Bermingham v Priest and Nominal Defendant

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 discussed

COUNSEL:

Mr. P. Ambrose for the plaintiff
Mr. M. Glen for the defendant

SOLICITORS:

Kyle Spina & Waldon for the plaintiff
Gadens Lawyers for the defendants

1. 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.

1. 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

1. The plaintiff, who was born on 12 July 1973, was injured on 12 August 1998 when the motor vehicle in which she was a…