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The White Group International Pty Ltd v Suncorp General Insurance Ltd[2000] QDC 37

The White Group International Pty Ltd v Suncorp General Insurance Ltd[2000] QDC 37

DISTRICT COURT OF QUEENSLAND

CITATION:

The White Group International Pty Ltd v. Suncorp General Insurance Limited [2000] QDC 037

PARTIES:

THE WHITE GROUP INTERNATIONAL PTY LTD (Applicant)

v.

SUNCORP GENERAL INSURANCE LIMITED (Respondent)

FILE NO/S:

D1533 of 1999

DIVISION:

 

PROCEEDING:

 

ORIGINATING COURT:

Brisbane

DELIVERED ON:

30 March 2000

DELIVERED AT:

Brisbane

HEARING DATE:

20 March 2000

JUDGE:

Samios DCJ

ORDER:

 

CATCHWORDS:

MOTOR ACCIDENT INSURANCE ACT 1994 s.37(1), 39(5) and s.57 – no notice or leave to commence proceedings within limitation period – proceedings commenced within limitation period of no effect – no waiver or estoppel

McKelvie v. Page & Ors (1999) 2 Qd.R. 259

Hardacre v. Johnson & Anor (unreported, District Court  Brisbane, 27 January 1998)

Couling v. Nelson & Ors (1999) 2 Qd.R. 231

Young v. Keong (1999) 2 Qd.R. 335

Re: Tonks (1999) 2 Qd.R. 671

McAuley v. Tradelink Plumbing Supplies (unreported, District Court Brisbane, 5 February 1999)

The Commonwealth v. Verwayen (1990) 170 CLR 394, 427

COUNSEL:

Mr. R. Lynch for the applicant

Mr. R. Traves for the respondent

SOLICITORS:

Richardson & Co for the applicant

Barker Gosling for the respondent

  1. [1]
    This is an application by the second plaintiff for orders that:
  1. The plaintiff has complied with s.34 and s.37 of the Motor Accident Insurance Act 1994 (the Act);  or alternatively
  1. The second plaintiff be given leave to commence proceedings against the first defendant and the second defendant in respect of a motor vehicle accident which occurred on 20 September 1996 (the accident) pursuant to s.39(5) of the Act.
  1. [2]
    The first plaintiff claims that in the accident she suffered personal injuries. At the time of the accident she was employed as a company director by the second plaintiff. The second plaintiff was a company duly incorporated according to law.
  1. [3]
    Mr. Richardson is a solicitor employed by the firm Richardson & Co (the firm). He is the solicitor for the plaintiffs, having conduct of this matter for the plaintiffs. In his affidavit filed herein on 1 March 2000, he states he first received instructions from the plaintiffs on 19 November 1996 in relation to the accident. He states the plaintiffs completed and signed a notice of claim pursuant to s.37 of the Act on 22 November 1996 (the notice of claim). He states in this notice of claim the plaintiffs claimed loss of income as a result of the first plaintiff being unable to perform her duties as a company director of the second plaintiff. Exhibit 1 to his affidavit is a true copy of the notice of claim.
  1. [4]
    Suncorp wrote to the firm by letter dated 11 December 1996. In this letter after identifying the “claimant” as the first plaintiff the following appears:

“Thank you for your client’s notice of claim dated 22 November 1996. 

We note that you have complied with sections 34 & 37 of the “Motor Accident Insurance Act 1994” and that you will forward the claimant’s offer of settlement together with copies of your client’s medical reports as soon as possible”.

  1. [5]
    By letter dated 20 March 1997 from Suncorp to the firm, again referring to the “claimant” as the first plaintiff, Suncorp admitted liability for the causation of the accident.
  1. [6]
    Mr. Richardson states that on 16 March 1998 the firm received instructions from the “plaintiff” that due to the injuries sustained by the first plaintiff in the accident, the second plaintiff company was incurring additional administration expenses. He states it became apparent that an accountant’s report would have to be obtained in relation to the effect that the first plaintiff’s reduced working capacity had had upon the second plaintiff company. He states there were delays experienced with obtaining the report from chartered accountants, and with the limitation period approaching, he obtained instructions to institute court proceedings in order to protect the first plaintiff’s rights. Hence he states a plaint was filed in this court on 21 April 1999 and served on Suncorp on the same day. He states the plaint included the second plaintiff to the action. Then he had a telephone conversation with one Claire Jenkins, a claims officer with Suncorp, on 30 April 1999 wherein it was agreed that negotiations could continue and he did not require them to file an Entry of Appearance and Defence at that point.
  1. [7]
    At the commencement of the plaint the claim made appears to be by a plaintiff rather than both plaintiffs, although the title to the plaint refers to the first plaintiff and the second plaintiff. In the facts relied on to prove the claim in the plaint, allegations are made that the first plaintiff was a director of the second plaintiff and further, that the second plaintiff was reliant on the first plaintiff’s ability to carry out the duties and obligations required of her. Further, as a result of the injuries referred to in the plaint, the first plaintiff was unable to carry out the duties and obligations required and consequently the second plaintiff suffered a loss of income and benefits for which the first plaintiff could not recover (see paras. 2(c) and (d)). Paragraph 2(h) of the plaint alleges that on or about 29 November 1996 the “plaintiffs” provided the second defendant with a notice of claim pursuant to s.37 of the Act. Paragraph 7 of the plaint alleges the second plaintiff had suffered damage in that it paid for replacement labour, on account (sic) of the first plaintiff’s inability to work, and it may have suffered a loss of profits. In para. 8 of the plaint, the allegation that is made is that on or about 11 December 1996 the second defendant provided notice to the solicitors for the first plaintiff that she had complied with all notices as required under the Motor Accident Insurance Act.  Then there follows a claim by the first plaintiff for damages and a claim by the second plaintiff for loss of income and interest.
  1. [8]
    Mr. Richardson states that on 10 August 1999 his firm received the report from the chartered accountants in relation to the assessment of the economic loss suffered by the second plaintiff. Then on 4 October 1999 his firm caused a letter to be sent to Suncorp containing an offer of settlement on behalf of the first and second plaintiffs. This offer of settlement is contained in a letter, Exhibit 5, to Mr. Richardson’s affidavit. It should be noted that the letter refers to “our client” as “M. White”. The letter goes on to say that “our client is now willing to settle this matter on the following basis” and thereafter follows a list of damages including claims for past economic loss and future economic loss. Enclosed with this letter is the report from the chartered accountants dated 10 August 1999. On the hearing of this application I made that report Exhibit 2. That report states in part:

“ … we have completed our assessment of economic loss suffered by  The White Group International Pty Ltd “the company” as a result of injuries sustained by Mrs. Marianne White in an accident on 20 September 1996.”

A summary of the results follows in the report showing an amount for past economic loss of $21,185 and for future economic loss $116,615 upon retirement at age 55 and $145,469 upon retirement at age 60.

  1. [9]
    I made a letter from the solicitors for the second defendant to the plaintiffs solicitors dated 2 December 1999 Exhibit 1 on the hearing of this application. The relevant part of this letter is as follows:

“Re: Suncorp & Pick ats White & Others

We act on behalf of the defendant, SUNCORP METWAY Insurance Limited in Brisbane District Court proceedings commenced by your client Marianne White.

Would you please undertake not to take any further steps in this action without first referring to us.” 

  1. [10]
    Then on 6 December 1999 the firm received a letter from the solicitors for the defendants enclosing by way of service Notice of Intention to Defend and Defence. This letter also referred to the matter as “Suncorp & Pick ats White & Ors”.
  1. [11]
    The Notice of Intention to Defend pleaded a failure on the part of the second plaintiff to comply with s.37 of the Act and that the second plaintiff’s claim should be struck out for non-compliance.
  1. [12]
    Mr. Richardson states that it was not until his firm received the defence of the second defendant that his firm was aware that the second defendant objected to the second plaintiff’s proceedings on the basis of non-compliance with the Act and he had believed prior to this time that the second plaintiff had complied with the provisions of the Act.
  1. [13]
    On 15 December 1999 the firm caused a letter to be written to the solicitors for the second defendant in relation to their objection to the second plaintiff’s proceedings. In this letter Mr. Richardson noted the limitation period in which to institute proceedings had expired. He also brought to the second defendant’s solicitors attention that the plaint was originally served on Suncorp on 21 April 1999 but it was not until his firm received the defence dated 6 December 1999 that the firm were made aware of any objection with respect to the second plaintiff’s claim. By letter dated 5 January 2000 the solicitors for the second defendants advised the firm that they reserved their client’s rights to rely on the expiry of the limitation period.
  1. [14]
    In a further affidavit from Mr. Richardson filed by leave on 20 March 2000 he states that the first plaintiff as a director of the second plaintiff, completed and signed a notice of claim pursuant to s.37 of the Act on 1 February 2000. He states on 20 February 2000 his firm wrote to Suncorp serving a copy of this notice of claim and advising Suncorp that the second plaintiff considered it had already complied with s.37 of the Act and giving notice of intention to bring the present application. This notice of claim dated 1 February 2000 is Exhibit 1 to the further affidavit of Mr. Richardson. On the first page of this document the name of the second plaintiff appears under the heading “personal details”. Under the heading “estimated earnings lost” in this document reference is made to the chartered accountant’s report dated 10 August 1999. The amounts referred to by these accountants as past economic loss $21,185.00 and future economic loss $145,469.00 are inserted in that section of the document making provision for an offer of settlement. At the end of the document the common seal of the second plaintiff has been affixed.
  1. [15]
    The limitation period for the commencement of an action by the plaintiffs expired on 20 September 1999.
  1. [16]
    Subsection (1) of s.37 of the Act provides as follows:

“Notice to be given by claimant

37.(1) 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 1 of the insurers, against which the action is to be brought –

  1. (a)
    containing a statement, sworn by the claimant, of the information required by regulation;  and
  1. (b)
    containing an offer of settlement, or a sworn statement of the reasons why an offer of settlement cannot yet be made;  and
  1. (c)
    accompanied by the documents required by regulation.”
  1. [17]
    On the hearing before me, the second plaintiff submitted that the notice of claim included the following information:

“2. Usual occupation:  Company Director, White Group International Pty Ltd

  1. Self employment details:

White Group Internat. Pty Ltd

Landscape Contractors and Pool Building

…

Accountants Name

Holmes & Partners

Noel Holmes

2 Chalk Street, Coolangatta

  1. Estimated Earnings lost:

Unsure, difficult to calculate as can’t help husband in large company business.

  1. Have you hired anyone to replace you?

No.  Other employees and husband covering or attempting to do work at the moment.

  1. Description of Duties:

Organise quotes, administration, accounts, phone calls, plans and drawings, shading etc.”

  1. [18]
    It was further submitted that notice of a claim by the second plaintiff was clearly foreshadowed in this notice completed within two months of the accident. That is, the existence of the company, the first plaintiff’s relationship to it and the effect the first plaintiff’s injuries were having on the company business were all articulated in the document. Further, the language of the document clearly contemplated completion by the person who suffered the personal injuries (questions 27 to 37 in the notice). It was also submitted the fact that the insurer had notice of the claim by the company was highlighted by the insurer’s preparedness to negotiate further after the plaint had been served. Hence, it was submitted the second plaintiff had complied with s.37 of the Act.
  1. [19]
    It was not submitted that the second plaintiff’s claim being an action “actio per quod servitium amisit” was not within the provisions of the Act.
  1. [20]
    The second defendant submitted that the second plaintiff did not give the notice required under s. 37(1) of the Act.
  1. [21]
    In the Act “claimant” is defined as “a person by whom, or on whose behalf a claim is made”. The second defendant submitted that the notice of claim is not signed on behalf of the company. Further, the notice of claim does not describe income being lost by the company. Question 48, it was submitted, referred to loss suffered by the first plaintiff as did question 53. Question 48 asks whether the claimant had lost income from self-employment in their own business because of the accident. An affirmative answer was given to this question. Question 49 required self-employment details. It should be noted that under this heading the name of the second plaintiff is set out. Under question 50 which deals with estimated earnings lost, the following statement is made:

“Unsure.  Difficult to calculate as can’t help husband in large company business”.

In answer to question 52, the claimant’s answer is that no one had been hired to replace the claimant, however goes on to say:

“Other employees and husband covering or attempting to do work as the moment”.

In answer to question 53, dealing with whether the claimant has lost wages or salary, as an employee, because of the accident an affirmative answer is given with the additional words:

“See previous as employee of family company”.

Later, the following is inserted under employment details of the previous three years:

“Employed by family company as director and secretary”.

  1. [22]
    A claim for damages by a person who has suffered personal injury and a claim by an employer of that person for damages for the loss of the value of that person’s services provided to the employer are in law two different and separate claims. A person with the knowledge of that difference might upon reading the notice of claim consider that the latter type of claim was possibly intended. However, despite that possibility I do not accept that this notice of claim was a notice of claim by the second plaintiff or on behalf of the second plaintiff. My reasons are:-
  1. (a)
    the name of the second plaintiff was not inserted in the space provided for “personal details” of the claimant;
  1. (b)
    the notice of claim was not signed on behalf of the second plaintiff nor was it expressed to be signed by the second plaintiff or on behalf of the second plaintiff;
  1. (c)
    the notice of claim did not have affixed to it the seal of the second plaintiff;
  1. (d)
    the notice of claim did not state expressly that it was a claim made by the first plaintiff on her own behalf and on behalf of the second plaintiff;
  1. (e)
    the notice of claim did not state a claim for loss suffered by the second plaintiff  was being made;
  1. (f)
    the correspondence from Suncorp to the firm before the limitation period expired referred to the “claimant” as “Marianne White” and despite those references and the reference in the letter dated 11 December 1996 to “your client’s Notice of Claim dated the 22nd November 1996”, no attempt was made by the firm to correct what appeared to be Suncorp’s view of who was the claimant and by whom the claim was made;
  1. (g)
    even the letter dated 4 October 1999 from the firm to Suncorp containing the offer of settlement referred to the client as “M. White” and made no distinction between the first plaintiff and the second plaintiff.  It may be that this letter enclosed the accountant’s report which referred to the loss of the second plaintiff.  However, no distinction was made in this letter that so much was claimed by the first plaintiff and so much by the second plaintiff.  By the inclusion of general damages in the list of damages with past and future economic loss, on the face of the letter all damages were claimed by the first plaintiff.   It does not follow, in my opinion, that because the plaint had been issued on behalf of the first and second plaintiffs and that a claim was made by the second plaintiff for damages in the plaint that the offer contained in this letter ought to be treated as an offer from both plaintiffs;
  1. (h)
    The preparedness to negotiate further after the plaint had been served does not assist, in my opinion, to identify the notice of claim as a notice of claim by the second plaintiff.
  1. [23]
    Therefore, I find the second plaintiff has not complied with s.37 of the Act.
  1. [24]
    In my opinion, the giving of the notice by the second plaintiff on 29 February 2000 does not overcome the omission by the second plaintiff to give notice as required by s.37(1) of the Act. That is because ss. 37(1) and 39(5) of the Act are mandatory and in the absence of an order to the contrary, legal proceedings cannot be commenced where there has been non-compliance (Young v. Keong and Others (1999) 2 Qd.R. 335 per Williams J with whom McPherson JA agreed).
  1. [25]
    However, it was submitted by counsel for the second plaintiff that pursuant to s.39(5)(c) of the Act, I could give leave to the second plaintiff to bring these proceedings despite non-compliance with s.37(1) of the Act.
  1. [26]
    Section 39(5) of the Act provides as follows:

“A claimant may bring a proceeding in a court for damages based on a motor vehicle accident claim only if –

  1. (a)
    the claimant has given notice to an insurer who may be liable on the claim under the statutory insurance scheme as required under this division or the insurer has waived compliance with the requirement and –
  1. (i)
    at least 6 months have elapsed since the notice or the waiver was given;  or
  1. (ii)
    the insurer has denied liability on the claim;  or
  1. (iii)
    the insurer has admitted liability but only in part and the claimant has given the insurer written notice that the extent of liability is disputed;   or
  1. (b)
    the court, on application by a claimant dissatisfied with the insurer’s response to a notice of claim under this division, declares that –
  1. (i)
    notice of claim has been given as required under this division; or
  1. (ii)
    the claimant is taken to have remedied non-compliance with this division; or
  1. (c)
    the court gives leave to bring the proceeding despite non-compliance with requirements of this division“.
  1. [27]
    Subsections (6) and (7) of s. 39 of the Act provide:
  1. (6)
    A declaration that a claimant is taken to have remedied non-compliance with this division, or an order that a claimant has leave to bring a proceeding despite non-compliance with requirements of this division, may be made on conditions the court considers necessary or appropriate to minimise prejudice to an insurer from the claimant’s failure to comply with requirements of this division.
  1. (7)
    If a claimant does not comply with the requirements of this division, a court before which the claimant brings an action for damages on the claim –
  1. (a)
    may, on the insurer’s application, award in the insurer’s favour costs (including legal and investigation costs) reasonably incurred by the insurer because of the claimant’s default;  and
  1. (b)
    may only award interest in the claimant’s favour for a period for which the claimant was in default if the court is satisfied there is a reasonable excuse for the default.
  1. [28]
    Counsel for the second plaintiff submitted I could grant leave nunc pro tunc.  In support of this submission I was referred to McKelvie v. Page & Ors (1999) 2 Qd.R. 259 per Wilson J and Hardacre v. Johnson & Anor (unreported, District Court at Brisbane, Forde DCJ, 27 January 1998).  The second plaintiff also referred me to the decision of Justice White in Couling v. Nelson & Ors (1999) 2 Qd.R. 231.  I was also referred to the decision of Brabazon Q.C., D.C.J. in McAuley v. Tradelink Plumbing Supplies and Others (unreported, District Court at Brisbane, 5 February 1999).
  1. [29]
    In McKelvie, Her Honour noted that in Young v. Keong the Court of Appeal did not deal with the question whether leave could be granted nunc pro tunc.  Her Honour concluded that there was power to grant leave pursuant to s.39(5)(c) nunc pro tunc.  In the exercise of her discretion in that case, Her Honour declined to grant leave. 
  1. [30]
    In McKelvie, the motor vehicle accident occurred on 27 July 1995.  The writ was issued on 24 July 1998.  The limitation period expired on 27 July 1998.  The plaintiff was riding a bicycle which collided with an unregistered motor vehicle.  A notice purportedly pursuant to s.37 was served on the motor accident insurance commissioner on 24 July 1998, the same day the writ was issued.  On 27 July 1998, a copy of the notice was served on the Nominal Defendant.  On 6 August 1998 the Nominal Defendant responded to the notice identifying a number of respects in which it did not comply with the requirements of s.37, which were required to be remedied within one month.  On 10 August 1998 the plaintiff supplied a statutory declaration responding to the various matters which had been raised.  In the course of Her Honour’s reasoning, Her Honour rejected the argument that the plaintiff could not rely on s.57 of the Act because a valid notice was not given before the expiration of the limitation period. That was because Her Honour found the notice had been amended and that had the same effect as amending a document.  That is, the effect of the amendment was to provide a notice satisfying s.37 which was to be deemed to have been given when the first notice was given.
  1. [31]
    Section 57 of the Act provides as follows:

“57.(1) If notice of a motor vehicle accident claim is given under division 3 (Claims procedures), or an application for leave to bring a proceeding based on a motor vehicle accident claim is made under division 3, before the end of the period of limitation applying to the claim, the claimant may bring a proceeding in court based on the claim even thought the period of limitation has ended.

  1. (2)
    However, the proceeding may only be brought after the end of the period of limitation if it is brought within 6 months after the day on which the notice is given or leave to bring the proceeding is granted.
  1. (3)
    If during the last 14 days of the period of limitation, the claimant wants to give a notice of claim under division 3 but is unsure to which insurer the notice should be given, the notice is validly given if it is given to the commission.
  1. (4)
    After receiving a notice of claim under subsection (3), the commission must make inquiries to decide the insurer against which the claim properly lies, and pass the notice of claim on to the appropriate insurer.
  1. (5)
    If a period of limitation is extended under part 3 (Extension of periods of limitation) of the Limitation of Actions Act 1974, this section applies to the period of limitation as extended under the part.”
  1. [32]
    In my opinion, Wilson J did not decide that leave could be granted nunc pro tunc generally.  In my opinion, Her Honour’s ruling ought to be seen in the context of the facts of the case before Her Honour.  That is, a notice was given on or before the limitation period expired.  Her Honour was satisfied even though the notice had omissions, with the omissions supplied at a later time, a valid notice had been given before the limitation period expired.  Thus, Her Honour rejected the argument that the plaintiff could not rely on s.57 of the Act because a valid notice was not given before the expiration of the limitation period.  In my opinion, Her Honour did not decide in McKelvie that leave could be given nunc pro tunc when no notice was given before the limitation period expired. 
  1. [33]
    In Hardacre the plaintiff did not deliver a notice pursuant to s.37 of the Act prior to the commencement of the action.  His Honour Judge Forde took the view that s.57 did not limit the right of a claimant pursuant to s.39(5)(c) to seek leave to bring the proceedings prior to the commencement of an action.  Because His Honour took the view that the leave requirement was procedural, he concluded the defect could be cured by order of the court nunc pro tunc.  In Hardacre, the reason the claimant did not give a notice pursuant to s.37 of the Act is that the claimant’s solicitors believed that as the claim was a loss of consortium claim such a notice was not required.
  1. [34]
    Since His Honour Judge Forde gave his reasons in Hardacre, the Court of Appeal has delivered its judgment in Young v. Keong and Others.  Therefore, in my opinion, Hardacre does not determine this application before me.
  1. [35]
    However, in Couling v. Nelson & Ors the plaintiff was injured in a motor vehicle accident on 30 October 1994.  A writ was issued on 21 October 1997.  No notice as required by the Act had been given and was not given until after the expiration of the period of limitation for the action.  The plaintiff sought leave to commence proceedings pursuant to s.39(5)(c) of the Act against the defendants nunc pro tunc.  Justice White, following Young v. Keong held in the circumstances the writ that had been issued on 21 October 1997 was of no legal effect.  Her Honour then addressed the question whether the court could give leave to bring a proceeding despite no compliance with the requirements of the Act.  Her Honour concluded that the discretion in s.39(5)(c) was limited by the provisions of s.57.  Her Honour held that at the least a notice of claim or an application for leave to bring a proceeding must be brought before the end of period of limitation applying to the claim and referred to s.57(1) of the Act.  Therefore, Her Honour held that since neither a notice of claim pursuant to s.37(1) of the Act, nor an application for leave to commence proceedings was brought before the end of the period of limitation, namely 30 October 1997, leave could not be granted pursuant to s.37(5)(c).  In her view the language of s.57 was mandatory and did not operate to deprive a claimant of any entitlements under any other Act.  Her Honour noted that in the matter before Her Honour there was no application to extend the period of limitation and in light of the contents of the plaintiff’s statutory declaration explaining her delay, any such application would not have prospects of success.
  1. [36]
    His Honour Judge Brabazon Q.C. in McAuley accepted the law is that leave pursuant to s.39(5)(c) may be given nunc pro tunc.  However, in that case, as in McKelvie, a notice was given before the limitation period expired. 
  1. [37]
    Counsel for the second plaintiff on the hearing of the application before me acknowledged that the decision of Justice White in Couling was against his submission that I could, in the present circumstances, grant leave nunc pro tunc.  Counsel for the second defendant submitted that the effect of the decision of Young v. Keong is that there is no action on foot in respect of the second plaintiff.  Further, that it was not permissible to use s.39(5)(c) of the Act to validate those proceedings that have already been commenced by the second plaintiff.
  1. [38]
    Young v. Keong and Others and the decision of Her Honour Justice White in Couling lead me to conclude that in the circumstances of this case as no notice was been given pursuant to s.37(1) of the Act before the limitation period expired, leave cannot be granted nunc pro tunc to commence these proceedings.  I conclude that is so even though these proceedings were issued before the limitation period expired.
  1. [39]
    I was also referred to the decision of Her Honour Justice White in the matter of Re: Tonks (1999) 2 Qd.R. 671.   In my opinion, Her Honour’s decision in Tonks does not assist the second plaintiff.  In Tonks, although the notice of claim was not given within the time provided for in s.37 of the Act, it was at least given before the limitation period expired.  In my opinion, that is consistent with the circumstances that Her Honour Justice White ruled in Couling's case could enliven the discretion to grant leave to commence proceedings. 
  1. [40]
    Finally, it was submitted by counsel for the second plaintiff that the second defendant waived its right to rely on the provisions of the Act.  This is because the second defendant should be taken to have understood the notice of claim to be a claim by the second plaintiff as well as the first plaintiff, and that at no time did the second defendant indicate that reliance would be placed upon the non-compliance with s.37(1) of the Act. 
  1. [41]
    On the evidence before me I am satisfied on the balance of probabilities that the second defendant has not conducted itself in any way that the second plaintiff could assume that the second defendant would not rely upon non-compliance with the Act (The Commonwealth v. Verwayen (1990) 170 CLR 394, 413, 422, 424, 444, 455-456).  The early correspondence from Suncorp referred to the claimant as the first plaintiff  and the claim being the first plaintiff’s claim which the firm did not seek to correct.  The continued negotiations between the solicitors for the parties even after the plaint was issued, does not, in my opinion, lead to a conclusion that the second defendant represented that no point would be taken if and when a claim by the second plaintiff was expressly put forward by the firm on behalf of the second plaintiff.  In my opinion, the other correspondence between the parties and their dealings does not amount to a representation by the second defendant that it would not rely upon non-compliance with the Act.  That is my view, even though the letter dated 4 October 1999 (which was sent after the limitation period expired) enclosed a copy of the chartered accountant’s report which purported to assess the second plaintiff’s loss.  Although in the plaint it was asserted that the plaintiffs had given a notice pursuant to s.37 of the Act, on the evidence before me I am not satisfied on the balance of probabilities the second defendant did anything that could lead the second plaintiff or the firm to conclude that assertion was accepted by the second defendant or the second defendant would in the future take no point on that issue. 
  1. [42]
    It was submitted by counsel for the second defendant that because the relevant provisions of the Act were enacted for the benefit of the public, those provisions could not be waived by the second defendant (The Commonwealth v. Verwayen (1990) 170 CLR 394 at 427 per McHugh J).  Although I conclude on the evidence before me there has been no waiver, I would hold that there may be circumstances which do not exist in the circumstances of this case whereby a party may be held to have waived non-compliance or be estopped from relying upon non-compliance with a statutory requirement.  However, in my opinion, waiver or an estoppel does not arise in the circumstances of this case.
  1. [43]
    It was submitted by counsel for the second plaintiff that there was no prejudice that could be demonstrated by the second defendant. I agree that no prejudice could be demonstrated, nor has been demonstrated in the circumstances of this case. If the occasion for the exercise of the discretion to grant leave existed the question of whether there was any prejudice would be relevant. However, for the reasons I have expressed above, in my opinion the occasion for the exercise of the discretion to grant leave does not arise. In the circumstances, the application must be dismissed.
  1. [44]
    I dismiss the application. I will hear the parties on the question of costs.
Close

Editorial Notes

  • Published Case Name:

    The White Group International Pty Ltd v Suncorp General Insurance Ltd

  • Shortened Case Name:

    The White Group International Pty Ltd v Suncorp General Insurance Ltd

  • MNC:

    [2000] QDC 37

  • Court:

    QDC

  • Judge(s):

    Samios DCJ

  • Date:

    30 Mar 2000

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Commonwealth v Verwayen (1990) 170 CLR 394
3 citations
Jump To
Cite 1 - (1990) 170 CLR 394
Cite 2 - (1990) 170 CLR 394
Cite 3 - (1990) 170 CLR 394
Couling v Nelson [1999] 2 Qd R 231
2 citations
Jump To
Cite 1 - [1999] 2 Qd R 231
Cite 2 - [1999] 2 Qd R 231
McKelvie v Page [1999] 2 Qd R 259
2 citations
Jump To
Cite 1 - [1999] 2 Qd R 259
Cite 2 - [1999] 2 Qd R 259
Re Tonks[1999] 2 Qd R 671; [1998] QSC 126
2 citations
Jump To
Cite 1 - [1999] 2 Qd R 671
Cite 2 - [1999] 2 Qd R 671
Young v Keong[1999] 2 Qd R 335; [1998] QCA 100
2 citations
Jump To
Cite 1 - [1999] 2 Qd R 335
Cite 2 - [1999] 2 Qd R 335

Cases Citing

Case NameFull CitationFrequency
Thorburn v BBC Hardware [2001] QDC 512 citations
1

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