Bryant v Queensland Rail - [2000] QSC 81

SUPREME COURT OF QUEENSLAND

CITATION: Bryant v Queensland Rail [2000] QSC 081

PARTIES: JEFFREY WAYNE BRYANT (Applicant)

AND
QUEENSLAND RAIL (Respondent)

FILE NO/S: No 293 of 1998

DELIVERED ON: 13 April 2000

DELIVERED AT: Townsville

JUDGE: MUIR J.

ORDER:That the application be dismissed and that the Plaintiff pay
the Defendant's costs of and incidental to the application,
to be assessed.

CATCHWORDS: STATUTES - INTERPRETATION - MOTOR VEHICLES -
COMPULSORY LEGISLATION - Non - compliance with s37(1)
Motor Accident Insurance Act 1994 - whether leave under s39(5)
should be given nun pro tunc - effect of s.57 - notice of claim not
made within limitation period - no application for extension of
limitation period under Part 3, Limitation of Actions Act.

McKelvie v. Page (1998) 2 QdR 259, considered
Project Blue Sky Inc v. Australian Broadcasting Authority (1998)
194 CLR 355, followed
Perpetual Executors and Trustees Assoc of Australia Ltd v.
FCT (1948) 77 CLR 1, followed
Refrigerated Express Lines (A/Asia) Pty Ltd v- Australian Meat
and Livestock Corpn. (1980) 29 ALR 333, followed

Couling v. Nelson & Ors (Unreported, 4 September 1998,
White J).
Motor Accident Insurance Act 1994, s37(1), s39(5) s57
Uniform Civil Procedure Rules, R69

COUNSEL: Mr A J Moon, for the Applicant
Mr W Elliot, for the Respondent

SOLICITORS: Ruddy Tomlins & Baxter, for the Applicant
Roberts Leu & North, for the Respondent

DELIVERED THE THIRTEENTH DAY OF April 2000

MUIR J: The plaintiff who was injured in a motor vehicle accident on 23 April, 1995, claimed damages for injuries sustained by him in the accident against the defendant, Queensland Rail, in a writ issued on 15 April, 1998. The plaintiff did not comply with the requirements of s. 37(1) of the Motor Accident Insurance Act 1994 before issuing the writ. He makes application –
(a) pursuant to s. 39(5)(c) of the Act, for leave to commence proceedings nunc pro tunc; and
(b) pursuant to Rule 69 of the Uniform Civil Procedure Rules, to join the defendant’s licensed insurer, Suncorp Metway Pty. Ltd. as second defendant.

The application is opposed.

The plaintiff seeks to circumvent the problem caused by the prohibition in s. 37(1) by relying on s. 39(5) which relevantly provides –
“(5) A claimant may bring a proceeding in a court for damages based on a motor vehicle accident claim only if –
……
(c) the court gives leave to bring the proceeding despite noncompliance with requirements of this division.”

The plaintiff submits that leave under this provision may be given nunc pro tunc. McKelvie –v- Page (1998) 2 Qd.R. 259 is authority for that proposition and counsel for the respondent did not question its correctness.

The defendant however relies on s. 57 of the Act. It relevantly provides –
“(1) If notice of a motor vehicle accident claim is given under division 3 (Claims procedures), or an application for leave to bring a proceeding based on a motor vehicle accident claim is made under…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bryant v Queensland Rail

Details

AGLC: Bryant v Queensland Rail [2000] QSC 81
Case: [2000] QSC 81
Decision Date: 13/04/2000

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of Bryant v Queensland Rail involved an application by Jeffrey Wayne Bryant, who sought damages for injuries sustained in a motor vehicle accident against Queensland Rail. Bryant had not complied with the requirements of section 37(1) of the Motor Accident Insurance Act 1994 before issuing his writ. Consequently, he applied for leave to commence proceedings nunc pro tunc under section 39(5)(c) of the Act and to join Suncorp Metway Pty. Ltd. as the second defendant under Rule 69 of the Uniform Civil Procedure Rules. The respondent opposed the application.

The legal issues before the court were whether the court could grant leave to commence proceedings nunc pro tunc under section 39(5)(c) despite noncompliance with the requirements of the Act, and whether the plaintiff could join Suncorp Metway Pty. Ltd. as a second defendant. The court considered the interplay between section 39(5)(c), which allows the court to give leave to bring proceedings despite noncompliance, and section 57 of the Act, which imposes a limitation period on bringing such proceedings. Section 57(2) of the Act allows proceedings to be brought within six months of the notice of claim or leave being granted, but only if the notice or application was made within the limitation period.

The court held that section 57(2) effectively prevented proceedings from being brought after the expiration of the limitation period unless the notice of claim was given within that period. The court also noted that section 39(5)(c) could not override the restrictions imposed by section 57. The court further observed that the provisions of the Act must be construed harmoniously, and specific provisions take precedence over general ones. Given that Bryant did not make a claim within the limitation period and did not apply for an extension of that period, the court dismissed Bryant's application. The court ordered that Bryant pay the defendant's costs of and incidental to the application and of the action to be assessed.

Orders