D'Amario v Fine & Allianz Australia Insurance Ltd

[2006] QDC 315

[2006] QDC 315

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No D394 of 2006

ANGELO D'AMARIO

Applicant

and

STEPHEN FINE

and

ALLIANZ AUSTRALIA INSURANCE LIMITED (ABN 15 000 122 850)

First Respondent

Second Respondent

SOUTHPORT

..DATE 21/08/2006

ORDER

CATCHWORDS
Uniform Civil Procedure Rules, r27(1) - application by would-be plaintiff injured in a motor vehicle accident for protection against limitations problems - Insurer had admitted liability but not cooperated in allowing pre-litigation procedures required by Motor Accident Insurance Act 1994 to be completed in time - application adjourned to allow respondent insurer which had not appeared, although "served" by fax, the full time allowed by the Rules.

HIS HONOUR:  The court has got itself into a difficult situation following my associate's being directed to chase up the parties in this matter which appeared in the Court's list.  No-one was present at the beginning of business this morning.

Ms Bonner, a trainee lawyer with the applicant's law firm, has responded to the associate's summons and obtained leave to appear.  The matter is urgent in the sense that the limitation period in relation to injuries which the applicant suffered in a motor vehicle accident will run out at the weekend.

He is in the favourable position of having obtained an admission of liability by Allianz, the insurer of the respondent driver, Stephen Fine.  That came in a letter of 29th October 2004, which states, inter alia:

".We require the provisions of section 51A of the Motor Accident Insurance Act (2000 amendments) to be satisfied prior to the commencement of Court proceedings, and for such proceedings to satisfy the provisions of section 51D.

.However, we also reserve our right to rely on any statutory provision which imposes a time limit or any other constraint upon the commencement of the proceedings."

Allianz has not engaged outside lawyers nor has it sent anyone to Court today when the application was made returnable.  My associate did not contact the insurer until the hearing this afternoon had commenced, and then by telephone in open Court.  That was done when it was realised that Ms Bonner's firm had not made any contact. 

It seems that Ms Bartlett, the signatory of Allianz's most recent letter of 17 February 2006, has only just returned from leave and was not there last Friday when it seems that "service" occurred by facsimile.  There is no question that the documents are there but that Ms Bartlett is not au fait with the matter at the moment and we are on "hold" until she has got the file.

Assuming that service by fax was effective, which may be a matter for argument, the applicant has allowed the time pressures to result in Allianz being denied the three business days notice of hearing required by rule 27(1) of the Uniform Civil Procedure Rules.

In the circumstances the Court ought to be sympathetic to the applicant's wish not to lose his rights to compensation by having a limitation period expire without his having obtained appropriate protection. 

There is no legislation available in Court at the moment. My impression is that the Motor Accident Insurance Act regime is in relevant respects somewhat different from that under the Personal Injuries Proceedings Act 2002.

Under the PIPA, judges are very familiar with urgent applications on the eve of expiry of the limitation period for leave to commence a proceeding notwithstanding that the mandatory pre-litigation procedures have not been gone through.

My impression is that under the MAIA the usual procedure is a rather different one which in practical terms depends on extension of the limitation period until the pre-litigation steps have been gone through.

The originating application makes it clear that there are some of those outstanding, including the holding of a compulsory conference under section 51A. That is something the applicant's solicitors have been trying to achieve but without any response from Allianz. For a couple of months an application has been foreshadowed to compel Allianz to attend such a conference.

It would appear that nothing happened on the 5th of July 2006 which was the date set by Ms Bonner's firm for such a conference.  By that time Allianz appears to have been keeping its own counsel and not responding to correspondence.

HIS HONOUR:  Do you understand what I've said, Ms Bonner?  They obviously don't know what's happening and you haven't given them enough time as it happens.

MS BONNER:  Your Honour, that's‑‑‑‑‑

HIS HONOUR:  You've still got time before the limitation period runs out‑‑‑‑‑

MS BONNER:  Just.

HIS HONOUR:  ‑‑‑‑‑to get back to Court.

MS BONNER:  If I may just make one point, your Honour.  The application itself was only filed on the 18th, which was the day prior to service.

HIS HONOUR:  I know, but why couldn't you give them the three days?  You've thought you were running out of time, I respect that.  I've just made another order today in Southport of the kind that I mention which deals with the difficulty not by authorising proceedings to start but by making an order that effectively extends the limitation period.  But it shouldn't be done without the other side having an opportunity to get here. 

What we really need is a day to which this application is adjourned. My suggestion actually is Friday.  I'll hear it myself.  I'm not prepared to say when on Friday it'll be.  You should check the law list.  Depending on how things develop, it might be listed in the morning or it might be listed after lunch.

MS BONNER:  Thank you, your Honour.

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