RACQ Insurance Ltd v Wilkins[2009] QSC 365

SUPREME COURT OF QUEENSLAND

[1] The issue for determination on this application is whether the commencement of proceedings in the Supreme Court of the Australian Capital Territory (“ACT”) for damages for personal injury deprives this Court of jurisdiction to enforce compliance with the respondent’s statutory obligations under s 45 and s 46A of the Motor Accident Insurance Act 1994 (Qld) (“the Act”) to provide medical reports and to undergo a medical examination.

Facts

[2] The respondent was injured in a motor vehicle accident that occurred on 5 November 2006 in Bundaberg, when she was the passenger on a motorcycle that collided with a car.  Both vehicles were registered in Queensland.  The respondent is the compulsory third-party insurer of the car.  On 13 April 2007 the applicant received the respondent’s Notice of Accident Claim Form made pursuant to the Act.  By letter dated 31 August 2007 the applicant informed the respondent’s then-solicitors that they considered that the insured driver of the car breached a duty of care and this breach contributed to the cause of the accident.  It admitted liability to the extent of 75 per cent, and asserted that the respondent also contributed to her injuries by failing to secure her helmet and by failing to wear protective clothing.

[3] As a claimant under the Act, the respondent was under a duty imposed by s 45 of the Act to provide the applicant with copies of reports and other documents in her possession about the circumstances of the accident or her medical condition or prospects of rehabilitation.  Subject to certain qualifications that are not presently relevant,[1] under s 46A of the Act a claimant must comply with a request by an insurer to undergo, at the insurer’s expense, a medical examination by a doctor to be selected by the claimant from a panel of at least three doctors nominated in the request.[2]  By letter dated 10 February 2009 the applicant notified the respondent that it required her to be independently examined by one of three nominated orthopaedic surgeons.  On 26 March 2009 the respondent selected Dr Anthony Keays from the panel.  On 16 June 2009 the respondent’s current solicitors confirmed that the respondent had selected Dr Keays.  They also advised the applicant that they held instructions to commence her proceedings in the Supreme Court of the ACT.  Those instructions were said to be based on the fact that:

“1.With the exception of the plaintiff, all the corroborative witnesses are likely to come from either New South Wales or the Australian Capital Territory and live and reside near the Supreme Court of the Australian Capital Territory;

2.The plaintiff has been examined by a number of experts that are all resident in Sydney and/or the Australian Capital Territory.”

In the circumstances, the respondent’s solicitors invited the applicant to have the respondent examined by an expert in either Sydney or the ACT.  Correspondence followed in which the respondent’s legal advisors purported to withdraw her nomination of Dr Keays, whilst the applicant drew attention to her obligations in terms of s 46A of the Act. 

[4] The applicant appointed solicitors who on 8 July 2009 foreshadowed an application requiring the respondent to attend a medical examination pursuant to the Act, and indicating that the applicant was not prepared to nominate panels from Sydney or the ACT.  The respondent’s solicitor subsequently advised that proceedings had been commenced in the Supreme Court of the ACT.  However, these proceedings were not served.  On 27 July 2009 the applicant requested provision of copies of the respondent’s expert reports and noted that the respondent had an obligation to disclose them under s 45 of the Act. 

[5] On 25 September 2009 the applicant filed the present application seeking orders:

(a)pursuant to s 46A of the Act that the respondent comply with its request to undergo a medical examination by Dr Keays; and

(b)pursuant to s 45 of the Act that the respondent comply with the applicant’s request that she supply any reports and other documentary material in her possession about her medical condition or prospects of rehabilitation.

It was served on the respondent in Queensland on 1 October 2009.  The Supreme Court of the ACT proceedings were served on the applicant’s solicitors on 14 October 2009.  The applicant intends to apply to the Supreme Court of the ACT to transfer the proceedings under s 5 of the Jurisdiction of Court (Cross-Vesting) Act 1993 (ACT) to Queensland.

Submissions

[6] The respondent’s written submissions were that, having commenced proceedings in the Supreme Court of the ACT, she can no longer be properly regarded as a claimant under the provisions of the Act and, accordingly, the procedural requirements of the Act and the Court’s power in s 50 of the Act to enforce compliance with them do not apply to her.  A submission in that form was not pressed during oral submissions.  Instead, a point not developed in the written outline, but described in oral submissions as the “killer point” was developed.  In essence, the respondent submits that this Court has no jurisdiction to enforce the provisions of s 45 and s 46A of the Act.  She relies on the jurisdiction given to the Supreme Court of the ACT under cross-vesting legislation.  The consequence of the Supreme Court of the ACT having jurisdiction in relation to the respondent’s claim for damages for personal injury is submitted to be that it is the “court” as defined in s 4 of the Act, and there is no jurisdiction in this Court to order compliance under s 50 of the respondent’s statutory obligations under s 45 and s 46A of the Act.

[7] The respondent submits at the same time that the Supreme Court of the ACT would not order compliance with the pre-proceeding requirements of the Act, which for choice of law purposes are categorised as procedural.

[8] The respondent makes the general submission that the proceeding in the Supreme Court of the ACT is not governed by the Act.  The result, according to the respondent, is that there is no court in which the respondent’s obligations under s 45 and s 46A of the Act could be enforced.  This odd result was described by the respondent’s counsel as a “lacuna” arising from the definition of “court” in the Act.  The respondent, however, submitted that in the event of a successful application to cross-vest the proceedings currently in the Supreme Court of the ACT to Queensland, then this Court would become the “court” as defined in s 4 of the Act and its jurisdiction under s 50 of the Act would be enlivened.  But until that happens, the respondent submits that this Court has no jurisdiction to make the orders sought.

[9] The applicant submits that the commencement of proceedings in the Supreme Court of the ACT does not deprive this Court of jurisdiction to enforce obligations under the pre-proceeding provisions of the Act.  It submits that, the respondent having invoked the statute law of Queensland by making a claim under the Act, the applicant has rights and obligations under Part 4 of the Act.  These provisions oblige the insurer to take certain steps and the importance of complying with these obligations has been emphasised by this Court.[3]  The applicant submits that the institution of the proceedings in the Supreme Court of the ACT, which were only served after service of the present application, do not render nugatory the statutory obligations of both parties under the Act, or deprive the court of jurisdiction to enforce pre-proceeding obligations that are imposed by the Act.  The pre-proceeding provisions of the Act are said to not form part of the substantive law of Queensland by which the Supreme Court of the ACT would determine the proceeding.[4]  Accordingly, it is submitted that compliance with these provisions is not a matter that arises in connection with the proceedings in the Supreme Court of the ACT.

[10] The applicant developed substantial submissions, which were not contested by the respondent, that there is no provision in the Act for unilateral abandonment, withdrawal or discontinuance of a claim made by a complainant under the Act.  The Act makes detailed provision for the progress of the claim, including the holding of a compulsory conference, and the fixing of a time within which an action must be started, failing which “the claim is barred”.  The Act makes provision for the costs that can be claimed in the pre-proceeding phase.  In general, the applicant submits that the rights and obligations provided for in respect of the pre-proceeding phase are unaffected by the institution of proceedings in the Supreme Court of the ACT.

[11] In response to the respondent’s reliance upon the definition of “court” in s 4 of the Act, the applicant submits that the proceeding in the Supreme Court of the ACT is not “a proceeding based on the claim” because the pre-proceedings provisions that apply to the respondent’s claim do not apply to the proceeding that has been commenced in the Supreme Court of the ACT.  The applicant submits that the interpretation of the Act contended for by the respondent would lead to the absurd result that no court had jurisdiction to enforce the respondent’s statutory obligations under s 45 and s 46A and the corresponding rights that the applicant acquired under those provisions.  Other absurd or unintended consequences are said to flow from acceptance of the respondent’s submissions.  One was said to be that if the proceeding is transferred to Queensland on the applicant’s pending application there would in fact be no proceeding, it having been commenced without authority and being treated as a nullity in accordance with Horinack v Suncorp Metway Insurance Ltd[5] and later cases that have applied it.  On the basis of those authorities, the applicant argues that any proceeding that was transferred to Queensland would be a nullity.

[12] The applicant submits that the absurd and unintended consequences of the respondent’s construction of the Act, including that the entire pre-proceeding regime is left without any court to enforce it, are avoided by reading the word “court” in the Act distributively where it appears in the definition so that “court” means one thing for the purpose of the pre-proceedings phase of the claim and means something else for the purpose of proceedings once they are commenced to recover damages.  The preferred construction is that for the pre-proceeding phase the court that has jurisdiction in this case under s 50 of the Act to enforce compliance with a duty imposed under Division 2, 3 or 4 of Part 4 is this Court.

The issue of statutory interpretation

[13] The respondent invoked the claim procedures of Division 3 of Part 4 of the Act by giving written notice of a “motor vehicle accident claim” under s 37 of the Act.  Having done so, she became subject to the statutory obligations imposed by s 45 to provide copies of certain reports and other documents and by s 46A to comply with the applicant’s request for her to undergo, at its expense, a medical examination by the doctor that she nominated, namely Dr Keays.  Section 50 of the Act provides:

“50 Court’s power to enforce compliance with Divs 2, 3 and 4

(1)If a claimant fails to comply with a duty imposed under division 2, 3 or 4, the court may, on the insurer’s application, order the claimant to take specified action to remedy the default within a time specified by the court.

(2)If an insurer fails to comply with a duty imposed under division 3 or 4, the court may, on the claimant’s application, order the insurer to take specified action to remedy the default within a time specified by the court.

(3) The court may make consequential or ancillary orders.”

[14] Section 4 of the Act defines “court” as follows:

“‘court’, in relation to a claim, means –

(a)if a proceeding based on the claim has been brought – the court hearing the proceeding; or

(b)if no proceeding based on the claim has been brought – a court with jurisdiction to hear the claim.”

[15] A “claim” means “motor vehicle accident claim”.  This term is defined by s 4 as follows:

“‘motor vehicle accident claim’ means a claim for damages based on a liability for personal injury arising out of a motor vehicle accident and, for a fatal injury, includes a claim on behalf of the deceased’s dependants or estate.”

[16] The first issue is whether the proceeding that has been commenced in the Supreme Court of the ACT in reliance upon the jurisdiction conferred upon it by virtue of s 4 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld) and s 9 of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) is a “proceeding based on the claim”.  If it is, then the next issue is whether the definition of “court” in s 4 of the Act applies to s 50 of the Act so that “the court” referred to in s 50 is the Supreme Court of the ACT. 

[17] There are substantial reasons to doubt whether the proceeding that has been commenced in the Supreme Court of the ACT is a “proceeding based on the claim” for the purpose of the Act because of non-compliance with pre-proceeding requirements that would make such a proceeding a nullity insofar as it relied upon the jurisdiction of this Court to hear a proceeding based on the respondent’s claim. However, I shall assume in the respondent’s favour that the proceeding that has been commenced in the Supreme Court of the ACT is a “proceeding based on the claim”.  The consequence of such a view is that if the first limb of the definition of “court” in the Act is applied to s 50, the court with power to enforce compliance would be the Supreme Court of the ACT.  However, neither party submits that the Supreme Court of the ACT would enforce compliance with the pre-proceeding requirements of the Act.  If this is so, then neither court has the jurisdiction under s 50 to enforce the statutory obligations, or, if the Supreme Court of the ACT has jurisdiction, it would not enforce the pre-proceeding requirements imposed by the Queensland Act.  Such a result should be avoided, if possible, unless interpretation of the Act compels this conclusion. 

[18] It is improbable that the legislature intended that there be no means to enforce the statutory obligations imposed by s 45 and s 46A upon a claimant in a case such as this.  The Act should be interpreted in a way that will best achieve its purpose.[6]  The Act’s objects, including the object of encouraging the speedy resolution of personal injury claims resulting from motor vehicle accidents, are served by an interpretation which enforces compliance with Divisions 2, 3 and 4 of Part 4 so as to facilitate the resolution of claims.  Their resolution is facilitated by the timely completion of pre-proceeding steps.  These include the making of an offer of settlement based upon a fair and reasonable estimate of the damages to which the claimant would be entitled if an action against the insurer was commenced.  An interpretation of the Act which deprives this Court of jurisdiction to enforce compliance under s 50 in circumstances in which it is doubtful whether the Supreme Court of the ACT has or would exercise jurisdiction to enforce compliance with s 50 does not achieve the object of encouraging the speedy resolution of personal injury claims or the other objects of the Act.  The absurd, inconvenient and apparently unintended consequences pointed to by the applicant may be avoided by not applying the first limb of the definition of “court” in the Act.  The proper approach to statutory interpretation is to assume that an expression is used as defined and then ask whether, in the particular context in which it appears, a contrary intention can be shown.[7]   A definition section, even if it does not expressly state that its application is “unless the context otherwise requires” will not be given effect so as to defeat a meaning required by the context of a particular provision.[8] 

[19] If the assumption made earlier in the respondent’s favour that the proceeding in the Supreme Court of the ACT is “a proceeding based on the claim” is correct, then the definition of “court” should not be applied to s 50 of the Act.  The definition of “court” should not be applied since to do so would defeat the purposes of the Act and lead to absurd and unintended consequences, including the existence of important pre-proceeding obligations that are incapable of enforcement. 

[20] The context of s 50 requires a meaning to be given to the word “court” that permits enforcement.  If the Supreme Court of the ACT is the “court” within the meaning of the first limb of the statutory definition, then the context of s 50 indicates that this meaning should not be applied.

[21] Another approach to the issue of statutory interpretation that does not depend upon the aforesaid assumption also requires the definition of “court” to be interpreted in the context in which it is to be applied.  The definition of “court” in s 4 of the Act should be interpreted having regard to the context in which it is to be applied, and not in isolation.  As McHugh J stated in Kelly v The Queen:[9]

“… the function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definition applies, the better – I think the only proper – course is to read the words of the definition into the substantive enactment and then construe the substantive enactment – in its extended or confined sense – in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment.”

As the passage indicates, if it is clear that the definition applies according to its literal interpretation then the only proper course is to read the words of the definition into the substantive enactment and then construe the substantive enactment in its extended or confined sense.  However, context is important and regard must be had to the purpose of the substantive provision. In the present context, the application of the definition of “court” must have regard to the substantive provision to which it is to be applied and the scheme and purpose of the Act. 

[22] Adopting such an approach in the present case, it is inappropriate to construe the definition of “court” in isolation from the substantive enactment to which it is to be applied, in this case, s 50.  The meaning of “court” draws its meaning from the context in which the statutory definition is to be applied.  The present context is concerned with pre-proceeding rights and obligations.  That context makes it unreasonable and inappropriate to apply the definition of “court” that arises if regard is had to proceedings that were commenced in apparent non-compliance with pre-proceeding requirements.  A definition of “court” that identifies the court as the Supreme Court of the ACT may be appropriate in respect of the Act’s provisions that govern proceedings in court for the assessment of damages.[10]  In the context of pre-proceeding rights and obligations, the preferable interpretation is to treat a proceeding that has been commenced without compliance with pre-proceeding requirements under the Act as something other than “a proceeding based on the claim” that has been brought.  In the present circumstances, and in the context of enforcing pre-proceeding obligations pursuant to s 50 I apply the definition of “court” on the basis that a proceeding on the claim has not been brought.  The second limb of the definition of “court” therefore applies.  The result is that an application pursuant to s 50 may be brought in a court with jurisdiction to hear the claim.  In the present case, the preferable interpretation of s 50, applying the statutory definition of “court” is that this Court has jurisdiction under s 50.  Such an interpretation avoids what would otherwise be absurd, unreasonable or unintended results. 

Conclusion

[23] This court has jurisdiction under s 50 of the Act to enforce compliance with the applicant’s statutory obligations under s 45 and s 46A of the Act.

[24] If I had reached a different conclusion concerning the jurisdiction of the court under s 50, then this would not have led to the conclusion that this court lacks jurisdiction to enforce compliance with the applicant’s statutory obligations.  In the exceptional circumstances in which both parties submit that the Supreme Court of the ACT would not enforce the obligations, it would have been appropriate to exercise the inherent jurisdiction of the court.  Such an exercise would have been appropriate in circumstances in which, otherwise, important statutory obligations that confer corresponding rights on the applicant were incapable of enforcement. 

[25] Apart from the issue of jurisdiction, the respondent did not advance arguments as to why an order should not be made.  The order that I intend to make does not have the effect of restraining the respondent from proceeding in the Supreme Court of the ACT.[11]  My decision does not seek to pre-empt any argument in the Supreme Court of the ACT as to the respondent’s entitlement to commence proceedings in that court or whether the proceeding should be transferred to this Court.  My decision relates solely to the jurisdiction of this Court to enforce the respondent’s statutory obligations under s 45 and s 46A of the Act.  Orders should be made in accordance with the draft orders submitted by the applicant. It was accepted on the hearing of the application that costs should follow the event.  I was also asked to fix costs.  The respondent was given an opportunity to address the quantum of costs referred to in the affidavit of Ms Vida filed by leave.  Ms Vida estimates costs based upon the Supreme Court Scale.  Based upon this affidavit, I consider that the costs of the application should be fixed in the sum of $7,666.77. The order will otherwise be in accordance with the draft order initialled by me and placed with the papers.