Doo v Murphy
[1996] QDC 54
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- Doo v Murphy[1996] QDC 54
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Doo v Murphy[1996] QDC 54
Doo v Murphy[1996] QDC 54
DISTRICT COURT | No 681 of 1991 |
CIVIL JURISDICTION
JUDGE BOULTON
RICHARD PATRICK DOO | Plaintiff |
and
TAMMY JUNE MURPHY | Defendant |
and
SUNCORP INSURANCE AND FINANCE | Defendant by Election |
BRISBANE
DATE 27/03/96
JUDGMENT
HIS HONOUR: This action was commenced by plaint filed 1 March 1991. It claimed damages for personal injuries and also for other loss and damage suffered by the plaintiff. On 30 August 1991, the defendant by election filed a notice of election in respect of the action in so far as it related to personal injuries. It is worth noting that the election was plainly in the terms whereby the insurer was added as a separate party, namely as defendant by election. This was not a situation where the insurer had merely carried on the litigation in the name of the defendant, as it is entitled to do.
By summons, filed 7 March 1996, the defendant by election seeks to have the action dismissed for want of prosecution although this aspect was not pursued. In the alternative, it seeks that the plaintiff answer interrogatories delivered by the defendant by election. The defendant by election also seeks an order for leave to amend to seek that the action be remitted to the Magistrates' Court.
It would seem that on 20 March 1992, the defendant delivered interrogatories for the examination of the plaintiff. The defendant at this time was still an active party to the litigation as far as any claim was concerned which lay outside the area of personal injuries. It would have been quite legitimate, in my view, for the defendant to have delivered interrogatories going to liability and also to the matter of quantum of damages other than for personal injuries.
The actual interrogatories are not before me but it is clear from the plaintiff's answers, which are on file, that the interrogatories related to issues of the plaintiff's employment which would have been outside the defendant's proper area of inquiry.
Pursuant to regulation 11 (3) of the Motor Vehicles Insurance Regulations of 1968, the defendant by election is entitled to the sole conduct of proceedings in so far as they relate to the claim for damages for personal injury. The interrogatories then delivered on behalf of the defendant might well have been objected to by the plaintiff, in that they related to issues where the defendant's right to inquiry had been taken away by the notice of election. Such an objection was not taken. The plaintiff provided sworn answers.
In Nicol v. Nicol [1982] Qd. R. 612, it was held that regulation 11 (2) of the abovementioned Regulations does not empower a defendant by election to answer interrogatories delivered for the examination of a defendant although the performance of such an act, in that case, was held relevant to the exercise of a discretion to strike out a proceedings. It would seem to me to follow a priori that a defendant has no power to deliver interrogatories on behalf of a defendant by election.
It is contended that the present interrogatories, delivered by the defendant by election, are a second set and that therefore they will not be ordered to be answered except in the special circumstances applicable to second sets of interrogatories. This argument, though, in my view, cannot be sustained. The fact that they are issued by the same firm of solicitors is to no avail. The defendant by election is not deprived of its rights as a party to litigation by the fact that its solicitors also act for a defendant with whom there is no conflict of interest. The plaintiff, having failed to take objection when objection was proper, is in a position where it is now obliged to answer, subject, of course, to any proper objection.
As McPherson J points out in Perrett versus Robinson, 1985, 1, Queensland Reports, 83 at 91, after referring to a number of decided cases,
“These decisions may be said to establish that for some purposes the Courts are prepared to treat the insurer as the real defendant to the action.”
He goes on, though, to point out that this is not true in all instances. Nowhere is it suggested that this can be taken a step further to the effect that there is an identity between the two parties; that there is, in effect, no distinction to be made between the defendant and the defendant by election, and that the acts of one are the actions of the other. Quite clearly they are separate parties.
In the present case, the defendant would have been entitled to representation at the trial of the property damage claim if one were, in fact, being made.
Exhibit 1 provides me with a brief summary of medical reports which are Exhibit B to Mr Whitehouse's affidavit. I am also provided with a faxed copy of a later report of Dr Pentis which would suggest that the medical position is not clear. Further medical investigations are in train.
I therefore consider the giving of leave to amend the summons to include a remitter to the Magistrates' Court as premature. Such an application can be made later, in proper form, if it is considered appropriate. Therefore, as far as the summons seeks striking out for want of prosecution, I dismiss that portion of the summons.
As to the application for answers to interrogatories in paragraph 2 of the summons, I make an order as per paragraph of the summons.
I refuse the oral application for leave to amend the summons to seek remitter to the Magistrate's Court. There was no argument before me on the striking out application and the material filed does not really seem to me to address such an issue. I propose to make no order as to the costs of either party to that portion of the application.
As to the remaining portion of the application, namely that concerning the interrogatories, I propose to order that the plaintiff pay the defendant by election's costs to be taxed and I propose to order that such taxation await the determination of the action or earlier order of the Court.
As to the application made orally for leave to amend the summons, the applicant has been unsuccessful in that portion of the application and the respondent, in my view, should have its costs of that argument.
...
HIS HONOUR: As far as the remainder of the application is concerned, including the remitter portion of the application, I order that the respondent pay the applicant's costs of and incidental to the application to be taxed and I direct the taxation of such costs await the determination of the action or earlier order of the Court.