McAlister v Nominal Defendant[2010] QDC 36

DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant seeks leave under s 57(2)(b) of the Motor Accident Insurance Act 1994 (“the Act”) to commence a proceeding in the court within 60 days of one of three nominated events occurring, one of which being the holding of a conference pursuant to ss 51A and 51B of the Act and the exchange of final mandatory final offers in accordance with s 51C.  The applicant also seeks that the court fix a time and place for the compulsory conference under s 51A(5)(a).  The respondent initially did not oppose the former order, but subsequently submitted in substance that the compulsory conference should be dispensed with, but the court should make orders ensuring that the proceeding to be commenced not proceed to trial until some criminal proceedings related to the facts giving rise to the applicant’s claim have been determined, and that I give a direction to ensure that the conference contemplated by r 553 actually take place and fulfil something like the function of the compulsory conference contemplated by the Act. 

Jurisdiction

2. [2]
   The material initially relied on by the applicant did not establish that this court had jurisdiction to entertain the application. The jurisdiction of the court to entertain an application under the Act is contained in s 50 of the Act, which empowers “the court” to do certain things.  By s 4 the term “court”, in relation to a claim in circumstances where no proceeding based on the claim has been brought, means “a court with jurisdiction to hear the claim.”  That will always include the Supreme Court, but in order to show that an application in relation to a claim is properly brought in the District Court, it is necessary to show that the District Court has jurisdiction to hear the claim made by the applicant.

3. [3]
   If the applicant has claimed a particular amount, there is no difficulty; it will be sufficient to show that the amount claimed is not in excess of the monetary limit under s 68 of the District Court of Queensland Act 1967.^[1]  Where, however, as here, the applicant has not claimed a particular amount, but simply claimed in effect such damages as may be appropriately assessed according to law in respect of the injuries suffered by the applicant, in order to show the District Court has jurisdiction to hear the claim it is necessary to show that such a claim is for an amount of damages which is not in excess of the monetary limit.

4. [4]
   Whether it has been shown that the District Court has jurisdiction will always be a matter for the court: in order to exercise jurisdiction, it will first be necessary for the court to find that the claim is one which could be brought in the District Court. Where the claim has not been quantified previously, however, the appropriate course is for the applicant to provide some information from which some assessment of the claim can be made, which may include the opinion of the applicant’s solicitors as to the value of the claim.^[2]

5. [5]
   In the present case the matter was adjourned to enable further affidavit material to be filed and read; in a further affidavit the applicant’s solicitor has provided particulars of the injuries alleged, exhibited copies of medical reports which have been obtained, and has stated that the applicant claims the sum of $198,578.04 in damages, particulars of which are set out in paragraph 25 of that further affidavit.^[3]  The solicitor for the respondent did not submit that, if the plaintiff were successful, damages would be assessed at a higher figure.  In those circumstances, and in the light of the material available as to the extent of the injuries suffered by the applicant and their likely consequences, I find that the District Court does have jurisdiction to hear the applicant’s claim, and hence this application.

Background

6. [6]
   In order to understand the positions of the parties, it is necessary to say a little more about the background to the application. On 29 March 2007 the applicant gave a notice of accident claim form to the respondent alleging that on 22 February 2007 at about 4 pm in a particular place, while he was riding a bicycle, the driver of a motor vehicle deliberately swerved to hit the applicant who was struck by the passenger door which had been opened by the passenger in the vehicle.^[4]  The applicant claimed not to know the registration number of the vehicle in question, but was able to give the name and address of the person alleged to have been driving it, and there was a statement that the matter had been reported to the police.  No economic loss was claimed at that time and it was then said that the injuries had not yet stabilised and medical evidence had not been obtained.

7. [7]
   On 18 May 2007 the respondent advised that the notice of accident claim form was compliant.^[5]  On 20 November 2007 the respondent denied liability for the incident.  There have been various attempts by the solicitors for the applicant to ascertain the registration number of the vehicle concerned, with a view to identifying the insurer of the vehicle.  The applicant has some evidence that the vehicle was in fact not insured at the relevant time,^[6] but the respondent at this stage at least does not accept that the vehicle cannot be identified, or was uninsured at the relevant time.

8. [8]
   The police investigation has progressed to the point where the person nominated by the applicant as the driver of the vehicle has been arrested and charged in connection with the incident.^[7]  An indictment has been presented in this court, and the matter was listed for trial in December 2008.  Legal argument in relation to the matter took place then, but the matter was re-listed for trial in February 2009.  However, the accused was at that time serving a term of imprisonment in New South Wales and the trial was unable to proceed.  The solicitors for the respondent had been advised by an officer of the Director of Public Prosecution that the trial was rescheduled to 10 May 2010;^[8] however, enquires I made of the criminal registry revealed that it had merely been adjourned for mention on that date, and that if it were then ready to proceed to trial it would be unlikely that a trial would take place before November or December this year.

9. [9]
   The respondent has been unable to obtain the information available to the police, because of the pending criminal trial. The respondent does not want to be in the position of having to defend the applicant’s claim until after that information is available to it, and accordingly initially opposed the fixing of a compulsory conference, on the basis that the criminal trial which was then expected in May ought to take place first. It was expected that after that event the respondent would have available all necessary information, and an assessment could be made of the appropriate way to respond to the applicant’s claim. In addition, if necessary the respondent would be in a position to consider other possible remedies which might arise. The applicant, on the other hand, is anxious to press on with the proceeding. His position is that he has a good claim and he does not want it to be delayed indefinitely simply because the criminal proceedings are taking a long time to come to finalisation.

10. [10]
    Once it became apparent that the matter was not listed for trial in May this year, the respondent moved away from the position that the holding of the compulsory conference should be delayed until after the trial, and submitted instead that the court should dispense with the holding of the compulsory conference and the exchange of mandatory final offers, with a view to enabling the proceeding to be carried forward; nevertheless, it was submitted that I should make ancillary orders under s 51A(5) requiring that a conference be held under r 553 not less than 13 weeks after the resolution of the criminal charges, which was said to allow sufficient time for the respondent to obtain a copy of the police brief and for any further investigations to be undertaken.  It was also submitted that I should make an order prohibiting the delivery of an offer to settle under Part 5 of Chapter 9 of the UCPR until after the conclusion of the r 553 conference.  This was to prevent the respondent from being prejudiced by any offer made prior to the material in the police brief being made available.  Finally, it was submitted that I should direct the parties not to sign a request for trial date or an application to dispense with a signature on the request for trial date until not less than 21 days after the r 553 conference.  This would permit offers to be exchanged under Part 5 of Chapter 9 after the conference and before that request for trial date was signed and the matter might be set down for hearing.

Analysis

11. [11]
    Where there are both criminal and civil proceedings arising out of the same set of facts, it is in principle desirable that the criminal proceeding be heard and determined first. However, there is not a fixed rule to that effect, and if it appears likely that this will result in an unreasonable delay to the plaintiff’s claim, then it may well be appropriate to allow a civil proceeding to continue even though the criminal proceeding has not been resolved. In the present case, the resolution of the criminal proceeding has certainly been significantly delayed, principally it seems because the defendant has been serving sentences of imprisonment interstate and hence has not been available to be tried. Presumably the intention is that by May the court will have more information available as to the availability of the defendant. There is of course no guarantee that the criminal proceedings will then be given a trial date, or I suppose that they will proceed on that trial date.

12. [12]
    The position has arisen where the applicant needs to obtain some sort of order because the limitation period will shortly expire, and the applicant has not yet complied with the pre-litigation procedures in the Act. A complying notice of claim having been given. By s 57 of the Act, a claim can be brought even though the period of limitation has ended as long as it is brought within six months after the notice is given or leave to bring the proceeding is granted, or a longer period allowed by the court.  Hence this application, seeking the fixing of a longer period.  Such orders are commonly made by reference to a period fixed by the occurrence of particular events contemplated under the Act, such as the holding of a compulsory conference or an order or agreement dispensing with the holding of the compulsory conference.  That is essentially the form of order sought here.

13. [13]
    The applicant still seeks an order under s 57(2)(b) of the Act, and the fixing of the date for a compulsory conference.  His position is that there has already been considerable delay in this matter because of the criminal proceedings and he wants to have this matter resolved and be able to get on with his life.  There is not sufficient reason to think that the police may have information which would lead to the identification of an insurer of the vehicle in question.  The applicant wants a conference because he really wants to try to settle the matter, and it will save costs to settle it prior to an action being commenced.

14. [14]
    I can understand the respondent’s desire to have the opportunity of considering the information available to the police prior to attending a compulsory conference, or making any sort of mandatory final offer, or for that matter any offer under the UCPR. It is commonplace for the respondent to rely on the results of police investigations when determining how to respond to a claim. There could well be material contained on the police brief which is of some importance to the respondent, but which would not be of any particular significance, or conclusive in the context of the criminal proceeding.

15. [15]
    As well, the driver may well be unwilling to talk to the respondent so long as criminal proceedings are pending against him; the driver has refused to be interviewed when approached by loss assessors.^[9]  The respondent does seem to have a firm position that a conference now would not achieve anything, and in these circumstances, although such a conference should not be lightly dispensed with, it does not seem that any purpose would be achieved by holding one in this case.  The respondent’s attitude suggests that if the applicant wishes to pursue his claim he is going to have to start an action.

16. [16]
    The respondent is now content for the action to proceed, so long as it is given a further opportunity to have a conference and attempt to settle the matter before it is set down for trial. One would expect that it will take some time for the matter to proceed to that point, and hopefully by the time the pleadings are closed, disclosure is complete and any other interlocutory steps have been taken, the position of the criminal proceeding will have been clarified. I think there is some sense in the proposition that there ought to be a proper conference under the rules and that this should probably be held after the conclusion of the criminal trial, at least as long as that event is not unduly delayed. However, I think that there are risks inherent in my now seeking to decide exactly what should happen in the future in relation to this matter.

17. [17]
    It seems to be common ground that there should be a proceeding commenced, and that it should be able to proceed, at least to some extent. That should be allowed. However, I think it would be undesirable for me to seek to exercise detailed control stretching into the future in relation to that matter. I think the appropriate course is to say that all I am actually determining at the moment is that the action should be commenced, the pleadings should proceed and disclosure should take place, and if there are other relevant interlocutory steps they should be completed. I suspect that at that point it would be desirable for the action to be left until the criminal proceeding is concluded, so long as that process is not unreasonably delayed. However, I do not think that I should attempt to formulate just when that point will occur, or attempt to stay the proceeding now at that point; any such decision should be made by a court once the point has been reached where it is appropriate to stay the proceeding, if that point is reached.

18. [18]
    In the same way, I do not think it is necessary or appropriate for me to make an order that there definitely be a conference under r 553.  If a situation arises where there is a real dispute between the parties as to whether such a conference should be held, an application can be made and that can be resolved.  At the moment, it seems to me that it would be sensible to have such a conference at an appropriate time, but that is really all I could say at the moment and it would not be of assistance to the parties for me to attempt to formulate an order or direction giving effect to such a vague proposition.

19. [19]
    With regard to the request that I give a direction preventing offers from being made, I am not persuaded that that course is appropriate. Certainly the respondent at the present time does not have the advantage of further information on the police brief, or other information which may emerge in the course of the criminal trial, but if it comes to that neither does the applicant. In terms of making offers, both parties are in the dark, but I am not persuaded that that is a good reason why offers should not be made under the rules. If it emerges that the ordinary regime under the rules should not be followed in this matter because of considerations of this nature, any decision of that kind should be left until it becomes necessary to decide the point, that is, until the point is reached where there is a relevant offer and it is submitted that some other order as to costs is appropriate. I consider a decision affecting that question now on my part would be premature.

20. [20]
    In the same way, I do not think I should give a direction now as to whether or not it is appropriate for a request for trial date to be signed at any particular point of time in the future. That I think should be left to the common sense of the parties; if that breaks down, one party or the other can make the appropriate application to the court and the court will then decide what is appropriate at that time in the light of the situation as it exists then. That is a better way to decide things than for me to attempt to determine now what the situation will be at some time in the future, and what the response ought to be in that situation.

21. [21]
    In all the circumstances, it seems to me overall that the appropriate course is to dispense with the compulsory conference and the exchange of mandatory final offers. That will allow the applicant to commence a proceeding before the expiration of the limitation period. However, I do not think that I should make any further orders or directions in relation to that proceeding; my expectation is that it will proceed at least for some months, and hopefully there will be no further disputes between the parties as to what is the appropriate course to follow. If such dispute arises, it can be decided in the light of the situation that has developed at that point.

Costs

22. [22]
    With regard to the question of costs, the matter is complicated by the fact that the parties were initially presenting the application on an expectation that the criminal trial was listed to proceed in May this year; that proved to be a mistake. Once that mistake was revealed, the respondent changed its position. The orders that I have made do not entirely reflect the ultimate position of either party. Subject to one consideration, I think the better course is that the costs of this application should follow the event in the proceeding to be commenced. That consideration relates to the adjournment of the application from 3 February to 10 February; that adjournment was made necessary because the applicant had failed to file material showing that the court had jurisdiction.  That is a matter of some importance; when making an application to a court of limited jurisdiction, it is always necessary to ensure that the application is one with which that court has jurisdiction to deal.  That adjournment therefore was as between the parties made necessary by the default of the applicant and the applicant should pay those costs.

23. [23]
    The orders therefore are as follows:

1. The compulsory conference in respect of the applicant’s claim against the respondent is dispensed with.

2. The exchange of mandatory final offers is dispensed with.

3. The application is otherwise dismissed.

4. The applicant pay the respondent’s costs of and incidental to the adjournment on 3 February 2010 to be assessed.

5. Otherwise, the costs of and incidental to the application abide the event of the proceeding to be commenced to enforce the applicant’s claim against the respondent.