SUPREME COURT OF QUEENSLAND
CITATION: Bermingham v Priest & Nominal Defendant [2002] QSC 057 PARTIES: JUSTINE EILEEN BERMINGHAM
(Plaintiff)
MELISSA PRIEST
(First Defendant)
NOMINAL DEFENDANT
(Second Defendant)FILE NO/S: 114 of 2001 DIVISION: Trial PROCEEDING: Applications ORIGINATING COURT: Supreme Court, Cairns DELIVERED ON: 19 March 2002 DELIVERED AT: Cairns HEARING DATE: 3 December 2002 JUDGE: Jones J ORDER: 1. The application of the defendants is dismissed.
2. Leave is granted to the plaintiff nunc pro tunc to commence the proceedings commenced by claim filed on 6 August 2001.
3. The defendants are to pay the plaintiff’s costs of and incidental to both applications on the standard basis.
CATCHWORDS: INSURANCE – MOTOR ACCIDENT INSURANCE – CLAIMS – CLAIMS PROCEDURES – COURT PROCEEDINGS – where the claimant has filed a complying s 37 notice, but has commenced proceedings before six months have elapsed and the insurer has not advised the claimant of its position on liability – whether the claimant has contravened the provisions of s 39(5)(a) – whether the claimant should have applied for leave under s 39(5)(c) to bring proceedings within 6 months of the complying s 37 notice having been filed - whether the Court has discretion to grant leave to proceed under s 39(5)(c) or generally – whether leave to commence the action can be granted nunc pro tunc.
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – OPERATION AND EFFECT OF STATUTORY PROVISIONS – MOTOR ACCIDENT INSURANCE ACT 1994 ss 39 and 57 – where a complying s 37 notice has been filed – whether the operation of s 57 is subject to s 39(5) or whether the operation of s 39(5)(1)(a) is subject to s 57
Motor Accident Insurance Act 1994 (Qld) (Reprint 3) ss 37(1), 37(4), 39(1), 39(5), 57(1), 57(2)
Uniform Civil Procedure Rules Rule 660(3)Aydar v Pashen (2001) QDC 292 not followed
Emanuele v Australian Securities Commission (1996-7) 188 CLR 114 followed
Horinack v Suncorp Metway Insurance Ltd (2001) 2 QdR 266 distinguished
McKelvie v Page (1999) 2 QdR 2569 discussed
Project Blue Sky v ABA (1998) 194 CLR 355 followed
Young v Keong (1999) 2 QdR 335 discussedCOUNSEL: Mr. P. Ambrose for the plaintiff
Mr. M. Glen for the defendantSOLICITORS: Kyle Spina & Waldon for the plaintiff
Gadens Lawyers for the defendants
Before me are two applications which raise an issue of general importance for persons seeking to claim damages where the provisions of the Motor Accident Insurance Act 1994 (“the Act”) apply and where proceedings are brought close to the expiration of the statutory limitation period.
The first application is made by the defendants for the plaintiff’s claim to be struck out or, alternatively, that judgment be entered for the defendants. The second is by the plaintiff for leave, nunc pro tunc, to commence these proceedings. Both applications can conveniently be heard together.
Background facts
The plaintiff, who was born on 12 July 1973, was injured on 12 August 1998 when the motor vehicle in which she was a…
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- Case
- [2002] QSC 57
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court involved the interpretation of sections 37, 39(5), and 57 of the Motor Accident Insurance Act 1994. The court had to determine whether the plaintiff's failure to comply with the six-month waiting period constituted a contravention of section 39(5)(a) and whether the plaintiff should have sought leave under section 39(5)(c) to commence proceedings earlier. Additionally, the court examined whether it had the discretion to grant leave to proceed under section 39(5)(c) or to grant leave nunc pro tunc, effectively validating the earlier proceedings as if they had been properly authorised.
In ruling, the court found that the plaintiff had not contravened section 39(5)(a) and determined that the plaintiff was not required to apply for leave to bring the proceedings within the statutory period. The court held that section 39(5)(1)(a) did not preclude the operation of section 57, meaning that section 39(5) was subject to the overarching provisions of section 57. Consequently, the court granted the plaintiff leave nunc pro tunc to commence the action filed on 6 August 2001, dismissing the defendants' application and ordering them to pay the plaintiff's costs.
Orders
Orders of the court
1. The application of the defendants is dismissed.
2. Leave is granted to the plaintiff nunc pro tunc to commence the proceedings commenced by claim filed on 6 August 2001.
3. The defendants are to pay the plaintiff’s costs of and incidental to both applications on the standard basis.
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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