Trenevski v Turiano[1999] QDC 214

1. (a)
   S52A applies if:

1. (i)
   The third party is one of two or more insurers liable on a motor vehicles accident claim; and
2. (ii)
   The claim is not a claim in relation to which the insurers under are, under the industry deed and within the time stated in the deed, required to resolve questions about-

1. (A)
   Which insurer is to be the claim manager; and
2. (B)
   The basis on which the claim costs are to be insured between the insurers;

2. (b)
   The plaintiff herein has not made a motor vehicle accident claim against the third party;
3. (c)
   The plaintiff's claim is not a claim in relation to which the second defendant and third party are, under the industry deed and within the time stated in the deed, required to resolve questions referred to in sub-paragraph (a) hereof;
4. (d)
   No claim has been brought by the plaintiff against the third party and such claim is now brought would be statute barred by reason of s 39(8) of the said Act on the ground that the claimant failed to give notice of claim under the Act within nine months after the motor vehicle accident;
5. (e)
   In the premises s 52A does not apply and the second defendant has no right to a recovery of contribution under the said section.”

Nature of Third Party Proceedings

1. 2.
   QBE Insurance was joined in the action pursuant to s. 52 of the Motor Accident Insurance Act 1994 (“the MAIA”). Section 52 of the said Act provides that an action of this nature which involves damages of personal injury “must be brought against the insured person and the insurer as joint defendants.” Section 52(4) provides that if judgment is given in favour of the claimant on the claim related to personal injury, a judgment must be given against the insurer, and not the insured person in the absence of a claim for exemplary or punitive damages or unrelated to their personal injury. It has been held that:

“Section 52 has significantly altered the previous law, and the commencement of proceedings complying with its terms is a mandatory procedure requirement. The position is in some ways analogous to that which operated prior to the 1994 Act with respect to claims against the Nominal Defendant. If the action is not commenced within time (subject to the limited provisions for extension of time) that was the end of the matter; it was not to the point to say that the Nominal Defendant had full notice of an intention to make a claim and prejudice had not been established.”: De Innocentis -v- Brisbane City Council & Anor. (BC9806320, unreported decision of Williams J, Supreme Court of Queensland 4742 of 1997 judgment delivered on 27th November 1998).

1. 3.
   As was the position under the Motor Vehicles Insurance Act 1936, s. 4F(3)(b) of that Act permitted a claim to be made against the Nominal Defendant, as it then was, as if it were a claim under the Law Reform (Tortfeasors Contribution etc) Act 1952: see Matherson -v- Workers' Compensation Board of Queensland (1992) QdR 57 at pages 60-61. It was held in that case that where the tortfeasor had died, the liability of the licensed insurer under the Motor Vehicles Insurance Act and the legal liability of the Workers' Compensation Board was tortious in each instance. Therefore, it was held that both the Board and Suncorp were properly described as tortfeasors for the purposes of s. 5 of the Law Reform (Tortfeasors Contributory Negligence, and Division of Chattels) Act 1952 and have the right to claim contribution from another tortfeasor, namely the Nominal Defendant.
2. 4.
   It has been argued by counsel for the Nominal Defendant that when the MAIA was enacted that provision was not carried over. Therefore, there was no basis upon which contribution proceedings could be brought against the Nominal Defendant by a party such as QBE Insurance who is not a licensed insurer. The omission was remedied by an amendment to the Act by s. 28 of the Treasury Legislation Amendment Act 1997. That provision came into force on 16th October 1997. It was over two months after the present accident and it was submitted, therefore, not applicable to that accident. In other words, the amendment was not retrospective. It was argued that the principle in Maxwell -v- Murphy (1957) 96 CLR 261 at 267 was applicable, namely:

“The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.”

1. 5.
   Reliance was also placed upon s. 20 of the Acts Interpretation Act 1964. Relevantly, that Act provides that:

1. “(2)
   The repeal or amendment of an Act does not

1. (a)
   ...
2. (b)
   ... or
3. (c)
   affect a right, privilege or liability acquired, accrued or incurred under the Act;”

In my view, the Amendment in 1997 does not apply retrospectively to the present case: Rodway -v- The Queen (1989-1990) 169 CLR 515, 519, applying Maxwell -v- Murphy (ibid).

Nature of s. 52A

1. 6.
   That provision provides as follows:

“Recovery of contribution by or from Nominal Defendant in certain cases

1. 52A.
    

3. (1)
   This section applies if-

1. (a)
   the Nominal Defendant is 1 of 2 or more insurers liable on a motor vehicle accident claim; and
2. (b)
   the claim is not a claim in relation to which the insurers are, under the industry deed and within the time stated in the deed, required to resolve questions about -

1. (i)
   which insurer is to be the claim manager; and
2. (ii)
   the basis on which claim costs are to be shared between the insurers.

3. (2)
   For the recovery of contribution by or from the Nominal Defendant, the Law Reform Act 1995, part 3, division 2 applies as if the Nominal Defendant were a tortfeasor.”

Submissions by QBE Insurance

1. 7.
   Counsel for QBE Insurance submits its client is not a licensed insurer within the meaning of the MAIA. That fact is pleaded in the defence of the third party. Counsel for QBE Insurance relies on its defence that it is not a licensed insurer. QBE is an insurer within the meaning of that term as defined in “CTP Insurance Policy” (s. 4). For the purposes of this hearing, I find QBE Insurance is not a licensed insurer under the MAIA. Therefore, the present claim is not covered by the “industry deed” as defined in s. 4 of the MAIA.
2. 8.
   It was submitted that s. 52A of the MAIA does not operate by reference to when any given motor vehicle accident occurred, but applies as if the nominal defendant is one of two or more insurers liable on a motor vehicle accident claim (subject to whether the industry deed creates certain requirements, a factor not relevant here).
3. 9.
   The argument does not depend on any element of retrospectivity, but rather that the Nominal Defendant was a licensed insurer by virtue of s. 18 of the Act, and was under s. 52 an entity against whom the plaintiff was entitled to bring this proceeding prior to the commencement of s. 52A. The expression “liable on a motor vehicle accident claim” within the context of s. 52A should be read as meaning “liable to be sued”. That latter submission, or sentence, I find, is correct given that “liable on judgment” would render pointless the application of s. 52A(2) as it relates to the Law Reform Act provisions in relation to contribution. Support for this is confirmed by the explanatory memorandum which indicates that s. 52A was intended to clarify the position of the Nominal Defendant as a tortfeasor and to create a similar provision to that under the Motor Vehicles Insurance Act 1936. As was submitted, s. 4F(3)B of the 1936 Act used the expression “in respect of any claim which may be made to and enforced against the Nominal Defendant (Queensland)”. It was submitted that s. 52A was not to be regarded as confining the relevant liability of the Nominal Defendant to a particular point in time. It was submitted that the following principle applied:

“It is enough that there was a time, before the liability of the defendant tortfeasor was actually ascertained, at which the plaintiff (the victim of the tort) could have successively brought an action against some other person (a third party)”: Brambles Construction Pty Ltd -v- Helmers (1966) 114 CLR 213 at 221 per Windeyer J.

1. 10.
   In other words as at the date that the amendment came into effect, that is, as at 16th October 1997, the plaintiff was entitled to proceed against the Nominal Defendant upon giving the notice required by s. 37 of the MAIA, the nine month period still being on foot. Accordingly, the argument continued, the Nominal Defendant is liable on the claim and the relevant provisions of the Law Reform Act 1995 applied by virtue of s. 52A(2). It is convenient to deal with this argument at this point. I accept the Nominal Defendant's submissions that the amendment being s. 52A took effect as from the 16th October 1997. As stated earlier, an Act affecting the rights of parties ought not to be construed retrospectively. QBE Insurance attempts to get the benefit of s. 52A(2) without dealing with the retrospectivity aspect or the requirements under s. 37(5) of the MAIA. This latter point will be dealt with later in these reasons. The argument proceeds on the basis that as the right against the Nominal Defendant existed as at the 16th October 1997 then the Nominal Defendant was “liable on a motor vehicle accident claim” at that point. As a matter of statutory construction, it is difficult to see how QBE Insurance can obtain the benefit of an amendment viz. s. 52A(2) affecting the rights or liability of other parties and which did not apply as at the date of the accident. I therefore reject the submissions of QBE Insurance that the Nominal Defendant is liable even if s. 52A is not retrospective in its operation.
2. 11.
   As pointed out by counsel for the Nominal Defendant, the Motor Accident Insurance Legislation Amendment Act 1996 clearly made provision in relation to the commencement of some aspects of that amendment by retrospectively providing that certain sections commenced as at the 1st September 1994 being the date that the MAIA came into effect. If the intention of Parliament was to apply to s. 52A, or part thereof, to events which occurred at an earlier point in time, then it could have done so. For example, s. 106(5) of the MAIA as referable to the Nominal Defendant was omitted by s. 30 of the said Treasury Legislation amendment in 1997. Section 30 was to take effect from 1st September 1994, the date the MAIA commenced.

Failure in give Notice

1. 12.
   The argument put forward by counsel for the Nominal Defendant was that his client was a licensed insurer under the MAIA: s. 18. Pursuant to s. 34 of the MAIA, the owner or a driver has an obligation to provide details to the insurer of an accident and how it occurred. Under s. 37(5) of the MAIA if there are two or more vehicles involved in the accident the insurer to whom notice of a claim is given under s. 37 of the Act is obliged within seven days to give notice to any other insurer. It should be noted that under s. 37(1) of the said Act that a claimant is required “before bringing an action in a court for damages for personal injury arising out of a motor vehicle accident, a claimant must give written notice of the claim to the insurer or one of the insurers against which the action is to be brought...”. It has been held that a notice under s. 37(1) is mandatory and that a failure to do so, in the absence of leave under s. 39(5)(c), causes the action to be a nullity: see Young -v- Keong & Ors (Appeal no. 2202 of 1997, unreported decision Court of Appeal Queensland 22nd of May 1998); Cooling -v- Nelson & Ors (Unreported decision of White J, 9521 of 1998, judgment delivered 4 September 1998, at page 7). Leave nunc pro tunc is available in appropriate cases: McKelvie -v- Page (Writ no. 6801 of 1998, unreported decision of Wilson J, judgment delivered 18 September 1998); Hardacre -v- Johnson & Ors (Plaint 5201 of 1997, unreported decision of Forde DCJ, delivered 27th January 1998).

1. 13.
   Section 38(6) of the MAIA provides that:

“If the Nominal Defendant is one of two or more insurers who may be liable on a motor vehicle accident claim because a motor vehicle can not be identified was involved in the accident, another insurer may act for the Nominal Defendant under this section only if the Nominal Defendant agrees in writing.”

1. 14.
   No such agreement was produced on this application. In fact, there was no evidence of the notice required under s. 34 or 37(1) as having been given.

1. 15.
   Even if s. 52A applied in the present case, I find that QBE Insurance has failed to give the appropriate notice under s. 37(5). Section 39(8) provides that the Nominal Defendant cannot waive compliance with the requirement to give notice within nine (9) months nor can the court grant leave despite non-compliance. This provision seems to relate to claimants not co-insurers. The relevance of s. 39(8) to the present application was not the subject of argument.

Notice by Plaintiff is not relevant to QBE Insurance acts or contribution

1. 16.
   In relation to claims between tortfeasors, it is clear that the procedural limitation imposed on a plaintiff who is seeking damages for negligence in a motor vehicle accident claim are not able to be transposed to contribution proceedings. See Nichols -v- Parkes (1948) 65 WN (NSW) 273 at 276 and James Hardie & Co Pty Ltd -v- Seltsam Pty Ltd (1998) 159 ALR 268:

“The connection between the liability of the claim and tortfeasor to the tort victim and the standing of the claim into bringing the statutory action for contribution so an act does not carry the consequence that the statutory action is subject to the same limitation or other procedural regime imposed upon an action by the tort victim against the claimant tortfeasor” (At page 275).

1. 17.
   It is further submitted that even if s. 52A had not applied at the relevant time, the Nominal Defendant would still have been liable as a tortfeasor for the purpose of s. 6 of the Law Reform Act 1995. Under the new Act, it was submitted, the Nominal Defendant was a licensed insurer and therefore in a similar position to that of Suncorp in Matheson's case. That would have enabled an action against the insurer where the insured person cannot be identified, and creates a tortious liability in the insurer and, in the present case, the Nominal Defendant. In principle, that has some attraction, but one must interpret that decision in light of the requirements under the MAIA, in particular s. 37, which requires a plaintiff to give notice of a claim, and if notice is not given within nine months to the Nominal Defendant, then the action is barred. QBE Insurance, in its submission, I find, satisfactorily deals with this aspect, and relies on the cases of Nicols and James Hardie & Co.op. cit. However, in relation to s. 37(5), QBE Insurance, even though not a licensed insurer, it is an insurer as defined under the Act as a compulsory third party insurer. It is therefore obliged under the Act to give notices to any other insurer in which two or more motor vehicles are involved. Section 37(5) provides as follows:

1. “(5)
   If 2 or more motor vehicles were involved in the motor vehicle accident, the insurer to which a notice of claim is given under subsection (1) must, within 7 days after receiving it, give a copy of the notice to any other insurer of a motor vehicle involved in the motor vehicle accident.”

1. 18.
   Neither side addressed the court as to what the procedural consequences would be for a failure to so comply as between insurers. Counsel for the Nominal Defendant referred to the prejudice which his client may suffer. There is no application before the court to extend time in which to comply with that section. The approach that has been adopted under the MAIA is that the notice requirements of the MAIA are mandatory, and if not complied with, then proceedings are struck out: De Innocentis -v- Brisbane City Councilop. cit. In the absence of any submission or application which seeks to avoid the requirements of s. 37(5), I find that the third party notices are out of time and of no effect. It has not been suggested in argument that the word “claimant” as defined includes a “co-insurer” for the purposes of s. 37(4) or s. 39(8). This is the meaning required if the suggestions on page 2 of the letter dated 26th November, 1998 from the solicitors of the Nominal Defendant (Exhibit A) to the solicitors for QBE Insurance are to have any legal effect. However, this meaning was not canvassed on this application although reliance was placed on Exhibit A.
2. 19.
   It is ordered that the third party notices in both actions 3593 and 3594 of 1998 be struck out. It is further ordered that the second defendant/respondent do pay the costs of and incidental to both applications of the applicant/third party to be assessed.