Crain v Crocker

[2004] QDC 151

DISTRICT COURT OF QUEENSLAND

CITATION:

Crain v Crocker & Anor [2004] QDC 151

PARTIES:

GILDA CRAIN

Plaintiff

v

BOBBY ALLAN CROCKER

First Defendant

and

ALLIANZ AUSTRALIA INSURANCE LIMITED

Second Defendant

FILE NO/S:

BD 1303/04

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

26 May 2004

DELIVERED AT:

Brisbane

HEARING DATE:

14 May 2004

JUDGE:

McGill DCJ

ORDER:

Action struck out with costs including the costs of the applications. Further consideration of application under s 57(2)(b) deferred.

CATCHWORDS:

MOTOR VEHICLES – Compulsory insurance – pre-litigation procedures – whether agreement to dispense with compulsory conference – whether limitation period can be extended.

Motor Accident Insurance Act 1994 ss 51A(4); 51C; 57(2)(b).

Bermingham v Priest [2003] 1 Qd R 623 – distinguished.

Kash v S M & T J Cedergren Builders [2003] QSC 426 – followed.

COUNSEL:

K D Dorney QC and M J Taylor for the plaintiff
K N Wilson SC for the defendants

SOLICITORS:

Woods Prince Lawyers for the plaintiff
McInnes Wilson Lawyers for the defendants

1. On 8 April 2004 a claim and statement of claim were filed on behalf of the plaintiff seeking damages for personal injuries suffered as a result of the negligence of the first defendant in a motor vehicle accident on 16 April 2001. On 10 May 2004 the plaintiff applied for an order that the court dispense with the obligation to make mandatory final offers, under s 51C(11) of the Motor Accident Insurance Act 1994 (“the Act”). On 13 May 2004 the defendants filed a conditional notice of intention to defend, and applied to have the action struck out, on the ground that there had been a failure to comply with Division 5A of Part 4 of the Act. Both applications came before me on 14 May 2004.

1. The relevant chronology appears to be as follows:

16 April 2001	Date of Accident.
15 May 2001	Notice under s 37 of the Act.
25 May 2001	Second defendant accepted the notice complied with s 37 of the Act.
3 October 2001	Liability admitted to the extent of 75 percent.
22 December 2003	Proposed compulsory conference, cancelled on behalf of plaintiff on 18 December 2003 because further medical evidence was being sought.[1]
25 March 2004	Orthopaedic report provided, and forwarded to second defendant’s solicitors.
25 March 2004	Second defendant’s solicitor prepared consent order dispensing with compulsory conference under s 51A(5)(b), and with mandatory final offers under s 51C(11), of the Act, subject to conditions about holding something like a compulsory conference after the commencement of the proceeding, and faxed draft consent and draft order to plaintiff’s solicitor, in anticipation of receiving instructions to consent.
6 April 2004	Consent signed on behalf of the plaintiff and returned by fax to second defendant’s solicitor.
8 April 2004	Claim and statement of claim filed on behalf of the plaintiff.
16 April 2004	Limitation period expired.
29 April 2004	Second defendant’s solicitor claimed action “null and void”.

[1]The investigation of the plaintiff’s claim and the preparation for the conference took…