Piper v The Nominal Defendant [2004] HCATrans 446 (12 November 2004)

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Piper v The Nominal Defendant [2004] HCATrans 446 (12 November 2004)

Last Updated: 16 November 2004

[2004] HCATrans 446

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B4 of 2004

B e t w e e n -

DAVID RONALD PIPER

Applicant

and

THE NOMINAL DEFENDANT

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 NOVEMBER 2004, AT 12.39 PM

Copyright in the High Court of Australia

MR M. GRANT-TAYLOR, SC: May it please your Honours, I appear for the applicant. (instructed by Carter Capner & Co)

MR K.N WILSON, SC: May it please the Court, I appear for the respondent with MR K.F. HOLYOAK. (instructed by Tress Cox Lawyers)

GLEESON CJ: Just a moment. We thought we might be assisted to hear from Mr Wilson first. Yes, Mr Wilson.

MR WILSON: May it please your Honour. Your Honours, the second special leave question formulated by the applicant in their outline of argument we submit involves no more than a review of the facts of the case, that is, the question of whether or not there was a reasonable excuse for the delay in giving notice to the nominal defendant. We say there is no question of principle involved in that issue and, as this Court said in Taikato v The Queen at page 464, the meaning of the term “reasonable excuse” depends on the circumstances of the individual case and the particular purpose of the statutory provision.

The third question formulated by the applicant in the outline of submissions is a question of construction of the particular sections of Queensland legislation which, while of admittedly common application in Queensland, are not said to be by the applicant in any similar legislation in the rest of Australia. There was no dispute amongst the members of the Court of Appeal in this case, nor in the case of Miller v Nominal Defendant as to the proper construction of sections 37(3) and 39(8) of the Motor Accident Insurance Act. The issue of construction is confined to claims against the nominal defendant in respect of unidentified motor vehicles which are claims created by statute, and we say that the question of construction involves, as the Court of Appeal did, in particular, in the judgment of Mr Justice Davies, the application of well-settled principles to a particular statute which would not warrant the grant of leave.

GLEESON CJ: Mr Wilson, there was a concession made at first instance which the Court of Appeal held was erroneous.

MR WILSON: That is correct, your Honour.

GLEESON CJ: If it is arguable that the concession of law was correct, which is the argument that your opponent puts, then presumably we would have to consider, if we granted special leave, the issue of law on which the concession turned.

MR WILSON: That is so.

GLEESON CJ: Is it your contention that the concession of law that was made at first instance was unarguably incorrect?

MR WILSON: Your Honour, we maintained that concession in the Court of Appeal. We were by definition wrong by reason of the decision of the Court of Appeal. But in terms of the issue of whether or not that question of construction warrants the grant of special leave, we make two points. The first is that it requires the applicant to demonstrate that there is some new point of principle or some special point of principle in the construction of section 39(8) in particular which was erroneous in the Court of Appeal and, secondly, one must look at the position to which a different construction would take the applicant, that is, it would take the applicant to a position where the Court of Appeal was required to consider an appeal against the exercise of a discretion on the facts at first instance.

GLEESON CJ: But it comes to this, does it not, that there were two bases upon which your opponent could have succeeded at first instance? One was that there had been a reasonable excuse for the delay and the other was that, even if there had not been a reasonable excuse for the delay, as a matter of discretion, time should have been extended. Is that right?

MR WILSON: That is so.

GLEESON CJ: And the Court of Appeal failed to deal with the second issue, did it not?

MR WILSON: It did on the construction it took of section 39(8) of the Act.

GLEESON CJ: Which was a construction contrary to the concession that your side had made.

MR WILSON: That the court could consider the matter provided an application had been filed within time, notwithstanding the fact that the decision was given outside the nine-month period, that is so. That is recognised by Justice Davies in the decision of Miller at paragraph [41] of his Honour’s reasons.

GLEESON CJ: You accept, as I understand it, that as a result of the concession that was made at first instance the Court of Appeal ought to have considered the applicant’s appeal against the adverse exercise of discretion.

MR WILSON: Yes, it ought to, but when one then asks, “Should this Court grant special leave to reconsider the exercise of a discretion on what
are purely factual matters?”, we say that that is not an appropriate exercise of this Court’s jurisdiction.

CALLINAN J: Reconsider, or consider for the first time?

MR WILSON: Well, the matter has been considered for the first time by Justice Wilson at first instance. I accept that the Court of Appeal has not considered the appeal against the exercise of discretion.

GLEESON CJ: If we granted a special leave to appeal and held that the concession was right, then we would remit the matter to the Court of Appeal to consider for the first time the discretionary question, would we not?

MR WILSON: We have said that in the outline, yes, your Honour.

GLEESON CJ: Yes.

MR WILSON: Your Honours, unless there is anything further, we say that really it is a case which turns on the facts, really the applicant is seeking to have this Court revisit the facts, and it is not an appropriate vehicle. Those are the respondent’s submissions.

GLEESON CJ: Thank you. In this matter there will be a grant of special leave to appeal.

AT 12.49 PM THE MATTER WAS CONCLUDED