Brown v Taylor[2004] QDC 263

DISTRICT COURT OF QUEENSLAND

HIS HONOUR: This is an application for an extension under section 57(2)(b) of the Motor Accident Insurance Act of the time within which the applicant may bring proceedings in respect of a claim for personal injuries sustained in a motor vehicle accident on 2 December 2000.

The terms of the section 57 of the Act and the question of whether there was power under that section to make the sort of order which is sought on this occasion were considered by me in the matter of Crain v. Crocker [2004] QDC 151 and I repeat the approach that I adopted there. I note that subsequently a Supreme Court Judge has taken a similar approach in Morrison-Gardiner v. Car Choice Propriety Limited [2004] QSC 124.

Accordingly, I am proceeding on the basis that there is power to make the order sought. There are discretionary considerations along the lines that I referred to earlier. That involves the situation of whether there is some good reason why proceedings have not already been commenced and the prospects of prejudice to either party depending on the outcome of the application.

I noted in the earlier decision this should not been seen as a legislative invitation to tear up the Limitation Act; rather I see it as being consistent with the clear legislative intention in the Act that there should be efforts to resolve claims without litigation and prior to the commencement of litigation. For that purpose the Act also contains a mechanism for a compulsory conference and an exchange of mandatory final offers and indeed other mechanisms prior to the provision dealing with compulsory conference for the provision of information.

In this case, the history begins with a motor vehicle accident on the 2nd of December 2000. The applicant apparently did not consult a solicitor until the 28th of August 2001 when a section 37 notice was completed and signed.

The section 37 notice was not actually given to the second respondent until the 19th of March 2002. The explanation offered for the delay there in providing the section 37 notice was that the applicant had difficulties obtaining a traffic incident number. The explanation is perhaps somewhat concise.

It appears from further material eventually obtained by the respondent that the applicant had spoken to a police officer, apparently at the hospital after the accident on 2 December 2000, when there was some conversation about the circumstances of the accident. The police officer investigated further and has recorded being later told by the applicant and another person who was at the hospital, apparently also involved in the same accident, that neither wanted to report any incident. The officer suspected that they may have been unlicensed riders of motorcycles.

I should say that the applicant now claims to have been injured when riding as a pillion passenger on a motorcycle being driven by another nominated person.

The applicant may well have thought that as a result of what happened the police were aware of the incident and indeed they were certainly aware of it but it appears that no traffic incident report was completed by the police at that stage and hence one would expect that there would have been difficulties in trying to obtain a report number.

Eventually, the applicant's solicitors sent the applicant to a police station to report the incident in December 2001 and some material was provided then, although not a great deal. However, ultimately a traffic incident report number was able to be obtained and that was able to be provided to the respondent.

In any case, it appears that the notice under section 37 was subsequently deemed to be compliant. The respondent investigated the question of liability. The investigations extended a little wider than I have already mentioned, and ultimately it denied liability on 2 December 2002. I daresay there was a certain amount to investigate in relation to the matter. That is understandable in the light of what is disclosed in the affidavit evident, although I note that this meant that the respondent was not replying within the time indicated by the Act.

On 4 December 2002 the applicant's solicitors forwarded a report from an orthopaedic surgeon who had examined the applicant at their request and also sought copies of the documents relating to the investigation of the question of liability pursuant to section 47 of the Act. Those documents were not provided until 25 October 2003 and no explanation for the delay in providing these documents is forthcoming. Although there was no specific allegation that the applicant was delayed in either the preparation for the compulsory conference or the commencement of proceedings as a result of that delay, in circumstances where there has been some complaint of delay on the part of the applicant, it seems that this unexplained and somewhat curious delay on the part of the second respondent is, I think, a relevant consideration. It suggests that the criticism of the applicant is a case of the pot calling the kettle black.

The respondent did, however, pursue the question of the investigation of quantum by arranging to have the applicant examined by an orthopaedic surgeon. After the usual formalities, arrangements were made for the applicant to see Dr Nave, initially on 9 January 2003. However, the applicant failed to attend that appointment and arrangements were made for a further appointment with Dr Nave on 16 September 2003, apparently the next available appointment.

In the event, the applicant also missed that appointment. At that stage there was some further correspondence about the possibility of the applicant seeing someone other than Dr Nave and eventually arrangements were made for the applicant to see a Dr Williams on behalf of the second respondent. He was seen on 20 October 2003 although his report was not made available to the respondent's solicitors until 19 November 2003 when it was promptly passed on to the applicant's solicitor.

It appears however, that until Dr Williams' report was obtained, there was no further investigation of the question of quantum on behalf of the second respondent. The correspondence exhibited to the affidavits indicates that on 16 July 2003, the respondent sought a document relevant to liability which of course by then had already been denied. It was a copy of a document apparently provided at some stage to the police, and on the 21st of July the applicant's solicitors pointed out that a copy had not be retained by the applicant.

On the 20th of October 2003 the applicant's solicitors provided some documents which had the effect of disclosing two more employers to the respondent, apart from referring again to an employer at the time of the accident whose identity was already disclosed in the section 37 statement, and also referred to a period when the applicant was receiving payments from Centrelink.

The letter also indicated that a statement of loss and damage had been prepared and sent to the applicant for signing. That was only provided to the respondent's solicitors after it was signed on 16 February 2004. It does not appear that an unsigned draft was provided to the respondent's solicitors but it is apparent from the letter that by October 2003 the identity of three employers and some involvement by Centrelink had been disclosed to the respondent's solicitors.

The applicant's solicitors had been raising the question of a compulsory conference as early as 9 September 2003. There is of course supposed to be a compulsory conference and the exchange of mandatory final offers prior to the commencement of proceedings and the limitation period was due to expire at the beginning of December 2003.

Because of the times involved that really required a compulsory conference not later than mid-November 2003. However, a suggested date of the 3rd of November 2003 was rejected by the respondent's solicitors in October 2003, and of course at that stage the respondent's doctor had not provided his report.

There was, ultimately, an agreement on the part of the respondent not to raise a defence under the Limitation of Actions Act provided that proceedings were commenced within three months after the date when it would otherwise have expired.

That was advised on 23 October 2003 and the applicant's solicitor says, and it is plausible enough, that if that advice had not been received, an application would have been made under the Act. That took some of the pressure off the applicant, and indeed both parties, and allowed further time for investigation of matters so that a more constructive compulsory conference could be held as contemplated by the legislation.

On 4 February 2004, the applicant's solicitor sought a compulsory conference on the 12th of the 13th of February, but was told by the respondent's solicitors that that was too soon. The next matter to be noted is that on the 9th of February 2004, the respondent's solicitors wrote seeking clarification of post-accident employment and referring to a PAYG payment summary from Centrelink which had been forwarded on 20 October 2003.

In that letter the respondent's solicitors asked the applicant's solicitors to "request and provide your client's Centrelink file as soon as possible". They also advised that they had written to the employer at the time of the accident seeking a copy of the employment file. They added that following receipt of these matters, they saw no reason - subject to their client's instructions - why the matter could not proceed to mediation for the purpose of the compulsory conference.

The applicant's solicitors, on the 11th of February, sought a further extension - or an agreement to a further extension - of the limitation period and on 12 February wrote advising in relation to the statement of loss and damage, apparently that they had omitted to forward that signed statement earlier and that it was being forwarded by post, as it was the following day.

They said that it provided details of post-accident employment, and said in relation to the question of the Centrelink file that they did not see any basis upon which it was appropriate to provide a copy of the file, but that they would clarify their applicant's post-accident Centrelink benefit history. That was done by a print out provided on 25 February 2004. But prior to that on 18 February 2004, there was a further extension of the limitation period provided that the proceedings were commenced by midday on 2 June 2004, on the basis that all parties agree and undertake to use their best endeavours expeditiously to attend to all relevant matters required to be completed prior to the holding of the compulsory conference.

On 19 February 2004, the respondent's solicitors wrote with a question about an x-ray in May 2002 and advised that they had requested but not received the employment file from the employer at the time of the accident.

On 1 March 2004, there was a more detailed letter setting out the basis advanced by the respondent for the position that the applicant should obtain from Centrelink a copy of its file on him and provide that copy of the respondent. For present purposes, it is not necessary to go into the details of that explanation, but on 12 March the applicant's solicitors replied, in effect rejecting the argument and confirming that the applicant was not prepared to sign an authority.

On 17 March 2004, the issue was raised again and reference was made to the authority in general terms in the notice of claim under section 37. Of course, to the extent that that is an effective authority, it was provided to the respondent back in March 2002, so they had plenty of opportunity to take advantage of it, and no explanation has been given for any failure to do so.

That letter also enclosed a copy of the applicant's personnel file from one of its post-accident employers. There was then some delay in responding to that letter by the solicitors for the applicant. The response was on the 1st of June enclosing a document from Centrelink setting out details of the applicant's benefit payments and confirming the applicant's position in relation to the Centrelink file, and enclosing a copy of a report from a radiologist concerning x-rays on 23 May, 2002.

The applicant's solicitors then nominated a date for a compulsory conference on 29 June 2004, but, of course, the further extension of the limitation period, agreed to by the respondent, expired the following day. On 9 June 2004, the respondent's solicitors advised that the respondent would not be allowing any further extensions and that if proceedings were commenced, the Limitation of Actions Act would be relied on and there was therefore no purpose in pursuing a compulsory conference.

The applicant's solicitor has accepted that it was her fault that there was some delay in replying to the letter of 17 March and in not making an appropriate application prior to the expiration of the extended period of limitation on 2 June, 2004. The overall history therefore is one where there has been a certain amount of delay on both sides. There was, in particular, not very much achieved by either side during 2003.

From late 2003, it appears that there were more constructive efforts to carry the matter forward on both sides, and there were a couple of reasonable extensions of time to enable that to occur, which were granted by the respondent.

It does appear, however, that, ultimately, once a real dispute emerged in relation to the question of the Centrelink file, the respondent became less sympathetic, and then when, as a result, apparently, of the applicant's solicitors overlooking the matter, there was some delay in responding to the letter of the 17th of March, so that the extended limitation period ran out, they were not prepared to allow any further extension.

I think that it is fair to say that there has been some delay on both sides, as indicated in the material. One matter that did impress me, overall, from my examination of the material, is that, although the respondent has conducted a number of investigations in relation to the question of quantum, at least from late 2003, and those investigations, on the face of it, all appear to be reasonable enough things to investigate, it seems to have taken the respondent a long time to realise that these were appropriate matters for investigation.

Matters were being raised for the first time in 2004 which really ought to have been raised some time in advance, some time earlier, if the whole matter was going to be sorted out, and a meaningful compulsory conference held within the time frame contemplated by the Act, and the exigencies of the Limitations of Actions Act.

Now, to some extent, it seems to me that the respondent cannot have it both ways. It is reasonable enough to have these investigations, and perhaps, even investigate in a more leisurely fashion, and to pursue these investigations prior to the holding of a compulsory conference, provided that the respondent is prepared to grant extensions so as not to prejudice the applicant in doing so, as indeed the respondent initially was. But I think it is not reasonable to raise late new issues for investigation, then insist that they be dealt with prior to the compulsory conference, but then take a more restrictive approach to the expiration of the limitation period.

It seems to me that if there had been none of the prelitigation procedures in this case, it is quite clear that an action would have been commenced within the limitation period, probably well in the limitation period. And indeed, had it not been for the extensions of the limitation period already agreed to, it is probable that an application would have been made under Section 51A and 51C, to dispense with the compulsory conference and the mandatory final offers. And if the respondent had insisted on the limitation period, I suspect that those applications would have been successful.

The position here, really, is that in so far as the position has now changed, it was partly because the dispute has arisen in relation to the Centrelink file and partly because the applicant's solicitors took too long to respond to the letter of 17 March.

There is some authority that where there is a default specifically attributable to the applicant's solicitors that that is less significant as a factor adverse to the applicant than personal fault on the part of the applicant, and there may be some analogy with the approach adopted by the Court of Appeal in Perdis v. The Nominal Defendant [2003] QCA 555.

I should also note that no particular prejudice or no specific prejudice has been relied on as a result of the delay on the part of the respondents.

Overall therefore, it is appropriate, bearing in mind the factors that I referred to in Crain v. Crocker, to extend the limitation period, either for a short period to enable an application to be made under section 51A and 51C so that proceedings can be commenced promptly, or for a further time to enable a compulsory conference to be held.

It does not appear that there is a great deal more to be investigated now, although there is the outstanding dispute in relation to the Centrelink file which is the subject of a cross-application.

In those circumstances, I will invite the respondent to indicate whether there should be a short extension or, if there is to be an extension, a longer extension to enable time to deal with those other matters.

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HIS HONOUR: In this matter there was also an application by the respondent seeking an order that the applicant execute an authority provided to him by the solicitors for the respondent directed to Centrelink requesting the release to those solicitors of the Centrelink file.

The position appears to be that in the Section 37 notice there was, in accordance with the requirements of the regulation under the Act, an authority in the form required by the regulation directed to a department agency or instrumentality of the Commonwealth amounting to the applicant's written permission to allow the second respondent to obtain records or information that may affect his claim.

The second respondent asserts, I gather, essentially on the basis of the statement by Justice Dutney in Attard v Hore, [2002] QSC 437, that Centrelink will not in fact act on that form of consent. It has a specific authorisation which has to be signed by the particular individual before copies of documents relating to that individual will be provided.

I should say that counsel for the applicant does not accept that that is the case and understands that sometimes Centrelink will act on these documents, and sometimes it will not. There is no evidence that the second respondent has attempted to rely on this particular document in the case of this applicant.

It is unfortunate if there is no consistent policy on the part of Centrelink in relation to a matter such as this. However, the second respondent is now seeking an order under Section 50 of the Act for the enforcement of the duty of the applicant referred to in Section 45 of the Act to cooperate with the insurer.

In the alternative the second respondent relies on Rule 223(4)(b). In relation to the reliance on Section 50, it was submitted that the duty to cooperate with the insurer in the introductory words to subsection 45(1) is not confined to cooperating in the specific way set out in paragraphs (a) and (b) and that these are provided, not as particulars in the sense of particulars in pleadings, but rather as examples of a wider duty to cooperate.

The reason for that submission is that the documents in question do not fall within paragraph (a) because that paragraph is confined to the provision of copies of documents "in the claimant's possession".

The documents sought by the second respondent in this case are documents in the possession of Centrelink but what is sought from the applicant is a signed document, specifically a signed authority, which will enable the respondent to obtain copies of the documents from Centrelink. That is not within the terms of paragraph (a), but it is submitted that it is within the scope of a general duty to co-operate.

The submissions on behalf of the second respondent are based on the proposition that terms of paragraphs (a) and (b) do not confine the general duty to co-operate and that those paragraphs are really examples of the duty, rather than exhaustive statements of them.

However, if the legislative intent had been that that was the effect of subsection 1, there were at least two ways in which that could have been achieved. For example, the use of examples in the literal sense is sometimes met with in statutes, including, for example, in the definition of "claimant" in section 4 of this Act.

This is a relatively recent legislative drafting device in Queensland, but it is now sufficiently well known and sufficiently familiar from this and a reasonable number of other Acts and it would have been easy enough for that approach to be adopted if that was what the legislature really meant.

Another way would be simply to provide that a claimant must co-operate with the insurer including in the ways specified in paragraphs (a) and (b). However, neither of those have been used. The form of words used by the legislature means literally that the duty is to co-operate with the insurer in the particular ways specified in paragraphs (a) and (b).

Bearing in mind that these are mandatory obligations, one would expect that they would be defined with some precision. A broader duty to co-operate with insurers would be a somewhat difficult duty to come to grips with in circumstances where the statute did not clearly indicate the limits to the duty.

As it stands, the limits to the duty in both paragraph (a) and paragraph (b) are fairly clearly defined by the statute, although the duty is in fairly broad terms in relation to paragraph (b) as shown by the decisions of the Court of Appeal in Gitsham v Suncorp Metway Insurance Limited [2003] 2 QdR 251 and Suncorp Metway Insurance Limited v Hill [2004] QCA 202.

The former case, it seems to me, is simply about the scope of paragraph (b) and, indeed, the latter case is also concerned with that question and whether there is some limitation to be imposed on the scope of what information may reasonably be requested of an applicant.

It is true that those decisions emphasise the importance of the compulsory conference and the importance of an insurer being thoroughly informed of the circumstances of the claim prior to the time when a compulsory conference is held and when there is an exchange of mandatory final offers under the Act.

However, that, I think, is not a reason for interpreting section 45 other than in accordance with its terms. I note that in Hill, Jerrard JA, when referring to section 47, used the word "including" in relation to the duty imposed by that section.

In fact, section 47 is drafted in the same terms of section 45. It imposes an obligation on an insurer to co-operate with a claimant "and in particular ..." in the way specified in paragraphs (a) and (b), which are very similar to paragraphs (a) and (b) of section 45(1).

I do not understand that his Honour was intending either directly to quote section 47 or, in that paragraph, giving a considered view of its true interpretation in relation to this particular issue. I do not consider the point was directly dealt with in Hill and I do not consider that that use of that particular word amounts to some considered view of the Court of appeal that that is how sections 45 and 47 are to be interpreted. In my view, the section is not wide enough to impose an obligation on the claimant to sign a specific authority directed to a third party to provide documents.

I should say that the proposition that that is something required in order to enable an insurer properly to consider the claim is, I think, a little inconsistent with the fact that alternative provision is made by the Act through section 37 and the regulation in obtaining an authority, not just to Centrelink but addressed to a wide range of third parties, and that authority has already been provided.

The legislature might reasonably have assumed that any relevant authority would be provided in that way and that therefore there would be no need for section 45 to cover the ground again, and that would be a reason why that particular topic might not have been addressed by the legislature in section 45, and why it would not be appropriate to distort the language of section 45 in order to give an interpretation wide enough to cover that topic.

In any case, I consider that section 45 and section 50 cannot support the order sought. In the alternative, reliance is placed on rule 223 of the Uniform Civil Procedure Rules, which was also relied on by Dutney J in Attard v Hoare, supra.

The important difference between those proceedings and the present proceedings is that in that case his Honour had before him an application in a proceeding started by a claim. In the present case, there was an application by an originating application by the applicant and a cross-application. It is not therefore a proceeding, which in the absence of a direction under subrule (c), falls within rule 209(1) and is therefore not a proceeding to which rule 223 applies.

The second respondent is, in effect, seeking a direction that the rule apply to that proceeding but that is a direction that part 1 of the disclosure rules apply to the proceeding. The purpose of the disclosure rules is to enable documents to be disclosed so that all parties may be aware of all documents held by any party which contain anything directly relevant to an allegation in issue in the pleadings, if there are pleadings, or if there were no pleadings directly relevant to a matter in issue in the proceeding, but there would be nothing in the Centrelink file which is directly relevant to the matter in issue in the present proceeding.

Rather, it would be something which may, I suppose depending on its contents, be relevant to the claim of the applicant and may be relevant to something which may be in issue if a proceeding is ultimately commenced seeking to enforce that claim, but nothing that appears in those documents could be of any relevance for the determination of anything I have to decide in order wholly to dispose of the present application.

For that reason, it would be entirely inappropriate to direct that the disclosure rules apply or a particular disclosure rule apply in relation to this application. In effect, the respondent would be seeking to rely on disclosure obtained under this application for the purpose of advancing its case in other proceedings, and that would be really a collateral purpose and not an appropriate purpose for giving disclosure.

There is no appropriate purpose for giving disclosure in relation to the current proceeding and therefore no reason for a direction to be made under rule 209. Accordingly, the second respondent's application is dismissed.

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HIS HONOUR: I will just add after "pursuant to the Act" "or further earlier order" and (2) becomes "liberty to either party to apply on seven days' notice for the fixing of a specific date".

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HIS HONOUR: In relation to costs, I think the second respondent should pay the applicant's costs of the second respondent's application.

In relation to the applicant's application, that was the situation which came about following some delay on the part of the applicant's solicitor which was due to the fault of the applicant's solicitor. It may be that if there had been a more timely response to a letter of 17 March there would have been a further extension obtained, although I suspect that because by that time the dispute had arisen in relation to the question of the authority to Centrelink that that may well not have been the case. On the other hand, the applicant's application has been resisted with some vigour and ultimately unsuccessfully.

I think on the whole the appropriate course is to make no order as to the costs of the applicant's application, so I will order the second respondent pay the applicant's costs of and incidental to the second respondent's application, and otherwise make no order as to costs.

So there will be an order in terms of the amended draft.