Scotland v Bargen

In August 1979 Barwick C.J. sitting in chambers in Western Australia gave leave to the first defendant to serve a third party notice on the State Government Insurance Office (Q.) ("S.G.I.O."). By that notice the first defendant claimed indemnity against or alternatively contribution from S.G.I.O., alleging that the collision was either caused or contributed to by the negligence of the second defendant, that that second defendant could not be served with process and that in those circumstances s. 4A of theMotor Vehicles Insurance Act 1936-1972 Q. entitled the first defendant to make its claim for indemnity or contribution against S.G.I.O.

By that same order his Honour directed that "the issue of liability and as to assessment of damages be remitted to the Supreme Court of Queensland and the remainder of the cause be retained in this Court". Subsequently S.G.I.O. raised as a defence to the claim against it by the first defendant the terms of s. 11 of the Limitation of Actions Act 1974 Q.. That section reads as follows:

Notwithstanding any other Act or law or rule of law, an action for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) in which damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person shall not be brought after the expiration of three years from the date on which the cause of action arose.

There were matters, said to affect the jurisdiction of this Court to entertain the plaintiff's action in its diversity jurisdiction, which then intervened and the resolution of which apparently served for some years to prevent the matter from approaching any nearer to trial. Now, some five years after the issue of the writ and two and a half years after the issues of liability and quantum were ordered to be remitted to the Queensland courts for trial, the case seems to be no nearer to trial. What is at present before me is a point of law raised by the first defendant and arising out of its claim against S.G.I.O. It concerns the availability to S.G.I.O. of s. 11 of the Limitation of Actions Act as a defence to the first defendant's claim against it. The point taken is that neither of its own force nor as a result of the operation of s. 79 of the Judiciary Act will this section have any application in proceedings instituted, as these proceedings were, outside of the State of Queensland. As will emerge, there is another objection which might have been taken to the S.G.I.O.'s reliance upon s. 11, but before me argument was entirely confined to the foregoing.

It might be thought that in accordance with the order of Barwick C.J. this question should be disposed of by the Supreme Court of Queensland. However, it is not altogether clear what was to be remitted and what retained in this Court under his Honour's order. The plaintiff, the first defendant and the third party were all represented before me and all joined in asking that I determine this point of law. In view of this action's sorry history of delay and of the heavy costs already incurred by the parties without final disposition yet being in sight, I thought I should accede to this request rather than see further substantial costs thrown away by the present attendance of counsel being rendered fruitless. I did so on the footing that the order of Barwick C.J. for partial reference of the proceedings was open to the construction that it did not extend to the determination of preliminary points of law. I also refrained from referring to the Full Court the question which the parties canvassed before me, again in the hope that this would save both time and money. Whether the course I take will, in the long run, in fact expedite matters and save costs will lie with the parties; at least it can scarely have a contrary effect.

I regard Pedersen v. Young [1] as concluding in favour of the first defendant the point of law which he raises. That was a case in which a New South Wales resident issued out of this Court's New South Wales registry a writ against a resident of Queensland claiming damages for personal injuries. Met with a defence which relied upon s. 5 of The Law Reform (Limitation of Actions) Act of 1956 Q. which provided that such actions "shall be commenced within three years after the cause of such actions arose, but not after", the plaintiff demurred. The demurrer was heard by a court of five justices.

Kitto J. held that s. 5, standing on its own, should be understood as "limited to prescribing a time limit for the commencement of actions in Queensland". So, too, I observe, must be s. 11 of the present Limitation of Actions Act Q.. Unlike its predecessor, it is cast in negative form but it is otherwise to the same general effect as was the section which his Honour was considering. Kitto J. then considered what effect ss. 79 and 80 of the Judiciary Act 1903 Cth, as amended, might have in the event of the action being tried in Queensland. He concluded that s. 5 would remain inapplicable, and would provide no answer to the plaintiff's claim, because the Judiciary Act does no more than "pick up State laws with their meaning unchanged"; when thus picked up, s. 5 would continue to be a law concerned only with actions begun in Queensland. The same may be said of s. 11 of the present Act, nothing will alter its character as a law concerned only with actions begun in Queensland. He Honour accordingly allowed the demurrer.

The other members of the court did not deal specificially with the eventuality that the action might be tried in Queensland. However both Taylor and Owen JJ. expressed themselves as content to decide the matter upon the ground that the terms of s. 5 of the Queensland Act were such as to be inapplicable to actions commenced in courts outside Queensland. They considered, but did not decide, a different point - whether the effect of s. 79 of the Judiciary Act would have made the section applicable if it had been commenced in the High Court's Queensland registry. However what is presently material is that their Honours' reasoning can be seen necessarily to proceed upon the footing that had the action, which had been commenced in the New South Wales registry, come to be tried in Queensland the terms of s. 5 were such as to make its provisions inapplicable to the action. Menzies J. inclined to the like view but preferred to leave the matter open, saying [2] , "it may well be impossible to apply the Queensland statute of limitations in this action even if it were to be heard and determined in Queensland but this point I do not find it necessary to decide here". Windeyer J., as I read his Honour's judgment, did not deal with the present point either expressly or by necessary implication.

Pedersen v. Young was considered in some detail in the judgments of this Court in John Robertson & Co. Ltd. v. Ferguson Transformers Pty. Ltd. [3] . That case was concerned with very different questions but to the extent that it bears at all upon the point here in issue it supports the view I take of Pedersen v. Young. Mason J. [4] , with whose judgment on this aspect Menzies J. agreed, cites that passage from the judgment of Kitto J. in Pedersen v. Young which is directly in point in the present case and at p. 95 refers to what he describes as "the general principle" that s. 79 of the Judiciary Act requires a State law to be applied according to its terms. His Honour points out that that principle is subject to an exception, not presently relevant, but otherwise his affirmation of the principle affirms the approach of Kitto J. in Pedersen v. Young.

1. (1973) 129 C.L.R. 65. 2. (1973) 129 C.L.R., at p. 94.

For these reasons I regard the matter as concluded against S.G.I.O. by Pedersen v. Young; even on the assumption upon which the parties have proceeded, namely that s. 11 of the Limitation of Actions Act 1974 Q. is applicable to claims for contributions as between tortfeasors, the section will not be available to S.G.I.O. in the present case since it can only be applicable to actions instituted in Queensland.

On reserving the matter at the conclusion of the quite brief hearing, so that I might read the judgments in Pedersen v. Young, it became apparent that there was another, and a shorter, answer to S.G.I.O.'s reliance upon s. 11; it was that s. 11 is in fact inapplicable to claims for contribution as between tortfeasors. That becomes apparent from a reading of the words of the section and is made the more obvious by the presence of s. 40 of the Limitation of Actions Act, a specific provision directed to the case of contribution between joint tortfeasors: and see Unsworth v. Commissioner for Railways [5] . This is enough to dispose of S.G.I.O.'s defence as pleaded, based upon s. 11.

The effect of s. 40 is to provide that no action for contribution shall be brought after the expiration of the first to expire of two periods: two years from the accrual of the right to contribution, by reason of judgment, award or agreement rendering the party seeking contribution liable in the principal action: see sub-s. (2), or four years from the date of the expiration of the period of limitation for the principal action. The first of these periods is inapplicable since the right has not yet accrued. But the second would, if this Queensland legislation had any application to the present case, have expired before the first defendant brought his contribution proceedings. The period of limitation for the principal action would have been three years according to Queensland law: The Law Reform (Limitation of Actions) Act of 1956, s. 5. It accordingly expired in 1974, the accident having occurred in 1971 (it may be noted in passing that had Queensland law been applicable the principal action would itself have been statute barred when instituted in 1977). The further four years which s. 40 allows for the contribution action would have expired in 1978, whereas leave to issue and serve the third party notice on S.G.I.O. was only given in 1979. That these consequences, the barring of the principal action and of the action for contribution, have not in fact ensued is because, assuming that any State statute of limitations is applicable to these High Court proceedings, it will be the Western Australian statute that is in point. That Act, the Limitation Act 1935-1954, would allow a period of six years within which the plaintiff might commence his action - s. 38(1)(c), and, unlike s. 40(1) of the Queensland Act, contains no provision whereby time may run against a claimant for contribution before the right of action for contribution has accrued to him.

It follows that in the outcome it has been very material that the effect of Pedersen v. Young [6] should be determined, despite the fact that the matter was argued before me upon the false assumption that the relevant section of the Queensland Act was s. 11, not s. 40.

One matter remains for mention. I was asked in the course of the hearing to dispose of what was said to be a second point of law; one not raised in the first defendant's present summons but which was the subject of an earlier pleading summons issued some eighteen months ago but apparently never yet brought to a hearing. By it the first defendant sought to have struck out a paragraph of the third party's defence to its claim against it. I have decided that I should not deal with the point so raised. It is a point calling for argument and for the citation of authorities but none were cited before me and there was but little argument on the point, in large measure due, no doubt, to the fact that it was apparently only in running, as it were, that it was decided that this matter should be now sought to be disposed of as a point of law. Desirable as it may be that the already too long delayed trial of this action should be expedited, it should not be done at the expense of proper argument. For that reason I do not propose to entertain that further point of law. Argument on it occupied so little time before me that it merits no apportionment of the costs of the day, which the first defendant should have. I make no order as to the plaintiff's costs. I certify for counsel.