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

C2Tl /1 / AC

12/5/89

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)

C2Tl/2/AC	2	12/5/89
Thompson

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…

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

Details

AGLC: J.F. Thompson (Qld) Pty Ltd v Price [1989] HCATrans 108
Case: [1989] HCATrans 108
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, J.F. Thompson (Qld) Pty Ltd, sought to appeal a decision concerning the timeliness of an action commenced by the respondent, Ian David Edward Price. Mr Price, a former employee of the applicant, had commenced proceedings for damages for negligence and breach of duty on 8 July 1985, alleging personal injury sustained in the course of his employment. The applicant contended that the action was statute-barred under section 11 of the *Limitation of Actions Act* (Qld), as it was commenced three years and two days after the cause of action arose. The respondent argued that section 38(3) of the *Acts Interpretation Act* (Qld) extended the time for commencement to the next following Monday, 8 July 1985, because 6 July 1985, the actual expiry date, fell on a Saturday.

The central legal issues before the court were twofold. Firstly, whether section 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 section 38(3) of the *Acts Interpretation Act* (Qld). Secondly, if it did, whether the operation of section 38(3) was excluded by the words "notwithstanding any other Act or law or rule of law" contained within section 11 of the *Limitation of Actions Act*. The Full Court of the Supreme Court of Queensland had been divided on these questions, with the majority holding that section 11 did prescribe a period for the institution of proceedings, and that section 38(3) of the *Acts Interpretation Act* applied, while a dissenting judge found otherwise.

The applicant argued that unless the *Acts Interpretation Act* applied, the respondent's action was out of time. The critical question, therefore, was the proper construction of section 38(3) of the *Acts Interpretation Act*, specifically whether the three-year period stipulated in section 11 of the *Limitation of Actions Act* constituted a period of time prescribed, allowed, or reckoned for the doing of something. The applicant submitted that the ordinary meanings of "prescribe" included "direct" and "enjoin," suggesting that section 11 did indeed prescribe a time limit. The court was therefore required to determine if the time limitation imposed by the *Limitation of Actions Act* was a period to which the provisions of the *Acts Interpretation Act* applied, and if so, whether any other statutory provision prevented its application.

Orders