DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application by the first plaintiff (suing personally) for leave pursuant to s 39(5)(c) of the Motor Accident Insurance Act 1994 to issue proceedings nunc pro tunc for damages for nervous shock claimed to have been suffered by him when told of the death of his son (then aged 28) in a motor vehicle accident on Eastern Beach, Fraser Island on 21 May 1998.

2. [2]
   The applicant also sues as administrator of the deceased young man’s estate. By reference to a partnership between him and his son, a dependency claim, ultimately for the benefit of him and his wife, is being mounted. The second plaintiff is the deceased’s grandfather. He makes a modest dependency claim based on promises of support.

3. [3]
   The application is made to justify retrospectively the inclusion in the claim, filed 23 April 2001, of the first plaintiff’s claim for “$25,000 damages for nervous shock and £2,828 Sterling, loss of earnings through incapacity to work for 5 months from May to October 1998 (converted to $Australian as at the date of payment or judgment) calculated as one-quarter of the difference between the earnings of the first plaintiff in the years ending 16 November 1997 and 16 November 1998.” It has recently been authoritatively determined that damages may be recoverable for nervous shock in circumstances similar to the present, where the plaintiff reacting adversely to hearing of a fatal accident is significantly separated in location and time from the accident. See Hancock v. Wallis & The Nominal Defendant (2001) QCA 227, Appeal 2634 of 2000, 8 June 2001.

4. [4]
   The plaintiffs, who reside in the United Kingdom, have failed to comply strictly with the Act, in particular with section 37:-

“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

2. (b)
   containing an offer of settlement, or a sworn statement of the reasons why an offer of settlement cannot be made; and

3. (c)
   accompanied by the documents required by regulation.

2. (2)
   The notice must be given within 9 months after the motor vehicle accident or the first appearance of symptoms of the injury.

3. (3)
   However, if the motor vehicle cannot be identified, the notice must be given to the Nominal Defendant within 3 months after the motor vehicle accident.

4. (4)
   If the notice is not given within the time fixed by this section, the obligation to give the notice continues and the notice, when given, must contain an explanation of the delay but, if a motor vehicle accident claim relates to injury caused by, through or in connection with a motor vehicle that cannot be identified and notice of the claim is not given to the Nominal Defendant within 9 months after the motor vehicle accident, the claim against the Nominal Defendant is barred.

5. (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.”

5. [5]
   In March 1999 there was given to the insurer (FAI General Insurance Company Limited) a notice as contemplated by the section in respect of what may be called the dependency claims. The insurer acknowledged receipt of the “fatal injury notice of claim” on 26 March 1999 and subsequently acknowledged “compliance” by the claimants with the section. This overcame problems there might have been with the lateness of the notice. The statement of claim records FAI’s admitting liability for the accident to the extent of 60%.

6. [6]
   In March 2001, the plaintiffs’ local solicitors received an indication that the first plaintiff had suffered nervous shock as a result of being informed of his son’s death. The insurer was advised of this by letter dated 26 March 2001. The letter noted “obligations under the Motor Accident Insurance Act to advise promptly regarding any developments” and sought a waiver of the insurer’s rights under the Statute of Limitations, given that the three year time limit was about to expire. The waiver was refused and the insurer (which had become the Nominal Defendant) advised that:-

“In regard to the nervous shock claim to be submitted by your client we advise a non-fatal claim form will be required to be completed.”

7. [7]
   The parties occupy common ground in accepting that the nervous shock claim which had been included in the court documents had the consequence that “certain procedural matters need to be addressed before the matter proceeds further”, to quote the plaintiffs’ solicitors letter of 18 May 2001, which continues:-

“We are prepared to make every effort to attempt to have our client, in England, complete and return to our office a signed Notice of Claim for Personal Injury. Will you be prepared to accept a facsimile copy of this document or would you require the original signature of our client?  Further, if this is not acceptable, we see no option but to make an application by 21 May 2001 for an order seeking that leave be granted to bring proceedings nunc pro tunc to continue the current proceedings but to also allow the proceedings in relation to nervous shock.”

8. [8]
   On 21 May 2001, the insurer received a facsimile of the new Notice. On the same date the present application was filed, returnable on 28 May 2001, when it was adjourned by agreement of the parties to 12 June, when the hearing took place. The insurer has noted non-compliance with the exigencies of the form as regards the new Notice in

1. (a)
   omission of the first plaintiff’s date of birth at question 1,

2. (b)
   omission of “vehicle details” at questions 21, 25 and 26,

(in both respects the missing information has otherwise been made available, for example in the original Notice of Claim and in the Statement of Claim)

3. (c)
   failure to answer questions 45, 46 and 50 in relation to lost work and remuneration.

The Statement of Claim as quoted above arguably responds to question 50 which enquires about estimated earnings lost and the manner of calculation of the amount.

The importance of having such details included in the Personal Injury Notice of  Claim is that the claimant is required to affirm or swear to the contents of the Notice.

9. [9]
   Section 39 of the Act reinforces the requirement in s 37 of steps before action can be brought, under the heading “Response to the Notice of Claim”, and is in part:-

“(5) 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

2. (ii)
   the insurer has denied liability on the claim; or

3. (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

2. (b)
   the court, on application by a claimant dissatisfied with the insurer’s response to a notice of a claim under this division, declares that –

1. (i)
   notice of claim has been given as required under this division; or

2. (ii)
   the claimant is taken to have remedied noncompliance with this division; or

3. (c)
   the court gives leave to bring the proceeding despite noncompliance with requirements of this division.

(6) A declaration that a claimant is taken to have remedied noncompliance with this division, or an order that a claimant has leave to bring a proceeding despite noncompliance 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.”

10. [10]
    There is a pertinent definition in s 4:-

“ “motor vehicle accident claim” means a claim for damages based on a liability for personal injury arising out of a motor vehicle accident and, for a fatal injury, includes a claim on behalf of the deceased’s dependants or estate.”

Reference to the definition suggests the parties are correct in regarding the nervous shock claim as one independent of the dependency claims. It is clear there has been no waiver by the insurer. There is no claim by the first plaintiff for relief under s 39(5)(b) (and there is certainly no basis revealed on which the declarations contemplated could be made);  relief is sought under subsection (5)(c).

11. [11]
    Subsection (6) brings in considerations of prejudice. Mr Matthews, for the applicant, correctly asserts that there is no claim of prejudice by the defendants. I agree with Mr Munro, representing them, that this is beside the point. It is quite impossible to say whether or not there is prejudice, because, although the defendants may be taken to have adequate knowledge of the circumstances of the motor vehicle accident, next to nothing has been volunteered regarding the nervous shock claim; there was never the slightest intimation to the defendants before March 2001 of a consequence of the motor vehicle accident to the first plaintiff other than purely economic consequences flowing from the death of his son. It would be improper for the defendants to assert prejudice when they know so little.

12. [12]
    Apart from the prejudice issue is an insuperable barrier in the way of the applicant’s success arising under s 37(4) because the new Notice does not satisfy the statutory requirement that “it must contain an explanation of the delay”, when the 9 month limit for such notices has passed. Court of Appeal decisions exist, which, often by reference to the objects of the Act in s 3, have established that “must contain” is to be taken literally, and leaves no room for the explanation of delay to be provided independently or in some way to “accompany” the Notice of Claim. See Brannigan v. The Nominal Defendant (1999) QCA 347 (24 August 1999), Appeal No. 5764 of 1999, in particular the Chief Justice’s reasons at paragraph 16, McPherson JA’s reasons at paragraph 15 and White J’s reasons at paragraph 6. It was held immaterial that (as McPherson JA noted at paragraph 8) the form of notice specified in s 10 of the Motor Accident Insurance Regulation 1994 does not require an explanation of the delay to be incorporated. Although the reasons in Brannigan contain references to policy considerations to protect the Nominal Defendant and its resources where they may be held liable in the case of accidents involving unidentified motor vehicles, the determination of the meaning of “must contain” must be of general application. The present proceedings involve no unidentified motor vehicle, the Nominal Defendant having become involved by reason of financial difficulties apparently affecting the original licensed insurer; a private insurer is presently managing the claim(s) for the Nominal Defendant.

13. [13]
    Brannigan was concerned with s 39(5)(b). In Horinack v. Suncorp Metway Insurance Ltd (2000) QCA 441 (27 October 2000), Appeal No. 2641 of 2000, the primary judge refused a plaintiff’s application under that provision, but gave leave under s 39(5)(c). The insurer’s appeal succeeded and the cross-appeal based on paragraph (b) failed. There was a solicitors’ explanation of the delay which, as McPherson JA noted “did not even accompany the notice”. The insurer successfully maintained that the notice of claim given to it was non-compliant with s 37 because Mrs Horinack had not provided a sworn explanation for her delay. It is convenient to set out the reasoning of White J, in which the other members of the Court agreed:-

“[15] Turning to the further questions, whether the Act requires the explanation to be sworn by the complainant, there are a number of inconsistencies between the requirements of the Act and of the Regulation as to what is required to be sworn in the notice of claim. Section 37(1) requires that the written notice of claim must contain a statement “sworn by the claimant of the information required by regulation”. The information required by the relevant regulation, s 10(1), does not include an explanation for the delay if the claim is made more than nine months after the motor vehicle accident. Section 37(1)(b) requires that the notice of claim contain “an offer of settlement, or a sworn statement of the reasons why an offer of settlement cannot yet be made”. Section 10(2) of the Regulation repeats this obligation but neglects to provide that this statement of reasons as to why an offer cannot yet be made must be sworn. This is of no moment for two reasons – the obligation is in the Act and s 10(3) of the Regulation provides

“… and the statements of fact contained in the notice must be sworn by the claimant.”

[16] There is, therefore no express requirement in the Act that the explanation be sworn by the claimant but it must be so by implication. The claimant must give written notice of the claim and the notice must contain an explanation of the delay. Section 4 defines “claimant” to mean “a person by whom, or on whose behalf, a claim is made”. Mr DB Fraser QC, for Mrs Horinack, submitted that the explanation could be given by an agent, in this case the solicitors. The solicitors did not make the claim “on behalf of” Mrs Horinack as would an attorney acting under a power of attorney or a guardian or administrator. Mrs Horinack made the claim on her own behalf. The scheme of division 3 of the Act suggests that the legislature requires a claimant personally to make the claim. If a claimant is unable to do so because of disability or absence, provided the person making the claim can establish an entitlement to act for the injured person, provided the person making the claim can establish an entitlement to act for the insurer person, that is sufficient. If not the matter may be put before the insurer who may or may not waive compliance. If not, an application to court may be made. The Act does not fall to be interpreted by reference to difficult cases, particularly here where they can be accommodated. Section 37(4) incorporated the explanation into the notice. Section 10(3) of the Regulation requires the statements of fact in the notice of claim to be sworn by the claimant. This clear direction can assist in the construction of s 37. The Act was assented to on 7 March 1994 when ss 1 and 2 commenced. The remaining provisions commenced on 1 September 1994 (1994 SL No. 175). The Regulation was made by the Governor-in-Council on 11 August 1994. Sections 1 and 2 commenced on 12 August 1994 and the remaining provisions commenced on 1 September 1994, that is, the same date at the Act. They clearly constitute together an entire regime. Section 10(3) of the Regulation is confirmatory of what is implicit in s 37(1) and (4), that the explanation must be given by the claimant herself and that it be sworn, Hales v. Bolton Leathers Ltd [1951] AC 53 per Lord Normand at 544, followed by Lord Fraser in Jackson v. Hall [1980] 2 WLR 118 at 129. See also Sachs J in Neill v. Glacier Metal Co Ltd [1965] 1 QB 16 at 27.

[17] The final matter concerns the ambit of s 39(5)(c). The learner chamber judge considered that he could give leave to bring proceedings pursuant to that provision because he had a wide discretion, that no prejudice was discernible and it was fair and just to do so.

[18] Contrary to the submissions advanced on behalf of Mrs Horinack an application for leave to bring proceedings must be brought within the ordinary limitation period. That this is so is clear from s 57 of the Act. It provides

“(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 though the period of limitation has ended.

2. (2)
   However, the proceeding may only be brought after the end of the period of limitation if it is brought within 6 months of the day on which the notice is given or leave to bring the proceeding is granted.”

[19] This means that a claimant may bring a legal proceeding based on a motor vehicle accident of the kind covered by the Act in one of two circumstances

*  a notice of claim has been given under the claims procedure in division 3 (and this must be a reference to a complying claim), or

* an application for leave to bring the legal proceeding based on such a claim is made (which must be a reference to an application made pursuant to s 39 (5)(c)).

There is a third process whereby a legal proceeding may be commenced which is, strictly, encompassed in the first. That occurs when a court declares that a complying notice of claim has been given, s 39(5)(b)(i) or that a claimant is taken to have remedied non-compliance, s 39(5)(b)(ii). The notice then becomes notice of claim for the purpose of division 3 and the insurer is deemed to have received notice when the declaration is made, s 41(3)(b). The scheme of division 3 envisages that an insurer is to have six months from the receipt of the notice of claim to make necessary investigations, decide if liability will be admitted and to make an offer (or counter-offer) of settlement, s 41. This six months provision is reflected in s 39(5)(a)(i) which permits a claimant to bring proceedings in a court when only six months have elapsed after the claimant has given notice of the claim or the insurer has waived compliance with the notice requirements. That six months period is further reflected in s 57(2) which extends the limitation by six months when an application for leave to bring a proceeding is made within the period of limitation.

[20] It follows that s 39(5)(c) does not confer a general discretion on a court to give leave to bring a proceeding in a court despite non-compliance, if the application to do so is brought outside the period of limitation. There is, therefore, no basis as a matter of construction for making such an order nunc pro tunc and it follows that the statement in McKelvie v. Page [1999] 2 Qd.R 259 that leave can be granted nunc pro tunc cannot stand.”

14. [14]
    The Court of Appeal declined to reconsider Horinack in Sweeney v. Volunteer Marine Rescue Currumbin Inc and Suncorp General Insurance Limited (2000) QCA 455 (6 November 2000), Appeal 55 of 2000. The President said:-

“The need for certainty is paramount when legislation of this type is being construed. Those injured in motor vehicle accidents and their legal representatives need to understand clearly their obligations under the statute.

The appellant here has not demonstrated an obvious error by this Court in the construction of the Act adopted in Horinack nor that there have been resulting unintended consequences.

The appellant issued proceedings without giving the requisite notice under s.37 of the Act and the action should therefore be struck out if its case rests solely on liability under this Act: see Young v. Keong [1999] 2 QdR 335.

The appellant did not give the necessary notice within the limitation period. Although s.39(5)(c) gives the Court leave to allow the bringing of proceedings despite non-compliance with the requirements of that division, it is subject to s.57 of the Act where the limitation period has expired, as here. The appellant does not come within either of the criteria set out in s.57 of the Act.

As this Court said in Horinack at [20]:-

"Section 39(5)(c) does not confer a general discretion on a Court to give leave to bring a proceeding in a Court despite non-compliance if the application is brought outside the period of limitation."”

15. [15]
    The passage from Horinack set out above neatly introduces Mr Munro’s argument as to jurisdiction. The present application was made, in the sense of an application in the prescribed form being filed, on the last day of the limitation period. Mr Mathews submitted that this was sufficient. An alternative view is that an application is not made until the hearing date, or return date. Mr Munro’s submission, which, in the end, I consider I ought to accept, is that the application must not only be made, but be successfully made within the limitation period.

16. [16]
    A leading case as to an application having been made on the filing of a document such as a summons returnable later is re Ridgway (1952) VLR 71, which as I recall concerned a testator’s family maintenance application required to be made within a limited period. The case was cited with approval in Woods v. Bennett (1972) 46 ALJR 294, 296; (1972-73) ALR 439, 443 in a context showing the concurrence of four Judges. The leading case in Queensland is probably Crowder v. Moore (1997) 1 Qd.R 24, considering when an application for leave to appeal to this court against a determination of a tribunal was “made” within the meaning of s 94(2) of the Queensland Building Services Authority Act 1991. The Court of Appeal judgment refers to many cases relied on by Mr Matthews, such as Tallon (1996) 1 Qd.R 448, holding that an Attorney-General’s appeal against sentence, for which 28 days is allowed, is “made” when the notice of appeal is filed. As their Honours said (at 28):-

“A legislature is unlikely to intend that the exigencies of court lists or the vagaries of service should frustrate statutory entitlements to curial relief.”

I was referred also to Rawson v Williams (1984) 2 Qd.R 287 and to Brisbane Land Pty Ltd v. Pine Rivers Shire Council (No.1) (2000) 1 Qd.R 493, the latter relating to leave to appeal to the Court of Appeal from the Planning and Environment Court.

17. [17]
    In my opinion, each situation has to be considered in its own context. The mere filing of an application may or may not have consequences. Everything depends on the particular context. Thus, filing of a notice of appeal will not usually effect a stay of the order appealed against. With the authorities mentioned by Mr Matthews, compare Cottle v. Hentzschel, ex parte Cottle (1982) Qd.R 772.

18. [18]
    Mr Munro relied on two decisions of White J. The first is Couling v. Nelson (1999) 2 Qd.R 231, in which her Honour said at 234 –35:-

“[12] The question is may the court give leave to bring a proceeding in a court despite non-compliance with the requirements of the Act in the circumstances of this case?  The discretion in s.39(5)(c) is limited in my view by the provisions of s.57. At the least a notice of claim or an application for leave to bring a proceeding must be brought before the end of the period of limitation applying to the claim, s.57(1). There is no reduction in the period allowed under the Limitation of Actions Act 1974 because notice can be given on the last day of such a period, to preserve the entitlement. The six months waiting period required by s. 39(5)(a)(I) can elapse and then the proceedings may be brought. Subsection (3) takes account of last minute instructions, as would seem to have occurred here, by permitting notice to be given to the Motor Accident Insurance Commission where a claimant in unsure of the identity of the licensed insurer.

[13] Mr Oliver, for the plaintiff, has submitted that a claimant is deprived of some period under the Limitation of Actions Act if an application for leave to bring the proceeding is brought at the end of the relevant period and leave is not granted before the expiration of the six months following as required in s. 57(2). He submitted that it requires very plain words to deprive a litigant of any part of the period of limitation provided for in the Limitation of Actions Act.  It is possible to envisage that occurring, but it would require dilatoriness in setting the matter down to be heard in chambers by the claimant or the claimant’s solicitors. If the provisions of s.57(2) were drawn to the attention of the chamber judge hearing the application it is most unlikely that the matter would not be heard and determined within the time limit.

[14] I am of the view 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 may not be given pursuant to s.39(5). The language of s.57 is, in my view, mandatory and does not operate to deprive a claimant of any entitlements under any other Act. There is no application to extend the period of limitation and in light of the content of the plaintiff’s statutory declaration explaining her delay any such application would not have prospects of success.”

This leaves the situation where an application is filed on the last day open. My own impression is that, in practice, whenever a limitation period is about to expire judges are asked (and take some trouble to) give a decision before the period expires. This bespeaks a concern that a later “favourable” determination may be unavailing. No one was able to find a case in which an early unfavourable decision had been reversed on appeal after expiry of a limitation period.

19. [19]
    In Tonks (1999) 2 Qd.R 671, White J said at 677:-

“The exercise of the discretion conferred by s.39(5)(c) is controlled by the terms of the Act and the achievement of its purposes. An explanation ought to be given by an applicant, but it is only a factor which a court will weigh when considering whether in all the circumstances disregard for the legislative requirements ought to be excused. See Dempsey v. Dorber [1990] 1 Qd.R 418. Where the limitation period will expire before the expiration of the six months referred to in s.39(5)(a)(i) a court, in my view, will be slow to prevent a person litigating a claim that may not settle when there are not clear indications in the legislation that that result is intended as is the case with the Nominal Defendant provisions. Indeed s. 57(1) provides that if notice of a claim is given or an application for leave to bring a proceeding based on a claim is made 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 though the limitation period has ended. (The reference to “application” in s.57(1) must be a reference to leave being given). Section 57(2) provides that 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”. That is an indication that a claimant not be disentitled from litigating because, for whatever reason, notice has not been given in sufficient time to allow six months to elapse.”

20. [20]
    It would be inappropriate for this court now to take a different view from that expressed in the sentence endorsed in brackets, and particularly so, given White J’s undoubted expertise in this field, which the authorities mentioned above dramatically attest to. Samios DCJ considered Tonks in The White Group International Pty Ltd v. Suncorp General Insurance Limited D1533 of 1999, Brisbane, 30 March 2000 (paragraph 39). There one of the issues was whether leave of the kind presently sought could be given nunc pro tunc. The effect of this would be to save the existing claim and statement of claim, rather than compel the first plaintiff to begin new proceedings. While some judges have considered that leave nunc pro tunc may be granted, Horinack established authoritatively that it may not be.

21. [21]
    In summary, my view is that it is now too late, the limitation period having expired, for leave (even leave appropriate to permit a new District Court action) to be given; the applicant should have arranged a hearing, at the least, by 21 May 2001. Essentially, this conclusion flows from the effect which Court of Appeal decisions have given to s 57. If this view were wrong, I would be disinclined to grant leave in any event. The statement of claim suggests that the principal effects of the nervous shock alleged occurred in 1998. The Act requires an early notice of such a claim to be given. There is no explanation whatever for the delay, except in terms of the difficulties of local solicitors in obtaining instructions from overseas. One is left to speculate. The faxed new Notice of 21 May 2001, grossly non-compliant with s 37(4), as noted, reveals virtually nothing of the nervous shock claim. Question 28 (How do the injuries affect you now?) was answered, simply, “nervous shock”. Perhaps the intended answer is the one given to Question 38, which inquires about (other) matters affecting “the extent of the disabilities resulting from the personal injury to which the claim relates” – which was “nervous shock continuing, tablets for sleeping plus tranquilizers for calming down, regular visits to doctors for counselling”. In the ordinary case, the insurer might be able to have such confusion cleared up. It is not helpful to speculate here. The applicant (like others) has simply failed to comply with the strict new regime under the Act.

22. [22]
    The application should be dismissed. Mr Matthews conceded that, even if it succeeded, his client should be ordered to pay the costs of it. It seems inevitable the same cost consequences must follow its failure.