Town of Kwinana v Vidovich
[2004] WASCA 274
•25 NOVEMBER 2004
TOWN OF KWINANA -v- VIDOVICH (By her lawful Father and Next Friend MILENKO VIDOVICH) [2004] WASCA 274
| (2004) 29 WAR 211 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 274 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:102/2002 | 23 AUGUST 2004 | |
| Coram: | MURRAY J TEMPLEMAN J SIMMONDS J | 25/11/04 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | TOWN OF KWINANA NICOLE LEANNE VIDOVICH (By her lawful Father and Next Friend MILENKO VIDOVICH) |
Catchwords: | Limitation periods Negligence action against public authority Appeal against grant of leave to commence proceedings Whether power in Court to abridge statutory period for giving notice of proposed application for leave Whether statutory provision for notice intended to effect reduction in limitation period |
Legislation: | District Court of Western Australia Act 1969 (WA), s 52, s 53(1), s 55 and s 57(1) Limitation Act 1935, s 47A(1)(a), s 47A(2), s 47A(3)(a), s 47A(3)(b), s 47A(3)(c) Supreme Court Act 1935, s 21(3), s 21(4) |
Case References: | Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 Matheson v Commissioner of Main Roads [2001] WASCA 40 Agtrack (NT) Pty Ltd v Hatfield (2003) 7 VR 63 Air Link Pty Ltd v Paterson (No 2) (2003) 58 NSWLR 388 Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381 Greendene Development Corporation Pty Ltd v Environmental Protection Authority (2003) 28 WAR 107 Jacobs v The Minister for Health [2003] WADC 129 McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 Perry v City of Armadale [2004] WASC 167 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 PSL Industries Ltd v Simplot Australia Pty Ltd (2003) 7 VR 106 WD & HO Wills (Australia) Ltd v Commisisoner of State Taxation (1998) 39 ATR 445 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : TOWN OF KWINANA -v- VIDOVICH (By her lawful Father and Next Friend MILENKO VIDOVICH) [2004] WASCA 274 CORAM : MURRAY J
- TEMPLEMAN J
SIMMONDS J
- Appellant (Second Defendant)
AND
NICOLE LEANNE VIDOVICH (By her lawful Father and Next Friend MILENKO VIDOVICH)
Respondent (Plaintiff)
(Page 2)
ON APPEAL FROM:
For File No : FUL 102 of 2002
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : YEATS DCJ
Citation : NICOLE LEANNE VIDOVICH (By her lawful Father and Next Friend MILENKO VIDOVICH) -v- THE COMMISSIONER FOR MAIN ROADS & ANOR [2002] WADC 162
File No : CIVO 104 of 2002
Result : Appeal dismissed
Catchwords:
Limitation periods - Negligence action against public authority - Appeal against grant of leave to commence proceedings - Whether power in Court to abridge statutory period for giving notice of proposed application for leave - Whether statutory provision for notice intended to effect reduction in limitation period
Legislation:
District Court of Western Australia Act 1969 (WA), s 52, s 53(1), s 55 and s 57(1)
Limitation Act1935, s 47A(1)(a), s 47A(2), s 47A(3)(a), s 47A(3)(b), s 47A(3)(c)
Supreme Court Act1935, s 21(3), s 21(4)
Result:
Appeal dismissed
Category: A
(Page 3)
Representation:
Counsel:
Appellant (Second Defendant) : Mr M H Zilko SC & Mr J Eller
Respondent (Plaintiff) : Mr M J Buss QC & Mr G Droppert
Solicitors:
Appellant (Second Defendant) : John Eller
Respondent (Plaintiff) : Bradford & Co
Case(s) referred to in judgment(s):
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
Matheson v Commissioner of Main Roads [2001] WASCA 40
Case(s) also cited:
Agtrack (NT) Pty Ltd v Hatfield (2003) 7 VR 63
Air Link Pty Ltd v Paterson (No 2) (2003) 58 NSWLR 388
Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381
Greendene Development Corporation Pty Ltd v Environmental Protection Authority (2003) 28 WAR 107
Jacobs v The Minister for Health [2003] WADC 129
McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1
Perry v City of Armadale [2004] WASC 167
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
PSL Industries Ltd v Simplot Australia Pty Ltd (2003) 7 VR 106
WD & HO Wills (Australia) Ltd v Commisisoner of State Taxation (1998) 39 ATR 445
(Page 4)
1 MURRAY J: I agree with Templeman J and would dismiss the appeal. I could add nothing useful to his Honour's reasons.
2 TEMPLEMAN J: The question raised by this appeal is whether the District Court has the power to abridge the 14 day notice period provided by s 47A(3)(c) of the Limitation Act 1935 ("the Act").
3 The appellant is the Town of Kwinana. The appeal arises from the fact that on the last day of the six year limitation period, a District Court Judge gave leave to the respondent to bring proceedings against the appellant for damages for personal injuries suffered by the respondent in a motor vehicle accident at a road intersection in the Kwinana area.
4 In essence, the action the respondent wishes to bring is based on the alleged negligence of the appellant in designing the intersection in a particular way and in allowing a mound of soil to remain in a position where it obstructed the respondent's view as she approached the intersection.
5 Because the respondent wishes to sue a public authority it was necessary for her to comply with s 47A of the Act. So far as relevant, it is in the following terms:
"(1) Notwithstanding the foregoing provisions of this Act but subject to the provisions of subsections (2) and (3) of this section, no action shall be brought against any person (excluding the Crown) for any act done in pursuance or execution or intended execution of any Act, or of any public duty or authority, or in respect of any neglect or default in the execution of the Act, duty or authority, unless –
(a) The prospective plaintiff gives to the prospective defendant, as soon as practicable after the cause of action accrues, notice in writing giving reasonable information of the circumstances upon which the proposed action will be based and his name and address and that of his solicitor or agent, if any; and
(b) the action is commenced before the expiration of one year from the date on which the cause of action accrued …
(Page 5)
- (2) …
(3) (a) Notwithstanding the foregoing provisions of this section application may be made to the Court which would but for the provisions of this section have jurisdiction to hear the action, for leave to bring an action at any time before the expiration of six years from the date on which the cause of action accrued, whether or not notice as required by subsection (1) of this section has been given to the prospective defendant.
(b) Where the Court considers that the failure to give the required notice or the delay in bringing the action as the case may be, was occasioned by mistake or any other reasonable cause or that the prospective defendant is not materially prejudiced in his defence or otherwise by the failure or delay, the Court may if it thinks it is just to do so, grant leave to bring the action, subject to such conditions as it thinks it is just to impose.
(c) Before an application is made under the provisions of paragraph (a) of this subsection, the party intending to make the application shall give notice in writing of the proposed application and the grounds on which it is to be made to the prospective defendant, at least 14 days before the application is made.
(4) …."
6 The Scheme of s 47A is, therefore, to permit a plaintiff to bring proceedings against a public authority, without leave, before the expiration of one year from the date on which the cause of action accrued, provided a notice containing the relevant information is given to the proposed defendant pursuant to s 47A(1)(a).
7 A prospective plaintiff who does not commence proceedings within the one year period must apply to the court which would have jurisdiction to hear the action, for leave to commence proceedings at any time before the expiration of the six year limitation period, whether or not the notice required by subsection (1) has been given: s 47A(3)(a).
(Page 6)
8 On such an application, the court may grant leave to bring the action if the justice of the case requires it, subject to such conditions as the court thinks it just to impose: s 47A(3)(b).
9 A prospective plaintiff who proposes to make application to the court is required to give notice in writing of the proposed application and the grounds, at least 14 days before the application is made: s 47A(3)(c).
10 In the present case, for reasons which are irrelevant to the appeal, the respondent did not instruct solicitors until a few days before the expiration of the six year limitation period. The respondent therefore brought an application to the District Court, by originating summons, for the 14 day time limit to be abridged.
11 The learned District Court Judge who heard the application held that it was just to grant leave to bring the proposed action and abridged time accordingly. There is no challenge to the Judge's conclusion as to the justice of the case. However, the appellant contends that the Judge erred in abridging the 14 day time period. That is the sole ground of appeal.
12 The District Court Judge expressed the view that the 14 day requirement of par (c) was not substantive. Her Honour said her view was supported by a decision of this Court in Matheson v Commissioner of Main Roads [2001] WASCA 402. There, Murray J (with whom Scott, Steytler, Parker and Einfeld JJ agreed) said in relation to the 14 day notice requirement that:
" … In this case that requirement was not complied with, the originating summons by which the application was made apparently not being filed and served until 12 October 2000, a mere four days before the six-year period was due to expire.
No point was taken about this and the cooperation of the District Court was also obtained to have the application dealt with expeditiously."
- The District Court Judge referred to the submission that Murray J had been in error in Matheson's case. Her Honour said:
"If he is in error about whether there was a breach of the 14-day notice requirement I cannot look behind that error. The important thing he has said is that he believed the requirement had been breached. It did not mean that the plaintiff could not proceed. I consider Matheson's case is authority that entitles me
(Page 7)
- to proceed, despite the lack of 14 days' notice in this case, and I propose to do so."
13 The appellant contends that the provisions of s 47A(3)(c) are substantive because they limit the existence, extent and enforceability of the respondent's rights under s 47A(3)(a). The appellant relies on John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 in which Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said:
" … matters that affect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance, not with issues of procedure.
Or to adopt the formulation put forward by Mason CJ in Mckain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 26 – 27, 'rules which are directed to governing or regulating the mode or conduct of court proceedings' are procedural and all other provisions or rules are to be classified as substantive."
14 In my view, that passage does not assist the appellant. The limitation period is six years. Any attempt to extend the limitation period would clearly affect "the existence, extent or enforceability" of the appellant's rights. However, in this case, the respondent does not seek to extend the limitation period but to abridge the time within which an application may be made to the courts. Put in that way, s 47A(3)(c) may be said to be directed to "governing or regulating the mode or conduct of court proceedings". It is therefore, a procedural provision.
15 In Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, Gibbs CJ, Aickin, Wilson and Brennan JJ approved a passage from Salmond on Jurisprudence, 10th edition (1947), p 476 in the following terms:
"Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained. The latter regulates the conduct and relations of courts and litigants in respect of the litigation itself; the former determines their conduct and relations in respect of the matters litigated."
16 In my view, s 47A(3)(c) falls within the latter category. It regulates conduct of a prospective plaintiff in relation to the litigation: it has nothing to do with "the matters litigated".
(Page 8)
17 The appellant then points to the fact that s 47A(3)(a) contains a provision which ameliorates the notice requirement contained in s 47A(1)(a). The appellant submits that because there is no such ameliorating provision in relation to the 14 day requirement of s 47A(3)(c), it is a reasonable assumption that the legislature intended that no such latitude should be available in relation to s 47A(3)(c). That is a valid point but it is only one of the indicia to be taken into account in the process of construction.
18 The respondent submits that if the Supreme Court was the relevant court its jurisdiction under s 47A(3) of the Act would fall to be exercised in accordance with s 21(4) of the Supreme Court Act 1935. It is there provided that the Court's jurisdiction:
"Shall (except as otherwise provided by any such statute) be exercised so far as regards procedure and practice in the manner directed by subsection (3)."
19 Subsection 21(3) provides, so far as relevant, that any such jurisdiction:
"Shall (except as otherwise provided by any such statute) be exercised (so far as regards procedure and practice) in the manner provided by this Act and the Rules of Court; or if no provision, or no appropriate provision, as to the exercise of any such jurisdiction is contained in this Act or in the Rules of Court, then such jurisdiction shall be exercised in such form, mode, and manner as the Court or a Judge may from time to time direct."
20 There is no specific provision in the Supreme Court Act to abridge the 14 day period referred to in s 47A(3)(c) of the Act. The general jurisdiction of the court to abridge time would therefore apply unless s 47A provides otherwise.
21 There is no express provision in s 47A which excludes the operation of s 21(3) and (4) of the Supreme Court Act. However, the appellant submits that the requirement that the prospective plaintiff "shall" give notice in writing within the 14 day period carries that implication.
22 The appellant relies on s 56(2) of the Interpretation Act 1984 where it is provided that:
(Page 9)
- "Where in a written law the word "shall" is used in conferring a function, such words shall be interpreted to mean that the functions so conferred must be performed."
23 The term "function" is itself defined in s 5 to include "powers, duties, responsibilities, authorities, and jurisdictions".
24 In my view, in providing that a prospective plaintiff "shall give notice in writing", s 47A(3)(c) is not "conferring a function". To confer something is to grant or bestow it. All that s 47A(3)(c) does is to create an obligation to take a particular step as a precursor to litigation. I do not think that can be said to be a "function", within the above definition, in any event.
25 On that analysis, I conclude that there is nothing in s 47A which would exclude the operation of s 21(3) and (4) of the Supreme Court Act.
26 Furthermore, I see nothing in that construction which would be inconsistent with the apparent object of s 47A(3)(c) which is to give the prospective defendant an opportunity to consider whether to oppose the application.
27 Finally, I note that (as senior counsel for the appellant accepted during the course of argument) if the appellant's contention is correct, then the limitation period applicable to s 47A(3) is not six years, but five years and fifty weeks. Such a result would be so inconsistent with the express provision of s 47A(3) that I cannot think it right.
28 In the present case, the relevant court is the District Court. However, s 52, s 53(1), s 55 and s 57(1) of the District Court of Western Australia Act 1969 take effect to confer on the District Court the same jurisdiction as the Supreme Court has under its Act.
29 For all these reasons, I am of the view that the respondent's submission should be accepted. I therefore conclude that the District Court Judge was correct in holding that she did have jurisdiction to abridge the 14 day period prescribed by s 47A(3)(c) of the Act.
30 I would dismiss the appeal.
31 SIMMONDS J: For the reasons given by Templeman J, I agree that this appeal should be dismissed.
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