Shinn v Commonwealth of Australia [2004] VSC 221

Supreme Court of Victoria|2004-06-28|Before: KAYE J.

For the reasons which I have set out above I have concluded that:

(a) In the matters of Shinn, Cavenett and Hart each application should be dismissed.

(b) In the matters of Quinn and Bate I shall grant leave to the defendant to amend its defence by deleting paragraph 8, and by substituting the plea which I have set out in paragraph 8 of these reasons.

I shall hear counsel on the question of costs.

[6] (1990) 170 CLR 394 at 456-7, 464-5, 482.

[7] [1996] VICSC 4; [1996] 2 VR 535 at 542 (per Winneke P).

[8] [1997] HCA 1; (1997) 189 CLR 146 at 155 (per Dawson, Gaudron and McHugh JJ).

[9] [2001] VSC 361 at paragraphs 22-3 (per Gillard J).

[10] [1958] 1 WLR 1216 at 1231 (per Jenkins LJ).

[11] [1995] VicRp 80; [1995] 2 VR 628 at 632 (per Tadgell JA).

[16] [2001] VSC 315 at para 18, 19.

[21] At 461-2 (Dawson J), 464-5 (Toohey J), 482 (Gaudron J).

[22] At 155 (Dawson, Gaudron and McHugh JJ), 170 (Kirby J).

[42] [2001] NSWSC 44, especially at paragraphs 13 - 15.

[43] Unreported, New South Wales Court of Appeal, 22 August 1994; BC 9505 244.

[44] See for example Clough and Rogers v Frog (1974) 4 ALR 615, especially at 619; 48 ALJR 481 at 482.

"As Lord Griffiths pointed out in Ketteman v Hansel Properties Limited [1987] AC 189 at 219: `A defendant does not invariably wish to rely on a defence of limitation and may prefer to contest the issue on the merits. If, therefore, no plea of limitation is raised in the defence the plaintiff is entitled to assume that the defendant does not wish to rely upon a time bar but prefers the court to adjudicate on the issues raised in the dispute between the parties.' Counsel for the appellants disputed that that statement of principle was one of universal application. It is true that it was a statement made in the context of a case in which a very late application was made to amend a defence in order to plea a statute of limitations. Notwithstanding that, it does not seem to me to be a statement which is confined to the kind of case in respect of which his Lordship was making it."

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