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

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

Leave to appeal was refused in Stankowski because the Commonwealth’s proposed amendment would require Stankowski to re-litigate, under the ACT Act, substantially the same question of extension of the limitation period already litigated and decided under the NSW Act, and that factor, together with distress, justified refusal in the exercise of discretion. In May, where no extension application had yet been heard, leave to appeal was granted and the appeal allowed because amendment to rely on ACT limitation law was arguable and not futile, but fairness required a condition that any ACT extension application be determined as if made at the same time as the NSW extension application.

Jurisdiction
Australia
Judgment Date
08 October 2002
Procedural Posture
Applications for Leave to Appeal Concerning Amendment of Defences in Personal Injury Proceedings Arising From Alleged Negligence in a Naval Collision / Court of Appeal Application for Leave to Appeal From Orders Dismissing Notices of Motion for Leave to Amend Defences
Outcome
In Stankowski, leave to appeal refused with costs. In May, leave to appeal granted and appeal allowed, with conditional leave to amend the defence. The Commonwealth was ordered to pay costs below and in the Court of Appeal, excluding costs of the notices of contention and written argument in support.
Legal Topics
['amendment of Defence' 'extension of Limitation Period' 're Litigation of Issues' 'anshun Estoppel' 'applicable Law for Tort Occurring on the High Seas' 'personal Injury Negligence Claims']
['limitation of Actions' 'civil Procedure' 'conflict of Laws' 'tort'] ['amendment of Defence' 'extension of Limitation Period' 're Litigation of Issues' 'anshun Estoppel' 'applicable Law for Tort Occurring on the High Seas' 'personal Injury Negligence Claims']

Case Brief

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Procedural Posture

Applications for Leave to Appeal Concerning Amendment of Defences in Personal Injury Proceedings Arising From Alleged Negligence in a Naval Collision / Court of Appeal Application for Leave to Appeal From Orders Dismissing Notices of Motion for Leave to Amend Defences

Legal Issues

  1. 1 ['Whether the Commonwealth should be permitted to amend its defences to rely on the Imperial Act 21 James 1 Chapter 16 or section 11 of the Limitation Act 1985 (ACT).' 'Whether leave to amend in Stankowski should be refused because the amendment would require re-litigation of substantially the same limitation extension issue already decided under the Limitation Act 1969 (NSW).' 'Whether leave to amend in May should be subject to a condition concerning treatment of any application for extension under the ACT Act.' 'Whether the proposed amendments were futile because NSW limitation law, no limitation law, or an election to rely on NSW law precluded reliance on ACT limitation law.']

Ratio Decidendi

Leave to appeal was refused in Stankowski because the Commonwealth’s proposed amendment would require Stankowski to re-litigate, under the ACT Act, substantially the same question of extension of the limitation period already litigated and decided under the NSW Act, and that factor, together with distress, justified refusal in the exercise of discretion. In May, where no extension application had yet been heard, leave to appeal was granted and the appeal allowed because amendment to rely on ACT limitation law was arguable and not futile, but fairness required a condition that any ACT extension application be determined as if made at the same time as the NSW extension application.

Court Disposition

In Stankowski, leave to appeal refused with costs. In May, leave to appeal granted and appeal allowed, with conditional leave to amend the defence. The Commonwealth was ordered to pay costs below and in the Court of Appeal, excluding costs of the notices of contention and written argument in support.

Orders

  • ['In the matter of Stankowski, leave to appeal refused with costs.' 'In the matter of May, leave to appeal granted and appeal allowed.' '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...