Brannigan v Nominal Defendant - [1999] QCA 347

IN THE COURT OF APPEAL 99.347
SUPREME COURT OF QUEENSLAND

Appeal No 5764 of 1999

Brisbane
[Brannigan v The Nominal Defendant]
BETWEEN:
ROBERT STANLEY BRANNIGAN

(Applicant) Appellant

AND:
THE NOMINAL DEFENDANT

(Respondent) Respondent

de Jersey CJ
McPherson JA
White J

Judgment delivered 24 August 1999
Separate reasons for judgment of each member of the Court; each concurring as to the orders made.
LEAVE TO APPEAL AGAINST JUDGMENT BELOW GRANTED.
APPEAL DISMISSED.
COSTS TO BE TAXED.

CATCHWORDS:

INSURANCE - THIRD-PARTY LIABILITY INSURANCE - MOTOR VEHICLES - COMPULSORY INSURANCE LEGISLATION - WHERE IDENTITY OF VEHICLE CANNOT BE ESTABLISHED - appeal against striking out of damages claim against Nominal Defendant for personal injuries allegedly sustained in motor vehicle accident on the ground that it was barred by Motor Accident Insurance Act 1994 s 37 - appellant failed to give notice within period specified in s 37(3) - whether notice given under s 37(4) must contain explanation of delay - effect of wording in provision - whether defect in notice able to be waived under s 39 - legislative aims of act

considered
Georgiadis v Australian & Overseas Telecommunications Corporation
(1993-4) 179 CLR 297, considered
Halleday v The Nominal Defendant (Queensland) [1965] QdR 7,
considered
McKelvie v Page (1998) 27 MVR 292, distinguished
Smith v The Nominal Defendant (Queensland) [1965] QdR 1,
considered

Facey v The Nominal Defendant (Queensland) [1966] QdR 65, considered
Motor Accident Insurance Act 1994 ss 3, 31, 37, 39
Motor Accident Insurance Regulations 1994 s10
Counsel: Mr DB Fraser QC with DL Atkinson, for the appellant
Mr PV Ambrose for the respondent
Solicitors: Watling Roche Lawyers for the appellant
Biggs & Biggs for the respondent
Hearing Date: 26 July 1999
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

Appeal No 5764 of 1999

Brisbane

Before de Jersey CJ
McPherson JA
White J
[Brannigan v The Nominal Defendant]
BETWEEN:
ROBERT STANLEY BRANNIGAN

(Applicant) Appellant

AND:
THE NOMINAL DEFENDANT

(Respondent) Respondent

REASONS FOR JUDGMENT - de JERSEY CJ

Judgment delivered 24 August 1999

On 9 July 1998, the appellant filed a plaint in the District Court claiming damages for personal
injuries. The appellant allegedly sustained his injuries in a collision on 13 April 1997 between the vehicle
he was driving and an unidentified motor vehicle. The appellant alleged that the collision occurred
because of the negligence of the driver of that unidentified vehicle. Hence the defendant to the plaint,
and the respondent to this appeal, is the Nominal Defendant.
By summons dated 23 April 1999 the respondent sought an order striking out the action on the
ground that it was barred by s 37 of the Motor Accident Insurance Act 1994. A learned District
Court Judge made that order, against which the appellant now wishes to appeal.

3	The appellant first requires leave to appeal under s 118 of the District Courts Act, because he cannot establish that the value of his claim exceeds $50,000 (s 118(2)). Leave should be granted:

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 Brannigan v Nominal Defendant

Details

AGLC: Brannigan v Nominal Defendant [1999] QCA 347
Case: [1999] QCA 347
Decision Date: 24/08/1999

CaseChat Overview and Summary

In the case of Brannigan v Nominal Defendant, the appellant sought to recover damages for personal injuries sustained in a motor vehicle accident. The identity of the driver responsible for the accident was unknown, and the appellant filed a claim against a nominal defendant under the Motor Accident Insurance Act 1994. The primary issue before the court was whether the appellant's failure to provide notice of the claim within the period specified in section 37(3) of the Act precluded the claim, and if the defect in the notice could be waived under section 39 of the Act.

The court examined the statutory provisions and the legislative intent behind the compulsory insurance legislation. The appellant argued that the notice provided under section 37(4) did not need to include an explanation of the delay, while the respondent contended that such an explanation was mandatory. The court held that the requirement for an explanation of the delay was not explicitly stated in the relevant section and, therefore, not mandatory. Furthermore, the court found that the defect in the notice could be waived under section 39, which allowed for the claim to proceed despite the procedural lapse.

In light of the court's reasoning, the appeal against the striking out of the damages claim was allowed. The court found that the defect in the notice did not preclude the claim, and the legislative aims of the Act could be achieved by allowing the claim to proceed. The respondent was ordered to pay the costs of the appeal.

Orders