Nominal Defendant v Star Motorcycles P/L - [2014] QDC 41

DISTRICT COURT OF QUEENSLAND

CITATION:

Nominal Defendant v Star Motorcycles P/L & Anor [2014] QDC 41

PARTIES:

NOMINAL DEFENDANT
(plaintiff)

v

STAR MOTORCYCLES PTY LTD
(first defendant)

and

STEPHEN LENARD WUST
(second defendant)

FILE NO/S:

D77/12

DIVISION:

Civil

PROCEEDING:

Application in a proceeding

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

10 March 2014

DELIVERED AT:

Brisbane

HEARING DATE:

31 January 2014

JUDGE:

Dorney QC DCJ

ORDERS:

1. The first defendant’s application filed 13 January 2014 is dismissed.

2. Both parties to file, and serve, further written submissions on all remaining questions, including costs, by 4pm on 17 March 2014.

CATCHWORDS:

LEGISLATION CITED:

CASES CITED:

Application in pending proceeding – statutory interpretation – statutory right to recover costs when such costs “reasonably incurred” – whether declaration appropriate – whether a single cause of action only for all costs

Uniform Civil Procedure Rules 1999, r 171, r 293

Acts Interpretation Act 1954, s 14A, s 35C(1)

Income Tax Assessment Act 1936 (Cth), s 51(1)

Limitation of Actions Act 1974, s 10(1)(d)

Motor Accident Insurance Act 1994, s 3, s 4, s 42, s 58, s 59, s 60

Petroleum Act 1923

AAMI Ltd v McPaul [2006] 1 Qd R 201

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27

Builders’ Licensing Board v Inglis (1985) 1 NSWLR 592

Ex parte Workers’ Compensation Board of Queensland [1983] 1 Qd R 450

Edwards v Bray [2011] 2 Qd R 310

Edwards v Santos Ltd (2011) 242 CLR 421

FCT v Nilsen Porcelains (Aust) Pty Ltd (1979) 41 FLR 36

Hillingdon London Borough Council v ARC Ltd [1999] Ch 139

Legal Services Commission v Rasool [2008] 3 All ER 381

Nominal Defendant (Queensland) v Langman [1988] 2 Qd R 569

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

South Eastern Sydney Health Service v Gadiry (2002) 54 NSWLR 495

Sullivan v Oil Company of Australia Ltd [2002] 2 Qd R 94

Swansea City Council v Glass [1992] QB 844

Sweedman v Transport Accident Commission (2006) 226 CLR 362

Victorian WorkCover Authority v Esso Australia Ltd (2001) 207 CLR 520

COUNSEL:

D Fraser for the applicant/first defendant

K Holyoak for the respondent/plaintiff

SOLICITORS:

Jensen McConaghy for the applicant/first defendant

Cooper Grace Ward for the respondent/plaintiff

Introduction

This particular application concerns whether the plaintiff’s claim, or part of it, is statute barred because of s 10(1)(d) of the Limitation of Actions Act 1974 (“Limitation Act”). That deals with the limitation period of 6 years from the date on which the cause of action arose in an “action to recover a sum recoverable by virtue of any enactment”. Here, any relevant cause of action arises under s 60 of the Motor Accident Insurance Act 1994 (“MAI Act”). The outcome potentially gives rise to a consideration of a cross-application brought by the plaintiff concerning amendments to the pleadings.

The argument centres on whether the Nominal Defendant’s cause of action accrued solely upon first…

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.

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Details

Case: [2014] QDC 41
Decision Date: 10 March 2014

CaseChat Overview and Summary

The parties involved in this proceeding were Nominal Defendant and Star Motorcycles P/L. The dispute arose from a pending proceeding where Star Motorcycles P/L sought a declaration and costs. The court before which this matter was heard was the Federal Circuit Court of Australia. The legal issues at hand involved the interpretation of statutory provisions concerning the recovery of costs and the appropriate remedy in this context. Specifically, the court had to determine whether the statutory right to recover costs when they are "reasonably incurred" permitted a declaration as the appropriate remedy, and whether the costs incurred constituted a single cause of action.

The court examined the statutory language and relevant case law to interpret the provisions. It found that the statutory right to recover costs, when such costs are reasonably incurred, did not necessarily imply a right to a declaration as the appropriate remedy. Furthermore, the court held that the costs incurred did not form a single cause of action but rather multiple distinct causes of action. Consequently, the court ruled that the first defendant’s application, filed on 13 January 2014, was dismissed. The court ordered both parties to file and serve further written submissions on all remaining questions, including costs, by 4pm on 17 March 2014.

Orders

Orders of the court

1. The first defendant’s application filed 13 January 2014 is dismissed.

2. Both parties to file, and serve, further written submissions on all remaining questions, including costs, by 4pm on 17 March 2014.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Nominal Defendant v Star Motorcycles P/L & Anor [2014] QDC 41
PARTIES:	NOMINAL DEFENDANT (plaintiff) v STAR MOTORCYCLES PTY LTD (first defendant) and STEPHEN LENARD WUST (second defendant)
FILE NO/S:	D77/12
DIVISION:	Civil
PROCEEDING:	Application in a proceeding
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED ON:	10 March 2014
DELIVERED AT:	Brisbane
HEARING DATE:	31 January 2014
JUDGE:	Dorney QC DCJ
ORDERS:	1. The first defendant’s application filed 13 January 2014 is dismissed. 2. Both parties to file, and serve, further written submissions on all remaining questions, including costs, by 4pm on 17 March 2014.
CATCHWORDS: LEGISLATION CITED: CASES CITED:	Application in pending proceeding – statutory interpretation – statutory right to recover costs when such costs “reasonably incurred” – whether declaration appropriate – whether a single cause of action only for all costs Uniform Civil Procedure Rules 1999, r 171, r 293 Acts Interpretation Act 1954, s 14A, s 35C(1) Income Tax Assessment Act 1936 (Cth), s 51(1) Limitation of Actions Act 1974, s 10(1)(d) Motor Accident Insurance Act 1994, s 3, s 4, s 42, s 58, s 59, s 60 Petroleum Act 1923 AAMI Ltd v McPaul [2006] 1 Qd R 201 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 Builders’ Licensing Board v Inglis (1985) 1 NSWLR 592 Ex parte Workers’ Compensation Board of Queensland [1983] 1 Qd R 450 Edwards v Bray [2011] 2 Qd R 310 Edwards v Santos Ltd (2011) 242 CLR 421 FCT v Nilsen Porcelains (Aust) Pty Ltd (1979) 41 FLR 36 Hillingdon London Borough Council v ARC Ltd [1999] Ch 139 Legal Services Commission v Rasool [2008] 3 All ER 381 Nominal Defendant (Queensland) v Langman [1988] 2 Qd R 569 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 South Eastern Sydney Health Service v Gadiry (2002) 54 NSWLR 495 Sullivan v Oil Company of Australia Ltd [2002] 2 Qd R 94 Swansea City Council v Glass [1992] QB 844 Sweedman v Transport Accident Commission (2006) 226 CLR 362 Victorian WorkCover Authority v Esso Australia Ltd (2001) 207 CLR 520
COUNSEL:	D Fraser for the applicant/first defendant K Holyoak for the respondent/plaintiff
SOLICITORS:	Jensen McConaghy for the applicant/first defendant Cooper Grace Ward for the respondent/plaintiff