J.F. Thompson (Qld) Pty Ltd v Price

[1989] HCATrans 108

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B37 of 1988

B e t w e e n -

J.F. THOMPSON (QLD) PTY LTD

Applicant

and

IAN DAVID EDWARD PRICE

Respondent

Application for special leave

to appeal

DEANE J
TOOHEY J

McHUGH J

Thompson

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 MAY 1989, aT 9.30 AM

Copyright in the High Court of Australia

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MR D.R. GORE, QC:  May it please the Court, I appear with

my learned friend, MISS M.A. WILSON, for the

applicant. (instructed by O'Mara Patterson & Perrier)

MR S.C. WILLIAMS, QC; May it please the Court, I appear

~ith my lea~ned friend, MR T. MATTHEWS, for the

respondent. (instructed by Quinlan Miller & Treston)

DEANE J:	Yes, Mr Gore.
MR GORE:	Your Honours, this case raises important questions
concerning the proper construction of time provisions
in a Statue of Limitations and in an Interpretation Act. was injured in the course of his employment by
the applicant, his employer. On 8 July 1985,
three years and two days later, he commenced
an action for damages in the supreme court. The action was for damages for negligence and
breach of duty in which the damages claimed consisted
of, or included, damages in respect of personal injury.
In its defence the applicant pleaded that the action was statute barred by virtue of the
provisions of section 11 of the LIMITATION OF
ACTIONS ACT. However, 6 July 1985 was a Saturday and the respondent relied upon section 38(3) of
theACTS INTERPRETATION ACT as authorizing the
commencement of the action on 8 July, the next
following Monday.

We will turn to the statutory provisions

shortly. The matter was heard by a chamber judge,

Mr Justice Dowsett, on a preliminary application

and on 2 November 1987, His Honour declared that

the cause of action was statute barred.

DEANE J:  Mr Gore, you can assume we have read the papers

and that we are generally familiar with the history

of the matter and so on.

MR GORE:  Thank you, Your Honour. Your Honours will have

seen from paragraph 11 of Mr Heffernan's affidavit

that the primary questions raised in this application,

and considered by the courts below.- this is

page 64, are firstly:

(Continued on page 3)

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MR GORE (continuing):·

Whether s.11 of the LIMITATION OF ACTIONS

ACT (Qld) "prescribes, allows or reckons"
a period of time for the doing of anything

within the meaning of s.38(3) of the ACTS

INTERPRETATION ACT (Qld);

and, secondly:

If it does, whether the application of

s.38(3) of the ACTS INTERPRETATION ACT

is excluded -

or, perhaps, we should say, whether its operation

is excluded -

by the words "notwithstanding any other Act

or law or rule of law" ins. 11 of the

LIMITATION OF ACTIONS ACT.

As for that first question, the majority of the
Full Court, as Your Honours will have seen, held
that section 11 did prescribe a period of time for
the doing of something, namely, the institution of
proceedings whilst Mr Justice Carter and the chamber
judge held that it did not and, on the second question,
three of Their Honours found in favour of the respondent

whilst Mr Justice Carter found in favour of the applicant.

On the first question, Your Honours, we submit that

it is clear that unless the ACTS INTERPRETATION ACT

applies, the respondent's action was out of time as,

to use the language of section 11, it was brought

after the expiration of three years from the date

on which the cause of action arose. The key, then,

to the first question is the proper construction of

section 38(3) of the ACTS INTERPRETATION ACT; that is,

the question is:  is the three year period in section 11

of the LIMITATION OF ACTIONS ACT a period of time

prescribed or allowed or reckoned by the LIMITATION

OF ACTIONS ACT for the doing of anything?

Now, Your Honours will have noticed that

Mr Justice Moynihan dealt with this question at

pages 47 to 48 of the record at about point 6. He

referred to certain ordinary meanings of the word

"prescribe", two of which were "direct" and "enjoin"

and they were the two that he really picked up about

five lines up from the bottom of the page when

His Honour said:

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MR GORE (continuing):

Someone who wishes to avoid that consequence -

that is, the statutory bar -

is directed or enjoined to a course to be

followed; i.e. the institution of proceedings,

which will avoid the bar for which the statute

provides.

We respectfully submit that that reasoning is

erroneous. Section 11 may well prescribe a period of time, but it does not prescribe a period of time for the doing of anything. Rather, it prescribes

the period beyond which the cause of action is

barred. Section 38(3) of the INTERPRETATION ACT

should be construed as only applying to cases where

the other Act in question specifies the period

within which some particular thing shall be or may

be done. And the view at which His Honour arrived

really involved taking a broad, indirect approach

to the language of section 11.

It is, of course, well established that a

statute of limitations bars the remedy but not the
right. Section 11 does not prescribe that an action

for damages for personal injuries for negligence

must be conunenced within three years. There is

nothing to prevent a plaintiff from instituting

proceedings outside the three-year limitation period defendant pleads reliance upon the section.

but, subject to certain exceptions contained in the

Whilst having its differences, the reasoning of Mr Justice de Jersey was similar and so, we

respectfully submit, involved similar errors. At

page 52 of the record in the last paragraph on that

page, His Honour applied different:

ordinary meanings of the word "prescribe" -

namely -

"to appoint, "to lay down as a rulen,

"limit", and "to confine within bounds"

(Continued on page 5)

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MR GORE (continuing) : "Adopting those terms~' His Honour

said, "~ .11 does appoint the requisite period;

it lays the period down as a rule, it limits the period,and it confines the period within bounds."

If we could move forward to page 54, in the last

paragraph on that page, His Honour went on:

But s. 11, cast in the negative form is no less

the prescribing of a limitation period.

Providing that an action shall not be brought

after three years necessarily and obviously

carries with it the prescribing of a three

year limitation period for the commencement

of that action.

And he went on on the next page to speak of a necessary corollary of the prohibition, and of a

necessary implication. We respectfully submit that

that too is an erroneous approach. It is obviously

a consequence of section 11 that an action must be

commenced within the three year period if it is to avoid the risk of being statute barred, but that is

quite a different thing from saying that the three

year period is a period of time prescribed, or allowed,
or reckoned by section 11 of the LIMITATIONS ACT for
the doing of something, in this case, the institution
of proceedings.

We should take Your Honours back to page 53 in the judgment of Mr Justice de Jersey, where, at the bottom of the page, His Honour referred to a decision

of this Court in PEDERSEN V YOUNG and to language used

by Justice Kitto in that case where His Honour had

described section 5 of the 1956 Act as"a provision

'prescribing a time limit for the commencement of

actions'".

Although Mr Justice de Jersey himself said that

the 1956 provision was in materially similar terms,

we respectfully submit that that is notso. The

section in the 1956 Act was cast in positive terms,

not in negative terms, and is set out in the report,

the report of PEDERSEN V YOUNG being U964)110 CLR 162,

the relevant section is at 165, at point 1:

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MR GORE (continuing):.

Notwithstanding anything contained in any

other Act or law or rule of law to the
contrary, actions for damages for
negligence ..... shall be commenced within
three years after the cause of such actions

arose, but not after.

So we would respectfully submit that it was

cast in positive language, not in the negative

language that section 11 now contains and that that

is material to the section 38(3) questions.

Mr Justice de Jersey also referred to two other

cases in his judgment at page 55. The first at

about point 2 was the decision of the Court of

Appeal in PRITAM KAUR, in particular the

judgment of Mr Justice Megarry, as he then was.

In that case the Court of Appeal was not considering a provision like section 38(3) of the

ACTS INTERPRETATION ACT and the question in that

case was whether, as a matter of policy, in

circumstances like the present, the limitation

period should be construed as being extended to

the next day on which the court offices were open.

So it was really a different case. The second

case that he referred to, a decision of Mr Justice Harris

in THOMSON V HARRISON, whilst concerned with an

INTERPRETATION ACT provision a little different from

the Queensland provision did,we recognize, involve

reasoning similar to the majority in the present case?

And our submission, therefore, is that it was

relevantly wrongly decided. It is of course, and we

say this with great respect, a decision of a single

judge.

Moving on.tothe second question raised by this

application it,of course, only arises in the event

that the applicant were to fail on the first question.

Mr Justice Moynihan dealt with it at page 46 of
the application book.	He set out, at about point 5:

Sub-section (3) of s. 38 -

although we draw it to Your Honours' attention, and

this is relevant to a point we come to later, that

in the form in which it appears in His Honour's

judgment, it reads:

unless otherwise especially provided -

the word "especially" should read'expressly", but

underneath that extract His Honour disposed of this

matter adversely to the applicant. He said

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that the_ introductory words have:

the consequence thats. 11 of the

LIMITATIONS ACT is the exclusive determinant

of the matters with which it deals to the
exclusion of any other provision which might

otherwise deal with the same subject matter

and is restricted to that consequence.

That may well be so but it is really what His Honour went on to say that is not correct.	He
then said:

In other words the reference ins. 11 to any other Act is a reference to an Act dealing with

a period upon the expiration of which an

action cannot be brought or imposing a

limitation as to the time in which proceedings

coming withins. 11 are to be instituted.

Now that description of the category of

Acts to which the introductory words of section 11

applies is too narrow. It is our submission that

if section 38(3) of the INTERPRETATION ACT is
applicable, then it is another Act, and we are

now using the language of section 11, it is another

Act under which an action for damages, of the kind

described in section 11, may be:

brought after the expiration of three years

from the date on which the cause of action

arose.

It, accordingly, does not relevantly deal

with a different subject-matter. Mr Justice de Jersey dealt with this question at page 55 of the application

book at about point 8.	It was his view too that
the introductory:

words do not exclude the applicability of

s. 38(3) of the ACTS INTERPRETATION ACT. They

were included,

he said -

ins. 11 to make it abundantly clear that in

respect of such actions, s. 11 prevailed over
other statutory limitations on the right to

sue for damages in respect of personal

injuries, limitations of the character of

those mentioned ins. 4(2) of the 1956 Act.

(Continued on page 8)

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MR GORE (continuing):  Now, once again, that is too

narrow a description of the category of Acts

with which the introductory words deal. Those introductory words, we respctfully submit, are

as much concerned with other Acts which provide

for a longer or extended period than three

years as they are with an Act which provides

for a shorter period and it was really only the

latter class of Act that Mr Justice de Jersey

seemed to have in mind.

He also went on to deal with another point

that we should deal with. He referred to

those words in section 38(3) "unless otherwise

expressly provided" and he said at about

point 2 on page 56:

Reading section 38(3) ..... with section 11

..... and assuming for argument that

the opening words of section 11 could
otherwise operate to exclude section 38(3)
(which is contrary to my opinion), the

inclusion in section 38(3) of the

words "unless otherwise expressly

provided" excludes that possible
construction of section 11. That is
because there is nothing in section 11

sufficiently specific to amount to an

express exclusion of the application

of section 38(3).

Your Honours, it is our submission that on the

contrary to what His Honour said, those words in
section 38(3) envisage a section like section 11,

with its introductory words, which are so

phrased as to be clearly designed to ensure that

section 11 prevails over all other Acts. And

those words really reinforce the view that we

propound that the section does not by its own

terms - that is 38(3) - apply and we respectfully

submit that it is difficult to see how

His Honour could on the one hand assume for argument that the opening words of section 11

could operate to exclude section 38(3) and then,

on the other hand, conclude that the relevant

words in that latter provision excluded that

possible construction.

DEANE J:  But, is it a matter, Mr Gore, of section 11

prevailing or is it a question of what does

section 11 mean?

MR GORE:  Your Honour, in the event of a conflict, it is

a question of section 11 prevailing.

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DEANE J:	But you cannot have a conflict until you have worked out what section 11 means?
MR GORE:	That is so, Your Honour.
DEANE J:	I mean, for example, the singular "person" in section 11 includes the plural "persons" because of the INTERPRETATION ACT.
MR GORE:	Yes, Your Honour.
DEANE J:	Then why is it not a matter of finding what
section 11 means by reference to the INTERPRETATION
ACT?
MR GORE:	Because the INTERPRETATION ACT recognizes that although it is a general key to the interpretation of other Acts, those other Acts may provide for
some different consequence and we submit that
this is a case where a different consequence
is provided for by section 11 by the ordinary
reading, the clear reading of the introductory
words of section 11. You do not need to go to
section 38(3) to interpret section 11.
DEANE J:	But why do you not need to ask the question,
"What is meant by the expiration of three years?"
MR GORE:	You do need to ask that question and if you arrived
at the conclusion that section 38(3) would otherwise extend it, then you have a case of conflict,
so that then the introductory words would prevail.
DEANE J:	Thank you.
MR GORE:	Your Honours, we respectfully submit that special
leave should be granted for the reasons given in paragraph 12 of Mr Heffernan's affidavit
at page 65. There is a supplementary affidavit
by Mr Heffernan which was filed on 11 April 1989
and perhaps we should formally seek leave to
read that affidavit. It clarifies and exhibits
relevant statutory provisions.
DEANE J:	We have that.
MR GORE:	Thank you, Your Honour.  I can conveniently summarize
their effect.  They are relevant to the first
question raised on this application and the effect of Mr Heffernan's two affidavits is that in respect
of that first question there is a comparable
ccmbination. of provisions in four other jurisdicitons, namely, New South Wales, Tasmania, the ACT and the Northern Territory. I will not take Your Honours through each one but that is the
effect of them.  It is really the same question for all
relevant purposes in those other jurisdictions. We also place
reliance, Your Honours, upon the division of opinion in the courts below and upon the fact that there is a single judge
-decision in Victoria which, without a decision by this Court1 would otherwise be followed.

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MR GORE (continuing):  Each question, we respectfully submit,

raises an important question of law which should be

determined by this Court. They are our submissions.

DEANE J:  Thank you, Mr Gore. Yes, Mr Williams.

MR WILLIAMS:  May it please the Court, we agree with our

learned friend that there are two questions to be determined in any appeal in respect of this

matter.	However, we would state the questions
differently.	In our submission, the first point

the Court would be required to determine, with

respect, would be whether the opening words of

section 11 of the LIMITATION ACT exclude the

operation of the ACTS INTERPRETATION ACT and

if that question is answered affirmatively that

then would appear to be the end of the matter.

As to those two questions, in our submission,

neither raise a point of special leave in respect

of an appeal to this Court. As to the opening

words of section 11 of the LIMITATION ACT,

Your Honours will note from the material annexed

to Mr Heffernan's second affidavit that no other

legislation of any State of the Commonwealth

annexed in that affidavit contains those opening

words. The words "N::>twithstanding any other Act or

law or rule of law" simply do not appear and,
therefore, in our submission, the point is not one

of general application throughout the States.

The point has been authoritatively determined in

Queensland by Their Honours of the Full Court and,

in our submission, no special leave point arises.

As to the second argument, that is whether

section 11 of the LIMITATION ACT prescribes,

reckons, or allows a period of time, in our submission,

that point has been authoritatively determined in

Queensland consistently with every other decided

and reported case. We refer Your Honours to the

decision in PRITAM KAUR where, at page 353 in

the judgment of Mr Justice Megarry, His Honour

addressed the argument which our learned friend

raised, that is whether the statute is in

imperative form or negative in form, in these

terms at the paragraph commencing at letter C

and proceeding to about D:

(Continued on page 11)

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MR WILLIAMS (continuing):

Whether the statute is imperative in form

(shall be commenced within ... ) or negative
(shall not be brought after ... ), what

parliament must be contemplating is that the

plaintiff shall not be shut out until the

statutory period has run.

His Honour simply took no point as to whether or

not a statute is cast in negative form or an

imperative form.

The LIMITATION ACT, as His Honour,

Mn Justice de Jersey noted in his judgment at

page 53, uses the word "prescribe" in various

provisions other than in section 11 itself.

Those provisions are in sections 10(3), which is

a limitation provision dealing with actions other

than.actions involving damages for personal

injury; 12(2), 16(2); 24(1); 29 and 38. The

word "prescribe" is actually used in the

legislation itself.

In our submission, the decision of this

Court in PEDERSEN V YOUNG, and Mr Justice Kitto's comments at page 165, to which our learned friend

referred you, do assist the respondent in saying

that the provision in question, although it

does not use the word "prescribe", clearly prescribes

a period of limitation. That was the decision

in THOMSON V LESS HARRISON CONTRACTING CO, as our

learned friend conceded, Mr Justice Harris deciding

that case. It is to be noted that the Victorian

legislation has since been amended and this point

would not again arise in Vic.

There is nothing in the material advanced in

support of our learned friend's application to

suggest that the pres·ent point has in fact arisen

in any other State of the Commonwealth.	The
now governed by the Court of Appeals decision in	position in Great Britain is, in our submissioD,
PRITAM KAUR and is unlikely to arise there again.
The point has been determined in Queensland by
the decision of the Full Court, and that decision is consistent with the other, reported cases.

(Continued on paged 12)

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MR WILLIAMS (continuing): In our submission, public interests

and the interests of the administration of justice

require consistency in the application of similar

statute laws which, we submit, is already present

in the context of the legislation to which we have

referred and the decisions to which we have referred and the ease of application of the statute laws must

be a matter for the interests of the administration

of justice.

It is important to note, in our submission, that

a contrary decision to that advanced by the Full Court

will create something of an inconsistency in the

application of the LIMITATION OF ACTIONS ACT and
Order 92 rule 7 of the rules of the supreme court.
We appreciate Order 92 rule 7 which is set out at. page 22

of the record in the judgment of Mr Justice Dowsett is not a limitation provision but the supreme court

rules of this State do provide in similar terms as

the decision of the Full Court in this case, in

circumstances where the last day of a period or the

day for doing of an act falls on a Saturday, a Sunday

or a public holiday and consistency of application
of provisions is, in our submission, relevant.

We do not seek to argue the merits of the appeal

at this juncture but we adopt the words of

Justice Dawson in MORRIS V REG where, at page 177,

His Honour indicated that merely to establish that the decision is wrong-and we contend that it is not

wrong for the reasons stated by the majority of the

Full Court-but merely to contend that the decision

is wrong is not a ground upon which special leave to

this Court ought to be granted.

In our submission, there is no point of general

application. There is no point which, in the interests

of the administration of justice, requires the decision

of this Court. It is determined in Queensland. It

have arisen anywhere else in the Commonwealth and it	cannot arise in Victoria. It has not been shown to
has been determined in Great Britain consistently
with the decision of the Full Court. May it please
the Court, those are our submissions.

DEANE J.:  Thank you, Mr Williams. Mr Gore?

MR GORE:	I have nothing in reply, if Your Honours please.
DEANE J:	Thank you.

The particular questions which the applicant desires to have determined on an appeal to this Court

relate to the interaction of the provisions of

section 38(3) of the Queensland INTERPRETATION ACT, 1954

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and section 11 of the Queensland LIMITATION ACT, 1974.

They are narrow questions of statutory construction

which involve no issue of general principle and whose

resolution turns to no small extent upon matters of

impression upon which, as the judgments in the courts

below demonstrate, there is room for differences of

opinion.

It appears to us that the conclusion of the

majority of the Full Court of the Supreme Court,

namely that the introductory words of section 11 of

the LIMITATION ACT did not preclude the applicability
of section 38(3) of the INTERPRETATION ACT and that
the period of three years mentioned in section 11 was

a period of time prescribed or allowed of the kind

referred to in section 38(3) is one that is reasonably

open.

There is no lack of conformity between that

conclusion and the decisions of courts in other

jurisdictions on comparable legislative provisions.

In all the circumstances, we do not think that the

case is an appropriate one for the grant of special

leave to appeal to this Court. Special leave is,

accordingly, refused.

MR WILLIAMS:  If the Court pleases, we ask for costs of the

application.

DEANE J:	Mr Gore, can you oppose that?
MR GORE:	No, I cannot, Your Honour.

DEANE J: Special leave is refused with costs.

AT 10.01 AM THE MATTER WAS ADJOURNED SINE DIE

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