Glendenning v Goodwin[2018] QDC 15

DISTRICT COURT OF QUEENSLAND

Summary

1. [1]
   The applicant, Mrs Glendenning, was injured in a car accident which occurred on 19 June 2017 involving a Ford Falcon, of which her husband was the driver and a Ford Fiesta, of which the first respondent was the driver.  Her husband was also injured in the accident.
2. [2]
   It is common ground that the Glendennings each delivered a proper Notice of Accident Claim Form under the Motor Accident Insurance Act 1994 (Qld) (the Act) to the Second Respondent (RACQ) by about 8 August 2017.  On 11 August 2017, RACQ admitted liability in respect of both claims.
3. [3]
   Prior to bringing proceedings for damages for personal injury arising out of the accident, section 51A of the Act requires a conference between the parties to occur with the view to settling the claim. By her originating application, Mrs Glendenning applies to the Court under section 51A(5)(a) of the Act to fix the time and place for the compulsory conference as 26 March 2018 in the applicant’s solicitors’ board room.  Identical relief is sought by Mr Glendenning in proceedings 244/18.  Mr Glendenning’s application is made on materially identical grounds.
4. [4]
   On 5 February 2018, I dismissed both applications with costs. I did so for the following reasons.

Statutory Scheme

5. [5]
   Section 51A is part of a broader statutory regime enacted by the Act which is relevant to the disposition of this application.
6. [6]
   The starting point is section 3 of the Act which, relevantly, includes as an object “to encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents”. 
7. [7]
   That object is sought to be advanced, inter alia, by the pre-Court procedures outlined in Part 4, particularly Division 3, (Claim procedures), Division 4 (Co-operation between claimant and insurer); Division 5 (Enforcement of obligations) and Division 5A (Compulsory conferences). For the purposes of this application, the following provisions are particularly relevant.
8. [8]
   In Division 3, the relevant sections are:

   1. (a)
      Section 37, which relevantly provides for notice of a claim as follows:

37 Notice of accident claim

1. (1)
   Before bringing an action in a court for damages for personal injury arising out of a motor vehicle accident, a claimant must give written notice of the motor vehicle accident claim to the insurer or 1 of the insurers, against which the action is to be brought—

1. containing a statement of the information required under a regulation; and
2. authorising the insurer to have access to records and sources of information relevant to the claim specified under a regulation; and
3. authorising the insurance agency to exchange information about the claimant with an entity prescribed by regulation under the National Injury Act, section 19(3)—

1. (i)
   in the event that the insurer makes an application under that Act for the claimant in relation to the injury; and
2. (ii)
   for the purpose of the insurance agency performing its functions under that Act; and

4. containing a statement of the information required under a regulation; and

2. (b)
   Section 39, which provides a detailed statutory regime for an insurer receiving notice purportedly given under Division 3 to respond to any notice under section 37, including a manner for dealing with alleged non-compliance with section 37 inter alia, by Court order.  It relevantly provides:

39 Response to the notice of claim

1. (1)
   If notice of a motor vehicle accident claim is given to an insurer under this division or purportedly under this division—

   1. the insurer must, within 14 days after receiving the notice give the claimant written notice—
      1. (i)
         stating whether the insurer is satisfied that the notice has been given as required under this division; and
      2. (ii)
         if the insurer is not satisfied—identifying the noncompliance and stating whether the insurer waives compliance with the requirements; and
      3. (iii)
         if the insurer does not waive compliance with the requirements—allowing the claimant a reasonable period (at least 1 month) specified in the notice either to satisfy the insurer that the claimant has in fact complied with the requirements or to take reasonable action specified in the notice to remedy the noncompliance; and
      4. (iv)
         if the claimant is not a participant in the injury insurance scheme in relation to a serious personal injury resulting from the motor vehicle accident the subject of the claim—stating whether the insurer is prepared (without admitting liability) to meet the reasonable and appropriate cost of the claimant’s rehabilitation; and
      5. (v)
         if the claimant is a participant in the injury insurance scheme in relation to a serious personal injury resulting from the motor vehicle accident the subject of the claim—stating whether the insurer is prepared (without admitting liability) to meet the reasonable and appropriate cost of the claimant’s rehabilitation for any period that the claimant is not a participant in the scheme; and
   2. if the insurer is not prepared to waive compliance with the requirements in the first instance—the insurer must, within 14 days after the end of the period specified under paragraph (a)(iii), give the claimant a written notice—
      1. (i)
         stating that the insurer is satisfied the claimant has complied with the relevant requirements, is satisfied with the action taken by the claimant to remedy the noncompliance or waives the noncompliance in any event; or
      2. (ii)
         stating that the insurer is not satisfied that the claimant has taken reasonable action to remedy the noncompliance, giving full particulars of the noncompliance and the claimant’s failure to remedy it.

2. (2)
   If an insurer to which notice of a motor vehicle accident claim is given under this division or purportedly under this division is not, for the purposes of the claim the insurer of the motor vehicle to which the claim relates under the statutory insurance scheme, the insurer must, instead of responding to the notice under subsection (1), give the claimant written notice denying that the insurer is the insurer under the statutory insurance scheme.
3. (3)
   If notice of a motor vehicle accident claim is given to an insurer under this division or purportedly under this division, and the insurer does not respond to the notice within 14 days after receiving it, the insurer is conclusively presumed to be satisfied the notice was given as required under this division.
4. (4)
   However, the insurer’s failure to respond to the notice does not prevent the insurer from later denying that the insurer is the insurer of the motor vehicle to which the claim relates under the statutory insurance scheme, but the insurer is liable to compensate the claimant and the insurer against which the claim properly lies for prejudice resulting from the insurer’s failure to respond to the notice under subsection (2).

3. (c)
   Section 41, which identifies obligations of the insurer on receipt of a notice of claim as follows:

41 Insurer must attempt to resolve claim

1. (1)
   Within 6 months after an insurer receives notice of a motor vehicle accident claim under this division, the insurer must—

   1. take reasonable steps to inform itself of the circumstances of the motor vehicle accident out of which the claim arises; and
   2. give the claimant written notice stating—
      1. (i)
         whether liability is admitted or denied; and
      2. (ii)
         if contributory negligence is claimed—the degree of the contributory negligence expressed as a percentage; and
      3. (iii)
         if the claimant is not a participant in the injury insurance scheme but the insurer considers the claimant may be an eligible person—that the claimant may be an eligible person; and
   3. if the claimant made an offer of settlement in the notice of claim, inform the claimant whether the insurer accepts or rejects the offer or, if the claimant did not make an offer of settlement in the notice, invite the claimant to make a written offer of settlement.
2. (2)
   As soon as practicable after an insurer receives notice of a claim under the division, the insurer must—

   1. make a fair and reasonable estimate of the damages to which the claimant would be entitled in an action against the insurer; and
   2. make a written offer (or counter offer) of settlement to the claimant setting out in detail the basis on which the offer is made, or settle the claim by accepting an offer made by the claimant.
3. (3)
   If a notice of claim is not given as required under this division, the insurer is taken to receive the notice when—

   1. the insurer gives the claimant notice that the insurer waives compliance with the requirement that has not been complied with or is satisfied the claimant has taken reasonable action to remedy the noncompliance; or
   2. the court makes a declaration that the claimant is taken to have remedied the noncompliance, or gives leave to bring a proceeding based on the claim despite the noncompliance.
4. (4)
   An offer (or counter offer) of settlement must be accompanied by a copy of medical reports, assessments of cognitive, functional or vocational capacity, or other material in the offerer’s possession that may help the person to whom the offer is made make a proper assessment of the offer.
5. (5)
   An insurer or claimant to whom a written offer (or counter offer) of settlement is made must (unless a response to the offer is to be made under subsection (1)(c)) respond in writing to the offer, within 3 months after receiving it, indicating acceptance or rejection of the offer.
6. (6)
   An admission of liability by an insurer under this section—

   1. is not binding on the insurer on another claim arising out of the same motor vehicle accident; and
   2. is not binding on the insurer at all if it later appears the admission was induced by fraud.

9. [9]
   In Division 4, the relevant sections are:

   1. (a)
      Section 45, which imposes an obligation on the claimant to co-operate with the insurer and in particular, to provide copies of reports and other documentary material and provide information requested by the insurer; and
   2. (b)
      Sections 45A to 46B, which deal with medical examinations of the claimant at the insurer’s request, whether by agreement or otherwise; and
   3. (c)
      Section 47, which articulates the obligation of the insurer to co-operate with the claimant, relevantly, as follows:

47 Duty of insurer to cooperate with claimant

1. (1)
   The insurer must cooperate with a claimant and, in particular—

   1. must provide the claimant with copies of reports and other documentary material in the insurer’s possession about the circumstances of the accident or the claimant’s medical condition or prospects of rehabilitation; and
   2. must, at the claimant’s request, give the claimant information that is in the insurer’s possession, or can be found out from the insured person, about the circumstances of, or the reasons for, the accident.
2. (2)
   The insurer must—

   1. provide the claimant with copies of reports and other documentary materials within 1 month after receiving the notice of claim under division 3 or, if the reports or materials come into the insurer’s possession later, within 1 month after they come into the insurer’s possession; and
   2. respond to a request under subsection (1)(b) within 1 month after receiving it.

10. [10]
    Division 5 confers plenary power on the Court to make orders on application by a claimant or insurer to remedy failures to comply with the obligations imposed by Divisions 2, 3 and 4.
11. [11]
    Division 5A deals with compulsory conferences. Section 51A is the key provision.  It provides:

51A Compulsory conference

1. (1)
   Before the claimant brings an action in a court for damages for personal injury arising out of a motor vehicle accident, there must be a conference of the parties (the compulsory conference).
2. (2)
   Either party may call the compulsory conference—

   1. at a time and place agreed between both parties; or
   2. if the relevant date has passed—at a reasonable time and place nominated by the party calling the conference.
3. (3)
   For subsection (2)(b), the relevant date is—

   1. the date falling 6 months after the claimant gave notice to the insurer of the claim; or
   2. if the insurer required additional information, the later of the following—
      1. (i)
         the date falling 6 months after the claimant gave notice to the insurer of the claim;
      2. (ii)
         the date falling 1 month after the claimant gave the insurer the completed additional information form.
4. (4)
   The parties may for good reason dispense with the compulsory conference by agreement.
5. (5)
   The court may, on application by a party—

   1. fix the time and place for the compulsory conference; or
   2. dispense with the compulsory conference for good reason; and make any other orders the court considers appropriate in the circumstances.
6. (6)
   In considering whether to dispense with the compulsory conference, the court must take into account the extent of compliance by the parties with their respective obligations related to the claim.

12. [12]
    Also relevant to this application is section 51B which relevantly provides:

51B Procedure at conference

1. (1)
   The compulsory conference may be held with a mediator if both parties agree.
2. (2)
   An agreement that the compulsory conference is to be held with a mediator must specify how the costs of the mediation are to be borne.
3. (3)
   The mediator must be a person independent of the parties—

   1. agreed to by the parties; or
   2. nominated by the registrar of the court on application under subsection (4).
4. (4)
   If the parties are unable to agree on the appointment of a mediator within 30 days after the date for the compulsory conference is fixed, either party may apply to the registrar of the court for the nomination of a mediator.
5. (5)
   At least 7 days before the compulsory conference is held, each party must give the other party—

   1. copies of all documents not yet given to the other party that are relevant to the claim; and
   2. a statement verifying that all relevant documents in the possession of the party or the party’s lawyer have been given as required; and
   3. details of the party’s legal representation; and
   4. if the party has legal representation—a certificate (a certificate of readiness) signed by the party’s lawyer to the effect that the party is ready for trial.
6. (6)
   A certificate of readiness must state that—

   1. the party is in all respects ready for the conference and the trial; and;
   2. all investigative material required for the trial has been obtained (including witness statements from persons, other than expert witnesses, the party intends to call as witnesses at the trial); and
   3. medical or other expert reports have been obtained from all persons the party proposes to call as expert witnesses at the trial; and
   4. the party has fully complied with the party’s obligations to give the other parties material relevant to the claim; and
   5. the party’s lawyer has given the party a statement (a costs statement) containing the information required under subsection (7).
7. (7)
   …
8. (8)
   The court may, on application by a party, exempt the party from an obligation to give or disclose material to another party before trial if satisfied that disclosure would alert a person reasonably suspected of fraud to the suspicion or that there is some other good reason why the material should not be disclosed.
9. (9)
   Each of the following is a conference participant—

   1. the claimant or the claimant’s guardian;
   2. a person authorised by the insurer to settle the claim on the insurer’s behalf.
10. (10)
    Each conference participant must (unless he or she has a reasonable excuse) attend the compulsory conference and actively participate in an attempt to settle the claim.
11. (11)
    …
12. (12)
    The parties may, by agreement, change the time or place for holding a compulsory conference or adjourn a compulsory conference from time to time and from place to place.

13. [13]
    Finally, section 51D deals with timing of actions for damages if the conference fails. It relevantly provides:

51D Time for bringing action

1. (1)
   An action for damages should be started in the court—

   1. within 60 days after the conclusion of the compulsory conference; or
   2. within a further period—
      1. (i)
         agreed by the parties within the 60 day period mentioned in paragraph (a); or
      2. (ii)
         fixed by the court on an application made by the claimant within the 60 day period mentioned in paragraph (a).

Factual background

14. [14]
    Mr and Mrs Glendenning make their respective applications in the following factual context.
15. [15]
    As noted above, the Glendennings were injured in a motor vehicle accident on 19 June 2017.  They each delivered a Notice of Accident Claim Form and an Additional Information Form on RACQ on 26 June 2017, some 7 days after the accident.  In each case, it was indicated that neither of the Glendennings were in a position to accept payment for their claims because their injuries had not stabilized.
16. [16]
    In each case, RACQ advised (presumably in accordance with section 39 of the Act) that it was not satisfied that the notices complied with the requirements of the Act because neither of the notices were accompanied by a medical certificate. Medical certificates were provided on or about 8 August 2017.  On 11 August 2017, RACQ notified that it was satisfied that each notice complied with the Act. 
17. [17]
    At the same time, RACQ made an admission of liability under section 41 of the Act in respect of each claim.  I observe that that admission was made within 7 weeks of receipt of the initial notices and three days after RACQ received the required medical certificates.  It had acted reasonably promptly in admitting liability. 
18. [18]
    RACQ also made requests for further information in the following terms in each case:

We note that your client was certified unfit to work until 7 July 2017. Should your client have remained unfit for work beyond that date we require receipt of the ongoing medical certification surrounding your client’s incapacity for work.

Pursuant to Section 45 of the Act, please provide copies of reports and other documentary materials in relation to the circumstances of the accident, your client’s medical condition, and prospects of rehabilitation.

If your client has arranged to undergo a medico-legal examination, please advise with whom, and when this examination is to take place.

Please provide copies of your client’s taxation documents for the three (3) years prior to the subject accident and following the most recent available.

Please include Notices of Assessment; Taxation Returns; Business documentation such as Financial Statements; Business Activity Statements, Wages Records etc.

Pursuant to Section 41(1)(c) of the Act, we invite your client to make a written offer of settlement.

19. [19]
    The solicitors for the Glendennings wrote in response in each matter in materially similar terms on 22 August 2017 as follows:

MEDICAL APPOINTMENTS

We take this opportunity to provide the details of our client’s upcoming specialists appointments:

 Dr Malcolm Wallace, Orthopaedic Surgeon

 Day: Monday

 Date 5 February 2018

 Ms Nancy Stephenson, Occupational Therapist

 Day: Monday

 Date: 5 February 2018

These appointments will be finalized on 5 February with the reports provided to you within 14 days of their receipt.

ONGOING CONDUCT OF THE MATTER

The writer has observed changes in how your claims department is dealing with independent medical assessments. In recent times, your claims departments are waiting until we “call for a compulsory conference pursuant to section 51A(2) of the Motor Accident Insurance Act 1994 (as amended) (“the Act”) nominating a date and time for that conference to take place.” It is only then that your staff review the file and upon reviewing the file and Statement of Loss and Damage provided by your office seek to delay the matter by calling for independent medical examinations.

You are entitled to such assessments but we will not allow your failure to progress a matter in a timely manner to allow our client to be in breach of the objectives of the act and delay the “speedy resolution of the claim” in accordance with section 3(c) of the Act.

YOUR OBLIGATIONS

We refer you to the decision of Gitsham, Edwards & Jensen v Suncorp Metway Insurance Ltd [2002] in which Her Honour White J confirmed:

an insurer is not permitted… to stand by and merely be reactive to a claim. the section imposes a positive obligation to gather information, address it and make an offer.

This point was further clarified by McMeekin J in Paterson v Leigh & Anor [2008] in which His Honour stated:

… the second respondent seems to have taken not one step towards assessing the damages… But there is nothing in the Act to suggest that the obligation to obtain necessary medical information lies only on the applicant. One could only assume that the second respondent’s reluctance to take any step is motivated by some financial consideration. Perhaps it wished to avoid the expense of… an independent medical examination. If so that provides no justification for its conduct at all.

Accordingly, we await your response regarding the following:

2. Your assessment of our client’s claim including your written offer of settlement with a breakdown of how same is calculated; and
3. Confirmation of whether you require our client to undergo an independent medical examination (IME) and if so provide your chosen panel.

If you wish to have our client independently examined and do not provide your panel of specialists by close of business 13 September 2018, our client will not attend the examinations without a court order.

We reserve the right to tender this letter to the court on the issue of costs and your failure to comply with your positive obligations under the Act.

You are on notice accordingly.

20. [20]
    Whether the complaints in that letter were justified was not the subject of evidence or submissions.  Even if they were justified by past conduct, however, I doubt that it was appropriate to make the threat in bold type.  That statement appears to be inconsistent with the statutory obligations in at least section 46A of the Act.  Further, I do not think it justified insistence, at that early stage of the matter, on agreement to a compulsory conference on 26 March 2018.  Further, whatever might have occurred in the past, the subsequent events show that RACQ acted reasonably promptly in both claims.
21. [21]
    In that regard, on 28 August 2017, RACQ wrote requiring an independent examination of each claimant and nominating a panel of three doctors.  The Glendennings solicitors responded in each claim in like terms on 29 August 2017, relevantly, as follows:

Dear Sirs,

RE: OUR CLIENT: STEWART GLENDENNING INSURED: ALYSSA GOODWIN DATE OF ACCIDENT: 19 JUNE 2017

We refer to the above and to your correspondence dated 28 August 2017.

PANEL

Our client agrees to be examined by Dr Scott Somerville on the following conditions:

4. The next available appointment date in January or February 2018 with the specialist is selected. In the event the specialist is not available January or February 2018 then an alternative specialist from your panel may be selected;
5. That the appointments occur on the same day (if applicable);
6. You pay the costs of the examination and any necessary x-rays;
7. You reimburse our client for any expenses in attending the examination, such as travel costs and loss of wages;
8. You provide our office with a copy of the Doctor’s letter of engagement;
9. You forward to our office a copy of the Doctor’s report within one (1) month of the report being received by you; and
10. Appointment details are provided to our office within fourteen (14) days from the date of this correspondence.

The conditions are reasonable and we believe they fall within the spirit of the Act.

COMPULSORY CONFERENCE

We have previously sought for a tentative compulsory conference to be held on 26 March 2018 at 2:00 PM. Your office has advised us that you do not consider this matter ready for a compulsory conference. Please advise what evidence you have to suggest why this matter will not be ready for a compulsory conference by 26 March 2018.

Our client will be examined by Dr Malcom Wallace, Orthopedic Surgeon on 5 February 2018, where we anticipate that he will be deemed stable and stationary and our client’s claim will be ready to proceed to a compulsory conference.

OUR REQUEST

1. Agree to our client’s tentative compulsory conference date of 26 March 2018 at 2:00 PM or provide a list of alternative dates in March 2018.

Please confirm your availability for the above date or provide a list of alternative dates in March 2018 you are available by close of business 12 September 2017.

22. [22]
    I note that this letter abandons the demand to set a compulsory conference date, but rather speaks of a tentative compulsory conference date.  
23. [23]
    RACQ responded on 1 September 2017 in each claim as follows:

Dear Colleagues,

Injured Person  Stewart Glendenning [or Amy Glendenning]

Date of Accident 19 June 2017

We refer to your correspondence dated 29 August 2017.

We will not be agreeing to set a date for compulsory conference until such time as we consider the matter ready for conference. We note the following:

• We understand Dr Sommerville is not yet accepting appointing for 2018
• Approval has been given for physiotherapy, however we are not yet aware whether your client has made an initial appointment (see attached). Please confirm whether your client intends to undergo physiotherapy treatment and provide details of the physio he intends to see
• There remains outstanding requests for information from your client (see attached)

We will provide you details of the appointment with Dr Sommerville in due course.

Kind Regards,

Lee Tagaroulias

CTP Claims Management Officer

[Note Amy Glendenning added]

24. [24]
    Thereafter, correspondence continued to be exchanged in similar terms, with the solicitors for the claimants demanding agreement to a tentative compulsory conference date and RACQ withholding its agreement.  The claimants’ position mellowed somewhat in letters sent in in each claim on 20 October 2017, where their solicitors observed:

We urge you to reconsider our proposal for a Tentative Compulsory Conference in March 2018. The purpose of locking in a Tentative Conference date is so our respective officers can work towards a specific date. If this matter needs to be delayed due to mitigating factors such as non-disclosure of evidence or non-attendance, our office is willing to seek instructions concerning a change of Conference date. 

25. [25]
    In mid-October 2017, RACQ agreed to fund psychological treatment for Mrs Glendenning.  In December 2017, RACQ agreed to fund certain psychological and physiotherapy treatments for Mr Glendenning.  In late January 2018, RACQ approved funding for further physiotherapy treatment for Mr Glendenning and for physiotherapy treatment for Mrs Glendenning. There is no suggestion in the evidence that RACQ had delayed in considering requests for such treatment.
26. [26]
    There is no evidence of any further correspondence about the date for the compulsory conference after the claimants’ solicitors’ letter of 20 October 2017. The applications were filed on 23 January 2018. 
27. [27]
    The examinations of the claimants by their orthopedic surgeon, Dr Wallace and occupational therapist, Ms Stephenson, apparently took place on 5 February 2018 (the day of hearing of the application).  No reports were to hand on that date and of course, none had been provided to RACQ.  The examinations by RACQ’s expert were scheduled to occur on 22 February 2018.

Approach to exercising the discretion to fix time

28. [28]
    In Parker v Ford [2011] QDC 163, Robin DCJ fixed a date for a compulsory conference.  In that case, as here, the insurer resisted convening of the compulsory conference as premature.  However, that case involved a situation where the insurer had been slow in specifying medical examinations it wished the applicant to undertake.  For example, there had been a delay of nearly seven months in responding to a request by the applicant’s solicitors for the insurer to specify a panel for examination of the applicant, with further delay arising when the insurer withdrew approval of a member its panel after that doctor had been accepted by the applicant. 
29. [29]
    In that context, Robin DCJ observed:

[6] It is somewhat difficult to reconcile the second respondent’s performance with its statutory obligation under s 47 to co-operate with a claimant. In that context, it has to be acknowledged that some things were happening, such as the introduction of Edge Rehabilitation. That said, the position the second respondent, now represented by solicitors, is taking in respect of the compulsory conference is understandable. Perusal of s 51B indicates the seriousness of the compulsory conference which is only to be held if all parties are “ready for trial”. The second respondent’s conduct of the claim clearly leaves it not ready for trial. In principle, there can be no criticism of its desire to obtain its own medical reports.

[7] I took it to be accepted at the hearing that the court could fix a date for compulsory conference on the basis of an expectation that the parties would, some days before, be in a position to provide the certificate of readiness, which, in the present context, requires at least four medical reports to be provided following attendance by Mr Parker upon their authors. If things go wrong, the court may need to be approached to vary the order about a compulsory conference. It is not a step the court ought lightly dispense with, especially in a case like the present, where the second respondent’s requirements are reasonable ones.

[8] No doubt there are cases in which claimants or insurers provide certificates notwithstanding that they expect more steps to be taken, perhaps on the basis of understandings about future co-operation that are mutually acceptable. Where, as here, in the case of the second respondent, a participant wants matters attended to in the order which the Act contemplates (namely, medical examinations first), the court must respect that. It would require a strong case to close out an insurer.

[9] It is necessary to get the claim moving. For that reason, I am inclined to order a compulsory conference by the end of October 2011 on the basis that (as seems feasible on the basis of possibilities ventilated at the hearing) that Mr Parker will attend on the relevant medical personnel nominated by the second respondent by the end of September.

[Underlining added]

30. [30]
    Notwithstanding the underlined comments, his Honour was willing to fix a date for the compulsory conference on the basis that the “delay in the matter could not be said to be inordinate, but the stage has been reached where it is appropriate for the Court to do something to advance the applicant’s claim”.   In this case, therefore, while his Honour recognised the importance of proper preparation for the conference, he ultimately considered the need for progress in the proceeding as the decisive factor given the delay which had occurred in the matter up to that date. 
31. [31]
    Mr Craswell for RACQ relied on Justice Atkinson’s decision in Verstappen v Fordyce [2004] QSC 149.  That case involved an application to dispense with a compulsory conference under section 51A(5)(b) of the Act.  RACQ relied on the following observations by Her Honour:

Subsection 51A(6) provides that in considering whether to dispense with the compulsory conference the Court must take into account the extent of compliance by the parties with their respective obligations related to the claim. The discretion given to the Court is, as was said by the President (in Terence King Ho Choy v. Calancey [2002] QCA 441, at page 6, "a wide and unfettered discretion, subject to section 51A(6)".

There are a number of factors which in my view are relevant to the exercise of the discretion in this case. One is the objects of the Act and how they are best satisfied, a second is the behaviour of the parties leading up to the compulsory conference and the third is the desire for certainty in personal injury actions involving, as they do, persons as plaintiffs who very often have little, if any, experience of litigation apart from this action.

32. [32]
    There is obviously differences between the circumstance where the Court is considering fixing a date for a compulsory conference and where it is considering dispensing with the conference entirely. However, I consider that the three matters identified by her Honour will ordinarily be relevant to consider on either application.
33. [33]
    Mr Craswell also directed attention to the judgment of White JA (with whom Davies and Williams JJA agreed) in Gitsham v Suncorp Metway Insurance Limited [2002] QCA 310. That case involved an applications by three claimants in similar circumstances for an order that the compulsory conference be dispensed with.  The insurer in each case, Suncorp, cross applied for order that each claimant provide sworn particulars of each head of damage.  The learned trial judge dispensed with the conference in each case and refused the relief sought by Suncorp.
34. [34]
    On appeal, the Court reversed each order.  The case is relied upon by both parties.  The applicants relied on her Honour’s observation at [11] recognizing that the effect of section 41 of the Act is that the insurer is not permitted to stand by and be merely reactive to a claim.  It has a positive obligation to gather information, address it and make an offer.   RACQ relied on her Honour’s observation at [21] as to the importance of the proper preparation for the compulsory conference.  Her Honour observed in that regard as follows:

[21] A court may take into account, in its award of costs, compensation to a party for costs arising resulting from a failure of another party to comply with procedural obligations under Part 4 of the Act. A court may not award costs to a party related to the introduction of unnecessarily repetitive evidence. Of significance, unless the award of damages is affected by factors not reasonably foreseeable at the time of the exchange of mandatory final offers, the court must not award costs to a party concerning investigations or gathering of evidence after the conclusion of the compulsory conference or the date when the parties completed the exchange of final offers. This emphasises the intention of the legislature that the parties be as fully prepared as if commencing a trial of the action when participating in a compulsory conference.

[underlining added]

35. [35]
    Her Honour’s ultimate conclusion in that case turned on her view that the further information sought by Suncorp was properly sought under section 45 and justified the delay in the compulsory conference pending its provision.  Like Parker, this case involved balancing the imperative for prompt progress of claims against the importance of proper preparation and an effective conference to occur.
36. [36]
    As observed in Terence Choi v Collansi & Anor [2002] QCA 441 in respect of 51A(5)(b), the discretion under section 51A(5)(a) is a broad one.  While each of the considerations identified in the above cases might be relevant in a particular case, each case will turn on its own facts.  Further, other considerations might be relevant in a particular case to the exercise of the discretion including a looming limitation period, financial hardship or other matters personal to the applicant such as imminent absence from the jurisdiction for some period. 

Disposition of the application

37. [37]
    I do not consider the circumstances overall are such as to persuade me to exercise the Court’s discretion to fix the date of the compulsory conference as 26 March 2018.  I reach that conclusion for the following reasons.
38. [38]
    First, despite the strident tone of the correspondence from the Glendennings solicitors, it is plain from the history set out above that RACQ has complied with its obligations under the Act.  Indeed, the Glendennings’ counsel accepted as much.  
39. [39]
    Second, RACQ contends that it is not clear that the injuries of the Glendennings have stabilized or will have stabilized by 26 March, nor that the matter will otherwise be properly ready for an effective conference by that date.  There is merit in that contention.  While the Glendennings submitted that the Court could be confident that the injuries will be stabilized by that date, their submission was not based on any medical evidence.  The reports of the orthopedic surgeon who examined the Glendennings on their instructions are not to hand, nor are the occupational therapy reports.  The submission from the applicants simply invited me to assume that the injuries were stabilized.  I am not willing to make that assumption.  
40. [40]
    Further, even if those reports were to hand and even if they confirmed that the opinion of the applicants’ experts was that the injuries had stablised, I cannot see any reason why RACQ should be compelled to accept that conclusion until its own reports are to hand, at least where RACQ is not guilty of any inordinate delay in obtaining its own reports. 
41. [41]
    As the above cases show, the object of the Act of speedy resolution requires not only prompt preparation of the matter but also that sufficient information is obtained so that both parties are properly able to determine whether to settle the proceedings and on what terms.  A speedier compulsory conference undertaken without a sufficient effort to obtain information needed to permit informed negotiation usually does not advance that object.
42. [42]
    Third, the Glendennings contended that the risk that the matters might not be ready for a compulsory conference could be addressed by adjourning the compulsory conference by agreement (presumably under 51B(12)) or, absent agreement, RACQ withholding a certificate of readiness under section 51B(5) or applying to vary the order fixing the date.  That is an unpersuasive contention, at least in the context of this case. 
43. [43]
    The Glendennings seek the Court to fix a date which compels RACQ to attend the compulsory conference.  It is difficult to see why the Court should take that step if the applicant is not confident that the matter will be ready by that date.      
44. [44]
    Further, it must be questioned whether the Court’s order could be varied other than by a further order. 
45. [45]
    As to section 51B(5), the Glendennings submission proceeds on the assumption that the provision of a certificate of readiness is a necessary pre-condition to the compulsory conference proceeding.  I am not sure that is so.  The question is one of statutory construction.  None of the matters listed in 51B(5) appear to be of a character which would lead one to conclude that they are essential pre-conditions to a compulsory conference under the Act. If that is correct, then RACQ would not be able, unilaterally, to delay a conference simply by declining to provide a certificate of readiness.  Even if it could do so, it is doubtful in my view that failure to comply with section 51B(5) would permit RACQ not to attend the conference in the face of an order under section 51A(5)(a) fixing the date of that conference. If it were otherwise, a recalcitrant party might be able to frustrate an order fixing the date for a compulsory conference. 
46. [46]
    One might think the position different in respect of the power conferred on the parties to agree to change the time or place for the conference or to adjourn the compulsory conference under section 51B(12) of the Act, given that those powers can only be exercise by the parties by agreement.  This would prevent a recalcitrant party from using that power to frustrate an order of the Court fixing the date of the conference.  However, where the Court is seized with the question of when and where the conference is to occur, I am inclined to the view that any variation to that order must be made by the Court. 
47. [47]
    These issues were not fully argued on the application so I express no final view.   However, for present purposes, it is relevant that there is a question mark over whether the Court’s order can be varied other than by an order of the Court.  In practical terms, RACQ might properly consider any variation should be sought from the Court if it considers it will not be properly prepared for the compulsory conference, precipitating another application.  That prospect, at least in the context of this case where there has been neither delay nor non-compliance with the ordinary processes, should be avoided.
48. [48]
    There is another consideration.  Glendennings seek to compel RACQ to commit to a compulsory conference date so that, if everything works out for the best, the conference can proceed, but that if it does not, the date will be abandoned.  That presumably means that that conference time will not be available to other claimants whose matters are ready for a compulsory conference.  It was observed from the bar table that insurers are very busy with compulsory conferences.  I can well imagine that is correct.  However, it is unfair to other claimants involved with matters for RACQ that the Court fix a time for a compulsory conference in circumstances where the possibility of the conference not proceeding is evident on the applicants’ own material.
49. [49]
    Fourth, as just noted, this is not a case where there has been any meaningful delay, much less inordinate delay, by RACQ.  The timing of the medical examinations for about the end of the 6 month period since delivery of a complying notice of claim was the choice of the Glendennings, made with the object of having examinations at a time when the injuries were thought likely to have stabilized.  RACQ has scheduled examinations by its own expert promptly thereafter.
50. [50]
    Mr Harris for the Glendennings pointed to section 51A(2)(b) as supporting the applications made.  It is accepted that the six month period identified in section 51A(3) will expire on 11 February 2018.  Accordingly, he contended that 26 March was a “reasonable time” under section 51A(2)(b).  However, what is a reasonable time must be determined in the context of each case.  In this case, I am not persuaded, at least at this stage, that 26 March is a reasonable time given the lack of medical evidence.
51. [51]
    Fifth, Mr Harris was unable to point to any other unusual feature which would justify fixing the date for the conference in this case, such as urgent financial need.
52. [52]
    Finally, the Act sets out a detailed regime for pre-action steps.  That regime contemplates, properly in my view, that those steps ordinarily take place without the intervention of the Court.  As Justice Atkinson observed in Verstappen, certainty in the pre-court process is a desirable object.  It is important that the Court intervene in that process only when good reason is shown.  No good reason has been shown in either application. 
53. [53]
    Mrs Glendenning’s originating application be dismissed. The applicant pay the second respondent’s costs of the application on a standard basis.