Best v I & G Selke Pty Ltd - [2003] QDC 559

[2003] QDC 559

DISTRICT COURT

CIVIL JURISDICTION

JUDGE McGILL SC

No D4163 of 2003

KELVIN JOHN BEST	Applicant
and
I & G SELKE PTY LTD (ACN 010 110 308)	First Respondent
and
SUNCORP METWAY INSURANCE LIMITED (ABN 83 075 695 968)	Second Respondent

BRISBANE

..DATE 19/12/2003

ORDER

HIS HONOUR: This is an application for an extension, under section 57(2)(b) of the Motor Accident Insurance Act, of the period within which a proceeding is to be commenced in circumstances where a notice of a motor vehicle accident claim was given prior to the expiration of the period of limitation applying to the claim but some additional time is required to commence the proceeding. The applicant claims to have been injured on the 4th of October 2000. The notice of claim under the Act was given on the 2nd of July 2003 and therefore if the Act applies to the claim, a proceeding may be commenced under section 57(2)(a) within six months of 2 July 2003 and that is by 2 January 2004.

However, there has not been the compulsory conference or exchange of mandatory final offers and so on, and that is obviously not going to occur before the 2nd of January, and therefore, if it is necessary for the applicant to comply with the pre-litigation procedures required under the Motor Accident Insurance Act, an extension of time will have to be given; otherwise, there will not be time available to comply with those procedures before the six-month period expires. Indeed, there were difficulties in complying with the timetable contemplated by section 57(2)(a) in circumstances where ordinarily a compulsory conference cannot be held until six months after the notice of claim has been given. But anyway, the matter might have been relatively straightforward on the basis of those facts, but for the fact that the second respondent to the application, the insurer, has appeared and submitted that it is not appropriate to make the order on the basis that the applicant's claim is not properly within the Motor Accident Insurance Act at all.

The applicant is proposing to take proceedings against his employer at the time, which was also the owner of the motor vehicle involved, which the applicant was driving. What happened was that the applicant injured his back following an incident when he drove over a contour bump on a road running through a property, Emu Valley Station, in the course of his employment while driving a motor vehicle supplied by his employer, or at least that is the allegation which the applicant is proposing to make. At the moment it can only be what the applicant is alleging and proposing to be the basis of a proceeding because at this stage, when one is dealing with the pre-litigation procedures, one is dealing with claims by people rather than facts which have been determined.

There is probably no admissible evidence before me as to what actually happened but it will obviously not be appropriate, for the purpose of this…

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: [2003] QDC 559
Decision Date: 19/12/2003

CaseChat Overview and Summary

In the District Court of Queensland, Kelvin John Best filed an application against I & G Selke Pty Ltd and Suncorp Metway Insurance Limited, seeking an extension of time to commence a proceeding for injuries allegedly sustained in a motor vehicle accident on 4 October 2000. Best gave notice of his claim under the Motor Accident Insurance Act on 2 July 2003, and the court had to determine whether an extension of time was necessary and if the Act applied to his claim. The legal issues included whether the statutory policy exclusion applied and whether the pre-litigation procedures should be followed under the Motor Accident Insurance Act or the WorkCover legislation.

The court analysed the statutory policy exclusion under clause 2(3) of the policy, which excludes liability for injuries arising from the employer's failure to provide a safe system of work or breach of some other duty of care to the employee if neither the employer nor another employee was the driver of the motor vehicle. The court found that the exclusion applied to Best's claim, as he was an employee injured while driving the employer's vehicle. Therefore, the Motor Accident Insurance Act did not apply to Best's claim against his employer. The court also considered the potential conflict between the WorkCover legislation and the Motor Accident Insurance Act, emphasising the need for legislative reform to address the complexities and additional costs caused by the current system.

On the basis of the findings, the court declared that the Motor Accident Insurance Act did not apply to Best's claim and dispensed with the obligation to hold a compulsory conference and exchange mandatory final offers under the Act. The court also fixed the time for commencing the proceeding as 2 January 2004. The court ordered that the costs of the application be borne by the respondents, including WorkCover Queensland, due to the novel nature of the issue and the need to address the legislature's shortcomings in creating this complex situation.

Orders