Faraji v Dambarage - [2012] QDC 137

DISTRICT COURT OF QUEENSLAND

CITATION:

Faraji v Dambarage & Anor [2012] QDC 137

PARTIES:

FOROUZAN FARAJI
(Applicant)

v

RAVEEN DAMBARAGE
(First respondent)

And

RACQ INSURANCE LIMITED ABN 50 009 704 152
(Second respondent)

FILE NO/S:

453/12

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

8 June 2012

DELIVERED AT:

Maroochydore

HEARING DATE:

30 April 2012

JUDGE:

Long SC, DCJ

ORDER:

1.      On or before 18 June 2012 the Second Respondent is to:

(a)    prepare the questionnaire forwarded with the letter of the Applicant’s solicitors of 14 November 2011 (except for Question 19) into a form of statutory declaration;

(b)   directly engage with the First Respondent for the purpose of obtaining his responses to those questions;

(c)    provide the First Respondent with the terms of s 35 of the Motor Accident Insurance Act 1994 (Qld), in outline of his statutory duty and, if he indicates a wish to seek legal or other advice about his obligations, to allow a reasonable period of time in which to do this, before re-engaging with him; and

(d)   either obtain from the First Respondent his responses to the questions or his express objection to doing so.

2.      If responses to the questions (or any of them) are obtained from the First Respondent or, if the First Respondent claims a reasonable excuse in respect of the request made of him by the insurer, such response is to be incorporated in the statutory declaration prepared by the Second Respondent and the First Respondent is to be requested to execute that statutory declaration in the presence of a person authorised in accordance with the Oaths Act 1867 to take such declaration.

3.      In the event of the First Respondent providing responses to the questions, (or any of them) or claiming a reasonable excuse but declining to verify any such response by execution of the statutory declaration, then the content of the information obtained from the First Respondent and the circumstances as to how, when and by whom that information was obtained is to be verified by statutory declaration by the Second Respondent.

4.      The Second Respondent is to provide the outcome of these actions to the Applicant, via her solicitors, on or before 9 July 2012.

5.      The Applicant’s costs of and incidental to this Originating Application (to be agreed or failing agreement to be assessed on the standard basis in accordance with the District Court scale) form part of the Applicant’s costs in the claim for damages for personal injury brought by her against the Respondents in relation to the motor vehicle accident that was the subject of this application.

CATCHWORDS:

MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – Application under s 50(2) of Motor Accident Insurance Act 1994 - Duty of insured to co-operate under s 47(1)(b) – Duty of insured person under s 35(1) – Discretion to order insurer to take specified action to remedy default – information that can be found out from an insured person.

LEGISLATION:

Motor Accident Insurance Act 1994,…

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.

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Details

Case: [2012] QDC 137
Decision Date: 8 June 2012

CaseChat Overview and Summary

The case of Faraji v Dambarage involved a dispute under the Motor Accident Insurance Act 1994. The applicant, Ms Faraji, sought orders against the first and second respondents, Mr Dambarage and his insurer respectively, in relation to the compulsory insurance legislation. Ms Faraji was seeking to obtain information from Mr Dambarage to use in her claim for damages for personal injury from the motor vehicle accident.

The central legal issue was the extent of the duties of an insured person under the Act, specifically in relation to cooperation with their insurer. Ms Faraji argued that Mr Dambarage had failed to cooperate as required by section 47(1)(b) and had not complied with his statutory duty under section 35(1). She sought an order compelling the insurer to take specified action to remedy this default.

The court considered the statutory provisions and the nature of the duties imposed on the insured person. It found that Mr Dambarage had not complied with his duty to cooperate and that the insurer had a discretion to take action to remedy this default. The court concluded that the insurer was required to engage with Mr Dambarage to obtain his responses to the questions posed by Ms Faraji, provide him with information about his statutory duties, and either obtain his responses or his express objection to doing so. If responses were obtained, they were to be incorporated into a statutory declaration executed by Mr Dambarage.

The court made several orders to enforce these duties, including that the insurer prepare a questionnaire, engage with Mr Dambarage to obtain his responses, and provide him with information about his statutory duties. If responses were obtained, Mr Dambarage was to be requested to execute a statutory declaration. If he provided responses or claimed a reasonable excuse, the content of the information obtained and the circumstances of its acquisition were to be verified by the insurer. The court also ordered that the outcome of these actions be reported to Ms Faraji by the insurer. Finally, the court ordered that the costs of the application form part of Ms Faraji's costs in her claim against the respondents.

Orders

Orders of the court

1. On or before 18 June 2012 the Second Respondent is to:

(a) prepare the questionnaire forwarded with the letter of the Applicant’s solicitors of 14 November 2011 (except for Question 19) into a form of statutory declaration;

(b) directly engage with the First Respondent for the purpose of obtaining his responses to those questions;

(c) provide the First Respondent with the terms of s 35 of the Motor Accident Insurance Act 1994 (Qld), in outline of his statutory duty and, if he indicates a wish to seek legal or other advice about his obligations, to allow a reasonable period of time in which to do this, before re-engaging with him; and

(d) either obtain from the First Respondent his responses to the questions or his express objection to doing so.

2. If responses to the questions (or any of them) are obtained from the First Respondent or, if the First Respondent claims a reasonable excuse in respect of the request made of him by the insurer, such response is to be incorporated in the statutory declaration prepared by the Second Respondent and the First Respondent is to be requested to execute that statutory declaration in the presence of a person authorised in accordance with the Oaths Act 1867 to take such declaration.

3. In the event of the First Respondent providing responses to the questions, (or any of them) or claiming a reasonable excuse but declining to verify any such response by execution of the statutory declaration, then the content of the information obtained from the First Respondent and the circumstances as to how, when and by whom that information was obtained is to be verified by statutory declaration by the Second Respondent.

4. The Second Respondent is to provide the outcome of these actions to the Applicant, via her solicitors, on or before 9 July 2012.

5. The Applicant’s costs of and incidental to this Originating Application (to be agreed or failing agreement to be assessed on the standard basis in accordance with the District Court scale) form part of the Applicant’s costs in the claim for damages for personal injury brought by her against the Respondents in relation to the motor vehicle accident that was the subject of this application.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Faraji v Dambarage & Anor [2012] QDC 137
PARTIES:	FOROUZAN FARAJI (Applicant) v RAVEEN DAMBARAGE (First respondent) And RACQ INSURANCE LIMITED ABN 50 009 704 152 (Second respondent)
FILE NO/S:	453/12
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	8 June 2012
DELIVERED AT:	Maroochydore
HEARING DATE:	30 April 2012
JUDGE:	Long SC, DCJ
ORDER:	1. On or before 18 June 2012 the Second Respondent is to: (a) prepare the questionnaire forwarded with the letter of the Applicant’s solicitors of 14 November 2011 (except for Question 19) into a form of statutory declaration; (b) directly engage with the First Respondent for the purpose of obtaining his responses to those questions; (c) provide the First Respondent with the terms of s 35 of the Motor Accident Insurance Act 1994 (Qld), in outline of his statutory duty and, if he indicates a wish to seek legal or other advice about his obligations, to allow a reasonable period of time in which to do this, before re-engaging with him; and (d) either obtain from the First Respondent his responses to the questions or his express objection to doing so. 2. If responses to the questions (or any of them) are obtained from the First Respondent or, if the First Respondent claims a reasonable excuse in respect of the request made of him by the insurer, such response is to be incorporated in the statutory declaration prepared by the Second Respondent and the First Respondent is to be requested to execute that statutory declaration in the presence of a person authorised in accordance with the Oaths Act 1867 to take such declaration. 3. In the event of the First Respondent providing responses to the questions, (or any of them) or claiming a reasonable excuse but declining to verify any such response by execution of the statutory declaration, then the content of the information obtained from the First Respondent and the circumstances as to how, when and by whom that information was obtained is to be verified by statutory declaration by the Second Respondent. 4. The Second Respondent is to provide the outcome of these actions to the Applicant, via her solicitors, on or before 9 July 2012. 5. The Applicant’s costs of and incidental to this Originating Application (to be agreed or failing agreement to be assessed on the standard basis in accordance with the District Court scale) form part of the Applicant’s costs in the claim for damages for personal injury brought by her against the Respondents in relation to the motor vehicle accident that was the subject of this application.
CATCHWORDS:	MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – Application under s 50(2) of Motor Accident Insurance Act 1994 - Duty of insured to co-operate under s 47(1)(b) – Duty of insured person under s 35(1) – Discretion to order insurer to take specified action to remedy default – information that can be found out from an insured person.
LEGISLATION:	Motor Accident Insurance Act 1994,…