Commonwealth of Australia v. Stankowski; Commonwealth of Australia v. May [2002] NSWCA 348

New South Wales Court of Appeal

CITATION : Commonwealth of Australia v. Stankowski; Commonwealth of Australia v. May [2002] NSWCA 348 FILE NUMBER(S) : CA 40502/02; CA40503/02 HEARING DATE(S) : 8 October 2002 JUDGMENT DATE : 8 October 2002

Commonwealth of Australia - claimant PARTIES : Stephen Stankowski - opponent (CA40502/02) Peter Neville May - opponent (CA40503/02) JUDGMENT OF : Handley JA at 34; Hodgson JA at 1; Young CJ in Eq at 39

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT CLD21240/95; CLD21247/02 FILE NUMBER(S) : LOWER COURT Grove J JUDICIAL OFFICER :

COUNSEL : Mr. C.C. Branson QC with Mr. P. Taylor for claimant Mr. M.J. Joseph SC with Mr. M.J. Leeming and Mr. W. Walsh for opponents SOLICITORS : Australian Government Solicitor for claimant James Taylor & Co, Myrtleford, Victoria for opponents CATCHWORDS : LIMITATION OF ACTIONS - PROCEDURE - AMENDMENT - Whether defendant should be permitted to amend defence to rely on the ACT Limitation Act, when an extension of time had already been granted under the NSW Limitation Act - Re-litigation of issues - Anshun estoppel - Whether leave to amend defence to rely on the ACT Limitation Act, in circumstances where an extension of time under the NSW Limitation Act had been applied for but not granted, should be subject to conditions, and if so what conditions - CONFLICT OF LAWS - Proceedings brought in NSW for tort occurring on the high seas - Whether applicable law is that of NSW, or of the State or Territory having the closest connection to the events. LEGISLATION CITED : Limitation Act 1969 (NSW) ss.60G, 60I Limitation Act 1985 (ACT) s.36 Commonwealth v. Mewett (1997) 191 CLR 471 John Pfeiffer Pty. Ltd. v. Rogerson (2000) 203 CLR 503 CASES CITED: Nominal Defendant v. Manning [2000] NSWCA 80 Parker v. The Commonwealth of Australia (1965) 112 CLR 295 Regie Nationale des Usines Ranault SA v. Zhang [2002] HCA 10 DECISION : 1. In the matter of Stankowski, leave to appeal refused with costs. 2. In the matter of May, leave to appeal granted and appeal allowed. 3. Leave to amend as sought be granted on condition that if the respondent seeks an extension of the limitation period under the ACT Act as well as the New South Wales Act, the Commonwealth accepts that that application will be determined as if it had been made at the same time as the application under the New South Wales Act, the leave to amend being on the basis that any Amended Defence be filed and served within 21 days, and that by taking up the leave, the Commonwealth accepts the condition I have indicated. 4. The Commonwealth to file its Notice of Appeal within 7 days. 5. In both matters, the Commonwealth to pay the costs of the proceedings below, the application for leave, and the appeal, apart from the Notice of Contention and the written argument in support thereof.