Mundraby v Commonwealth of Australia [1999] FCA 1293

FEDERAL COURT OF AUSTRALIA

Mundraby v Commonwealth of Australia [1999] FCA 1293 PRACTICE and PROCEDURE – application for extension of time under Limitations Act 1969 (NSW) ("the Act") to commence proceedings in contract and tort against the Commonwealth following exposure to poisonous gas on HMAS "Stalwart" – whether s 60I(1)(a) of the Act is a subjective or objective test – whether plaintiff unaware of nature and extent of personal injury suffered at expiration of limitation period – particular difficulties where psychological disability – whether application made within 3 years after plaintiff became so aware – whether defendant would suffer any hardship or prejudice should the extension of time be granted – whether extension unjust or unreasonable where there is said to be relatively minor injury suffered JURISDICTION – jurisdiction arises because the Commonwealth is a party – the Limitation Act 1969 (NSW) applies by reason of ss 79 and 80 of the Judiciary Act 1901 (Cth)

Limitation Act 1969 (NSW) ss 60G and 60I Judiciary Act 1901 (Cth) ss 79 and 80 Dedousis v Water Board (1994) 181 CLR 171, followed Harris v Commercial Minerals Ltd (1996) 186 CLR 1, applied Commonwealth of Australia v Dinnison (1995) 56 FCR 389, followed Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, applied ELLIS MUNDRABY v COMMONWEALTH OF AUSTRALIA NG 808 OF 1998

TAMBERLIN J SYDNEY 15 SEPTEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 808 OF 1998

BETWEEN: ELLIS MUNDRABY

APPLICANT

AND: COMMONWEALTH OF AUSTRALIA

RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 15 SEPTEMBER 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: The limitation period is extended to 6 August 1998. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.