Court of Appeal (Qld)|2000-11-06|Before: McHugh JJ, Aickin J, Murdo P, Cullinane J, Wilson J

PETER JOHN SWEENEY v VOLUNTEER MARINE RESCUE CURRUMBIN INC Defendant & ORS [2000] QCA 455 (6 November 2000)

VOLUNTEER MARINE RESCUE CURRUMBIN INC First Defendant

The appellant was injured whilst performing voluntary work with the Currumbin Air Sea Rescue Service on 17 August 1995. He commenced proceedings on 13 August 1998, a few days prior to the expiration of the limitation period. Notice was given under ss. 34 and 37 of the Act on 18 September 1998, a month after the expiration of the limitation period.

The appellant brought an application under s.39(5)(c) of the Act for leave to issue proceedings nunc pro tunc on 3 September 1999. The primary Judge dismissed the application on the grounds that he did not have jurisdiction under s.39(5)(c) to give leave to commence proceedings because the appellant had failed to file a s.37 notice prior to the expiration of the limitation period; s.37 must be read subject to s.57 of the Act.

His Honour's decision was consistent with a subsequent recent decision of this Court, Horinack v. Suncorp Metway Insurance Ltd [2000] QCA 441 Appeal No. 2641 of 2000,

27 October 2000. That case turned on a different factual basis to this but nevertheless affirmed that s.39(5)(c) of the Act does not confer a general discretion on a Court to give leave to bring a proceeding in a Court despite non-compliance if the application to do so is brought outside the period of limitation.

The appellant submits that Horinack was wrongly decided and that s.39(5)(c) does confer a broad discretion to grant leave to commence proceedings regardless of s.57.

An intermediate Court of Appeal will usually follow its own decisions. In Nguyen v. Nguyen (1989-1990) 169 CLR 245 at 269, Dawson, Toohey and McHugh JJ noted:

"Where a Court of Appeal holds itself free to depart from an earlier decision, it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law (see Queensland v. The Commonwealth per Aickin J)."

The circumstances in which an intermediate appellate court will be free to depart from its previous decisions were discussed more fully by the Federal Court in the recent case of Telstra Corp Ltd v. Treloar [2000] FCA 1170; N 644 of 1999, 22 September 2000 at [22] to [28]. The following comments at [27] to [28] are particularly apposite to the present case:

"The problem is very real when what is at issue is the construction of a statute. For one thing, statutory language is often ambiguous. Courts can struggle to determine the legislative intent. It is often impossible to discover any legislative intent. In many instances, the generality of the statutory language is deliberate and allows the Court to develop a body of law to fill the gaps. This may lead to disagreement among Judges about what the statute means. It would be sound policy that once that intent has been discerned by an Appellate Court, then that should be the end of the matter. The view which we prefer is that unless an error in construction is patent or has produced unintended and perhaps irrational consequences not foreseen by the Court that created the precedent, the first decision should stand."

The need for certainty is paramount when legislation of this type is being construed. Those injured in motor vehicle accidents and their legal representatives need to understand clearly their obligations under the statute.

The appellant here has not demonstrated an obvious error by this Court in the construction of the Act adopted in Horinack nor that there have been resulting unintended consequences.

The appellant issued proceedings without giving the requisite notice under s.37 of the Act and the action should therefore be struck out if its case rests solely on liability under this Act: see Young v. Keong [1999]

The appellant did not give the necessary notice within the limitation period. Although s.39(5)(c) gives the Court leave to allow the bringing of proceedings despite non-compliance with the requirements of that division, it is subject to s.57 of the Act where the limitation period has expired, as here. The appellant does not come within either of the criteria set out in s.57 of the Act.

"Section 39(5)(c) does not confer a general discretion on a Court to give leave to bring a proceeding in a Court despite non-compliance if the application is brought outside the period of limitation."

The primary Judge was correct in his decision and the appeal should be refused with costs to be assessed.

THE PRESIDENT: The order is the appeal is refused with costs to be assessed.

Accident Insurance Act 1994

PETER JOHN SWEENEY v VOLUNTEER MARINE RESCUE CURRUMBIN INC Defendant & ORS [2000] QCA 455

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PETER JOHN SWEENEY v VOLUNTEER MARINE RESCUE CURRUMBIN INC Defendant & ORS [2000] QCA 455 (6 November 2000)

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