Nominal Defendant v Kisse[2001] QDC 290

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal from a decision of a Magistrate who on 6 September 2000 authorised proceedings despite non-compliance with the requirements of division 3 of Part 4 of the Motor Accident Insurance Act 1994 (“the Act”), although he then ordered that proceedings commenced pursuant to that order be stayed until further order.  That order was made in the context of an unusual fact situation, one which does not appear to be dealt with expressly by the Act. 

2. [2]
   For the purposes of this appeal, it is appropriate to proceed on the basis that Thomas Helmut Kisse was injured in a motor vehicle accident on 7 September 1998. According to the notice under s. 37 of the Act, he was stationary at a pedestrian crossing waiting for children to cross when another vehicle collided with the rear of his vehicle. The other vehicle was identified and apparently insured, but the registration of that vehicle had expired so that it was appropriate to bring a claim against the Nominal Defendant as the deemed statutory insurer of that vehicle.

3. [3]
   Mr. Kisse consulted solicitors and a notice of claim under s. 37 was prepared, and was apparently signed by him on 8 October 1998, but was not given prior to his death by suicide on 2 November 1998. It was then forwarded by those solicitors to the Nominal Defendant on 10 December 1998, being received on 14 December.

4. [4]
   On 6 September 2001, those solicitors filed in the Magistrates Court at Brisbane a claim and statement of claim, naming as the plaintiff “the personal representatives of Thomas Helmut Kisse (deceased)”, and as defendants the driver of the other vehicle and the Nominal Defendant. That claim apparently has not been served. On the same day there was filed in the court in that proceeding an application seeking leave to issue proceedings, or alternatively a declaration that the motor accident notice of claim was compliant, and an order that the action be stayed. Previously, in June 1999, the solicitors for the Nominal Defendant had requested a copy of the death certificate, which was forwarded on 5 September 2001. The solicitors for the Nominal Defendant alleged that the notice of claim did not comply with s. 37, and advised that the Nominal Defendant would oppose any application for leave to commence proceedings. The solicitors who issued the proceeding acknowledged that they had not been able to identify the executor of the estate, and they had not been able to make contact with a widow who is believed to exist, but said they were acting to protect the interests of the estate.

5. [5]
   The Magistrate said that ultimately he was persuaded by the oral submissions advanced by counsel for the plaintiff and ordered that the personal representatives of the deceased be given leave to commence proceedings pursuant to s. 39(5) of the Act, that the proceedings be stayed until further order, and that the costs of the application be reserved.  The Nominal Defendant seeks to appeal against that order. 

Leave to appeal

6. [6]
   Under s. 45 of the Magistrates Court Act 1921, leave to appeal is required.  The application before the Magistrate was “an action” for the purposes of s. 45^[1], and no particular amount of money was involved so it was not an action where the amount involved was more than $5,000.  Accordingly, s. 45(2)(a) applies.  The important principle of law and justice involved is the question of what is the correct procedure under the Motor Accident Insurance Act 1994 in circumstances where a person who suffers personal injury caused by, through, or in connection with a motor vehicle,  in circumstances where there is a cause of action to which the Act applies, dies before taking the steps required to be taken under Part 4 of the Act or before commencing litigation to enforce that cause of action.  I was told that there was no previous authority on this in Queensland.  Accordingly, I give leave to appeal.

Requirements of the Act

7. [7]
   Under s. 37(1) a claimant must give written notice of the claim to the insurer against which the action is to be brought in accordance with the requirements of that section, and before bringing an action in a court for damages for personal injury arising out of a motor vehicle accident. The term “claimant” is defined in s. 4 of the Act as meaning “a person by whom, or on whose behalf, a claim is made”. The Court of Appeal has held that the Act requires that a claim be made by the claimant personally, and not on behalf of the claimant by the claimant’s solicitor: Horinack v. Suncorp Metway Insurance Ltd [2001] 2 Qd.R. 266 at 270. 

Effect of death of claimant

8. [8]
   In circumstances where the person who has a claim which falls within the scope of the Act dies before that claim is enforced, the claim is not extinguished but survives for the benefit of the estate: Succession Act 1981 s. 66.  That section also goes on to provide certain restrictions on damages in such circumstances, but in principle some claim survives for the benefit of the estate.

9. [9]
   When a claimant dies therefore his personal representatives become claimants who can take proceedings, and can take the various steps required by the Act prior to those proceedings. The first question however is whether a claim signed by the deceased prior to death can be forwarded by the deceased’s solicitors, so that in a sense the deceased can give notice after the date of his death. The authority of the solicitors to act on behalf of the deceased terminated on his death^[2], so that thereafter the solicitors had no authority to forward the notice of claim to the insurer on behalf of the deceased, and that could not be characterised as an act of the deceased.  Thereafter a notice of claim could have been given by the personal representative of the deceased acting on behalf of the estate, but there is no evidence that that was ever done.  The solicitor simply forwarded the notice on behalf of whoever was responsible for the administration of the estate.  It may be that that act could have been subsequently ratified by the personal representative, but there is no evidence that that has occurred. 

Effect of absence of authority

10. [10]
    For the same reason, the making of the application, and the commencement of the proceedings, were undertaken by the solicitor without authority. The proceeding cannot be commenced simply in the name of the estate; the appropriate person to commence a proceeding is the personal representative of the deceased, which might include an executor de son tort^[3].  There is no evidence that the solicitor was acting on the instructions of any person who was acting even as executor de son tort, nor that the solicitor himself was acting as executor de son tort.  He simply commenced proceedings without authority. 

11. [11]
    Whether or not the personal representative of the deceased ought to have been authorised to commence a proceeding based on the claim despite non-compliance with the requirements of the Act, if that person had applied under s. 39(5)(c) of the Act, what happened here is that there was no application by that person properly before the Court. Instead a solicitor had taken proceedings which he had no authority to take. The application, for this reason, ought to have been dismissed, and therefore the appeal must be allowed.

No real plaintiff

12. [12]
    In any case the proceeding, and indeed the application, were not properly constituted because there was no plaintiff A proceeding cannot be brought in the name of the estate of a deceased person: Clay v. Oxford (1866) LR 2 Exch. 54 at 55.  The position is different if the defendant is dead, since there are specific provisions  permitting proceedings to be brought against the “estate of [name of deceased] deceased”.^[4]  A proceeding purportedly commenced by a person not known to or recognised by the law is a nullity: M & N Civil Engineering Pty Ltd v. Sunshine Coast Turf Club [1987] 2 Qd.R. 401 at 410 per Williams J. It is unnecessary in the present circumstances to consider whether it would be open to amend the proceeding by substituting the name of the personal representative (suing in his representative capacity) for the name of the purported plaintiff.  For this reason also the application should have been refused. 

Costs

13. [13]
    The appellant seeks an order for costs against the solicitors who commenced the proceeding. Solicitors who commence a proceeding without authority act at their peril: Attorney General v. Wilde (1946) 47 SR(NSW) 99 at 109 per Davidson J (Street J agreeing).  In such circumstances a solicitor is liable to the other party for costs incurred in the proceedings: Yonge v. Toynbee [1910] 1 KB 215; Bullfinch Surprise Goldmining Co (NL) v. Butler (1913) 35 ALT 99; Schlieske v. Overseas Constructions Co Pty Ltd [1960] VR 195.  Such costs are awarded as analogous to a liability for damages for breach of warranty of authority on the part of a solicitor.    Accordingly, the solicitors who filed the claim and application, Baker Johnson, should pay the Nominal Defendant’s costs to be assessed.   

14. [14]
    Assessment was sought on an indemnity basis. There have been various orders made against solicitors who have commenced proceedings without authority: costs taxed on a party and party basis were ordered in Fricker v. Van Grutten [1896] 2 Ch 649 and Bank of Ethiopia v. National Bank of Egypt and Liguori [1937] Ch 513 at 523, while costs taxed as between solicitor and client were ordered in Russian and English Bank v. Baring Bros and Co Ltd [1935] Ch 120 and in Schlieske (supra) at p. 197.  Halsbury (4^th ed, vol. 44 para. 115) said that in such circumstances costs should be taxed on a common fund basis, which was more generous than a party and party taxation, and was a type of solicitor and client taxation:  Reed v. Gray [1952] Ch. 337.  On the whole and bearing in mind that the solicitors knew the deceased was dead and that they had no instructions from any personal representative^[5], the assessment should be on an indemnity basis. 

15. [15]
    The orders are therefore; leave to appeal; appeal allowed; the order of the Magistrate of 6 September 2000 set aside, in lieu therefore order that the application be dismissed, and that the proceeding commenced by the claim filed on 6 September 2001 be struck out. I order that Messrs Baker Johnson, Solicitors, pay the appellant’s costs of the proceeding in the Magistrates Court, and the costs of the appeal, to be assessed on an indemnity basis.