In the recent High Court case of The Commonwealth v Verwayen, the facts were that in 1984 Verwayen began an action for damages for personal injury suffered as a result of a collision between HMAS Melbourne and HMAS Voyager, in which he was serving, during combat exercises in 1964.

In 1985 the Commonwealth filed its defence and admitted all the allegations in the statement of claim except the allegation that Verwayen was injured and suffered loss or damage as a result of the collision. The Commonwealth did not plead that the action was barred by the effluxion of time under the Limitation of Actions Act 1958 (Vic), s5, as it might have done. Also, the Commonwealth did not plead that it owed no duty of care to Verwayen.

In 1986 the Commonwealth was given leave to amend its defence and (1) to deny that the collision was caused by the negligence of the ships’ companies and that a duty of care was owed to Verwayen, and (2) to allege that the action was statute barred by s5.