Anderson v Nominal Defendant - [2004] QDC 119

DISTRICT COURT OF QUEENSLAND

CITATION:

Anderson v Nominal Defendant [2004] QDC 119

PARTIES:

TONY KENNETH ANDERSON

Applicant

v

NOMINAL DEFENDANT

Respondent

FILE NO/S:

839/2004

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

13 May 2004

DELIVERED AT:

Brisbane

HEARING DATE:

17 March 2004

JUDGE:

Shanahan DCJ

ORDER:

Application allowed. The Nominal Defendant is presumed to be satisfied that notice was given as required under Division 3 of Part 4 of the Motor Accident Insurance Act 1994.

CATCHWORDS:

NOTICE OF MOTOR VEHICLE ACCIDENT – Whether the Nominal Defendant conclusively presumed to be satisfied that a notice of accident was given as required by the Act – Where the applicant would otherwise be barred from continuing proceedings – Where the applicant had delivered its notice of accident outside the three month period and had never provided a reasonable excuse for the delay.

MISTAKE ON THE PART OF THE NOMINAL DEFENDANT – Where the Nominal Defendant had erroneously responded to the applicant’s original notice of accident by denying that it was the insurer – Where the Nominal Defendant based its response on a search conducted as at the time of receiving the notice and not as at the date of the accident – Whether the Nominal Defendant could subsequently rely on a defect in the notice as an answer to the claim in circumstances where it had not alerted the applicant to the defect.

Legislation cited:

Motor Accident Insurance Act1994 (Qld): ss 37, 39

Cases cited:

Miller v The Nominal Defendant [2003] QCA 558

COUNSEL: Mr A Munt for the applicant
Mr J Clifford QC for the respondent

SOLICITORS:

Trilby Misso for the applicant
Broadley Rees for the respondent

This is an application for a declaration pursuant to s 39(3) of the Motor Accident Insurance Act1994 (Qld) (“MAIA”) that the respondent is conclusively presumed to be satisfied that notice with respect to a motor vehicle accident was given by the applicant as required under Division 3 of that Act and that, pursuant to s 39(5)(a)(ii) of the Act, the applicant is entitled to proceed further with his claim for personal injuries arising out of that accident.

History of the matter

It is necessary to consider the history of the matter.

On 10 October 2001 the applicant was involved in a motor vehicle accident. He obtained the name of the driver of the second vehicle, a Mr B J Galvin, but not that vehicle’s registration number. An off-duty police officer attended the scene. He also did not note the registration number of the car. On 15 November 2001 the applicant reported the incident to the police. On 16 November 2001 the applicant completed a notice of accident claim form pursuant to s 37 MAIA and nominated solicitors acting on his behalf (Exhibit VJH-1 to affidavit of V J Hefferan). On that form the registration number of the vehicle “most at fault” was left blank although it was identified as a white 1981 Ford Falcon sedan (Exhibit VJH-1,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Anderson v Nominal Defendant

Details

AGLC: Anderson v Nominal Defendant [2004] QDC 119
Case: [2004] QDC 119
Decision Date: 13 May 2004

CaseChat Overview and Summary

In the case of Anderson v Nominal Defendant, the plaintiff sought a declaration that the defendant was presumed to have received notice of a motor vehicle accident as required under the Motor Accident Insurance Act 1994. The plaintiff had delivered a notice of accident outside the three-month period stipulated by the Act and had not provided a reasonable excuse for the delay, which would otherwise bar the plaintiff from continuing proceedings. The defendant, however, had initially responded to the plaintiff’s notice of accident by denying that it was the insurer, a mistake based on a search conducted as at the time of receiving the notice and not the date of the accident. The court was required to determine whether the defendant could subsequently rely on a defect in the notice as an answer to the claim, given that it had not alerted the plaintiff to the defect.

The court considered the statutory requirement under the Motor Accident Insurance Act 1994 that if an insurer fails to give a notice within the specified time, the court may presume that the notice was given if the insurer is satisfied that it was. The court also examined whether the defendant’s initial response, which contained an error, precluded it from later relying on the defect in the notice. The court noted that the defendant had not provided any evidence that it had attempted to contact the plaintiff to rectify the error before responding to the notice of accident. The court concluded that the defendant's error in its initial response and its failure to alert the plaintiff to the defect meant that it could not rely on the defect in the notice as a valid defence.

The court found in favour of the plaintiff, granting the application for a declaration that the defendant was presumed to be satisfied that notice of the accident was given as required by the Act. The court determined that the defendant’s initial response, which contained an error and did not alert the plaintiff to any defect in the notice, meant that the defendant could not subsequently rely on that defect. Consequently, the plaintiff was entitled to the presumption under the Act, allowing them to continue with their proceedings despite the delay in providing the notice. The court’s decision enabled the plaintiff to proceed with their claim, ensuring that the statutory requirements were met in light of the circumstances presented.

Orders

Orders of the court

Application allowed. The Nominal Defendant is presumed to be satisfied that notice was given as required under Division 3 of Part 4 of the Motor Accident Insurance Act 1994.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Anderson v Nominal Defendant [2004] QDC 119
PARTIES:	TONY KENNETH ANDERSON Applicant v NOMINAL DEFENDANT Respondent
FILE NO/S:	839/2004
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	13 May 2004
DELIVERED AT:	Brisbane
HEARING DATE:	17 March 2004
JUDGE:	Shanahan DCJ
ORDER:	*Application allowed. The Nominal Defendant is presumed to be satisfied that notice was given as required under Division 3 of Part 4 of the Motor Accident Insurance Act* 1994.**
CATCHWORDS:	NOTICE OF MOTOR VEHICLE ACCIDENT – Whether the Nominal Defendant conclusively presumed to be satisfied that a notice of accident was given as required by the Act – Where the applicant would otherwise be barred from continuing proceedings – Where the applicant had delivered its notice of accident outside the three month period and had never provided a reasonable excuse for the delay. MISTAKE ON THE PART OF THE NOMINAL DEFENDANT – Where the Nominal Defendant had erroneously responded to the applicant’s original notice of accident by denying that it was the insurer – Where the Nominal Defendant based its response on a search conducted as at the time of receiving the notice and not as at the date of the accident – Whether the Nominal Defendant could subsequently rely on a defect in the notice as an answer to the claim in circumstances where it had not alerted the applicant to the defect. *Legislation cited:* Motor Accident Insurance Act1994 (Qld): ss 37, 39 *Cases cited:* Miller v The Nominal Defendant [2003] QCA 558
COUNSEL:	Mr A Munt for the applicant Mr J Clifford QC for the respondent
SOLICITORS:	Trilby Misso for the applicant Broadley Rees for the respondent