Coley v Nominal Defendant

[2003] QCA 181

SUPREME COURT OF QUEENSLAND

CITATION:

Coley v Nominal Defendant [2003] QCA 181

PARTIES:

KEVIN WAYNE COLEY
(plaintiff/appellant/applicant)
v
NOMINAL DEFENDANT
(defendant/respondent)

FILE NO/S:

Appeal No 9391 of 2002
DC No 2161 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

2 May 2003

DELIVERED AT:

Brisbane

HEARING DATE:

17 February 2003

JUDGES:

McMurdo P, Jerrard JA and Mackenzie J
Separate reasons for judgment of each member of the Court, McMurdo P and Jerrard JA concurring as to the orders made, Mackenzie J dissenting

ORDERS:

1.  Leave to appeal granted
2.  Appeal allowed
3.  Order of 20 September 2002 set aside and instead order that the defendant's application to strike out be dismissed with costs
4.  The respondent pay the applicant's costs of and incidental to this application and appeal to be assessed

CATCHWORDS:

APPEAL AND NEW TRIAL – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where appellant suffered personal injury in motor accident – where learned primary judge held that the Motor Accident InsuranceAct 1994 (Qld) had no application to the facts of the case - where learned primary judge struck out parts of the Amended Statement of Claim - whether the injuries sustained by the appellant were caused wholly or partly by the unidentified motor vehicle - whether the learned primary judge erred in law and in fact

Dickinson v The Motor Vehicle Insurance Trust (1987) 163 CLR 500, distinguished
Evans v Transit Australia Pty Ltd [2002] 2 Qd R 30, considered
Mani v Nominal Defendant [2003] 1 Qd R 248, considered
March v Stramare Pty Ltd (1990-1991) 171 CLR 506, applied
State Government Insurance Commission v Stevens Bros Pty Ltd (1984) 154 CLR 552, distinguished
Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514, considered
Westpac Banking Corporation v Klef Pty Ltd [1998] QCA 311; Appeal No 8204 of 1998, 16 August 1998, applied

Wiley v The ANI Corporation Limited [2000] QCA 314, Appeal No 4092 of 1999, 5 April 2000, applied

COUNSEL:

N E Ulrick for the appellant/applicant
S C Williams QC, with P D Lane, for the respondent

SOLICITORS:

Bartels for the appellant/applicant
O'Shea Corser & Wadley for the respondent

1. McMURDO P:  At about 8 pm on 30 May 1998, the applicant was driving his Ford Fairmont sedan west along Milne Street, Beenleigh when an unidentified white motor vehicle, also travelling west, commenced to overtake him.  The unknown driver or a passenger of the second vehicle threw an object akin to a Molotov cocktail into the applicant's vehicle setting fire to the interior.  The second vehicle sped off and was never identified.  The applicant suffered burns, smoke inhalation and shock.

1. The applicant commenced proceedings in the District Court against the respondent claiming damages for personal injuries caused by the negligence and/or wrongful act of the driver of the second vehicle and/or his passenger under the Motor…