Blundstone v Johnson - [2009] QDC 351

DISTRICT COURT OF QUEENSLAND

CITATION:

Blundstone v Johnson & Anor [2009] QDC 351

PARTIES:

WARWICK CHARLES BLUNDSTONE (plaintiff/applicant)

v

WAYNE PHILLIP JOHNSON (first defendant/ respondent)

and

ALLIANZ AUSTRALIA INSURANCE LIMITED

ACN 000 122 850

(second defendant/respondent)

FILE NO/S:

DC No 2365 of 2009

DIVISION:

District Court at Brisbane

PROCEEDING:

Application for extension of time

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

26 November 2009

DELIVERED AT:

Brisbane

HEARING DATE:

28 October 2009

JUDGE:

Judge Devereaux SC

ORDER:

Pursuant to s 57(2)(b) Motor Accident Insurance Act (as amended) order the time for issuing proceedings be extended to 24 August 2009 rather than 17 August 2009.

The Applicant be granted leave to continue proceeding 2365/09

The Applicant pay the Respondent’s costs of $3,331.12

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – PRINCIPLES UPON WHICH DISCRETION IS EXERCISED - whether the Court has power to exercise discretion under s 57 Motor Accident Insurance Act (as amended) a second time - where consent orders made extending limitation period – where applicant filed claim 7 days outside the period calculated under the consent orders.

Limitation of Actions Act 1974 s 11, s 31

Motor Accident Insurance Act (as amended) s 34, s 37, s 45,

s 46A, s 51, s 57

Archie v Archie; Smyth third party [1980] Qd R 546

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Crain v Crocker & Anor [2004] QDC 151

Lindsay v Smith [2002] 1 Qd R 610

Morrison-Gardiner [2005] 1 Qd R 378

O’Dare v Vitanza & Ors [2004] QCA 480

Paterson v Leigh & Anor [2008] QSC 277

Perdis v Nominal Defendant [2003] QCA 555

Sophron v The Nominal Defendant (1957) 96 CLR 469

Spencer v Nominal Defendant [2007] QCA 254

Venz v Moreton Bay Regional Council (formerly Caboolture Shire Council) [2009] QCA 224

Ward v Wiltshire Australia P/L & Anor [2008] QCA 93

COUNSEL:

A J Williams for the applicant

R Myers for the second respondent

SOLICITORS:

KM Splatt & Associates for the appellant

McInnes Wilson for the second respondent

The applicant seeks leave to commence proceedings outside the limitation period, pursuant to s 57(2) of the Motor Accident Insurance Act (as amended)(‘MAIA’). The second respondent (whom I will refer to as ‘the insurer’[1]) argues:

(1) that in the circumstances of this case, the court has no power to grant the application; alternatively,

(2) that the discretion should be exercised against the applicant.

[1] Adopting the language of the MAIA

It is convenient to set out the factual background, gleaned from the pleadings and affidavits supporting the application, before examining the insurer’s arguments. This is the second time the applicant has sought an order under s 57. I take some of the following from material supporting the earlier application.

Factual Background.

The applicant’s claim arises from personal injuries suffered in a motor vehicle accident on 2 September 2005. He retained solicitors on 26 October 2005. Since…

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 Blundstone v Johnson

Details

AGLC: Blundstone v Johnson [2009] QDC 351
Case: [2009] QDC 351
Decision Date: 26 November 2009

CaseChat Overview and Summary

The case of Blundstone v Johnson involved a dispute between the plaintiff, Blundstone, and the defendant, Johnson, concerning a personal injury claim. The matter was before the court to determine the validity of extending the limitation period for filing proceedings, in light of an earlier consent order that had been issued. The court was tasked with considering whether it had the discretion to extend the limitation period a second time, as the plaintiff had filed the claim seven days beyond the period calculated under the consent orders.

The primary legal issue before the court was whether it could exercise its discretion under section 57 of the Motor Accident Insurance Act (as amended) to extend the time for issuing proceedings for a second time, after a consent order had already been made. The court had to assess the principles guiding the exercise of this discretion, particularly in the context of personal injury matters. Additionally, the court needed to examine whether the circumstances warranted a second extension and whether the plaintiff's late filing could be justified.

The court determined that it did indeed have the power to exercise its discretion under section 57 a second time, albeit with caution. It found that the principles guiding the exercise of this discretion included considerations of fairness, the merits of the case, and the public interest in ensuring that personal injury claims are not unduly prejudiced by technicalities. The court concluded that in this instance, the application for an extension was justified, and granted the plaintiff's request to extend the time for issuing proceedings to 24 August 2009. The court also granted the plaintiff leave to continue the proceedings and ordered the plaintiff to pay the defendant's costs in the amount of $3,331.12.

Orders

Orders of the court

1. Pursuant to s 57(2)(b) Motor Accident Insurance Act (as amended) order the time for issuing proceedings be extended to 24 August 2009 rather than 17 August 2009.

2. The Applicant be granted leave to continue proceeding 2365/09

3. The Applicant pay the Respondent’s costs of $3,331.12

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

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CITATION:	Blundstone v Johnson & Anor [2009] QDC 351
PARTIES:	WARWICK CHARLES BLUNDSTONE (plaintiff/applicant) v WAYNE PHILLIP JOHNSON (first defendant/ respondent) and ALLIANZ AUSTRALIA INSURANCE LIMITED ACN 000 122 850 (second defendant/respondent)
FILE NO/S:	DC No 2365 of 2009
DIVISION:	District Court at Brisbane
PROCEEDING:	Application for extension of time
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	26 November 2009
DELIVERED AT:	Brisbane
HEARING DATE:	28 October 2009
JUDGE:	Judge Devereaux SC
ORDER:	Pursuant to s 57(2)(b) Motor Accident Insurance Act (as amended) order the time for issuing proceedings be extended to 24 August 2009 rather than 17 August 2009. The Applicant be granted leave to continue proceeding 2365/09 The Applicant pay the Respondent’s costs of $3,331.12
CATCHWORDS:	LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – PRINCIPLES UPON WHICH DISCRETION IS EXERCISED - whether the Court has power to exercise discretion under s 57 Motor Accident Insurance Act (as amended) a second time - where consent orders made extending limitation period – where applicant filed claim 7 days outside the period calculated under the consent orders. Limitation of Actions Act 1974 s 11, s 31 Motor Accident Insurance Act (as amended) s 34, s 37, s 45, s 46A, s 51, s 57 Archie v Archie; Smyth third party [1980] Qd R 546 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Crain v Crocker & Anor [2004] QDC 151 Lindsay v Smith [2002] 1 Qd R 610 Morrison-Gardiner [2005] 1 Qd R 378 O’Dare v Vitanza & Ors [2004] QCA 480 Paterson v Leigh & Anor [2008] QSC 277 Perdis v Nominal Defendant [2003] QCA 555 Sophron v The Nominal Defendant (1957) 96 CLR 469 Spencer v Nominal Defendant [2007] QCA 254 Venz v Moreton Bay Regional Council (formerly Caboolture Shire Council) [2009] QCA 224 Ward v Wiltshire Australia P/L & Anor [2008] QCA 93
COUNSEL:	A J Williams for the applicant R Myers for the second respondent
SOLICITORS:	KM Splatt & Associates for the appellant McInnes Wilson for the second respondent