Croft v Francis

[2000] QDC 109

DISTRICT COURT OF QUEENSLAND

CITATION:

Croft v. Francis & Anor [2000] QDC 109

PARTIES:

SANDRA CLAIRE CROFT (Plaintiff)
v.
MICHAEL NICHOLAS FRANCIS (First defendant)
And
FAI GENERAL INSURANCE COMPANY LIMITED (Second defendant)

FILE NO/S:

Plaint 2393 of 1999

DIVISION:

PROCEEDING:

Determination of questions before trial

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

6 June 2000

DELIVERED AT:

Brisbane

HEARING DATE:

22 May 2000

JUDGE:

McGill D.C.J.

ORDER:

Questions answered as follows:

Whether the plaintiff’s action is statute barred by operation of s.11 of the Limitation of Actions Act 1974: Yes.

Whether the defendants are estopped from relying on s.11 of the Limitation of Actions Act 1974:No.  

Order that the plaintiff’s action be dismissed.  Order the plaintiff to pay the defendants’ costs of and incidental to the action, including the costs of the trial of the separate questions and the costs of the applications filed 25 January and 8 March 2000, to be assessed.  Leave reserved to the defendants to seek an order that some or all of those costs be paid by the solicitors for the plaintiff. Leave reserved to the plaintiff to seek an order that her costs, including costs ordered to be paid to the defendants, be paid by the solicitors for the plaintiff.  

CATCHWORDS:

LIMITATION OF ACTIONS – personal injury – whether admission of liability allows action out of time by estoppel or contract

Motor Accident Insurance Act 1994 ss. 37, 39, 41, 57

Morris v. FAI General Insurance Co Ltd [1996] 1 Qd.R. 495 – distinguished

The Commonwealth v. Verwayen (1990) 170 CLR 394 – applied

Newton v. SGIO (Queensland) [1986] 1 Qd.R. 431 – distinguished

Till v. The Nominal Defendant [1999] QCA 490 – followed

COUNSEL:

K.B. Varley for the plaintiff
K F Holyoak for the defendant

SOLICITORS:

Colwell Wright Solicitors for the plaintiff
McInnes Wilson Lawyers for the defendants

1. The plaintiff was injured in a motor vehicle accident which occurred on 24 December 1995. On 15 June 1999 a plaint was filed in the District Court at Brisbane seeking damages for injuries suffered by her in that accident. By a defence filed on 21 October 1999, the defendants alleged that the claim is statute barred by s.11 of the Limitation of Actions Act 1974. The issue I have to decide is whether that is correct.

1. The plaintiff pleaded by way of reply that the defendants were estopped from relying on the Limitation Act, or that the effect of s.57 of the Motor Accident Insurance Act 1994 was that the action had not been commenced outside the limitation period as extended by that section. On 13 March 2000, I ordered pursuant to r.483 that the following questions be decided separately before the trial:

(a) whether the plaintiff’s action is statute barred by operation of s.11 of the Limitation of Actions Act 1974;

(b) whether the defendants are estopped from relying on s.11 of the Limitation of Actions Act 1974.

1. I also gave directions for the decision of those questions. When that hearing came on…