COMMONWEALTH v REMINGTON [2003] NSWCA 182

New South Wales Court of Appeal

CITATION : COMMONWEALTH v REMINGTON [2003] NSWCA 182 HEARING DATE(S) : 22 May 2003 JUDGMENT DATE : 23 July 2003

JUDGMENT OF : Meagher JA at 1; Handley JA at 2; Tobias JA at 30 DECISION : Leave to appeal granted. Appeal allowed with costs and extension set aside. Orders made.

CATCHWORDS : LIMITATION - extension of limitation period - no question of principle LEGISLATION CITED : Safety, Rehabilitation and Compensation Act 1988 (Cth) Limitation Act 1969 CASES CITED : Dedousis v Water Board (1994) 181 CLR 171 Drayton Coal Pty Limited v Drain (CA NSW, 22/8/95, unrep) COMMONWEALTH OF AUSTRALIA PARTIES : v BARRY REMINGTON FILE NUMBER(S) : CA 40776/02 COUNSEL : Appellant: G M Watson SC/S B Loughnan Respondent: K W Andrews SOLICITORS : Appellant: Minter Ellison Respondent: Keddies Solicitors

LOWER COURT District Court JURISDICTION : LOWER COURT DC 12963/01 FILE NUMBER(S) : LOWER COURT Gibb DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

40776/02 DC 12963/01 MEAGHER JA HANDLEY JA TOBIAS JA

23 July 2003 COMMONWEALTH OF AUSTRALIA v BARRY REMINGTON

LIMITATION – extension of limitation period – no question of principle

The respondent worked for the Commonwealth at the International Terminal at Mascot Airport for the Australian Quarantine and Inspection Service. As such he was exposed to high levels of noise from aircraft engines during his employment. However he was required to wear ear muffs and was not permitted onto the tarmac unless he was wearing them. The respondent sued the Commonwealth for noise induced hearing loss and tinnitus in his left ear allegedly caused by his exposure to noise in his employment between April 1977 and 1 December 1988 when the Safety, Rehabilitation and Compensation Act 1988 (Cth) commenced. The appellant had been exposed to further noise in his employment with the Commonwealth for a period of between 8 and 9 years after 1988 for which had no common law rights. The respondent's total hearing loss was modest and was asymmetric, being substantially greater in his left ear, and he really complained about his tinnitus, which was also confined to his left ear. There was medical evidence in the respondent's case that one sided tinnitus was not caused by his exposure to industrial noise. There was also no evidence that the respondent had discovered in 2001, during a conference with his legal advisers, that there was a safer alternative system that the Commonwealth could and should have provided to protect his hearing which would have made any difference. The District Court Judge held that the condition in s 60 I (1)(a)(iii) of the Limitation Act 1969 had been satisfied and granted an extension of the limitation periods. On appeal - HELD: Appeal allowed and extension set aside.