Brisbane City Council v Amos

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HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, KEANE, NETTLE AND EDELMAN JJ

BRISBANE CITY COUNCIL  APPELLANT

AND

EDWARD AMOS  RESPONDENT

Brisbane City Council v Amos

[2019] HCA 27

4 September 2019

B47/2018

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of Queensland

Representation

S L Doyle QC with A L Wheatley for the appellant (instructed by Brisbane City Council)

F L Harrison QC with P G Jeffery for the respondent (instructed by Keller Nall & Brown Solicitors)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Limitation of actions – Debts created by statute – Debts secured by charge – Where Council commenced proceeding against respondent for overdue rates and charges – Where overdue rates and charges secured by charge – Where respondent argued claim was an action to recover a sum recoverable by virtue of an enactment under s 10(1)(d) of Limitation of Actions Act 1974 (Qld) – Where Council argued claim was an action to recover a principal sum of money secured by a charge and subject to s 26(1) of the Act – Where proceeding falls within both ss 10(1)(d) and 26(1) – Whether s 26(1) applies to exclude operation of s 10(1)(d).

Words and phrases – "Barnes v Glenton", "claim in rem", "limitation of actions", "overlap between limitation periods", "personal claim", "real claim", "sums secured by mortgage or charge", "what claims are within limitation statutes".

Limitation of Actions Act 1974 (Qld), ss 10(1)(d), 26(1).

KIEFEL CJ AND EDELMAN J.

Introduction

  1. The appellant, the Brisbane City Council ("the Council"), is responsible for the local government of Brisbane.  The respondent, Mr Amos, was the registered owner of rateable land on which the Council levied various rates and charges.  The Council acted pursuant to its statutory duties and powers to levy rates and charges[1].  Legislation also provides that "overdue rates and charges are a charge on the land"[2].  The Council brought this proceeding relevantly to recover overdue and unpaid rates, with interest, levied upon Mr Amos' rateable land by rates notices issued in the period 30 April 1999 to 9 January 2012.  Mr Amos resisted the Council's claim for a number of different reasons.  Only one remains in this Court.  It is which of two potentially applicable limitation periods, a six year limitation period or a 12 year limitation period, applies to the Council's claims.  If the Council is correct that the only limitation period that applies is a provision that creates a 12 year limitation period, then there is a second question concerning the manner of operation of that provision in relation to the Council's claim for interest.

    [1]City of Brisbane Act 1924 (Qld), ss 48, 62; City of Brisbane Act 2010 (Qld), s 96 and s 98, empowering City of Brisbane (Finance, Plans and Reporting) Regulation 2010 (Qld), s 59(1)(a), (b), now City of Brisbane Regulation 2012 (Qld), s 119(1)(a), (b).  Rates levied under the earlier City of…

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Details
Case
[2019] HCA 27
Decision Date

CaseChat Overview and Summary

The Brisbane City Council (the Council) commenced proceedings against Mr Amos to recover overdue rates and charges, which were secured by a charge over his property. Mr Amos argued that the Council's claim was an action to recover a sum recoverable by virtue of an enactment, falling under section 10(1)(d) of the *Limitation of Actions Act 1974* (Qld). The Council contended that its claim was for the recovery of a principal sum of money secured by a charge, and therefore subject to section 26(1) of the Act. The central dispute before the High Court of Australia was whether section 26(1) operated to exclude the application of section 10(1)(d) when a proceeding could fall within both provisions.

The legal issues before the High Court were whether section 26(1) of the *Limitation of Actions Act 1974* (Qld), which deals with actions to recover principal sums secured by a charge, excludes the operation of section 10(1)(d) of the same Act, which pertains to actions to recover sums recoverable by virtue of an enactment, when a claim fits within both categories. The Court also considered the proper interpretation of previous decisions, particularly *Douglas Morris Investments*, and the application of the maxim *generalia specialibus non derogant* in resolving potential inconsistencies between statutory provisions.

The High Court held that section 26(1) does not exclude the operation of section 10(1)(d). The Court reasoned that the language of section 26(1) did not support such an exclusion, nor did the legislative history of the provision. The Court found that the proposition that section 26(1) excludes section 10(1)(d) contradicted a long line of judicial decisions and legal texts. The Court rejected the Council's submission that the two sections should be interpreted as applying to entirely distinct spheres of operation, noting that the *Limitation of Actions Act 1974* was enacted against a historical acceptance that both sections could apply to personal claims, an approach the Court found coherent.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL CJ GAGELER J KEANE J NETTLE J
The contrary view was expressed clearly in the judgments of the primary judge (Bond J) and Fraser JA in dissent in the Court of Appeal. Their Honours relied upon the decision of the Full Court of the Supreme Court of Queensland in Douglas Morris Investments to conclude that s 26(1), as the more "specific" provision, had excluded s 10(1)(d), which is the more "general" provision, in the sphere of operation of s 26(1)[106]. The Douglas Morris Investments decision was properly afforded considerable weight. In the Court of Appeal, the submissions had treated that decision as turning upon the difficult question of how to apply the maxim generalia specialibus non derogant, a general language convention that applies to resolve an inconsistency[107] by preferring the specific provision to the general provision. However, it had not been argued before the Court of Appeal that, as explained above, the description by McPherson J of s 26(1) as the "specific" provision should be better seen not as an invocation of the maxim but as a reference to the operation of s 26(1) in the specific circumstances of a "real" claim to the exclusion of the personal claim in s 10(3). Understood in that way, the Council is not assisted by either the maxim or the Douglas Morris Investments case. A related submission, also contrary to the approach of the majority of the Court of Appeal, was urged by the Council in oral submissions on this appeal. The Council submitted that ss 10(1)(d) and 26(1) should be interpreted to apply to actions that meet different descriptions even if the same facts were pleaded, in the same way that although the same pleaded facts could constitute an action for negligence or trespass those actions could have different limitation periods[108]. This attempt to create wholly distinct spheres of operation for ss 10 and 26(1) is the same as the approach that was taken to the antecedents to ss 10 and 26(1) before the decision in Sutton v Sutton. At that time, the antecedents to s 26(1) were confined to real claims and the antecedents to s 10 applied to personal claims. The Council sought to draw a different, but novel, division between personal actions that involved a mortgage or other charge and other personal actions. Whatever the merit of this approach, it is too late now to turn back the clock. The 1974 Limitation Act was enacted against a long history of acceptance that both sections apply to personal claims. That approach is coherent.[106]Brisbane City Council v Amos (2016) 216 LGERA 312 at 326 [64]; Amos v Brisbane City Council (2018) 230 LGERA 51 at 69 [45].[107]Purcell v Electricity Commission of NSW (1985) 59 ALJR 689 at 692; 60 ALR 652 at 657; [1985] HCA 54.[108]See Williams v Milotin (1957) 97 CLR 465 at 473-474; [1957] HCA 83.Conclusion The Council's submission that s 26(1) excludes the operation of s 10(1)(d) is not supported by the language of s 26(1). Nor is there anything in the history of the provision to support such a proposition. The proposition would contradict almost every decision and every text that has considered the point for more than a century. The one suggestion to the contrary is a sentence of obiter dicta in Bristol and West plc v Bartlett which was not the subject of argument. The appeal must be dismissed with costs. In light of this conclusion it is unnecessary to consider the second issue, concerning the claim for interest.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, GAGELER J, KEANE J, NETTLE J

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