Brown v Minister for Education

[2004] HCATrans 427

[2004] HCATrans 427

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P49 of 2003

B e t w e e n -

JACLYN SHAUNA BROWN

Applicant

and

MINISTER FOR EDUCATION

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 28 OCTOBER 2004, AT 11.22 AM

Copyright in the High Court of Australia

MR B.L. NUGAWELA:   May it please, your Honours, I appear with my learned friend, MR M.J. PIU, for the applicant.  (instructed by CLP Lawyers)

MR M.H. ZILKO, SC:   May it please the Court, I appear with my learned friend, MR C. PRUITI, for the respondent.  (instructed by Basile Hawkins)

GUMMOW J:   Yes, Mr Nugawela.

MR NUGAWELA:   Your Honours, we make two preliminary points before commencing our submissions.  The first point is this, that contrary to the papers filed, this is not an application that involves a request that the appeal be heard instanter and why originally it was ‑ ‑ ‑

GUMMOW J:   Do not worry about that.  We did not think it meant that. 

MR NUGAWELA:   If it please your Honours.  The second point is that if special leave is to be granted we agree with our learned friends that it is perhaps not inappropriate that the factual merits be dealt with on a remitter to the District Court.  By way of opening, your Honours, in Western Australia ‑ ‑ ‑

GUMMOW J:   I do not know if you have got much time to open, you have got to close fairly soon.  In Western Australia how does it come about that the relevant defendant is the Minister for Education rather than the State of Western Australia which is the general provision in the Crown Suits Act.  There is some special provision in the Education Act, is there?

MR NUGAWELA:   Your Honour Justice Gummow is quite correct.  The Minister is the person who is liable to sue and be sued under the provisions of that statute. 

GUMMOW J:   One first needs to find a provision that removes State immunity, does one not?  Where does one find that in tort?  One of the things I think that is put against you is that the State immunity is removed but the removal of the immunity is qualified by this special limitation regime which is not the same generous regime that applies as between citizen and citizen and that colours the meaning of the word “notwithstanding”.

MR NUGAWELA:   I do not think the submissions were put against me in the courts below in that fashion ‑ ‑ ‑

GUMMOW J:   They are now.

MR NUGAWELA:   Nor are they put against us here.  There is no reliance ‑ ‑ ‑

GUMMOW J:   Well, they are now and I want you to deal with it.

MR NUGAWELA:   Very well, I will try and deal with it in this way, your Honour Justice Gummow.  The applicant was not intending to sue the State in the right of the Crown of Western Australia, therefore the Crown Suits Act does not apply.  Under the public statute, the Education Act, the Minister for Education is the relevant defendant.  That, therefore, engages the provisions of the Limitation Act rather than the Crown Suits Act and that has been the assumption of everybody involved in this litigation since the very beginning.

GUMMOW J:   The Minister is not a private citizen.

MR NUGAWELA:   I think, from recollection, the materials are not ‑ ‑ ‑

GUMMOW J:   He can be sued for…..He is a Minister of State. 

MR NUGAWELA:   Under the Act I think, under, from recollection, the Education Act, which neither party has put before your Honours, he is constituted as a person who is responsible for the administration of the Act and is liable to be sued and can sue in his capacity as Minister.

GUMMOW J:   Section 214, I think, the 1999 Act, anyway.

MR NUGAWELA:   I do not think anyone has brought a copy of the Education Act here, your Honour Justice Gummow.

GUMMOW J:   Anyhow, proceed as you wish.

MR NUGAWELA:   If it please your Honour.  In Western Australia, an infant’s cause of action in tort against a public hospital or public school accrues immediately upon the occurrence of an injury and when one takes the same infant, in identical circumstances, but in the context of a cause of action against a private hospital or private school, the accrual of the cause of action only commences from the age of 18.  But we say this seemingly remarkable result comes about by a process of statutory interpretation, firstly, summarily and in a rather inadequate fashion, from a decision of the Full Court in 1994 called Scott v Western Australia and, your Honours, that is in tab 1 of our book of materials.  If one turned to page 389 of that reported decision, at lines 28 to 30, this is all that is said of that proposition:

With respect to the second respondent, if this is an action to which s 47A of the Limitation Act would apply, s 40 of the Limitation Act does not govern s 47A because s 47A commences with the words -

et cetera.  It is advanced as almost ‑ ‑ ‑

GUMMOW J:   I know that, but look, without being disrespectful to anybody, our task is to apply our minds to the statute.  How do you say we construct it?  Just let us forget about what other people have said in other places.  Section 47A appears at page 46 of the application book, does it not, amongst other places?

MR NUGAWELA:   It is at tab A of our book of authorities but it might be more conveniently set out, as your Honour Justice Gummow points out, at page 46 of the application book.  I will go straight into the nub of our submission, your Honour.

GUMMOW J:   Yes.  Now, it is this word “notwithstanding”, is it not?

MR NUGAWELA:   Our submissions give meaning and effect to the word “notwithstanding” as I propose to develop them very shortly.  The starting point, we say, is to characterise the relevant characteristics of section 47A.  There are three characteristics:  one, by reference to the content of 47A, the concern with 47A is the identity of the prospective defendant and says nothing of the category or the nature of the particular cause of action contemplated; the second characteristic by reference to the area of operation of the scope of 47A is that it does not, in any way, your Honour Justice Gummow, define when a particular cause of action accrues. 

Section 47A(1)(a) talks about “as soon as practicable after the cause of action accrues”.  Section 47A(1)(b) says “one year from the date on which the cause of action accrued” but it does not inform anybody when a cause of action accrued and the calculus for determining when a particular cause of action accrues must be found elsewhere in the legislation.  For instance, section 27, which is in the book of authorities, contemplates that in an action for the recovery of rent or land, in a situation where there is “concealed fraud”, the cause of action:

shall be deemed to have first accrued at and not before the time at which such fraud is -

and then it goes on to talk about “discovered” or reasonably discoverable. 

GUMMOW J:   When do you say the cause of action accrued here?

MR NUGAWELA:   The cause of action accrued here at age 18 by virtue of the operation of section 40, but I am coming to the third relevant characteristic of section 47A, your Honour Justice Gummow, before going straight into the nub of our submissions as to why we say the cause of action accrues at age 18 in this case.  I have taken your Honours, by way of example, to section 27 which informs in a particular contemplated cause of action when that cause of action shall be deemed to have first accrued.  The Act is replete with other provisions such as section 9 and section 11, which talks again ‑ ‑ ‑

GUMMOW J:   This is not a case of concealed fraud, is it?

MR NUGAWELA:   No, it is not, but the interpretation taken by the court below has implications for the entire operation of the Act as it pertains to determining when a cause of action accrues.

HEYDON J:   But the cause of action accrued when the stick injured the plaintiff’s eye.

MR NUGAWELA:   That is the assumption at common law ‑ ‑ ‑

HEYDON J:   Yes, but section 40 does not alter that.  It says if someone at that time was less than 18 then the person may commence the action at a later time.  It does not alter the date when the cause of action occurred.

MR NUGAWELA:   We characterise section 40, and I will come to the characterisation of section 40 for the purposes of our submissions, as something that goes beyond a mere provision dealing with the commencement of a cause of action.  We say it is more than that.  We say it is, in effect, a deeming provision in a particular circumstance as to when a cause of action accrues, but I will come to that almost immediately after completing our submissions on 47A.

So, your Honours, the second relevant characteristic of 47A is its area of operation and it does not address, it does not purport to address, the datum as to when a cause of action accrues for the purposes of the Limitation Act.  It is trite that at common law in a situation such as this – and it is not disputed between my learned friends and I – that a cause of action such as this proposed accrues at the point of injury, but that is the position at common law.  It must be modified and it must be informed by every provision of the Limitation Act which talks about the accrual of a cause of action.

The third characteristic of section 47A, very quickly, is that on its face clearly is not limited to actions referred to in section 38 of the Act.  In other words, it covers everything.  It covers an action contemplated in section 4 of the Act so that if one had, for instance, a corporation, a government arm of a corporation, a government trading corporation, commercially dealing with real estate, and a proposed defendant wished to sue for the recovery of land or rent, then the provisions in section 4 and section 5 informs when a cause of action, for the purposes of that litigation, accrues.  Section 47A is not limited to section 38.  It speaks across all causes of action contemplated in the Limitation Act.

We then look at section 38 which is the relevant period of limitation governing a proposed action for tort and the opening words of section 38 ‑ ‑ ‑

GUMMOW J:   But do we not have to focus on section 40?

MR NUGAWELA:   I am coming to that very quickly.  There is just one minor point to make, your Honour Justice Gummow, on 38:

Subject to the preceding sections of this Act and as hereinafter provided, actions . . . shall and may be commenced within the time herein expressed after the cause of such actions -

It does not say after the cause of such actions accrued, but it is common ground that, in this case, if the datum is after the cause of action, if that means the date of the act or the neglect or the omission of a wrong, then there is a coincidence between that neglect and the sustaining of damage in the circumstances of this case.  So we assume, and it is common ground, that when 38 talks about “after the cause of such actions” it is talking about after the accrual of such causes of actions.  Again, it does not tell us when such causes of action accrue.

Then, as your Honour Justice Gummow pointed me to, section 40.  I can read section 40 this way:

If any person entitled to any such action as is referred to in section 38(1) was at the time of the cause of action accrued within the age of 18 years or insane, then such person may commence the same within such time as is before limited -

that is, six years -

after being of full age or sane -

If the section had stopped there, I accept, your Honour Justice Heydon, what you put to me that this would probably be the end of the special leave application but it does go further and it goes further in a very important way.  The phrase which we say meaning and effect had to be given to is as follows:

as if that was the time at which the cause of action accrued.

That type of phrase creates a benevolent, legal fiction.  It is the type of phrase which occurs in legislation conferring the continued right to sue despite the death of a party in the estates actions in the various States in this country, the death shall not be taken to have occurred and the cause of action shall be taken to continue as if the death has not occurred.  That repeals the common law presumption of actual personales con moratur persona and replaces it with a statutory cause of action, so meaning and effect must be given to Parliament’s intention in putting that clause right at the end of section 40 “as if that was the time at which the cause of action accrued”.

There is a similar deeming provision in section 27, which I took your Honours to previously.  It is not identical but again you see the operation of a deeming provision as to when the cause of action accrues in that particular circumstance and again in section 9 and section 11 for other particular causes of action.  If one forgets about the last phrase, “as if that was a time at which the cause of action accrued”, then one really is saying that that phrase is otiose.  It does no work, it has no meaning.

The nub of our submissions is threefold:  firstly, that section 40 and section 47A perform different work.  They can happily co‑exist, as the learned judge at the first instance found but then said he was bound by the result in Scott.  His Honour accepted they could co‑exist but said, “I am bound by the result in Scott”, the result in Scott to which I have taken your Honours three lines almost as a res ipsa proposition.  The argument as to the scope and interaction and co‑operation between sections 40 and 47A ‑ ‑ ‑

GUMMOW J:   It is not a question of co‑operation, that is what is put against you, you see.

MR NUGAWELA:   I accept that.

GUMMOW J:   You look at 48A which went in at the same time, I think, as 47A.  What was happening was that there were notices before action provisions in various statutes in WA where public authorities were involved, including public authorities in this special advantage, and they were all repealed and gathered up and put in 47A as a general provision dealing with public authorities and giving them the benefit of this special regime, notwithstanding – this is what is put against you – the otherwise beneficial operation of section 40, as between private citizens.

MR NUGAWELA:   I accept that.  We say it is important to look at the mechanism of 47A and what it is seeking to do.

GUMMOW J:   I think what it is seeking to do is what I have just put to you.  It may be unfortunate, but this attitude of 1954 towards action against public authorities, when these provisions went in, is still maintained by the legislature in this State, but there it is.

MR NUGAWELA:   Your Honour, the word “notwithstanding” we give credence to in our submissions.  I am about to put to your Honour a construction that does not rob it of any meaning.  It goes in this way, that section 47A does not spell out when a cause of action accrues for the purposes of the Limitation Act.  Other sections do that, so the word “notwithstanding” simply means that the action must be brought within one year of the cause of action accruing.  That is what 47A(1)(b) says.

So notwithstanding section 38 which says to a person that you can bring your action within six years - if you are going to sue a public authority you must bring it within one year.  But the question still remains, if one looks at 47A(1)(b), what is the date on which the cause of action accrued.  Section 47A does not supply the answer.  It does not supply the answer in the situation of an infant, a person under lunacy or overseas.  It does not supply the answer in the context of concealed fraud in an action for the recovery of land.  Thus put, the word “notwithstanding” in 47A, does not rob us of our submission that section 40 can co‑exist with section 47A.  It is just that the action must be brought within one year as to when the cause of action accrues.  Section 40 deems the cause of action accruing for the purposes of section 38 as the age of majority.

HEYDON J:   So you think the opening words mean, notwithstanding section 38(1)(c)(vi), but reading as fully operative, section 40.

MR NUGAWELA:   Yes. 

HEYDON J:   That is rather a bifurcated sort of construction, is it not?  You make “notwithstanding” wipe out one provision but not another. 

MR NUGAWELA:   Yes.  We say it could not have been Parliament’s intention and we have looked at Hansard and put the materials before your Honours.  Parliament did not advert to any intention in 1954 when it put section 47A in to impliedly repeal, abrogate or…..the calculation as to when a cause of action accrued for all purposes.  Whether it is a tort action or an action for the recovery of land, those provisions still stand.  If it can be read together, they should be read together.  The solution we offer provides that they both can stand.

Unless 47A covers the field as to the calculation of, to use the words of 47A(1)(b), “the date on which the cause of action accrued”, unless it

covers that field it can co‑operate with section 40, section 27, section 9, section 11.  Unless section 47A demonstrates a necessary or intractable implication that it intends to repeal all those sections, it should stand.  There is no material which demonstrates Parliament had that intention, Hansard points to the contrary in its singular silence on that issue.  That is the point that was put to the learned trial judge.  He was attracted to it but was bound by three lines in Scott, the res ipsa proposition, that was the point that was put to the Full Court and they did not deal with it and their reasons were deficient.

I notice that time is going against me.  On the question of nunc pro tunc, can I quickly say, your Honours, that the state of the law in this State is in disarray.  There are two five‑justice decisions of this State:  one in Matheson, which I have drawn your attention to; another in Re Monger; Ex parte Cross, which seem to conflict with each other but certainly the New South Wales Court of Appeal decision in Mealing v Chand provides further problems.  My time is up, may it please the Court.

GUMMOW J:   Thank you.  We do not need to hear you, Mr Zilko.

All that could be said in favour of the application has been put to us.  Nevertheless, we are of the view that there are insufficient prospects of success to warrant a grant of special leave.  Accordingly, special leave is refused with costs.

AT 11.43 AM THE MATTER WAS CONCLUDED