| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA 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 — 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: 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.
|