White v Australian Associated Motor Insurers Limited (No. 2)
[2009] QSC 142
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- White v Australian Associated Motor Insurers Limited (No. 2)[2009] QSC 142
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White v Australian Associated Motor Insurers Limited (No. 2)[2009] QSC 142
White v Australian Associated Motor Insurers Limited (No. 2)[2009] QSC 142
SUPREME COURT OF QUEENSLAND
CITATION: | White v Australian Associated Motor Insurers Limited & Anor (No. 2) [2009] QSC 142 |
PARTIES: | DARRYL JAMES WHITE |
FILE NO: | 3478/09 |
DIVISION: | Trial Division |
PROCEEDING: | Originating application |
DELIVERED ON: | 29 May 2009 |
DELIVERED AT: | Supreme Court, Brisbane |
HEARING DATE: | 5 May 2009 |
JUDGE: | Wilson J |
ORDER: | |
CATCHWORDS: | INSURANCE – THIRD PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – GENERALLY – QUEENSLAND – where reasons published previously – where submissions invited on form of order and costs – where first respondent submits that expiration of limitation period is relevant to application under s 39(5)(c)(ii) of the Motor Accident Insurance Act 1974 (Qld) – whether hurdles posed by s 57 must be overcome as a pre-requisite to an authorisation under s 39(5)(c)(ii) Limitation of Actions Act 1974 (Qld), s 11 Motor Accident Insurance Act 1994 (Qld), ss 37, 39, 57 Morrison-Gardiner v Car Choice Pty Ltd [2005] 1 Qd R 378; [2004] QCA 480, cited |
COUNSEL: | M Grant-Taylor SC for the applicant DB Fraser QC for the first respondent RE Miller (solicitor) for the second respondent |
SOLICITORS: | Schultz Toomey O'Brien for the applicant Dillons Solicitors for the first respondent Quinlan Miller & Treston for the second respondent |
SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION
WILSON J
No 3478 of 2009
DARRYL JAMES WHITE
| Applicant |
and
| |
AUSTRALIAN ASSOCIATED MOTOR INSURERS LIMITED (ACN 004 791 74)
and
SUNCORP METWAY INSURANCE LIMITED (ACN 010 831 722) | First Respondent
Second Respondent |
BRISBANE
..DATE 29/05/2009
ORDER
HER HONOUR: Yesterday I published reasons in this matter and invited submissions on the form of the order and costs.
In those reasons I said, in paragraph 38, "Both counsel submitted that the possibility of the limitation period under section 11 of the Limitation of Actions Act 1974 (Qld) having expired was irrelevant to the determination of this application", and I referred to the transcript of the hearing at Day 1, page 30.
Senior counsel for the first respondent said that his concession had related only to the question whether a reasonable excuse had been given. He submitted that the expiration of the limitation period is relevant to the application under section 39(5)(c)(ii) of the Motor Accident Insurance Act 1994.
I allowed further submissions, and both senior counsel were good enough to provide me with further submissions in writing that evening. I received short oral submissions this morning.
As I understand the substance of the submissions of senior counsel for the first respondent, it is this. The applicant has not satisfied the Court that a notice of claim was given before the expiration of the limitation period. section 57(1) permits a claimant to bring a proceeding in Court based on a claim, even though the period of limitation has ended, only where "notice of a motor vehicle accident claim is given under division 3, 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 submission went on:
(a) that in this case the leave to proceed that was sought contemplated not just proceeding with pre-litigation steps required by the Act, but also the institution of proceedings in Court (by which I assume he meant the filing of a claim and statement of claim);
(b) that pursuant to section 57 those proceedings may only be brought where the application for leave to bring the proceeding was made before the end of the period of limitation; accordingly, the Act demonstrating a proper basis for an authorisation under section 39(5)(c)(ii) includes the matters required under section 57(1);
(c) that in this case, because the limitation period has "prima facie at least expired" [sic], the applicant had to demonstrate he could bring himself, within section 57(1); he could do that by showing a proper basis for an extension of the limitation period under section 31 of the Limitation of Actions Act, or by establishing that his cause of action had arisen within three years of the date upon which the application was made; he had established neither of those matters;
(d) therefore, there is no point in granting leave to proceed with a claim which cannot succeed in the face of the expiration of the limitation period.
Senior counsel for the applicant submitted that the uncertainty which the evidence exposes about when the applicant first experienced relevant symptoms of psychiatric decomposition following the first accident, and when he first associated those symptoms with the first accident, is the same uncertainty which attends when his cause of action arose.
Therefore, he submitted, the matters on which an application under section 57 would turn would be the same as those which I have said should be determined at trial.
Section 39 is in Part 4 Division 3 of the Act. It is dealing with the pre-litigation phase of a claim. An application under section 39 is brought only against the insurer.
In section 39(5) the expression "proceeding" includes not only the authorisation of the commencement of an action in Court, but also the taking of the necessary pre-requisite steps to that action in Court prescribed under the Act, including those in Part 4, Division 5A: Morrison-Gardiner, [2004] QCA 480 at para 15 per McMurdo P.
Section 57 is in Part 4 Division 6 of the Act, which is headed "Proceedings in Court." In other words, it is concerned with the next phase in a claim.
I do not accept that the hurdles posed by section 57 must be overcome as a pre-requisite to an authorisation under section 39(5)(c)(ii). It seems to me that in circumstances such as the present, where there are issues which need to be teased out and determined at trial, there ought to be an authorisation under section 39(5)(c)(ii), but that the insurer's position can be adequately protected by that authorisation being without prejudice to its right to rely on the expiration of the limitation period.
And I propose making an order to that effect.
…
HER HONOUR: With respect to the applicant's claim for damages for personal injury suffered as a result of a motor vehicle accident occurring on 6 January 2006, and despite any non-compliance by the applicant with Part 4 Division 3 of the Motor Accident Insurance Act 1994, further proceedings based on the claim are authorised, without prejudice to the first respondent's right to rely on the expiration of the limitation period under section 11 of the Limitation of Actions Act 1974.
(2) As between the applicant and the first respondent costs of and incidental to this application be reserved.
(3) There be liberty to apply.