Crawford v Forna - [2016] QSC 309

SUPREME COURT OF QUEENSLAND

CITATION:

Crawford v Forna & Anor [2016] QSC 309

PARTIES:

VONNE LOUISE CRAWFORD

(plaintiff)

v
SULAIMAN FORNA
(first defendant)
RACQ INSURANCE LIMITED
(ACN 009 704 152)

(second defendant)

FILE NO:

SC No 68 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 December 2016

DELIVERED AT:

Brisbane

HEARING DATE:

5 July 2016

JUDGE:

Douglas J

ORDER:

1. The second defendant’s application for summary judgment is granted.

2. The plaintiff’s application for leave to commence proceedings under s 57(2)(b) of the Act is dismissed.

3. I shall hear the parties as to costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – where the plaintiff claims for damages for personal injuries arising out of a motor vehicle accident that occurred in 2007 – where the plaintiff obtained an extension of the limitation period – where the plaintiff was given leave to commence proceedings within 60 days of a compulsory conference being held or of the parties’ agreement to dispense with the compulsory conference or of an order of the court dispensing with the compulsory conference – where an order was made on 16 September 2015 stating that if the compulsory conference was not held on or before 28 November 2015 it was to be dispensed with and the applicant was to commence proceedings within 60 days – where no compulsory conference was held – where the plaintiff failed to commence proceedings within the 60 day period – where the plaintiff’s solicitors asked the court not to visit the solicitors’ failings on the plaintiff – where the plaintiff had a history of delay and non-compliance with provisions of the Act – where the plaintiff sought leave to commence proceedings by 5 February 2016 – whether the second defendant’s application for summary judgment should be granted

Motor Accident Insurance Act 1994 (Qld), s 51A, s 51A(5), s 51D, s 51D(4)(b), s 51D(5), s 57(2)(b)

Jonathan v Mangera & Anor [2016] QCA 86, cited

Morrison-Gardiner v Car Choice P/L & Anor; Crain v Crocker & Anor; O’Dare v Vitanza & Ors [2005] 1 Qd R 378; [2004] QCA 480; (2004) 43 MVR 153, cited

COUNSEL:

M Holmes for the plaintiff

K S Howe for the second defendant

SOLICITORS:

Lehmann Featherstone Lawyers for the plaintiff

Cooper Grace Ward Lawyers for the second defendant

In this case the plaintiff filed and served her claim and statement of claim on 5 February 2016. She should have done so on or before 28 January 2016 but, by her solicitors’ omission, failed to do so. The issue raised by the second defendant is whether that failure is fatal to her action.
Her claim is one for damages for personal injuries arising out of a motor vehicle accident. The accident happened on 9 December 2007 so the limitation period under s 11 of the Limitation of Actions Act 1974 (Qld) has long since passed.
She completed a notice…

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 Crawford v Forna

Details

AGLC: Crawford v Forna [2016] QSC 309
Case: [2016] QSC 309
Decision Date: 22 December 2016

CaseChat Overview and Summary

In the case of Crawford v Forna, the plaintiff sought damages for personal injuries that arose from a motor vehicle accident that occurred in 2007. The plaintiff had obtained an extension of the limitation period and was given leave to commence proceedings within 60 days of a compulsory conference being held or of the parties’ agreement to dispense with the compulsory conference or of an order of the court dispensing with the compulsory conference. An order was made on 16 September 2015 stating that if the compulsory conference was not held on or before 28 November 2015 it was to be dispensed with and the plaintiff was to commence proceedings within 60 days. No compulsory conference was held, and the plaintiff failed to commence proceedings within the 60 day period. The plaintiff’s solicitors asked the court not to visit the plaintiff’s failings on them, and the plaintiff had a history of delay and non-compliance with provisions of the Act. The plaintiff sought leave to commence proceedings by 5 February 2016, and the second defendant applied for summary judgment.

The legal issues that the court was required to decide were whether the second defendant’s application for summary judgment should be granted and whether the plaintiff’s application for leave to commence proceedings under s 57(2)(b) of the Act should be dismissed. The court had to consider the history of delay and non-compliance with provisions of the Act, the failure of the plaintiff to commence proceedings within the 60 day period, and the plaintiff’s application for leave to commence proceedings by 5 February 2016.

The court held that the second defendant’s application for summary judgment should be granted, and the plaintiff’s application for leave to commence proceedings under s 57(2)(b) of the Act should be dismissed. The court noted that the plaintiff had a history of delay and non-compliance with provisions of the Act, and the failure to commence proceedings within the 60 day period was a significant factor in the court’s decision. The court also noted that the plaintiff’s solicitors had asked the court not to visit the plaintiff’s failings on them, but the court held that the plaintiff’s history of delay and non-compliance with provisions of the Act was a matter for the plaintiff and not the solicitors.

The court shall hear the parties as to costs. The second defendant’s application for summary judgment is granted, and the plaintiff’s application for leave to commence proceedings under s 57(2)(b) of the Act is dismissed. The court held that the plaintiff’s history of delay and non-compliance with provisions of the Act, and the failure to commence proceedings within the 60 day period, were significant factors in the court’s decision. The court also noted that the plaintiff’s solicitors had asked the court not to visit the plaintiff’s failings on them, but the court held that the plaintiff’s history of delay and non-compliance with provisions of the Act was a matter for the plaintiff and not the solicitors.

Orders

Orders of the court

1. The second defendant’s application for summary judgment is granted.

2. The plaintiff’s application for leave to commence proceedings under s 57(2)(b) of the Act is dismissed.

3. I shall hear the parties as to costs.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Crawford v Forna & Anor [2016] QSC 309
PARTIES:	VONNE LOUISE CRAWFORD (plaintiff) v SULAIMAN FORNA (first defendant) RACQ INSURANCE LIMITED (ACN 009 704 152) (second defendant)
FILE NO:	SC No 68 of 2016
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	22 December 2016
DELIVERED AT:	Brisbane
HEARING DATE:	5 July 2016
JUDGE:	Douglas J
ORDER:	1. The second defendant’s application for summary judgment is granted. 2. The plaintiff’s application for leave to commence proceedings under s 57(2)(b) of the Act is dismissed. 3. I shall hear the parties as to costs.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – where the plaintiff claims for damages for personal injuries arising out of a motor vehicle accident that occurred in 2007 – where the plaintiff obtained an extension of the limitation period – where the plaintiff was given leave to commence proceedings within 60 days of a compulsory conference being held or of the parties’ agreement to dispense with the compulsory conference or of an order of the court dispensing with the compulsory conference – where an order was made on 16 September 2015 stating that if the compulsory conference was not held on or before 28 November 2015 it was to be dispensed with and the applicant was to commence proceedings within 60 days – where no compulsory conference was held – where the plaintiff failed to commence proceedings within the 60 day period – where the plaintiff’s solicitors asked the court not to visit the solicitors’ failings on the plaintiff – where the plaintiff had a history of delay and non-compliance with provisions of the Act – where the plaintiff sought leave to commence proceedings by 5 February 2016 – whether the second defendant’s application for summary judgment should be granted Motor Accident Insurance Act 1994 (Qld), s 51A, s 51A(5), s 51D, s 51D(4)(b), s 51D(5), s 57(2)(b) Jonathan v Mangera & Anor [2016] QCA 86, cited Morrison-Gardiner v Car Choice P/L & Anor; Crain v Crocker & Anor; O’Dare v Vitanza & Ors [2005] 1 Qd R 378; [2004] QCA 480; (2004) 43 MVR 153, cited
COUNSEL:	M Holmes for the plaintiff K S Howe for the second defendant
SOLICITORS:	Lehmann Featherstone Lawyers for the plaintiff Cooper Grace Ward Lawyers for the second defendant