Spiteri-v-Commonwealth of Australia [1999] NSWSC 585

New South Wales Supreme Court CITATION : Spiteri-v-Commonwealth of Australia [1999] NSWSC 585 CURRENT JURISDICTION : FILE NUMBER(S) : 020466/96 HEARING DATE(S) : 02/06/99 11/06/99 JUDGMENT DATE : 11 June 1999

PARTIES : Joseph Spiteri -v- The Commonwealth of Australia JUDGMENT OF : McInerney J at 1

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 020466/96 LOWER COURT JUDICIAL OFFICER : McInerney AJ

COUNSEL : For the Plaintiff: Mr. De Burg For the Defendant: Mr. Rundale SOLICITORS : For the Plaintiff: Astley Thompson & Valtas For the Defendant: Mr. Curtis of Australian Goverment Solicitor CATCHWORDS : CASES CITED : Brisbane South Regional Authority-v- Taylor 1996 (186) CLR p541 Sydney City Council-v-Zegarac 1998 (43) NSW LR p 195 DECISION : I therefore make order (2) in the Notice of Motion. I; I grant leave to the parties to further mention the matter to make any further orders sought.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

FRIDAY 11TH JUNE 1999

MCINERNEY AJ

020466/96 JOSEPH SPITERI-v-COMMONWEALTH OF AUSTRALIA

JUDGMENT 1 HIS HONOUR: This is an application by Mr. Spiteri, the Plaintiff for leave to commence proceedings against the Commonwealth of Australia, the Defendant, out of time in respect to injuries he alleged he received whilst a member of RAAF at Laverton Air Force Base at Victoria on 31st January 1986. The cause of action is negligence. 2 The application is opposed by the Defendant basically on the grounds that material before me fails to establish any causation between the accident and the Plaintiff's condition and as a result of the affluxion of time together with the unsatisfactory nature of the medical material in the records held by the RAAF there is actual prejudice to the Defendant in attempting to defend this action. 3 A statement of claim was filed by the Plaintiff in this Court on 10th May 1996, the Defendant in its defence claims the Plaintiff's action is barred by the Limitation of Actions Act 1958 Victoria, the Victorian Act is applicable because the accident relied upon occurred in Victoria. 4 The Plaintiff in his application relies on two affidavits sworn by him on 24th September 1996 and 19th May 1998 respectively together with certain exhibits. The Defendant relies on an affidavit of Mr. Curtis sworn on 8th May 1998. Section 5 of the Victorian Limitations Act restricts actions in tort to a period of six years from the date in which the cause of action arose. Section 23 A (1) relates to claims of the nature of the Plaintiff's claims. SECTION 23A; (1) This section applies to any action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contracts or any such provision) where the damages claimed consist of or include damages in respect of personal injuries to any person.