Commonwealth of Australia v Clark [2000] NSWCA 174

New South Wales Court of Appeal

CITATION : Commonwealth of Australia v Clark [2000] NSWCA 174 FILE NUMBER(S) : CA 40930/00 HEARING DATE(S) : 11 July 2000 JUDGMENT DATE : 11 July 2000

PARTIES : Commonwealth of Australia (Appellant) Peter Lloyd Clark (Respondent) JUDGMENT OF : Fitzgerald JA at 1, 10, 12; Heydon JA at 2; Brownie AJA at 11

LOWER COURT JURISDICTION : District Court LOWER COURT 9511/98 FILE NUMBER(S) : LOWER COURT Dent DCJ JUDICIAL OFFICER :

COUNSEL : R McIlwaine SC/T J Morahan (Appellant) K Andrews (Respondent) SOLICITORS : Australian Government Solicitor (Appellant) W H Parsons & Associates (Respondent)

LEGISLATION CITED : Limitation Act 1969 CASES CITED: Drayton Coal Pty Limited v Drain (22 August 1995, NSWCA) DECISION : Application for leave refused with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

40930/99

FITZGERALD JA HEYDON JA BROWNIE AJA

Tuesday, 11 July 2000 COMMONWEALTH OF AUSTRALIA v PETER LLOYD CLARK

JUDGMENT

1 FITZGERALD JA: I ask Heydon JA to deliver the first judgment. 2 HEYDON JA: This is an application for leave to appeal against an order made by Dent DCJ extending the time within which the applicant below, whom I will refer to as the plaintiff, could commence proceedings pursuant to s 60G(2) of the Limitation Act 1969. 3 On 28 April 1971 the plaintiff, a Royal Australian Navy pilot, was participating in his second instructional flight in a jet. The aircraft was a Macchi. The instructor, Lieutenant Kavanagh, intentionally placed the plane into an inverted spin. This caused him to lose control. Both pilots ejected and as a result the plaintiff suffered injury. 4 The only aspect of the primary judge's reasons for judgment which is attacked is his evaluation of the significance of some information that came into the plaintiff's hands in 1997. The background was that the plaintiff knew a significant amount about the deficiencies in the aircraft, most of which he recorded in a lengthy and detailed submission in 1993 to the Department of Veterans Affairs in order to obtain compensation, an endeavour which was substantially unsuccessful. The new material, according to the primary judge, had this significance: "Until the plaintiff's conversation with Mr Siebert he was unaware of the fact that the pilots at Albatross [that is to say Royal Australian Navy pilots] had been made aware of the RAAF's orders in respect of inverted spins in the Macchi aircraft and of the RAAF's knowledge of the particular vice of that plane when placed in an inverted spin."