Motor Accident Insurance Act 1994

Personal Injuries Proceedings Act 2002

MOTOR ACCIDENT INSURANCE ACT 1994

Withdrawing admissions made pursuant to s.39 of the Act

Cassie -v- Bogdan & Suncorp-Metway Insurance Ltd [2004] QSC 275

19.03.99 date of accident – 8 year old girl struck outside school

April 00 ss. 34 and 37 Notices given

19.12.00 Suncorp admits liability for the circumstances of the accident

04.03.02 proceedings commenced

02.05.02 Defence filed – inter alia admitting liability for the circumstances of the accident

20.04.04 Defendant’s solicitors and Senior Counsel inspect accident site and subsequently advises Suncorp that there is a reasonable prospect of the Plaintiff’s claim failing

24.08.04 Suncorp applies to Supreme Court for leave to withdraw the admission and deliver amended Defence

• Plaintiff argued
  • that there had been inordinate delay in bringing the application
  • prejudice caused by the delay in the bringing of the application
  • there was no genuine dispute as to liability and the withdrawal of the admission would be futile

HELD per Chesterman J:

• the over riding consideration is that the Court should ascertain the true facts and base judgement upon them
• in considering whether to permit an amendment, the factors include:
  • the amendment is the only way in which the issues and the real factual merits can be litigated
  • the proposed amendment is important to the rights of the party particularly where it provides a complete defence to the claim.
• The defendant clearly had an arguable liabilitky case
• There had been delay however delay was not of itself important
• There was no prejudice to the Plaintiff – the action was not ready for trial and the parties had indicated a desire to mediate – further, the Plaintiff had failed to depose to any specific prejudice

PERSONAL INJURIES PROCEEDINGS ACT 2002

Interstate accidents and the application of the Act.

Zanatta -v- Netpro Employees Pty Ltd & Ors [2004] QSC 131 – 23.04.04

Section 7 PIPA

7 Provisions of this Act that are provisions of substantive law
Provisions of this Act that provide for the kinds of damage, and the amount of damages, that may be recovered by a person, and the provisions of chapter 2 (Claims), part 1 (pre court procedures), divisions 1 (claims procedures), 2 (obligations of the parties) and 4 (compulsory conference), are provisions of substantive, as opposed to procedural, law.

• Applicant injured in South Australia on 27.04.01
• Applicant intended to pursue a claim against, inter alia, an abalone company which was not his employer
• Applicant sought a declaration that the PIPA did not apply to the claim against the abalone company

HELD per Fryberg:

• The PIPA did not apply
• Whilst s.7 of the Act provided that the pre court “hoops” (as referred to by Fryberg J) were substantive not procedural law, the substantive law applying to the claim was that of South Australia pursuant to Pfeiffer -v- Rogerson
• There is no statutory indication that the provisions referred to in s.7 of the Act must be applied in all cases arising in Queensland Courts regardless of the substantive law of the case

MOTOR ACCIDENT INSURANCE ACT 1994

s.57(2)(b) – commencing proceedings after the expiration of the limitation period

Crain -v- Crocker & Anor [2004] QDC 15

Morrison-Gardiner -v- Car Choice Pty Ltd & Anor [2004] QSC 124

Brown -v- Taylor & Anor [2004] QDC 263

57 Alteration of period of limitation
(1) If 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 claimant may bring a proceeding in court based on the claim even though the period of limitation has ended.
(2) However, the proceeding may only be brought after the end of the period of limitation if it is brought within-
(a) 6 months after the notice is given or leave to bring the proceeding is granted; or
(b) a longer period allowed by the court.

Crain

16.04.01 date of accident

15.05.01 s.37 Notice delivered

25.05.01 Notice complied

03.10.01 admission of liability to 75%

22.12.03 proposed compulsory conference cancelled because of need to obtain further medical evidence

25.03.04 orthopaedic report forwarded to Allianz

25.03.04 Allianz’s solicitor prepares to Consent to dispense with conference and MFO’s – subject to obtaining instructions

06.04.04 Consent signed and faxed back to Allianz’s solicitors

08.04.04 proceedings filed

16.04.04 limitation period expired

29.04.04 Allianz’s solicitors claim action “null and void”

Section 51A MAIA

51A Compulsory conference
(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) Either party may call the compulsory conference–
(a) at a time and place agreed between both parties; or
(b) if the relevant date has passed-at a reasonable time and place nominated by the party calling the conference.
(3) For subsection (2)(b), the relevant date is-
(a) the date falling 6 months after the claimant gave notice to the insurer of the claim; or
(b) if the insurer required additional information, the later of the following-
(i) the date falling 6 months after the claimant gave notice to the insurer of the claim;
(ii) the date falling 1 month after the claimant gave the insurer the completed additional information form.
(4) The parties may for good reason dispense with the compulsory conference by agreement.
(5) The court may, on application by a party-
(a) fix the time and place for the compulsory conference; or
(b) dispense with the compulsory conference for good reason;
and make any other orders the court considers appropriate in the circumstances.
(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.

HELD per McGill DCJ

• Consideration of ss51A(4) and subs (5) and (6)
• The parties had clearly contemplated the latter not the former and so there had been no “agreement” to dispense with the holding of the conference pursuant to s.51A(4)
• The proceeding was commenced in breach of s.51A(1) and was struck out

HOWEVER

• McGill DCJ took it upon himself to consider whether s.57(2) of the Act might apply
• It is consistent with the objectives of the Act for the completion of the pre court procedures to take precedence over the operation of the Limitation of Actions Act
• McGill DCJ drew a parallel between s.57 MAIA and s.59 PIPA
• Noted the decision in Kash -v- S M & T J Cedergren Builders and the decision of McMurdo J – the exercise of the discretion under s.59 PIPA could be made before or after the expiration of the primary limitation date
• The practical effect of ss.57 MAIA and 59 PIPA is that a defendant is prevented from obtaining the benefit of a limitation defence that would otherwise not be available but for the statutes
• The decisions in Bermingham and Aydar could be distinguished on the basis that those decisions dealt with the legislation prior to its amendment and particularly ss 39(5)(c) and 57

Morrison-Gardiner -v- Car Choice Pty Ltd & Anor [2004] QSC 124

21.11.00 date of accident

21.05.01 NOAC delivered

28.05.01 Allianz complies NOAC and admits liability

20.09.02 claimant engages new solicitors

25.09.03 AIF delivered to Allianz

29.10.03 proceedings commenced

28.11.03 Allianz advises proceedings void

04.02.04 application filed

16.03.04 application heard

HELD per Holmes J

• S.57(2) – the period of 6 months or longer is fixed by reference to the date of the giving of the Notice – not by reference to the limitation date
• A claimant who gives early notice should not be disadvantaged because he/she falls at later hurdles and cannot commence proceedings within the limitation period
• No requirement in the Act for the application to extend the period to be made within 6 months of the giving of the notice
• The giving of the Notice within the limitation period is the only requirement for enlivening the discretion under s.57(2)(b)
• The case warranted the exercise of the discretion conferred by s.57(2)(b)
• In determining whether to exercise the discretion the only factor considered appears to have been:
  • The reason for not validly commencing proceedings
  • The length of the delay in bringing the application

Brown -v- Taylor & Anor [2004] QDC 263

02.12.00 date of accident

19.03.02 NOAC given

02.12.02 Suncorp denies liability

04.12.02 claimant forwards orthopaedic report to Suncorp and requests liability documents from Suncorp

09.09.03 claimant first raises the question of convening a compulsory conference

20.10.03 claimant sees Suncorp’s orthopaedic surgeon

23.10.03 Suncorp agree to “extend” the limitation period to 02.03.04

25.10.03 Suncorp provides liability documents

19.11.03 Suncorp’s orthopaedic expert’s report supplied

04.02.04 claimant seeks to hold compulsory conference on 12 or 13 February

16.02.04 claimant delivers SLD – prior to this claimant provided Suncorp with numerous employment documents and details as to income received

18.02.04 Suncorp agree to further “extend” the limitation period to 02.06.02 – in the intervening period a dispute ensues regarding the disclosure of the Centrelink file

01.06.04 claimant nominates 29.06.04 for compulsory conference

09.06.04 Suncorp advises no further “extensions” and LAA will be relied upon

HELD per McGill DCJ

• There had been some delay by both parties
• Suncorp had failed to turn its attention to matters that should have been earlier investigated
• Suncorp had insisted late in the piece on undertaking investigations prior to attending a compulsory conference and then took a more restrictive approach to the expiration of the limitation period
• As to the question of any default by the solicitors McGill DCJ noted the decision in Perdis
• No particular or specific prejudice relied on – discretion exercised

MOTOR ACCIDENT INSURANCE ACT 1994

Disclosure of Centrelink file

Suncorp Metway -v- Brown

The facts are as set out in Brown -v- Suncorp Metway

Issue as to whether claimant obliged to execute an authority for the release to Suncorp of his Centrelink in reliance upon s.50 of the Act for the enforcement of the claimant’s duties under s.45.

45 Duty of claimant to cooperate with insurer
(1) A claimant must cooperate with the insurer and, in particular-
(a) must provide the insurer with copies of reports and other documentary material (including written statements made by the claimant or by witnesses) in the claimant’s possession about the circumstances of the accident or the claimant’s medical condition
or prospects of rehabilitation; and
(b) must give information reasonably requested by the insurer about-
(i) the circumstances of the accident out of which the claim
arose; and
(ii) the nature of the injuries resulting from the accident and of any consequent disabilities and financial loss; and
(iii) if applicable-the medical treatment and rehabilitation services the claimant has sought or obtained; and
(iv) the claimant’s medical history (as far as it is relevant to the claim), and any other claims for compensation for personal injury made by the claimant.

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.

HELD per McGill DCJ

• S.45 is not wide enough to impose an obligation on a claimant to sign a specific authority directed to a third party to provide documents
• The obligations imposed by ss.45(1)(a) and (b) are specific and require co-operation in a particular way
• There is an authority derived through s.37 and the regulations designed to address the issue of obtaining documents from third parties – hence there is no need to “cover the ground again” in s.45 – and given that the legislature did not so draft s.45 “it would not be appropriate to distort the language (of the section) in order to give an interpretation wide enough to cover that topic”
• Rule 223 UCPR does not apply to pre proceedings matters – there must be a proceeding on foot – absent a direction under r.209(1)(c) which McGill declined to make

PERSONAL INJURIES PROCEEDINGS ACT 2002

The application of ss.43 and 59 of the PIPA

Hollingsworth v. Beresford [2003] QDC 415

Kash -v- S M & T J Cedergren Builders & Ors [2003] QSC 426

Section 43 PIPA

43 Need for urgent proceeding
(1) The court, on application by a claimant, may give leave to the claimant to start a proceeding in the court for damages based on a liability for personal injury despite noncompliance with this part if the court is satisfied there is an urgent need to start the proceeding.
(2) The order giving leave to start the proceeding may be made on conditions the court considers necessary or appropriate having regard to the particular circumstances of the case.
(3) However, if leave is given, the proceeding started by leave is stayed until the claimant complies with this part or the proceeding is discontinued or otherwise ends.

Section 59 PIPA

59 Alteration of period of limitation
(1) If a complying notice of claim is given before the end of the period of limitation applying to the claim, the claimant may start a proceeding in a court based on the claim even though the period of limitation has ended.
(2) However, the proceeding may be started after the end of the period of limitation only if it is started within-
(a) 6 months after the notice is given or leave to start the proceeding is granted; or
(b) a longer period allowed by the court.
(3) Also, if a proceeding is started under subsection (2) without the claimant having complied with part 1, the proceeding is stayed until the claimant complies with the part or the proceeding otherwise ends.
(4) If a period of limitation is extended under the Limitation of Actions Act 1974, part 3, this section applies to the period of limitation as extended under that part.

Hollingsworth v. Beresford [2003] QDC 415

August 2000 date of accident

15.05.03 Notice of Claim deemed compliant

November 2003 Proceedings filed without leave

HELD per McGill DCJ

• S.59 is not only concerned with overcoming a limitation defence and does overcome other legislative impediment to the commencement of a proceeding in Court – otherwise s.59(3) serves no useful purpose
• If s.59 applies, and the primary limitation period has expired, then application to the Court for leave pursuant to s.43 is NOT required even if the pre court procedures have not been complied with provided proceedings are commenced within 6 months of the date of giving a complying Notice

McGill followed this approach in the subsequent decision in Bracefield -v- Brisbane City Council [2003] QDC 454 citing the decision of Dutney J in Abell -v- Roche Mining Pty Ltd (unreported) 25 November 2003

Kash -v- S M & T J Cedergren Builders & Ors [2003] QSC 426

26.08.00 date of accident

20.01.03 Notice of Claim delivered

30.01.03 First respondent advises that Notice compliant – Notice therefore deeded to have been given on 20.01.03

20.02.03 Second respondent advises Notice complaint – Notice therefore deeded to have been given on 20.01.03

14.04.03 Third Respondent fails to respond under s.12 – Notice therefore deeded to have been given on 20.01.03

17.06.03 Applicant commenced proceedings

26.09.03 Applicant applies to Supreme Court for leave to commence proceedings

HELD per McMurdo J

• The operation of s.59 is not displaced where the circumstances are within s.77D(1)
• To confine the operation of s.59 and the power of extension to persons still within time to sue would be contrary to its apparent purpose
• The discretion under s.59 can be exercised before or after the primary limitation period
  Considerations as to the exercise of the discretion include:
  • The extent of the delay
  • Prejudice to the respondent
  • Prejudice to the applicant in being shut out of making a claim

Contrary to McGill DCJ in Hollingsworth McMurdo J also made an order pursuant to s.43 although he does not appear to have considered the matter in the same detail as McGill DCJ and refers to s.43 permitting cases to “go forward before the limitation period expires” and limits his comments to the application of the discretion conferred in s.59. Note however the decision of Douglas J in Hardwick -v- Vanderfield [2003] QSC 468 where the discretion under s.59 was exercised without an order being made pursuant to s.43 and also the decision of Dutney J in Abell -v- Roche Mining Pty Ltd (unreported) and the further decision of McGill DCJ in Bracefield -v- Brisbane City Council [2003] QDC 454 – in neither case were orders made under s.43

PERSONAL INJURIES PROCEEDINGS ACT 2002

Joinder of a party and joinder of a contributor

Foster & Anor -v- Longhurst & Anor [2004] QDC 22

Ridley Agriproducts Pty Ltd -v- CMAS Consulting Pty Ltd [2003] QDC 284

Foster & Anor -v- Longhurst & Anor [2004] QDC 22

15.10.99 date of accident – Plaintiff injured outside a florist

May 2002 Plaintiff consults a solicitor

09.10.02 (incomplete) NOC delivered

11.10.02 Plaintiff given leave pursuant to s.43 of the PIPA to commence proceedings

February 03 Contribution notice delivered to cleaning contractor

May 03 Plaintiff’s solicitors see contribution notice

25.09.03 NOC’s delivered to defendants and to cleaning contractor

08.10.03 cleaning contractor sought reasonable excuse for delay

21.11.03 Plaintiff files application to join cleaning contractor

HELD per Brabazon DCJ

• The stay of proceedings pursuant to s.47(3) is no bar to a joinder application
• The transitional provisions of the PIPA applied to the claim – incident occurred before 18.06.02 and the limitation period had not expired as at that date
• Notice was not given to the cleaning contractor within 1 month from the date of receiving the contribution notice as required under s.14 and reg. 7
• The difference between being a contributor/third party and a defendant is significant and prejudicial
• There was prejudice to the cleaner and delay on the part of the Plaintiff
• Application refused

Ridley Agriproducts Pty Ltd -v- CMAS Consulting Pty Ltd [2003] QDC 284

20.07.99 date of accident – claimant injured whilst working at the premises of Ridley Agriproducts. Claimant was employed by CMAS (a labour hire agency) – there was in existence a labour hire arrangement between Ridley and CMAS

11.07.02 Proceedings commenced

16.08.02 NOC delivered to Ridley

22.08.02 Ridley’s solicitors advise Plaintiff’s solicitors that the proceedings should be referred to CMAS

07.10.02 NOCD delivered to CMAS

13.11.02 Ridley’s solicitors advise that the NOC has been referred to WorkCover

HELD per Shanahan DCJ

• A contributor may be added even though the cause of action in respect of such contribution claim is not one for damages for personal injury
• Only the primary PIPA claim need be one for personal injury
• The joinder of contributors in these circumstances fulfils one of the primary objects of the legislation ie the speedy resolution of claims and the minimisation of costs

MOTOR ACCIDENT INSURANCE ACT 1994

Reasonable excuse for delay

Perdis -v- Nominal Defendant [2003] QCA 555

Piper -v- Nominal Defendant [2003] QCA 557

Miller -v- Nominal Defendant [2003] QCA 558

MAIA – Section 37(3)

(3) If notice of a motor vehicle accident claim is not given within the time fixed by this section, the obligation to give the notice continues and a reasonable excuse for the delay must be given in the notice or by separate notice to the insurer but, if a motor vehicle can not be identified and the notice is not given to the Nominal Defendant within 9 months after the motor vehicle accident, the claim against the Nominal Defendant is barred.

MAIA – Section 39(5)

(5) A claimant’s failure to give notice of a motor vehicle accident claim as required under this division prevents the claimant from proceeding further with the claim unless-
(a) the insurer-
(i) has stated that the insurer is satisfied notice has been given as required under this division or the claimant has taken reasonable action to remedy the noncompliance; or
(ii) is presumed to be satisfied notice has been given as required under this division; or
(b) the insurer has waived compliance with the requirement; or
(c) the court, on application by the claimant-
(i) declares that the claimant has remedied the noncompliance;
or
(ii) authorises further proceedings based on the claim despite the noncompliance.

Perdis -v- Nominal Defendant

HELD

• Entrusting the conduct of a claim to a solicitor within time is a reasonable excuse for any delay (Davies JA Williams JA Mackenzie J)
• Explanation for “delay” – delay is from the time of the accident (Williams JA and Mackenzie J)
• There may be circumstances that arise that would cause a reasonable person to make further enquiry or take other steps (Davies JA)
• Both Notice and a reasonable excuse for delay must be given in a Nominal Defendant claim within 9 months (Mackenzie J)

Piper -v- Nominal Defendant

HELD

Per Williams JA

• The claim was fatally flawed in the absence of a complying notice or an order of the Court authorising the claim to proceed further within 9 months from the date of the accident

Miller -v- Nominal Defendant

HELD

• S.37(3) – the 9 month period refers to the giving of the Notice and any reasonable excuse for delay
• Any application must be made AND an order made within 9 months \
• S.57(1) does not operate to extend the period within which to give notice to the Nominal Defendant

Piper -v- Nominal Defendant – update

• Application for special leave pending to the High Court
• The Nominal Defendant conceded the point that the primary judge was not required to make the order within the 9 month period
• Proprietary estoppel arises
• Sufficient if application filed within time
• Reasonable excuse had been provided

MOTOR ACCIDENT INSURANCE ACT 1994

Compulsory conferences and mandatory final offers

Lindsay -v- Amaalii & Anor [2004] QDC 028

HELD per McGill DCJ

• The MAIA allows only 2 options – either the compulsory conference is held and mandatory final offers made before commencing proceedings or they are dispensed with
• An order that purports to apply the terms of the statute to offers made (being the equivalent of MFO’s) is not the imposition of a condition on the order per s.50 of the Supreme Court Act and s.51A(5) MAIA – it is an attempt to vary a statute
• It is not possible to make an order restricting a judge (or another subsequent judge) in relation to the exercise of a discretion – other than a superior court exercising a supervisory role over an inferior court
• It is not possible for an order to be made prohibiting a judge from looking at a document on the Court file per the order sought in relation to s.51C(9)
• It is not possible for the parties by consent/agreement to confer upon a court a power that the court otherwise does not have
• Conditional orders as to costs in the future are inappropriate – costs of the action can only be dealt with at the conclusion of the claim – it is inappropriate to make a hypothetical order

MOTOR ACCIDENT INSURANCE ACT 1994

Mandatory final offers and costs orders

Kenny & Anor -v- Eyears & Anor [2004] QSC 059

16.08.02 Suncorp makes MFO in the amount of $120,000.00 plus costs

23.12.03 judgement for the Plaintiff for $100,242.00

• Suncorp relied upon ss.51C(10) despite the provisions of s.55Fs.51A(10) MAIA:”However, the court must (where relevant) have regard to the mandatory final offers in making a decision about costs.”
• Suncorp also relied upon the Second Reading speech of the 2000 amending Bill and the CTP Review Report of 31.10.99
• Suncorp argued that in matters > $50,000 to negate s.51C(10) would make any MFO a nullity
• Plaintiff submitted that s.55F of the Act was relevants.55F MAIA:55F Costs in cases involving relatively small awards of damages
  (1) This section applies if a court awards $50 000 or less in damages in a proceeding based on a motor vehicle accident claim (but it does not apply to the costs of an appellate proceeding).

HELD per Philippides J

• S.55F provides a comprehensive regime for awarding costs in matters $50,000 and under
• S.51C(10) is directed to s.55F
• An MFO may be relevant to the exercise of the general discretion to award costs
• Quality Corp (Aust) Pty Ltd & Ors -v- Millford Builders (Vic) Pty Ltd & Ors cited (multiple plaintiffs, claim and interest, not broken down – CA held there is a general discretion where no offer conforming with UCPR is made)
• Discretion under r.698(3) exercised and costs awarded on the Supreme Court scale
• R.690(5) 30% uplift not ordered