Scoles v Commissioner for Government Transport [1960] HCA 29

High Court of Australia Dixon C.J. McTiernan, Fullagar, Menzies and Windeyer JJ. Scoles v Commissioner for Government Transport [1960] HCA 29

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dixon C.J., McTiernan, Fullagar and Menzies JJ.

Section 233 (1) of the Transport Act, 1930 (N.S.W.) provides that "no action shall be commenced against the Commissioner for anything done or omitted under this Act, until one month at least after notice in writing of such intended action has been delivered or left at the office of the secretary to the Commissioner, by the party intending to commence such action, or by his attorney or agent". The section proceeds by its second sub-section to prescribe what the notice should contain but by the third sub-section it is provided that a notice under the section shall not be deemed to be invalid by reason of any defect or inaccuracy therein unless the judge before whom the action is tried is of opinion that the defendant in the action has been prejudiced in his defence by such defect or inaccuracy.

The question upon the present appeal is whether the plaintiff appellant gave a notice of such intended action within this provision or, in the words of the third sub-section, "a notice under the section".

Section 232 (2) provides that actions against the Commissioner of the description stated shall be commenced within one year after the act or omission complained of was committed or made. The cause of action in the present case arose on 19th March 1954 and the writ was issued on 2nd March 1955. So at the date of the issue of the writ a failure to give the required notice was irreparable. The document or documents relied upon as constituting the notice do not give the particulars prescribed but it is said and not contested that if they or either of them amounts to a notice in writing of such intended action and a notice under the section, the defects might have been cured by the judge holding that the defendant had not been prejudiced by the defects or inaccuracies. The question seems clearly enough thus to be narrowed to the simple point whether the documents or either of them amounts to a notice of intended action and a notice under the Act.