Brown v Taylor

[2004] QDC 263

DISTRICT COURT OF QUEENSLAND

CITATION:

Brown v Taylor & Anor [2004] QDC 263

PARTIES:

ALAN LAWSON BROWN

Applicant

v

NATALIE TAYLOR and SUNCORP METWAY INSURANCE LIMITED

Respondents

FILE NO/S:

BD2146 of 2004

DIVISION:

PROCEEDING:

Originating application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

28 June 2004

DELIVERED AT:

Brisbane

HEARING DATE:

28 June 2004

JUDGE:

McGill DCJ

ORDER:

Extension of time as per draft;  cross application dismissed.

CATCHWORDS:

MOTOR VEHICLES – compulsory insurance – pre-litigation procedures – whether to extend time within which proceeding can be commenced

MOTOR VEHICLES – compulsory insurance – pre-litigation procedures – scope of duty to cooperate – does not require execution of additional authority.

Motor Accident Insurance Act 1994 s 57(2)(b), s 45.

UCPR rule 223.

Attard v Hore [2002] QSC 437 – distinguished

Crain v Croker [2004] QDC 151 – followed

Morrison-Gardiner v Car Choice Pty Ltd [2004] QSC 124 – followed.

COUNSEL:

R P S Jackson for the applicant
R B Dickson for the respondents.

HIS HONOUR: This is an application for an extension under section 57(2)(b) of the Motor Accident Insurance Act of the time within which the applicant may bring proceedings in respect of a claim for personal injuries sustained in a motor vehicle accident on 2 December 2000.

The terms of the section 57 of the Act and the question of whether there was power under that section to make the sort of order which is sought on this occasion were considered by me in the matter of Crain v. Crocker [2004] QDC 151 and I repeat the approach that I adopted there. I note that subsequently a Supreme Court Judge has taken a similar approach in Morrison-Gardiner v. Car Choice Propriety Limited [2004] QSC 124.

Accordingly, I am proceeding on the basis that there is power to make the order sought.  There are discretionary considerations along the lines that I referred to earlier.  That involves the situation of whether there is some good reason why proceedings have not already been commenced and the prospects of prejudice to either party depending on the outcome of the application.

I noted in the earlier decision this should not been seen as a legislative invitation to tear up the Limitation Act; rather I see it as being consistent with the clear legislative intention in the Act that there should be efforts to resolve claims without litigation and prior to the commencement of litigation.   For that purpose the Act also contains a mechanism for a compulsory conference and an exchange of mandatory final offers and indeed other mechanisms prior to the provision dealing with compulsory conference for the provision of information.

In this case, the history begins with a motor vehicle accident on the 2nd of December 2000.  The applicant apparently did not consult a solicitor until the 28th of August 2001 when a section 37 notice was completed and signed.

The section 37 notice was not actually given to the second respondent until the 19th of March 2002.  The explanation offered for…