PIPA: non-compliance with pre-court procedures – alleged conflict with Cth laws

Martens v Stokes & Anor [2011] QSC 65

Jones J struck out the plaintiff’s claim which alleged damages for personal injuries, but had not complied with the pre-court procedures as required by Chapter 2 of the Personal Injury Proceedings Act 2002 (Qld) (“PIPA”).

The plaintiff argued because the claim was against the Australian Federal Police (“AFP”) that various provisions of the Constitution, the Judiciary Act 1903 (Cwth) and the Australian Federal Police Act 1979 (Cwth), were in conflict with the Australian Federal Police Act and that such inconsistency resulted in the laws of the Commonwealth prevailing so as to exclude PIPA.

Jones J held the decisions Coffey v The State of Queensland and Holmes v Adnought Sheet Metal Fabrication Pty Ltd confirm that s.18 PIPA precludes the proceedings when there is failure to comply with Chapter 2 of PIPA.

Apropos, the alleged conflict between State and Commonwealth legislation, his Honour held:

[12] None of these arguments, in my view, can be sustained. Part 9 of the Judiciary Act provides for “suits by and against the Commonwealth and the States”. Section 56 provides that if a claim arises in a State or Territory that claim may be pursued in the Supreme Court or any other Court of competent jurisdiction in that State or Territory. The plaintiff thus properly commenced his claim in this Court and the Court will be obliged to apply relevant Commonwealth and State law. By s 64 the standing of the Commonwealth and the rights of the Commonwealth in this Court “shall be as nearly as possible the same…as in a suit between subject and subject. Prima facie then, the Queensland legislation will apply to the Commonwealth in a suit of this kind. This follows in light of the decision in Commonwealth v Evans Deacon Industries Ltd,15 where the High Court determined that Queensland legislation – Subcontractors Discharges Act – applied in proceedings instituted by a Queensland subcontractor against the Commonwealth as an employer. The majority judgment (Gibbs CJ, Mason, Wilson, Deane and Dawson JJ) said (at p 262):-

“(Maguire v Simpson)16 establishes that in every suit to which the Commonwealth is a party s 64 requires the rights of the parties to be ascertained, as nearly as possible, by the same rules of law, substantive and procedural, statutory and otherwise, as would apply if the Commonwealth were a subject instead of being the Crown. That result seems entirely just; the Commonwealth acquires no special privilege except where it is not possible to give it the same rights and subject it to the same liabilities as an ordinary subject. The section is ambulatory, and is therefore capable of applying rights resulting from changes made to State legislation after s 64 was enacted: There can be no doubt that the Commonwealth Parliament has full power to make laws governing the liability of the Commonwealth.” (my emphasis)

[13] In Dao v Australian Postal Commission17 the High Court stressed that the provisions of s 64 are not to be construed such that direct application of State law would be invalidated by s 109 of the Constitution. Section 64 of Judiciary Act “should, and must, be construed as intended to extend a litigant’s rights in a suit in particular circumstances, only if, and to the extent that, there be no directly and inconsistent (in the relevant sense) Commonwealth law already regulating these circumstances”.18

[14] The paramountcy of Commonwealth legislation arises by s 109 of the Constitution and that occurs only to the extent of inconsistency between Commonwealth and State laws. A similar issue was considered in Re Residential Tenancies Tribunal ex parte Defence Housing Authority19 where the Authority sought to avoid the determination of the Tribunal set up pursuant to State legislation. The High Court held that the matters which the Tribunal dealt with did not fall within the exclusive power of the Commonwealth. The Commonwealth Act did not provide a comprehensive and exclusive code, rather it assumed the operation of common law modified by statute. In that case the plural judgment (Dawson, Toohey and Gaudron JJ) said:

“The purpose in drawing a distinction between the capacities of the Crown and the exercise of them is to draw a further distinction between legislation which purports to modify the nature of the executive power vested in the Crown – its capacities – and legislation which assumes those capacities land merely seeks to regulate activities in which the Crown may choose to engage in the exercise of those capacities.”

[15] The provisions of the Australian Federal Police Act do not, in my view, have the effect of covering the field in a way which limits the effect of s 64 of the Judiciary Act. There are some cases where s 64 will not operate to insert into consideration of the issue, provisions of State law. For example, in Deputy Federal Commissioner of Taxation v Moorbank Pty Ltd20 it was held that in the general scheme of the Income Tax Assessment Act 1936 (Cwth) providing for the collection and recovery of income tax “there is no room for the importation into them of such State Limitations Act provisions”.21

[16] Counsel for the plaintiff does not point to any Commonwealth scheme which regulates the circumstances in which a person may pursue a claim for breach of duty against a member of the AFP. So far as I am aware, there is none.

[17] Here, PIPA regulates the pursuit of claims for personal injury arising in the State of Queensland. It is a State law of general application and it applies both to the plaintiff and in this instance the Commonwealth alike. It does not attempt to impair the capacities of the Commonwealth executive but rather to regulate the manner in which claims, including claims against the Commonwealth, are pursued. That being so, the plaintiff’s claim for personal injuries can only be pursued under the statutory regime imposed by PIPA.

[18] In this case, it is not disputed that the plaintiff has not pursued his claim in accordance with the PIPA provision. He was not, therefore, entitled to commence this proceeding. See ss 9 and 18 of PIPA. He has however, rendered himself liable to pay the respondents’ costs. See s 48(1)(a) of PIPA.

[19] It follows that the plaintiff’s claim must be struck out with costs.

15 (1986) 161 CLR 254

16 (1977) 139 CLR 362

17 (1987) 162 CLR 317

18 Ibid at p 331

19 [1996-7] 190 CLR 410

20 (1987-8) 165 CLR 55

21 Ibid at p 66

Brisbane Barrister – David Cormack

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