DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant was injured in a motor vehicle accident on 30 September 2009. He consulted solicitors and written notice of the motor vehicle accident claim, under s. 37 of the Motor Accident Insurance Act 1994 (Qld) (‘the Act’ or ‘MAIA’), was served on RACQ Insurance Limited (‘RACQ’) in December 2009.

2. [2]
   Much has passed between the parties since then, including that RACQ twice agreed on an extension of the limitation period. But the extension date, 30 March 2013, passed and the applicant had not filed a claim. Not all of the steps required to be taken (by Part 4 of the Act) before he could do so had been taken. He now applies for leave, under s. 57(2)(b) of the Act, to commence proceedings.

3. [3]
   RACQ opposes the application. First, it argues that granting the application would defeat rights accrued by RACQ under the ‘contractually agreed extended limitation period’.^[1] Second, RACQ argues that, in any case, there is no compelling reason for the exercise of discretion in favour of the applicant because he has failed to comply with the requirements of the Act, particularly with regard to giving RACQ information concerning his income.

4. [4]
   Although RACQ has reason to complain about the applicant’s conduct, I am satisfied the order sought should be made. I will set out only so much of the history of the proceeding as is necessary to explain my conclusion.

The MAIA Part 4 and the course of the claim, so far

5. [5]
   On 31 December 2009, RACQ gave notice (under s. 39 of the Act) that it was satisfied the applicant had given notice as required under Part 4 Division 3 of the Act.

6. [6]
   On 12 February 2010, RACQ admitted liability for the accident.

7. [7]
   The applicant was examined by an orthopaedic surgeon, Dr Wallace, and an occupational therapist, Ms Hague. Their reports were delivered in October 2010. Dr Wallace delivered a supplementary report in March 2011.

8. [8]
   Dr Douglas, consultant occupational physician, assessed the applicant and reported to RACQ in August 2011. In December 2012, RACQ expressed a desire that the applicant be examined by another orthopaedic surgeon. Dr Cooke examined the applicant and reported on 18 January 2013.

9. [9]
   All of these reports are before the court. The parties did not make submissions about them, but as I read them, there is no significant dispute among the practitioners about the extent of injury the applicant suffered in the accident.

10. [10]
    The real problem has been the applicant’s failure, perhaps inability, to produce information concerning his income for the three years prior to the accident. RACQ has taken the position that it cannot meaningfully attend a conference, as the parties are required to do under Part 4 Division 5A of the Act, because the applicant has insufficiently exposed his income to allow RACQ to make a reasoned offer incorporating an amount for economic loss, or to assess any offer by the applicant.

11. [11]
    The parties have not agreed to dispense with the conference and neither has applied for an order to that effect. Such an application would require the court to consider the extent of compliance by the parties with their respective obligations related to the claim (MAIA subs. 51A(6)). In effect, the parties must be ready for trial before the conference is held (MAIA s. 51B).

12. [12]
    A claimant’s first duty is to give written notice of the claim to the insurer which includes ‘the information required under a regulation’ (MAIA s. 37). Under the Motor Accident Insurance Regulation 2004 (Qld) (MAIR), the notice is to be in the approved form (MAIR s. 17). It is to include, among much other information, all claims for damages, compensation or social security benefits for a significant disability (MAIR s. 18(1)(j)). Also, a notice must include a statement of the claimant’s loss, as far as it can be assessed at the date of the notice and a statement of an amount the claimant would be willing to accept in full satisfaction of the claim (MAIR s. 18(2)).

13. [13]
    A claimant must provide additional information sought by the insurer (MAIA s. 37A). The claimant’s duty to inform the insurer continues after the notice of claim is given to the insurer (MAIA subs. 45(3)).

14. [14]
    The Notice of Accident Claim Form implements MAIR s. 18 by including a section entitled ‘Payment to You/Offer of Settlement’. Here, the applicant indicated he was not ready to accept payment for his claim because his injuries were not stable.

15. [15]
    The applicant has several qualifications but at the time of the accident he was a self-employed carpenter. His business was called ‘On Time Constructions’.

16. [16]
    On 14 May 2010, RACQ requested the applicant’s taxation returns, notices of assessment, financial assessment, contracts for work, subcontractor invoices, BAS statements and cash flow statements for the 2005, 2006, 2007, 2008 and 2009 financial years. The applicant’s solicitors, Schultz Toomey O'Brien (STO), promptly replied^[2]that they had requested documents from the applicant but he had not lodged tax returns for ‘the relevant period’ and they were seeking ‘source documents’ for disclosure.

17. [17]
    On 8 December 2010, RACQ wrote, ‘we still await’ certain documents which included the applicant’s ‘personal and business taxation documents for the 3 years prior to the accident to the most current available’.^[3]

18. [18]
    STO replied reminding RACQ the applicant had not lodged returns for the three years before the accident but were awaiting his source documents.^[4]

19. [19]
    On 11 April 2011 the applicant declared himself ready for the conference. RACQ responded on 2 June 2011 with a substantial list of requests and, among other things, a certificate of readiness.

20. [20]
    The correspondence continued in this manner. On 31 October 2011 STO sent bundles of tax invoices with attached summaries for the 2008 and 2009 years. RACQ again requested taxation documents and a signed statement of loss and damage on 15 November 2011.^[5]

21. [21]
    The applicant, by statutory declaration made 30 January 2012, informed RACQ that he then still traded under the business name, On Time Constructions, but did not hire other staff or contractors. He undertook small jobs he could complete without help.

22. [22]
    On 7 February 2012, RACQ again made various requests including taxation documents and the applicant’s signed statement of loss and damage. Again, STO replied that the applicant was unable to supply taxation documents for the relevant years because there were none.^[6] RACQ renewed the request for the statement of loss and damage in May and July 2012.

23. [23]
    In September 2012 the applicant’s solicitors requested and RACQ agreed to the extension of the limitation period until 30 December 2012.

24. [24]
    On 28 September 2012 the applicant provided a statement of loss and damage. It included a combined claim for more than $500,000 for past and future economic loss. On 9 October 2012 and again on 12 November 2012 STO sought advice about RACQ’s readiness for the compulsory conference. In response, on 21 November 2012, RACQ again asked for copies of tax returns, BAS, profit and loss statements and other personal and business taxation documentation from 2006 to the present. STO replied, on 3 December 2012, that the only documents in existence had been provided. On 11 and 17 December 2012, RACQ sent a list of questions and requests for documents.

25. [25]
    Also in December 2012:

1. RACQ requested the further orthopaedic examination I have referred to above;
2. The applicant sought and RACQ agreed to a further extension of the limitation period to 30 March 2013.

26. [26]
    On 4 March 2013, RACQ repeated its request (of 11 December 2012) for the applicant to provide certain information by statutory declaration. STO responded, on 7 March 2013, that they had sent the statutory declaration to the applicant in January 2013 and awaited its return. Also, the applicant was ‘having his taxation documents prepared’ and they would be disclosed shortly.

27. [27]
    On 21 March 2013, RACQ sent an Additional Information Form for completion by the applicant by 26 April 2013.

28. [28]
    In April 2013, the parties discussed the expiration of the limitation period but reached no agreement on its further extension. Also in April, STO provided the applicant’s statutory declaration and completed Additional Information Form.

Consideration

29. [29]
    Arising from the above, I consider the following matters are relevant to the exercise of discretion.

30. [30]
    It is uncontroversial that the applicant gave notice under s. 37 of the Act. The pre-condition for the exercise of the discretion is, therefore, satisfied.

31. [31]
    This is not a case where delay is caused by inadvertence or mistake by the claimant’s solicitors.

32. [32]
    The applicant has enjoyed the benefit of RACQ undertaking twice not to rely on the Limitation of Actions Act 1974 (Qld) for three months. That undertaking was conditional on both parties agreeing to comply with Part 4 Division 5A of the Act. At the time of the application there was still no agreement the parties were ready for the compulsory conference.

33. [33]
    The applicant did not argue that the detailed requests by RACQ were unreasonable. Nonetheless, it seems to me this is a case where compliance with Part 4 of the Act, particularly Division 5A, is onerous.^[7] The applicant’s past business practices have made him slow to prepare his case. Even now, RACQ fairly argues, the materials provided require further explanation. The applicant seems to have struggled with the presentation of cogent financial materials. But there must be cases where this is so, where parties have to make do with what is available. This claim has inched forward, usually at the urging of RACQ. I think it is a case where the failure to commence proceedings within time is directly related to the obligations to comply with the Act.^[8] I do not mean that a claimant who simply finds the exercise of compliance with the Act burdensome may fail to do so and apply for leave under s. 57. But it is incumbent on both parties to progress the claim, particularly where liability is admitted.

34. [34]
    The applicant acted promptly after the accident and has done much by way of compliance with the Act. It is admitted the accident was not his fault. He submitted to medical and therapeutic assessments as required by both sides. He has suffered injury and damage. RACQ did not promote or cause delay but, well into the first extended period, required the applicant to be medically examined (for the second time by an orthopaedic surgeon) and, on the eve of the expiration of the second extension, sought a statutory declaration to be supplied after the expiration.

35. [35]
    Given the admission of liability, the degree of co-operation and correspondence between the parties and the state of the medical and financial evidence, I am quite satisfied the delay in commencing proceedings will not diminish the prospect of ‘the doing of justice by a fair trial on the merits of the case.’^[9]

36. [36]
    I find these considerations compel the exercise of discretion in the applicant’s favour.

37. [37]
    As I trust is obvious, I have given considerable weight to what counsel for RACQ refers to as ‘contracts entered into’ between the parties whereby it ‘waived rights on particular conditions’.^[10] Mindful of what was said in Spencer v Nominal Defendant [2008] 2 Qd R 64 and Blundstone v Johnson & Anor [2010] QCA 148, I think the proper way to regard the undertakings by RACQ not to rely on the Limitation of Actions Act is as one – an important one – of a number of relevant considerations in the exercise of the discretion once it is triggered by the timely notice under s. 37 of the Act. So much was, in effect, conceded by counsel for RACQ at the hearing of the application. I notice this was the position apparently adopted by the applicant for leave to appeal in Blundstone.^[11]

38. [38]
    I will make orders in terms of the first order sought in the originating application and, subject to any submissions on costs made in writing within three days of the date of these reasons, that the applicant pay the second respondent’s costs of and incidental to the application.