DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   By application filed 17 March 2005 the applicant seeks a number of orders the effect of which, if successful, will enable him to proceed with his claim for damages for personal injuries he sustained in a motor vehicle collision which occurred on 23 December 2000. The orders sought involve a consideration of ss 37, 39 and 57 of the Motor Accidents Insurance Act 1994 as amended (“the Act”) and their application to the circumstances of the applicant’s claim for damages. Ultimately the applicant seeks the court’s leave to bring a proceeding based upon his claim for damages for the personal injuries he sustained, even though the limitation period within which he is obliged to bring such a proceeding has ended.

Facts

2. [2]
   The applicant was injured in a motor vehicle collision on 23 December 2000 at the intersection of the Ferny Footway and the Gold Coast Highway at Burleigh Heads, Queensland.^[1]

3. [3]
   In January 2001 he consulted the firm Aylward Game Solicitors (“the solicitors”) and instructed them to claim damages against the respondents to this application for the personal injuries he sustained in the collision.^[2] The first Notice of Claim form was completed by the applicant on 18 January 2001 ie. within one month of the collision. By letter dated 5 October 2001 from the solicitors to Suncorp Metway Insurance Ltd (“Suncorp”) the compulsory Third-Party Insurer of the respondent’s motor vehicle the solicitors state that they first took instructions from the applicant “about the possibility of making a personal injuries claim on 7 September 2001”.^[3] This statement would appear to be inconsistent with the applicant’s evidence.

4. [4]
   A Notice of Accident Claim Form dated 7 September 2001 was served on Suncorp on or about 8 October 2001^[4] which was in any event beyond the nine (9) months period within which the notice must be given in accordance with s 37(2)(b)(i) of the Act.

5. [5]
   Suncorp advised that the Notice of Claim form did not comply with the requirements of s 37 of the Act in a number of respects and returned the claim form to the solicitors for completion in accordance with the requirements of s 37 aforesaid including s 37(3) which deals with a claimant’s obligation to give “…a reasonable excuse” for any delay in not giving the Notice of Claim within the time-frame of s 37(2)(b) of the Act.

6. [6]
   Suncorp heard nothing further from the solicitors in the prosecution of the claim (other than a telephone conversation recorded in a file note dated 5/6/02 between a Suncorp representative and a representative of the solicitors) despite 5 items of correspondence, until Suncorp received a telephone call from a “Steve Ward” on 18 December 2003 the file note for which records that he had “…only taken file over last twelve months (and)…had sent….amended NOAC in August 2003” which Suncorp had not received.

7. [7]
   Arrangements were then made for Mr Ward to forward a copy of the correspondence of August 2003 for further attention. It is noted that the solicitors letter dated 22 August 2003 purportedly forwarded to Suncorp had been addressed incorrectly in that the correct Post-Office box number at that time was “GPO Box 1453” whereas the letter was addressed to “GPO Box 1435” (my emphasis).

8. [8]
   Suncorp advised the solicitors of this fact by letter of 23 December 2003 in which Suncorp also advised “…thus at this time we cannot confirm service of the second s 37 Notice of Claim until the 19 December 2003”. This claim form was also not in accordance with s 37 of the Act in a number of respects which Suncorp pointed out and it appears was so incorrect that it referred to a motor vehicle accident which occurred in 1980.

9. [9]
   Again there was no progress in this claim for approximately 14 months until the applicant’s current solicitors wrote to Suncorp by letter of 11 February 2005 foreshadowing the current application.

The Law

10. [10]
    The construction of s 37, 39 and 57 of the Act and their correlation with each other has been the subject of much judicial discussion and opinion in recent years: see Horinack v Suncorp Metway Insurance Ltd [2001] 2 Qd R 266 (“Horinack”) and Thomas v Transpacific Industries Pty Ltd [2003] 1 Qd R 328 (“Thomas”), culminating in the Court of Appeal decision of Morrison-Gardiner v Car Choice Pty Ltd & Anor; Crain v Crocker & Anor; O'Dare v Vitanza & Ors [2004] QCA 480 (“Morrison-Gardiner”).

11. [11]
    Morrison-Gardiner dealt with the proper construction of s 57 of the Act and in particular s 57(2) where the respondents in that appeal had been given leave to commence proceeding for damages pursuant to s 57(2)(b) and where in all cases the application for an extension of time within which to commence proceedings was made after the expiration of the 3 year limitation period.^[5]

12. [12]
    In Morrison-Gardiner Chesterman J provided a very comprehensive and helpful analysis of the history of ss 37, 39 and 57 of the Act^[6] and encapsulated the issue to be determined in the appeals at paragraph [51] of the judgment where he said:

“The issue to be determined is the meaning and effect of s 57(2)(b). The point, more particularly, is whether it confers a general discretion on the Court to extend the period of limitation for the commencement of proceedings for damages arising out of motor vehicle accidents, or whether some limitation should be read into s 57(1) to restrict the apparent scope of the power conferred on the Court by s 57(2)(b).”

13. [13]
    His Honour’s next observation which is relevant for present purposes is contained in paragraph [91] of the judgment where he says:

“The first pre-condition to the power to extend time found in s 57(1) is that notice of a motor vehicle accident claim be ‘given under division 3’. During the course of argument the parties debated whether a notice, to be ‘given under the division’, must be one which complies with the requirements of the division as to content and time. It was held by this Court in Thomas v Transpacific Industries Pty Ltd [2003] 1 Qd R 328 at 338 that, to be a notice, ‘given as required under this division’, the notice must so comply. We were not asked to disagree with that conclusion and there is no need to do so. The point is of no importance for either of the applications, or for the appeal, with which we are concerned. In each proceeding the notice was given ‘as required under’ division 3. There is no doubt that in the applications and the appeal the pre-condition in s 57(1) has been satisfied.”

14. [14]
    It is to be noted therefore that a common denominator in the three matters being considered by the court in Morrison-Gardiner was that in each case it was accepted by the insurer that the Notice of Claim was given “as required under” Division 3 of the Act. It is common ground between the parties that this is not the case in this proceeding.

15. [15]
    For this application to succeed the applicant relies upon the obiter remarks by Chesterman J in paragraph [92] of his judgment in Morrison-Gardiner where his Honour said:

“There may arise cases in which what is called a non-complying notice has been given when it will be necessary to decide whether the giving of such a notice will satisfy the pre-condition. It is not necessary to express a concluded opinion but there is, I think, much to be said for the affirmative view. Section 39 appears to draw a distinction between notices ‘given under the division’ and notices ‘given as required under the division’. The section commences that ‘if notice is given under the division’ the insurer must respond in writing stating whether the notice has been given ‘as required under this division’. The same distinction appears in s 39(3). Section 37 compels a would-be claimant to give written notice of the claim before bringing the action. The notice must contain the information contained in the regulations and be given within set times. Section 37(3) recognises that a notice may not be given within the specified time but imposes an obligation to give the notice, though late, together with a reasonable excuse for the delay. A notice thus given will not be one given as required under the division but will nevertheless be given under the division. Accordingly I would conclude that the choice of language in s 57(1) is deliberate. The pre-condition is satisfied if notice is given to the insurer. It does not have to be given ‘as required’. That is, to use the idiom of those who practice in this field of law, it does not have to be a complying notice.”

16. [16]
    The respondent challenges his Honour’s interpretation as contained in paragraph [92] of the judgment above on the basis that his Honour did not advert to the full context of s 39(1) of the Act which not only includes the words “under this Division” when referring to a Notice of Claim to be given to an insurer but also includes the words “…or purportedly under this Division”(my emphasis).

17. [17]
    In summary, the respondent submitted that before a claimant can rely upon the provision of s 57 of the Act the Notice of Claim relied upon therein must be “a complying notice” (to use the terminology that has evolved in pre-court proceedings for claims for damages for personal injuries howsoever caused) under Division 3 of the Act.

18. [18]
    Reference is made to the matter of Horinack where White J, with whom McPherson JA and Jones J agreed, stated at paragraph [18] of the judgment:

“Contrary to the submissions advanced on behalf of Ms 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.”

And at paragraph [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

• if 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)).”

And the matter of Thomas at paragraph [44] where Davies JA relevantly said:

“In those circumstances, for reasons I have already made clear, I would now be inclined to give leave to bring the proceeding despite non-compliance with a requirement of Division 3 of Part 4 of the Act. The question then is whether s 57 prevents an order giving leave from having any effect. In support of that contention Mr Holyoak, for the respondent, relied on the decision of this Court in Horinack v Suncorp Metway Insurance Ltd. Section 57 relevantly 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) 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.

… "

In Horinack no notice of claim had been given or application for leave made before the limitation period had expired. The court held that in such a case there was no basis as a matter of construction for making an order giving leave to bring proceedings. That is undoubtedly correct.”

And at paragraph [13] by McMurdo P:

“I especially note my agreement with Davies JA in [44] of his reasons and the footnote thereto, for concluding this was an "application for leave to bring a proceeding … made … before the end of the period of limitation applying to the claim" under s 57(1) of the Act.”

19. [19]
    On a consideration of all relevant issues in this application, I make the following findings:

1. (a)
   Before a claimant can rely upon the provisions of s 57(1) of the Act to seek the court’s leave to bring a proceeding based on a motor vehicle accident claim under Division 3 of the Act after the expiration of the period of limitation a pre-condition thereof is that the Notice of Claim must be one “as required under” that Division namely, a fully complying notice satisfying all requirements under s 37 of the Act, or the application for leave to bring the proceeding has been made before the end of the limitation period so applying;

2. (b)
   None of the applicant’s Notices of Claim and in particular the Notice of Claim dated 7 August 2003 copy of which was forwarded to Suncorp on or about 19 December 2003 was/were Notices of Claim “as required under” Division 3 of the Act; and

3. (c)
   In addition the applicant in this instance has failed to bring his application for the court’s leave to proceed further on his claim despite non-compliance under Division 3 before the end of the period of limitation applying to the claim and therefore is unable to satisfy the provisions of s 57(1) and (2) of the Act.

20. [20]
    I therefore make the following orders:

1. (a)
   The application be dismissed; and

2. (b)
   The applicant pay the respondent’s costs of and incidental to this application as agreed or assessed on the standard basis under the District Court scale.