Brown v Minister for Education
[2003] WASCA 204
•27 AUGUST 2003
BROWN -v- MINISTER FOR EDUCATION [2003] WASCA 204
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 204 | |
| THE FULL COURT (WA) | |||
| Case No: | CIV:2039/2003 | 27 AUGUST 2003 | |
| Coram: | MCKECHNIE J HASLUCK J PULLIN J | 27/08/03 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | JACLYN SHAUNA BROWN MINISTER FOR EDUCATION |
Catchwords: | Limitation of actions Public authority defendant Infant injured |
Legislation: | Limitation Act 1935, s 38, s 40, s 47A |
Case References: | Saraswati v The Queen (1991) 172 CLR 1 Bramwell v The Western Australian Museum [2003] WADC 171 Garcia v National Australia Bank Ltd (1998) 194 CLR 395 Holland v Board of Management of King Edward Memorial Hospital for Women (1995) 14 SR (WA) 305 Keddis v WA Government Railways Commission (1994) 11 SR (WA) 232 Northey v Minister for Education (1995) 13 SR (WA) 124 Scott v Western Australia (1994) 11 WAR 382 Wilson v Metaxas [1989] WAR 285 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : BROWN -v- MINISTER FOR EDUCATION [2003] WASCA 204 CORAM : MCKECHNIE J
- HASLUCK J
PULLIN J
- Plaintiff
AND
MINISTER FOR EDUCATION
Respondent
Catchwords:
Limitation of actions - Public authority defendant - Infant injured
Legislation:
Limitation Act 1935, s 38, s 40, s 47A
Result:
Application for leave to appeal dismissed
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr B L Nugawela
Respondent : Mr C Pruiti
Solicitors:
Plaintiff : Piu & Associates
Respondent : Basile Hawkins
Case(s) referred to in judgment(s):
Saraswati v The Queen (1991) 172 CLR 1
Case(s) also cited:
Bramwell v The Western Australian Museum [2003] WADC 171
Garcia v National Australia Bank Ltd (1998) 194 CLR 395
Holland v Board of Management of King Edward Memorial Hospital for Women (1995) 14 SR (WA) 305
Keddis v WA Government Railways Commission (1994) 11 SR (WA) 232
Northey v Minister for Education (1995) 13 SR (WA) 124
Scott v Western Australia (1994) 11 WAR 382
Wilson v Metaxas [1989] WAR 285
(Page 3)
1 PULLIN J: This is an application for leave to appeal against the decision of his Honour District Court Judge Groves on 22 August 2003, when he dismissed the application pursuant to s 47A of the Limitation Act to extend time in which to commence proceedings against the respondent.
2 Jaclyn Shauna Brown, the applicant, was born on 29 August 1979. In 1985, when she was six years old, she was a grade 1 student enrolled at Leeming Primary School. On 12 December 1985, in the school grounds, she suffered an injury to her right eye, which ultimately led to the loss of sight in that eye, its removal and replacement with an artificial eye. The applicant wishes to sue the respondent for damages for negligence. The applicant's cause of action accrued on 12 December 1985.
3 The applicant brought her application seeking leave to commence proceedings against the Minister for Education pursuant to s 47A of the Limitation Act 1935 in respect of her accident on 12 December 1985. The need to seek leave was necessitated by reason that the prerequisite for suing a public authority as described by s 47A of the Act had not been complied with. His Honour dismissed the application.
4 Section 40 of the Act provides:
"Persons under disability allowed time from removal of disability.
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 after being of full age or sane as if that was the time at which the cause of action accrued."
5 Under s 38, the limitation of time for commencing an action in tort is six years from the date when the cause of action arose. Thus, the consequence of s 40 is that, in the case of minors, the six-year limitation period does not commence to run until the minor has attained the age of 18 years. The applicant attained the age of 18 years on 29 August 1997. Hence, in other circumstances the six-year limitation period would not expire until 29 August 2003.
6 However, because it is a public authority against which the applicant seeks to commence proceedings, it is necessary to have regard to s 47A.
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- "47A. Protection of person acting in execution of statutory or other public duty.
(1) Notwithstanding the foregoing provisions of this Act but subject to the provisions of subsection (2) and (3), no action shall be brought against any person (excluding the Crown) for any act done in pursuance or execution or intended execution of any Act, or of any public duty or authority, or in respect of any neglect or default in the execution of the Act, duty or authority, unless –
(a) the prospective plaintiff gives to the prospective defendant, as soon as practicable after the cause of action accrues, notice in writing giving reasonable information of the circumstances upon which the proposed action will be based and his name and address and that of his solicitor or agent, if any; and
(b) the action is commenced before the expiration of one year from the date on which the cause of action accrued,
and for the purposes of this section, where the act, neglect or default is a continuing one, no cause of action in respect of the act, neglect, or default accrues until the act, neglect or default ceases but the notice required by paragraph (a) may be given and an action may thereafter be brought while the act, neglect or default continues.
(2) A person may consent in writing to the bringing of an action against him at any time before the expiration of 6 years from the date on which the cause of action accrued whether or not the notice as required by subsection (1) has been given.
(3) (a) Notwithstanding the foregoing provisions of this section application may be made to the Court which would but for the provisions of this section have jurisdiction to hear the action, for leave to bring an action at any time before the expiration of 6 years from the date on which the cause of action accrued, whether or not notice as required
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- by subsection (1) has been given to the prospective defendant.
- (b) Where the Court considers that the failure to give the required notice or the delay in bringing the action as the case may be, was occasioned by mistake or by any other reasonable cause or that the prospective defendant is not materially prejudiced in his defence or otherwise by the failure or delay, the Court may if it thinks it is just to do so, grant leave to bring the action, subject to such conditions as it thinks it is just to impose.
(c) Before an application is made under the provisions of paragraph (a), the party intending to make the application shall give notice in writing of the proposed application and the grounds on which it is to be made to the prospective defendant, at least 14 days before the application is made.
- (4) (a) In this section "person" includes a body corporate, Crown agency or instrumentality of the Crown created by an Act or an official or person nominated under an Act as a defendant on behalf of the Crown.
(b) This section is to be construed so as not to affect the provisions of the Crown Suits Act 1947."
8 In terms of s 47A(2), the applicant sought consent to the bringing of an action. By letter dated 17 April 2003, the applicant's solicitors wrote to the Education Department as follows.
"We understand that our client was a Grade 1 student at Leeming Primary School ('the premises') and as she ran from the classroom to climb onto play equipment was struck in the right eye by a protruding stem from a nearby plant ('the accident'). Our client underwent a series of surgical procedures but her treating practitioners were unable to save the eye.
(Page 6)
- We are instructed to claim damages for your negligence inter alia in:
1. Failing to maintain the premises in a safe condition so as to prevent risk of injury to our client;
2. Failing to carry out adequate inspection of the plants on the premises and to remove any stems that posed a risk or hazard to our client;
3. Failing to barricade the plant so as to prevent contact with our client;
4. Failing to adequately supervise our client so as to prevent the accident; and
5. Failing to warn our client of the dangers of the plant and its protruding stems.
Kindly provide your response to the following:
1. Your attitude to liability for our client's claim; and
2. Whether you will provide your consent to the bringing of an action pursuant to s 47A(2) of the Limitation Act 1935.
We look forward to receiving your earliest reply given that the limitation period will expire on 28 August 2003."
9 The Education Department referred the claim to its insurer, the Insurance Commission of Western Australia ("the insurer"). By letter dated 26 May 2003, the insurer's solicitors, whilst not responding directly to the questions asked, advised the applicant's solicitors:
"... We have now received instructions from our client that it will be opposing any s 47A application your client makes in this matter."
10 On 4 July 2003, the applicant's solicitors responded by giving notice pursuant to s 47A(3)(c) of intention to make an application to the Court for leave to bring an action. A copy of the applicant's affidavit sworn in support of this application was forwarded under cover of that letter.
11 The submissions made by the parties to his Honour were as follows. In opposing the application for leave, the Minister contended that s 40 of
(Page 7)
- the Act did not apply to s 47A and that the action was statute barred. On the other hand, the applicant contended that s 40 of the Act did apply and that the limitation period did not begin to run until the applicant obtained her majority, namely from 29 August 1997. It was contended that s 47A "only impliedly repeals the foregoing provisions", ie, s 40 of the Act, to the extent that subsections (2) and (3) of section 47A irreconcilably conflicted with the same.
12 His Honour held that what the opening words of s 47A were saying was that "in spite of" or "without regard to" what was said in s 40, no action could be brought against the public authority unless:
(a) the prerequisites (1)(a) and (1)(b) were complied with, or
(b) steps were taken either pursuant to subsection (2) or (3) before the expiration of 6 years from the date on which the cause of action accrued.
13 His Honour then said:
"First, the words commencing s 47A are clear and unambiguous. They are emphatic and unequivocal. As a matter of interpretation they can only be understood as saying that s 47A stands alone so far as proceedings against a public authority are concerned regardless of that which is prescribed by s 40. Secondly, I do not see that there is any irreconcilable conflict as between the two provisions in any event. The provisions of the two sections can be read together perfectly well – s 40 conferring special rights on persons under disability while s 47A has done no more than say that as regards a particular sort of defendant special rules apply.
Thus I conclude that the applicant's argument is flawed. Section 40 of the Act does not apply to s 47A. The time for the applicant to commence an action expired on 12 December 1991. Accordingly, the proposed action is statute barred. Furthermore, this Court has no power to extend time in which to commence the prospective proceedings beyond the six year limitation period. See Mathesonv Commissioner of Main Roads [2001] WASCA 402 per Murray J at paras 22-30. The limitation period is a substantive limitation and not simply a procedural matter. (See Stevens v Motor Vehicle Insurance Trust [1978] WAR 232). On the expiration of the limitation period the right of action is extinguished.
(Page 8)
- I have come to that view and hold to it without reliance on any authorities on point or comments made obiter on the point in other cases. That said, however, my interpretation is consistent with those authorities and with what has been said before which has been critical of the consequences of this legislation which results in this discriminatory outcome for this applicant."
14 The appellant argues that the opening words of s 47A "Notwithstanding the foregoing provisions of this Act but subject to the provisions of subsection (2) and (3)" means that to the extent that the earlier provisions of the Act were inconsistent with subsections (2) and (3) of s 47A, the latter prevailed. I do not agree with that submission. Section 47A opens with the words "Notwithstanding the foregoing provisions", which is a direction that 47A is to prevail over the provisions of the Act up to s 47A.
15 Section 47A then imposes a one-year limitation period in a case of causes of action against public authorities, but the words "subject to the provisions of subsection (2) and (3)" make it clear that the one-year limitation period can be extended to six years, either by consent of the public authority or by an order of the Court.
16 The applicant also argues that s 47A is a provision which repeals s 38 and s 40, in the sense that those latter sections no longer apply to actions against public authorities, and then refers to Saraswati v The Queen (1991) 172 CLR 1 at 17 where Gaudron J said:
"It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied."
17 I am inclined to the view that this is an amending provision rather than a repealing provision, but the argument seems to be a barren one because if I am wrong and the section should be viewed as a repealing section as submitted by the applicant then, in my view, it expressly has the effect which the applicant says that it has, namely that the general provisions of s 38 and s 40 no longer apply to actions against public authorities.
18 I agree with his Honour's reasons for decision and the order he made dismissing the application.
(Page 9)
19 Section 38 is a provision limiting the time for the commencement of proceedings in the case of causes of action in relation to tort to within six years of the accrual of the cause of action. This section applies generally to all cases. The generality of s 38 is then modified by s 40, which extends the six-year period in which an action may be commenced in the case of tort causes of action to six years after the plaintiff turns 18 years of age in the case of infant plaintiffs.
20 The generality of s 38, and s 38 as modified by s 40, is then further modified by s 47A, which was introduced into the Act in 1954. This section added a special provision to deal with the case of defendants who are, or which are, public authorities. This section makes it clear that notwithstanding the earlier provisions of the Act (which therefore includes s 38 and s 40), the limitation provision in s 47A is to apply to actions against public authorities.
21 The application under s 47A was therefore made well out of time and there was, in consequence, no need for his Honour to consider whether leave should be granted to bring an action. In my opinion, for those reasons, his Honour's decision not being attended by any doubt, I would refuse leave to appeal.
22 McKECHNIE J: I agree with the reasons which have just been outlined by Pullin J. In my opinion, the judgment of the Court was clearly correct. I would only add that, although not strictly necessary for his reasons, the criticisms of s 47A made by Judge Groves have much to commend them.
23 HASLUCK J: I agree with the reasons outlined by Pullin J.
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