Bermingham v Priest - [2002] QCA 327

SUPREME COURT OF QUEENSLAND

CITATION:

Bermingham v Priest & Anor [2002] QCA 327

PARTIES:

JUSTINE EILEEN BERMINGHAM
(plaintiff/respondent)
v
MELISSA PRIEST
(first defendant/first appellant)

NOMINAL DEFENDANT
(second defendant/second appellant)

FILE NO/S:

Appeal No 3416 of 2002

SC No 114 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

30 August 2002

DELIVERED AT:

Brisbane

HEARING DATE:

14 June 2002

JUDGES:

Williams and Jerrard JJA and Wilson J

Separate reasons for judgment of each member of the Court, Williams JA and Wilson J concurring as to the orders made, Jerrard JA dissenting

ORDERS:

Allow the appeal and set aside the orders at first instance.1.

Order that the application of the plaintiff be dismissed.2.

Order that the proceedings of the plaintiff be struck out and there be judgment for the defendants.3.

Order that the respondent pay the appellants’ costs of and incidental to the appeal and the two applications below to be assessed.4.

CATCHWORDS:

LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – APPLICATION OF THE STATUTES TO PARTICULAR CAUSES OF ACTION – MOTOR VEHICLE INSURANCE – where plaintiff injured in motor vehicle accident failed to give insurer written notice within nine months pursuant to s 37 Motor Accident Insurance Act 1994 (Qld) – where s 37 notice given accompanied by explanation for delay – where plaintiff did not seek leave to commence proceedings – where plaintiff brought proceedings within three years of date of accident but less than six months from date of s 37 notice – whether proceedings a nullity – whether plaintiff should have sought leave, before expiration of limitation period, to commence proceedings more than three years from date of accident and waited until six months from date of s 37 notice before bringing proceedings

LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – POWER OF COURT TO EXTEND TIME – effect of s 39(5) and s 57 Motor Accident Insurance Act 1994 (Qld) on a plaintiff’s right to extend the limitation period – whether s 57(2) was the source of an independent power to grant leave to commence an action or whether s 39(5)(c) was the only source or power to grant leave to commence a proceeding where there had been non-compliance with Division 3 of Part 4 – whether court could grant leave nunc pro tunc to commence the proceeding

Motor Accident Insurance Act 1994 (Qld), s 37, s 39, s 41, s 57

Horinack v Suncorp Metway Insurance Ltd [2001] 2 Qd R 266, followed
Sweeney v Volunteer Marine Rescue Currumbin Inc & Suncorp General Insurance Limited [2000] QCA 455; Appeal No 55 of 2000, 6 November 2000, considered
Thomas v Tranpacific Industries Pty Ltd & Anor [2002] QCA 160; Appeal No 237 of 2002, 10 May 2002, considered
Young v Keong [1999] 2 Qd R 335, referred to

COUNSEL:

R J Douglas SC, with K F Holyoak, for the appellants

P V Ambrose SC,…

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.

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Details

Case: [2002] QCA 327
Decision Date: 30 August 2002

CaseChat Overview and Summary

The case of Bermingham v Priest involved the plaintiff, Bermingham, who was injured in a motor vehicle accident and subsequently failed to provide written notice to the insurer within nine months as required by section 37 of the Motor Accident Insurance Act 1994 (Qld). Bermingham provided a notice accompanied by an explanation for the delay but did not seek leave to commence proceedings. The plaintiff initiated proceedings within three years of the accident but less than six months after the required notice was given. The defendants argued that the plaintiff's proceedings were a nullity and that the plaintiff should have sought leave before the limitation period expired and waited until six months after the notice before bringing the action.

The court was required to determine whether the plaintiff's proceedings were valid despite the non-compliance with statutory requirements and whether the court had the power to grant leave nunc pro tunc to allow the proceedings to commence. The court considered the interplay between sections 39(5) and 57 of the Motor Accident Insurance Act 1994 (Qld) and whether section 57(2) provided an independent power to grant leave to commence an action or if section 39(5)(c) was the exclusive source of such power.

In its reasoning, the court found that the plaintiff's failure to seek leave before the limitation period expired and the subsequent initiation of proceedings before the required six months had elapsed from the date of the notice resulted in the proceedings being a nullity. The court held that the power to grant leave to commence proceedings more than three years after the accident was not available under section 57(2) but only under section 39(5)(c). Consequently, the court dismissed the plaintiff's application and struck out the proceedings, entering judgment for the defendants. The court also ordered the plaintiff to pay the defendants' costs of and incidental to the appeal and the two applications below to be assessed.

Orders

Orders of the court

Allow the appeal and set aside the orders at first instance.1.

Order that the application of the plaintiff be dismissed.2.

Order that the proceedings of the plaintiff be struck out and there be judgment for the defendants.3.

Order that the respondent pay the appellants’ costs of and incidental to the appeal and the two applications below to be assessed.4.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Bermingham v Priest & Anor [2002] QCA 327
PARTIES:	JUSTINE EILEEN BERMINGHAM (plaintiff/respondent) v MELISSA PRIEST (first defendant/first appellant) NOMINAL DEFENDANT (second defendant/second appellant)
FILE NO/S:	Appeal No 3416 of 2002 SC No 114 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	30 August 2002
DELIVERED AT:	Brisbane
HEARING DATE:	14 June 2002
JUDGES:	Williams and Jerrard JJA and Wilson J Separate reasons for judgment of each member of the Court, Williams JA and Wilson J concurring as to the orders made, Jerrard JA dissenting
ORDERS:	Allow the appeal and set aside the orders at first instance.1. Order that the application of the plaintiff be dismissed.2. Order that the proceedings of the plaintiff be struck out and there be judgment for the defendants.3. Order that the respondent pay the appellants’ costs of and incidental to the appeal and the two applications below to be assessed.4.
CATCHWORDS:	LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – APPLICATION OF THE STATUTES TO PARTICULAR CAUSES OF ACTION – MOTOR VEHICLE INSURANCE – where plaintiff injured in motor vehicle accident failed to give insurer written notice within nine months pursuant to s 37 Motor Accident Insurance Act 1994 (Qld) – where s 37 notice given accompanied by explanation for delay – where plaintiff did not seek leave to commence proceedings – where plaintiff brought proceedings within three years of date of accident but less than six months from date of s 37 notice – whether proceedings a nullity – whether plaintiff should have sought leave, before expiration of limitation period, to commence proceedings more than three years from date of accident and waited until six months from date of s 37 notice before bringing proceedings LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – POWER OF COURT TO EXTEND TIME – effect of s 39(5) and s 57 Motor Accident Insurance Act 1994 (Qld) on a plaintiff’s right to extend the limitation period – whether s 57(2) was the source of an independent power to grant leave to commence an action or whether s 39(5)(c) was the only source or power to grant leave to commence a proceeding where there had been non-compliance with Division 3 of Part 4 – whether court could grant leave nunc pro tunc to commence the proceeding Motor Accident Insurance Act 1994 (Qld), s 37, s 39, s 41, s 57 Horinack v Suncorp Metway Insurance Ltd [2001] 2 Qd R 266, followed Sweeney v Volunteer Marine Rescue Currumbin Inc & Suncorp General Insurance Limited [2000] QCA 455; Appeal No 55 of 2000, 6 November 2000, considered Thomas v Tranpacific Industries Pty Ltd & Anor [2002] QCA 160; Appeal No 237 of 2002, 10 May 2002, considered Young v Keong [1999] 2 Qd R 335, referred to
COUNSEL:	R J Douglas SC, with K F Holyoak, for the appellants P V Ambrose SC,…