Scotland v Bargen [1982] HCA 22

High Court of Australia Stephen J. Scotland v Bargen [1982] HCA 22

ORDER Declare that the provisions of the Limitation of Actions Act 1974 Q. are inapplicable as a defence to the proceedings for contribution or indemnity brought by the first defendant against the State Government Insurance Office. Order that the State Government Insurance Office pay the first defendant's taxed costs of this application. No order as to costs of the plaintiff. Certify for counsel.

Stephen J. delivered the following written judgment:—

May 7 Stephen J

The plaintiff was injured in Queensland on 20 May 1971 when a car in which he was a passenger and which was being driven by the first defendant collided with a semi-trailer driven by the second defendant. No writ was issued until just before the expiration of six years when, on 17 May 1977, the plaintiff, then resident in Western Australia, issued a writ out of the Western Australian registry of this Court against both defendants, who were residents of Queensland and New South Wales respectively.

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: