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

1. 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.

1. 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.

1. 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 division 3, before the end of the period of limitation applying to the claim, the claimant may bring a proceeding in court based on the claim even though the period of limitation has ended.

   (2)   However, the proceeding may only be brought after the end of the

   period of limitation if it is brought within 6 months after the day on which the notice is given or leave to bring the proceeding is granted.
   …………
   (5) If a period of limitation is extended under Part 3 (Extension of Periods of Limitation) of the Limitation of Actions Act 1974, this section applies to the period of limitation as extended under the part.”  (emphasis added)

2. The “proceeding” referred to in ss. 57(2) is a proceeding of the kind referred to in ss. 57(1), namely a proceeding based on a motor vehicle accident claim made before the end of the period of limitation applicable to that claim. The effect of ss. (1) and (2) of s. 57, relevantly, is to permit proceedings based on motor vehicle accident claims made before the expiration of the applicable limitation period, to be brought after the expectation of the limitation period, if brought within six months of the giving of the notice of claim. By necessary implication, no proceedings based on such claims made outside the limitation period may be brought.

1. The plaintiff did not make a motor vehicle accident claim within the limitation period.

S. 39(5)(c) does not obviate the problem caused by s. 57 which I have just identified. The former provision empowers the court to give leave to bring a proceeding “despite noncompliance with requirements of this division” (emphasis supplied). Section 39 is in Division 1 of Part 4. Section 57 is in Division 6 of Part 4. Additionally these sections cannot be construed in isolation from each other. As McHugh, Gummow, Kirby and Hayne JJ observed in Project Blue Sky Inc. –v- Australian Broadcasting Authority (1998) 194 CLR 355 at 381 –

“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.  The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’.  In Commissioner for Railways (NSW) –v- Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’.  Thus, the process of construction must always begin by examining the context of the provision that is being construed.

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.  Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.”

1. Furthermore, s. 37 may be thought to be a provision of a general nature dealing with claims procedures whereas s. 57 deals specifically with limitation periods. Under orthodox cannons of construction a specific provision takes precedence over the general in relation to matters within the ambit of the more specific provision: Perpetual Executors and Trustees Assoc. of Australia Ltd. –v- FCT (1948) 77 CLR 1 at 29; Refrigerated Express Lines (A/Asia) Pty. Ltd. –v- Australian Meat and Livestock Corporation (1980) 29 ALR 333 at 347.

1. In order to construe s. 57(2), it is not appropriate proceed in terms of “mandatory” and “directory” classifications. In Project Blue Sky Inc. (supra) it was said of such requirements in para. 93 of the joint judgment  –

   “They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid.  The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds.  The classification is the end of the inquiry, not the beginning.”

2. In my view the clear purport of s. 57(2) is to prevent the bringing of proceedings after the expiration of limitation periods unless the notice of claim is given within the limitation period. An exception to this restriction is provided for in s. 57(5) which permits a limitation period to be extended by application under Part 3 of the Limitation of Actions Act 1974. No such application was made.

1. For the above reasons the application must fail.  The conclusion I have reached is  consistent with that of White J. in Couling –v- Nelson & Ors. (4 September 1998 unreported).  Her Honour observed in that case at para. 12 –

   “A discretion in s. 39(5)(c) is limited in my view by the provisions of s. 57. At the least a notice of a claim or an application for leave to bring a proceeding must be brought before the end of the period of limitation applying to the claim, s. 57(1).”

2. I order that the application be dismissed and that the plaintiff pay the defendant’s costs of and incidental to the application and of the action to be assessed.

Gavin Dunn
Judgment Officer
Supreme Court Library
P O Box 19
BRISBANE ALBERT ST 4002  

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