Brown v Logan City Council

Case [2019] QSC 46

SUPREME COURT OF QUEENSLAND

CITATION:

Brown v Logan City Council [2019] QSC 46

PARTIES:

LORRAINE MARGARET BROWN

(plaintiff)

v
LOGAN CITY COUNCIL

(defendant)

FILE NO/S:

No 203 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

8 March 2019

DELIVERED AT:

Brisbane

HEARING DATE:

16 November 2018

JUDGE:

Davis J

ORDER:

1.   Leave is granted pursuant to r 420 to bring the application.

2.   Application dismissed.

3.   The parties are to be heard on the question of costs.

CATCHWORDS:

TORTS – NEGLIGENCE – STATUTES, REGULATIONS, ETC – APPLICABILITY AND EFFECT IN ACTIONS FOR NEGLIGENCE – GENERALLY – where the plaintiff suffered injury in a motor vehicle collision – where the plaintiff was charged and found guilty of dangerous operation of a vehicle in respect of the collision – where the plaintiff commenced proceedings against the defendant in respect of the collision – whether the plaintiff is entitled to commence proceedings against the respondent for injuries suffered in the commission of an indictable offence – whether the offence is an indictable offence

STATUTES – ACTS OF PARLIAMENT – REPEAL – IMPLIED REPEAL – BY INCONSISTENT ACT – whether s 6 of the Criminal Code Act is repealed by s 45 of the Civil Liability Act

Civil Liability Act 2003 (Qld), s 45, s 7
Criminal Code (Qld), s 2, s 3, s 6, s 328A, s 552D, s 552BA, s 552H, s 648, s 659, s 702
Criminal Code Act (Qld), s 6
Criminal Law Amendment Act 1997 (Qld), s 4
Penalties and Sentences Act 1992 (Qld), s 12

Uniform Civil Procedure Rules 1999 (Qld), r 171, r 470

Butler v Attorney-General (Vic) (1961) 106 CLR 268, cited
Corliss v Gibbings-Johns [2010] QCA 233, considered
Dey v Victorian Railways Commissioners (1949) 78 CLR 62, cited
Ferdinands v Commissioner for Public Employment (2006) 225 CLR 131, cited
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, cited
Harrison v Melhem (2008) 72 NSWLR 380, cited
Jiminez v The Queen (1993) 173 CLR 573, cited
Kartinyeri v The Commonwealth (1998) 195 CLR 337, cited
Maritime Union of Australia v Minister for Immigration and Border Protection (2016) 259 CLR 431, cited
Maxwell v The Queen (1995) 184 CLR 501, considered
McBride v The Queen (1966) 115 CLR 44, cited
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468, cited
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 335, cited
R v Barlow (1996) 188 CLR 1, considered
R v Lowrie & Ross [2000] 2 Qd R 529, cited
R v Shillingsworth [1985] 1 Qd R 537, cited
R v Verrall [2013] 1 Qd R 587, cited
Ross v The Queen (1979) 141 CLR 432, cited
Saraswati v The Queen (1991) 172 CLR 1, considered
Shergold v Tanner (2002) 209 CLR 126, cited
South Australia v Tanner (1999) 166 CLR 161, cited

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AGLC
Brown v Logan City Council [2019] QSC 46
Case
[2019] QSC 46
Decision Date

CaseChat Overview and Summary

In the case of Brown v Logan City Council, the plaintiff sought to recover damages for injuries sustained in a motor vehicle collision. The plaintiff was found guilty of dangerous operation of a vehicle in relation to the incident and was subsequently charged and convicted under the Criminal Code Act. The plaintiff commenced proceedings against the defendant, Logan City Council, seeking compensation for the injuries sustained. The court was required to determine whether the plaintiff could bring a claim against the defendant for injuries suffered in the commission of an indictable offence, and whether the relevant offence was indeed an indictable offence. Additionally, the court had to consider whether section 6 of the Criminal Code Act had been repealed by section 45 of the Civil Liability Act.

The court found that the offence of dangerous operation of a vehicle under section 328A of the Criminal Code Act was an indictable offence, as it was classified as a misdemeanour. The court further determined that section 6 of the Criminal Code Act, which deprives a person of the right to recover damages for injuries sustained in the commission of an indictable offence, was not repealed by section 45 of the Civil Liability Act. The court held that section 7 of the Civil Liability Act preserved other provisions, including section 6 of the Criminal Code Act. Consequently, the plea made by the defendant in paragraph 8 of the defence was valid and constituted a complete answer to the plaintiff's claim.

The court dismissed the application, finding that the plaintiff was precluded from recovering damages for the injuries sustained in the motor vehicle collision due to the provisions of section 6 of the Criminal Code Act. The court granted leave to bring the application, dismissed the application, and ordered that the parties be heard on the question of costs.

ORDERS:
1. Leave is granted pursuant to r 420 to bring the application.
2. Application dismissed.
3. The parties are to be heard on the question of costs.

Orders

Orders of the court

1. Leave is granted pursuant to r 420 to bring the application.

2. Application dismissed.

3. The parties are to be heard on the question of costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It follows then that to the extent of any inconsistency between s 45 of the Civil Liability Act and s 6 of the Criminal Code Act it is not s 45 which prevails because it is later in time. Section 6 prevails by force of s 7 of the Civil Liability Act. Section 7 also answers the plaintiff’s submissions that s 45 “covers the field”. In fact it expressly preserves other provisions. Conclusions It is not seriously in contest that s 6, on its terms, applies to the present case as so to deprive the plaintiff of her right of action against the defendant. Given that s 6 is a valid statutory provision and remains in force it follows that the plea made in paragraph 8 of the defence is a valid one. In fact, it is a complete answer to the plaintiff’s claim. The present application must be dismissed. I make the following orders:1.Leave is granted pursuant to r 420 to bring the application.2.Application dismissed.3.The parties are to be heard on the question of costs.

Ratio Decidendi

Legal Principle Established

The offence to which the plaintiff pleaded guilty is the offence of dangerous operation of a vehicle. That offence is created by s 328A of the Code which, relevantly here, is in these terms:“328A Dangerous operation of a vehicle (1) A person who operates, or in any way interferes with the operation of, a vehicle dangerously in any place commits a misdemeanour. Penalty: Maximum penalty—200 penalty units or 3 years imprisonment. (2)If the offender— (a) at the time of committing the offence is adversely affected by an intoxicating substance; or (b) at the time of committing the offence is excessively speeding or taking part in an unlawful race or unlawful speed trial; or (c) has been previously convicted either upon indictment or summarily of an offence against this section; the person commits a crime. Penalty: Maximum penalty—400 penalty units or 5 years imprisonment ….”[22] [22] There is no need here to consider the circumstances of aggravation provided by sub section (3) and following. Dangerous operation of a vehicle under s 328A(1) is a “misdemeanour.” By s 3 of the Code:“3 Division of offences (1) Offences are of 2 kinds, namely, criminal offences and regulatory offences. (2) Criminal offences comprise crimes, misdemeanours and simple offences. (3) Crimes and misdemeanours are indictable offences; that is to say, the offenders can not, unless otherwise expressly stated, be prosecuted or convicted except upon indictment. (4) A person guilty of a regulatory offence or a simple offence may be summarily convicted by a Magistrates Court. (5) An offence not otherwise designated is a simple offence.” Therefore, the offence created by s 328A(1) is an “indictable offence.” By s 552BA some indictable offences must be dealt with summarily rather than by judge and jury on indictment. That section provides:“552BA Charges of indictable offences that must be heard and decided summarily(1)This section applies to a charge before a Magistrates Court of any indictable offence against this Code if the offence is a relevant offence.(2)A charge to which this section applies must be heard and decided summarily.(3)This section is subject to section 552D.(4)In this section—relevant offence means—(a)an offence against this Code, if the maximum term of imprisonment for which the defendant is liable is not more than 3 years; or(b)an offence against part 6, other than—(i)an offence mentioned in paragraph (a); or(ii)an offence against chapter 42A; or(iii)an offence that, under section 552BB, is an excluded offence.” Section 552BB then list various offences which are “excluded offences.” Many of these attract a sentence of imprisonment in excess of three years. Section 552H then provides:“552H Maximum penalty for indictable offences dealt with summarily(1)A person is liable on summary conviction under section 552A, 552B or 552BA to a maximum penalty of—(a)if the Magistrates Court is a court constituted by a magistrate imposing a drug and alcohol treatment order under the Penalties and Sentences Act 1992, part 8A—100 penalty units or 4 years imprisonment; or(b)if the Magistrates Court is constituted by a magistrate other than a magistrate mentioned in paragraph (a)—100 penalty units or 3 years imprisonment; or(c)if the Magistrates Court is constituted by justices under section 552C(1)(b)—100 penalty units or 6 months imprisonment.(2)However, in no case may the person be punished more than if the offence had been dealt with on indictment.”