Court of Appeal (Qld)|2002-08-30|Before: Williams and Jerrard JJA and Wilson JSeparate, reasons for judgment of each member of the Court, Williams JA and Wilson J, concurring as to the orders made, Jerrard JA dissenting.
Williams and Jerrard JJA and Wilson JSeparate, reasons for judgment of each member of the Court, Williams JA and Wilson J, concurring as to the orders made, Jerrard JA dissenting.
Catchwords
LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS –
APPLICATION FOR THE STATUTES TO PARTICULAR CAUSES OF
ACTION – MOTOR
VEHICLE INSURANCE - where appellant who was injured in a motor vehicle accident
Source
Original judgment source is linked above.
Catchwords
LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS –APPLICATION FOR THE STATUTES TO PARTICULAR CAUSES OFACTION – MOTORVEHICLE INSURANCE - where appellant who was injured in a motor vehicle accidentgave s37 Notice accompaniedby reasons for delay pursuant to Motor AccidentInsurance Act 1994 (Qld) immediately prior to the expiration of theordinary period of limitiation – where limitation period then extended 6months pursuant to s 57 of the Act – where appellant commenced proceedingswithin 6 months of the Notice in contravention of s 39(5)(a)(i) of the Act -where appellant did not seek leave pursuant to s 39(5)(c) of the Act before theexpiration of the extended period of limitation - whether primary judge erred indismissing an applicationseeking a declaration that proceedings had beenvalidly brought or alternatively leave to commence proceedings pursuant to s39(5)(c) of the ActLIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OFPERIOD – POWER OF COURT TO EXTEND TIME – whetherthe court has
jurisdiction pursuant to s 39(5)(c) or s 57 (2) to give leave to commence
proceedings – whether court has power to grant leave nunc pro
tunc
Acts Interpretation Act 1954 (Qld), s 38(1)(b)District Court
Act 1967 (Qld), s 118(3)Limitation of Actions Act 1974 (Qld), s
11Motor Accident Insurance Act 1994 (Qld), ss 37, 39 and 57
Commissioner for Railways (NSW) v Agalianos [1955] HCA 27
(1955) 92 CLR 390,
consideredCouling v Nelson [1999] 2 Qd R 231,
consideredCrowder v Moore [1997] 1 Qd R 24,
consideredDandashli v Dandashli (NSWCA 40733/96 judgment given 16
December 1996), consideredEmanuele v ASC (1997) 188 CLR 115,
consideredForster v Jododex Australia Pty Ltd [1972] HCA 61
(1972) 127 CLR 421,
consideredHill v Bolt (1992) 28 NSWLR 329, consideredHorinack
v Suncorp Metway Insurance Limited [2000] QCA 441
[2001] 2 Qd R 266, followedJol v
State of New South Wales (1998) 45 NSWLR 283, consideredMcKelvie v
Page [1999] 2 Qd R 259, consideredNguyen v Nguyen (1990) 169 CLR
245, consideredProject Blue Sky Inc v Australian Broadcasting
Authority [1998] HCA 28
(1998) 194 CLR 355, consideredProwse v McIntyre [1961] HCA 79
(1961)
111 CLR 264, considered Re: Gray
Ex parte Deputy Commissioner of
Taxation [1993] FCA 277
(1993) 115 ALR 638, consideredRe Tonks [1999] 2 Qd R
671, consideredSweeney v Volunteer Marine Rescue Currumbin Inc [2000]
QCA 455, Appeal No 55 of 2000, 6 November 2000, consideredTelstra Corp
Ltd v Treloar [2000] FCA 1170
(2000) 102 FCR 595, consideredThomas v Transpacific
Industries Pty Ltd and Anor [2002] QCA 160, Appeal No 237 of 2002, 10 May
2002, consideredYoung v Keong [1998] QCA 100
[1999] 2 Qd R 335, considered
Judgment (23 paragraphs)
[1]
LIMITATION OF ACTIONS - CONTRACTS, TORTS AND PERSONAL ACTIONS - APPLICATION FOR THE STATUTES TO PARTICULAR CAUSES OF ACTION - MOTOR VEHICLE INSURANCE - where appellant who was injured in a motor vehicle accident gave s37 Notice accompanied by reasons for delay pursuant to Motor Accident Insurance Act1994 (Qld) immediately prior to the expiration of the ordinary period of limitiation - where limitation period then extended 6 months pursuant to s 57 of the Act - where appellant commenced proceedings within 6 months of the Notice in contravention of s 39(5)(a)(i) of the Act - where appellant did not seek leave pursuant to s 39(5)(c) of the Act before the expiration of the extended period of limitation - whether primary judge erred in dismissing an application seeking a declaration that proceedings had been validly brought or alternatively leave to commence proceedings pursuant to s 39(5)(c) of the Act LIMITATION OF ACTIONS - POSTPONEMENT OF THE BAR - EXTENSION OF PERIOD - POWER OF COURT TO EXTEND TIME - whether the court has jurisdiction pursuant to s 39(5)(c) or s 57 (2) to give leave to commence proceedings - whether court has power to grant leave nunc pro tuncActs Interpretation Act1954 (Qld), s 38(1)(b)