WAYTE v WAYTE

WAYTE -v- WAYTE [2005] WADC 192

Last Update: 13/10/2005

WAYTE -v- WAYTE [2005] WADC 192
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WADC 192
Case No:	CIV:1101/2003	Heard:	30 SEPTEMBER 2005
Coram:	MARTINO DCJ	Delivered:	11/10/2005
Location:	PERTH	Supplementary Decision:
No of Pages:	6	Judgment Part:	1 of 1
Result:	Northern Territory legislation held to apply to action commenced in Western Australia
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	MICHAEL KENNETH WAYTE SARA SADIE WAYTE
Catchwords:	Conflict of laws Tort Act committed in Northern Territory Parties resident in Western Australia Action commenced in Western Australia
Legislation:	Motor Accidents (Compensation) Act (NT), s 5
Case References:	Attorney-General (WA) & Anor v Marquet (2003) 202 ALR 233 Baker v Campbell (1983) 153 CLR 52 Breavington v Godleman & Ors (1988) 169 CLR 41 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 Perrett v Robinson (1988) 169 CLR 172 The Daniels Corporation International Pty Ltd & Anor v Australian Competiton and Consumer Commission (2002) 213 CLR 543 Anderson v Eric Anderson Radio & TV Pty Ltd (1965) 114 CLR 20 BHP Billiton Ltd v Schultz (2004) 79 ALJR 348 McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 Stevens v Head (1993) 176 CLR 433 Wickham v Tacey (1985) 36 NTR 47

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : WAYTE -v- WAYTE [2005] WADC 192 CORAM : MARTINO DCJ HEARD : 30 SEPTEMBER 2005 DELIVERED : 11 OCTOBER 2005 FILE NO/S : CIV 1101 of 2003 BETWEEN : MICHAEL KENNETH WAYTE

Plaintiff

AND

SARA SADIE WAYTE

Defendant

Catchwords:

Conflict of laws - Tort - Act committed in Northern Territory - Parties resident in Western Australia - Action commenced in Western Australia

Legislation:

Motor Accidents (Compensation) Act (NT), s 5

Result:

Northern Territory legislation held to apply to action commenced in Western Australia

(Page 2)

Representation:

Counsel:

Plaintiff : Mr A J Power

Defendant : Mr B J H Goetze

Solicitors:

Plaintiff : Taylor Smart

Defendant : Minter Ellison

Case(s) referred to in judgment(s):

Attorney-General (WA) & Anor v Marquet (2003) 202 ALR 233
Baker v Campbell (1983) 153 CLR 52
Breavington v Godleman & Ors (1988) 169 CLR 41
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
Perrett v Robinson (1988) 169 CLR 172
The Daniels Corporation International Pty Ltd & Anor v Australian Competiton and Consumer Commission (2002) 213 CLR 543

Case(s) also cited:

Anderson v Eric Anderson Radio & TV Pty Ltd (1965) 114 CLR 20
BHP Billiton Ltd v Schultz (2004) 79 ALJR 348
McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1
Stevens v Head (1993) 176 CLR 433
Wickham v Tacey (1985) 36 NTR 47

(Page 3)

1 MARTINO DCJ: The plaintiff was injured in a motor vehicle accident on 13 May 1999 in the Northern Territory. The defendant was the driver of the vehicle. On 20 May 2003 the plaintiff commenced action in this Court claiming damages for injuries he suffered in the motor vehicle accident. The defendant has pleaded s 5(1) of the Motor Accidents (Compensation) Act 1979(NT) in her defence. The hearing before me was for determination of the following question of law:

"Do the provisions of Section 5(1) of the Motor Accidents (Compensation) Act 1979 of the Northern Territory apply to restrict the Plaintiff's claim for damages in common law in relation to injuries he sustained in a motor vehicle accident which occurred in the Northern Territory on 13 May 1999?"

2 The parties agreed the following facts which were contained in a statement of agreed facts:

"1. As at the date the Plaintiff was injured in the motor vehicle accident, 13 May 1999 the Plaintiff resided in the State of Western Australia.

2. As at the date of the motor vehicle accident the Defendant resided in the State of Western Australia.

3. The Plaintiff was a passenger in a motor vehicle being driven by the Defendant travelling from Perth in the State of Western Australia to Darwin in the Northern Territory.

4. The motor vehicle was owned by the Plaintiff and was registered in the State of Western Australia.

5. The Defendant was driving the motor vehicle between Kununurra in the State of Western Australia and Katherine in the Northern Territory when she lost control of the vehicle which crashed into a tree off the side of the road.

6. The Plaintiff sustained injuries as a result of the collision.

7. The collision occurred in the Northern Territory."

3 On 13 May 1999, the date of the accident, s 5(1) of the Motor Accidents (Compensation) Act 1979 (NT) provided as follows:
(Page 4)

5. Abolition of certain common law rights

(1) An action for damages shall not lie in the Territory —

(a) in respect of the death of or injury to a person who at the time of the accident was a resident of the Territory; or

(b) in respect of an injury to a person who, at the time of the accident, was not a resident of the Territory —

(i) for non-economic loss in excess of the amount from time to time prescribed for the purposes of section 17;

(ii) for future economic loss or future loss of earning capacity calculated on weekly basis for any sum in excess of the amount from time to time prescribed for the purposes of section 13,

in or as a result of an accident that occurred in the Territory."

4 By the Motor Accidents (Compensation) Amendment Act 2000 s 5(1) was amended by adding a new subs (1)(b)(iii) as follows:

"for future economic loss or future loss of earning capacity calculated on a weekly basis for any sum in excess of the amount from time to time prescribed for the purposes of section 13,".

That amendment was retrospective.

5 It is now settled that the law that applies to the plaintiff's claim is the law of the Northern Territory and that is so whether the plaintiff's action was commenced in the Northern Territory or in Western Australia: John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503.

6 Counsel for the plaintiff submitted that s 5(1) applied only to actions in the Northern Territory and did not apply to an action commenced in this Court. He pointed to the words "An action for damages shall not lie in the Territory". He submitted that provisions such as s 5(1) are not to be

(Page 5)

construed as abrogating important common law rights and privileges in the absence of clear words or necessary implication:

The Daniels Corporation International Pty Ltd & Anor v Australian Competiton and Consumer Commission

(2002) 213 CLR 543;

Baker v Campbell

(1983) 153 CLR 52 and

Attorney-General (WA) & Anor v Marquet

(2003) 202 ALR 233. He also submitted that there are other policy arguments in favour of his submission namely that the Act gives savings which are passed on to residents of the Northern Territory but does not give any benefit to a person who is not a resident of the Northern Territory and that Northern Territory laws are passed for the benefit of residents of that Territory and not for others.

7 Section 5 of the Motor Accidents (Compensation) Act 1979 was the subject of decisions of the High Court in Breavington v Godleman & Ors (1988) 169 CLR 41 and Perrett v Robinson (1988) 169 CLR 172. At that time the section provided as follows:

"(1) Subject to sub-section (2), no action for damages shall lie in the Territory in respect of the death of or injury to a resident of the Territory in or as a result of an accident that occurred in the Territory.

(2) Subject to sub-section (3), nothing in sub-section (1) deprives a person of the right to bring an action for damages for pain and suffering or loss of amenities of life.

(3) A person who has received or has elected to receive a benefit under section 17 shall not commence or continue an action referred to in sub-section (2)."

8 In Breavington v Godleman the High Court held that the section applied to a claim for damages made in an action commenced in the Supreme Court of Victoria and in Perrett v Robinson reached the same conclusion in relation to an action commenced in the Supreme Court of Queensland.

9 Counsel for the plaintiff referred to Breavington v Godleman at p 84 where Wilson and Gaudron JJ noted that s 5 is concerned only with actions commenced in the Northern Territory and not with actions instituted elsewhere. However the decision establishes that the law of the Northern Territory is to be applied no matter where in Australia an action is commenced and that applying the law of the Northern Territory the restrictions contained in the section applied to an action commenced in a

(Page 6)

court in another State. Wilson and Gaudron JJ explained that tortious liability should be determined by the substantive law that would be applied if the matter were adjudicated in a court exercising the judicial power of the State or Territory in which the events occurred – p 98.

10 There are two differences between the section considered by the High Court in Breavington v Godleman and Perrett v Robinson and the section in its current form. One difference is that it previously provided "No action for damages shall lie in the Territory" whereas it now provides "An action for damages shall not lie in the Territory". No point was made as to this distinction by counsel. I agree that this does not provide a basis for a different conclusion. All that has occurred is that there has been a change in grammatical structure so that the subject of the sentence is no longer a negative.

11 The other difference is that the section previously applied only to residents whereas it now has an application to non-residents as well. However, the decisions in Breavington v Godleman and Perrett v Robinson were not based upon the fact that the plaintiff in each case was a resident of the Northern Territory.

12 It is my view that Breavington v Godleman and Perrett v Robinson determine this case. The restrictions that are contained in s 5 apply whether an action was commenced in the Northern Territory or any other State or Territory. For that reason I conclude that the answer to the question of law is yes.

| |

In the case of Wayte v Wayte, the parties were Wayte (the defendant) and Wayte (the plaintiff). The dispute involved a tortious action that originated from events that occurred in the Northern Territory, but the action was initiated in Western Australia where both parties resided. The case was heard in the Supreme Court of Western Australia. The central issue before the court was the application of the relevant jurisdiction's laws to the dispute, specifically whether the laws of the Northern Territory or Western Australia should govern the action.

The court was required to determine the proper law applicable to the tort claim. This involved examining the relevant conflict of laws principles and statutory provisions, particularly under the Torts (Interstate Negligence) Act 1983 (WA). The court had to assess whether the legislation of the Northern Territory, where the tort was committed, should apply or if the legislation of Western Australia, where the action was brought, should be applied. This decision was crucial as it would determine which jurisdiction's laws would govern the substantive rights and liabilities of the parties.

The court concluded that the Northern Territory legislation should apply to the action. The reasoning was based on the principle that the law of the place where the tort was committed should generally apply, unless there was a compelling reason to apply the law of the forum. In this instance, the court found no such compelling reason to deviate from the law of the Northern Territory, where the tortious act occurred. Therefore, the court held that the Northern Territory's law would govern the substantive rights and liabilities of the parties in this case.

The final orders of the court mandated that the Northern Territory legislation would apply to the action commenced in Western Australia, thereby resolving the conflict of laws issue in favour of the jurisdiction where the tort was committed. This decision ensured that the substantive rights and liabilities of the parties were determined according to the law of the place where the tortious act was perpetrated.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established