Kelleher v Motor Accidents Insurance Board [2025] TASCAT 204

Motor accidents compensation - Limitation period - Extension of time to apply for scheduled benefits - Whether time may be extended beyond six years - Whether Limitation Act 1974 (Tas) applies.

Statutory interpretation - Motor Accidents (Liabilities and Compensation) Regulations 2020 (Tas) - Tasmanian Civil and Administrative Tribunal Rules 2021 (Tas) - Whether statutory power to extend time excluded by implication.

Limitation Act 1974, ss 2 and 5A;

Motor Accidents (Liabilities and Compensation) Act 1973;

Motor Accidents (Liabilities and Compensation) Regulations 2020, reg 10;

Tasmanian Civil and Administrative Tribunal Act 2020, ss 7A, 89;

Tasmanian Civil and Administrative Tribunal Rules 2021, r 11.

QX v Mondelez Australia Pty Ltd [2025] TASCAT 120;

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34.

1. The claimant was injured in a motor accident but did not give notice to the Motor Accidents Insurance Board (the Board) until more than six years later. He has applied for an extension of time to claim compensation. The Board submits that the Tribunal does not have the power to extend time beyond six years. I agree.

1. The Motor Accidents (Liabilities and Compensation) Regulations 2020 (the Regulations) impose a time limit within which a claimant may apply to the Board for compensation. Regulation 10 provides:

10. Scheduled benefits > > (1) The benefits payable under section 23(1), (1A) or (2) of the Act by the Board in respect of a matter are the benefits specified in Schedule 1 for that matter. > > (2) A person may make a claim for benefits payable under section 23(1) , (1A) or (2) of the Act in respect of a motor accident if - > > (a) within one year after the date of the motor accident, written notice of the personal injury giving rise to the claim is given to the Board; and > > (b) the claim is brought within one year after - > > (i) the date of death resulting directly from the motor accident; or > > (ii) the date on which loss or expense resulting directly from the motor accident was incurred; or > > (iii) the date on which gratuitous care required as a direct result of the motor accident was, or services care required as a direct result of the motor accident were, provided. > > (3) On application by the person making the claim and after hearing such evidence as it considers appropriate, the Tribunal may extend a period referred to in subregulation (2) by such period not exceeding 5 years as it thinks fit. > > (4) The Tribunal may extend either period referred to in subregulation (2) even though one or both of the periods has expired.

2. As can be seen, a claimant needs to give written notice of injury to the Board within a year of the accident: reg 10(2)(a). The Tribunal may extend that time by up to five years: reg 10(3). This produces a maximum period of six years within which to apply for compensation.

1. The claimant's application is put on the following basis. On 31 January 2019, he was driving his car. Attempting to avoid a head-on collision, he swerved and drove down a steep embankment. His vehicle was severely damaged and subsequently written off. However, he did not apply to the Board under reg 10 until on or after 28 February 2025. That is because he did not realise immediately the extent of his physical injuries.
2. I need not determine whether I should extend time. Instead, I must determine whether I have the power to extend time beyond six years. I therefore have not considered the evidence adduced and submissions made by the claimant as to why time should be extended.
3. The claimant submits that reg 10(3) and (4) allows the Tribunal to extend time beyond six years. He relies on s 5A(3) of the Limitation Act 1974, which provides:

(3) An action for damages for negligence, nuisance or breach of duty (whether that duty exists by virtue of a contract or a provision made by or under an enactment or independently of any contract or any such provision), where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of, or include, damages in respect of personal injuries to any person, must not be brought after the expiration of 3 years commencing on the date of discoverability.

4. So far as I can tell, he also submits that time runs from the date of discoverability rather than the date of the motor accident.

The Limitation Act does not apply

1. It is convenient to commence with the Limitation Act. On its face, s 5A(3) relates only to an "action for damages for negligence, nuisance or breath of duty..." By s 2(1), 'action' "includes any proceedings in a court of law".
2. Notwithstanding the inclusive definition of 'action' in the Limitation Act, I reject the submission that it extends to an application under reg 10. In interpreting each Act, I start with its text whilst, at the same time, having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] (Kiefel CJ, Nettle and Gordon JJ).
3. The Tribunal is not a court of law, and this is not an action. Rather, the Regulations and the Act pursuant to which they are made (the Motor Accidents (Liabilities and Compensation) Act 1973) create a statutory entitlement to compensation, called scheduled benefits. An application for scheduled benefits is made pursuant to reg 10, and such benefits are calculated in accordance with that Act.
4. It is clear from the Regulations' text that reg 10 prescribes exhaustively the period within which to make a claim. So much is apparent from the limitation in reg 10(3) to extend time to not more than five years beyond the initial one year.
5. It is also clear that time runs from the date of the accident: reg 10(2)(a). In contrast, s 5A of the Limitation Act addresses the date of discoverability. That the concepts are different reinforces the inapplicability of the Limitation Act.

The Tribunal's power to extend time under its rules does not apply

1. Although this rule is not relied upon by the claimant, the respondent submits that r 11 of the Tasmanian Civil and Administrative Tribunal Rules 2021 (TASCAT Rules) does not apply either. I agree.
2. Rule 11 provides:

Tribunal may extend or abridge time > > The Tribunal may extend or abridge the time in which an action, in relation to any proceedings, may be taken, or must be taken, under these rules, an Act or a relevant Act.

3. I discussed the rule in QX v Mondelez Australia Pty Ltd [2025] TASCAT 120 at [4]- [7] and [23]-[29]. It is unnecessary to repeat my observations about the rule's operation.
4. Rule 11 applies only to the extent that it is not inconsistent with the provision of a relevant Act: Tasmanian Civil and Administrative Tribunal Act 2020, s 7A. Section 3 defines the Motor Accidents (Liabilities and Compensation) Act as a relevant Act.
5. I conclude that r 11 is inconsistent with reg 10. I repeat that reg 10 addresses exhaustively the limitation period within which to make a claim. It expressly provides a power to extend time, such power being limited to a period of five years. In contrast, the regulation in question in QX v Mondelez Australia Pty Ltd was silent as to extending time and therefore, I found at [22]-[32], not inconsistent with r 11.
6. This suggests, overwhelmingly, that r 11 is inconsistent with reg 10 and, therefore, inapplicable.

1. I conclude that the Tribunal does not have the power to extend time beyond six years after the date of the motor accident. Because the claimant requires an extension of more than six years, granting any extension would be futile. It follows that the referral itself should be dismissed under s 89 of the TASCAT Act on the basis that it is misconceived.
2. I dismiss the referral and the application to extend time.