Waung v Subbotovsky [1969] HCA 30

High Court of Australia Barwick C.J. Kitto, Taylor, Menzies and Windeyer JJ. Waung v Subbotovsky [1969] HCA 30

ORDER Appeal dismissed with costs.

Barwick C.J. delivered the judgment of the Court as follows:—

July 31 Barwick C.J.Kitto, Taylor, Menzies and Windeyer JJ.

The only question which has been argued by the appellant in this appeal is whether a person who has not been in the State of New South Wales before the accrual of the cause of action upon which he subsequently sues in that State, and who has come into that State for the first time to prosecute his action, can be regarded as a person who was, at the time the cause of action accrued, a person "beyond the Seas" within the meaning of s. VII of The Statute of Limitations, 21 Jac. I, made applicable in New South Wales in 1828.

The argument has been that the expression "returned from beyond the Seas" in the latter part of s. VII can only be satisfied by a person who has theretofore at some time been in New South Wales. The endeavour has been made to qualify the expression "beyond the Seas" in the earlier part of s. VII by this suggested denotation of the word "returned".

However, so long ago as 1770, it was decided that a person who had not been in England was within the exception in s. VII, that is Strithorst v. Graeme [1] . That was the interpretation of the statute at the time its operation was introduced into the colony of New South Wales. That view of the terms of the section was adopted in 1852 in Ruckmaboye v. Lulloobhoy Mottichund [2] , and in 1853 in Lafond v. Ruddock [3] . These cases were followed by Walsh J. sitting at nisi prius in 1959 in Société Egyptienne Financière v. Clyde Industries Ltd. [4] .

1. (1770) 2 Bl. W. 723; 3 Wils. K.B. 145 [96 E.R. 424; 95 E.R. 980]. 2. (1852) 8 Moo. P.C.C. 4 [14 E.R. 2]. 3. (1853) 13 C.B. 813 [138 E.R. 1422]. 4. [1960] S.R. (N.S.W.) 315; 77 W.N. 111.