personal injuries [23], it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible[24].”

Per McHugh J at p555:

“To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action. This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent. But the justice of a plaintiff’s claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action.”

Per McHugh J at p555:

“When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff’s action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underling limitation periods that the plaintiff’s lost right should not be revived than that the defendant should have a spent liability reimposed upon it. This is so irrespective of whether the limitation period extinguishes or merely bars the cause of action.”

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Sydney, Australia

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Commonwealth v Verwayen (“Voyager case”) [1990] HCA 39

ON 5 SEPTEMBER 1990, the High Court of Australia delivered Commonwealth v Verwayen (“Voyager case”) [1990] HCA 39; (1990) 170 CLR 394 (5 September 1990).

In 1964, the Australian Navy ships Melbourne and Voyager collided whilst performing exercises off Jervis Bay. Hundreds of servicemen were injured and 82 died.

Verwayen was one of the many servicemen who claimed damages for personal injury against the Commonwealth. His action was brought many years after the limitation period expired.

Verwayen’s solicitor acted for a number of servicemen. In another claim, the solicitor was assured in writing by the solicitor for the Commonwealth and the Minister of Defence that the Commonwealth would not be invoking the limitation defence. In other words, the Commonwealth would not be defending the case on the basis that the proceedings were barred because they were commenced after the expiry of the three year time limit.

The solicitor sought the same assurances from the Commonwealth before commencing Verwayen’s proceedings.  The assurances were subsequently given after the proecceings were issued and the Commonwealth filed a defence pleading that the Commonwealth did not owe a duty of care because the harm occurred in combat exercises. The Commonwealth did not plead the limitation defence.

About 18 months after the proceedings were issued and 14 months after the defence was filed, the Commonwealth filed an amended defence pleading the limitation defence.

By a majority of 4:3, the High Court held that the Commonwealth could not plead the limitation defence.

Deane and Dawson JJ held that the appeal be dismissed applying the principle of estoppel by conduct. Both inferred that Mr Verwayen had prepared and prosecuted his action in reliance upon the representations made by the Commonwealth. The Commonwealth’s conduct raised an equity that could only be accounted for by holding it to the assumed state of affairs.

Toohey and Gaudron JJ held that the appeal be dismissed because the Commonwealth had waived its right to rely upon the defence.

Mason CJ, Brennan, Deane, Dawson and McHugh JJ were of the view that reliance upon a representation was fundamental to the establishment of an estoppel, but only Deane and Dawson JJ held that an estoppel could be applied in this case.

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1971 | Limitation Act

ON THIS DAY in 1969, the NSW Limitation Act 1969 commenced.

http://www.austlii.edu.au/au/legis/nsw/consol_act/la1969133