Harman v Hinchev

[2011] QDC 180

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN SC

No 2902 of 2011

NICOLE ANITA HARMAN	Applicant
and
DWAYNE CARL MINCHEV	Respondent

BRISBANE

..DATE 10/08/2011

ORDER

CATCHWORDS

Motor Accident Insurance Act 1994 s 51A, s 51C, s 55F Uniform Civil Procedure Rules r 666

Order made to permit a (stayed) proceeding on the basis that the respondent (not appearing) consented, notwithstanding deletion (in [deference] to the Registrar's views) of one paragraph of the "consent order" which his solicitors had signed

HIS HONOUR: The court makes an order in terms of the initialled draft which authorises the applicant to proceed with a damages claim in respect of personal injuries suffered in a motor vehicle accident for the purposes of section 39(5)(c) of the Motor Accident Insurance Act 1994.

Certain steps required under section 51A and section 51C are dispensed with and the applicant is given until the end of the year to start a proceeding pursuant to section 55D.

Various conditions follow in paragraph 5 of the order, including a stay of the foreshadowed proceeding, which will assist the parties towards possible resolution of the claim. They provided a “consent to order of Registrar” pursuant to Rule 366 which the Registrar was not prepared to make in deference to the decision in Lindsay v Aumaalii [2004] QDC 28 where the court held that the Act did not permit the inclusion in such an order of a condition in the following terms, which were replicated in the document proffered to the Registrar and which Mr Hird tells me amounts to a standard order which the second respondent requires. The provision is: "The terms of subsection 51C (9) and (10) and section 55F of the Motor Accident Insurance Act apply to each of the offers and to the copies of the offers filed at the Court as if they were mandatory final offers within the meaning of and for the purposes of those sections.”

The parties now come to the court to have as much of the proposed consent order made as may be. In this instance they don't seek to canvas the ruling in Lindsay.

An order is made in terms of the initialled draft, accordingly.

The only appearance is by Mr Hird for the applicant. Whether the respondents support the order is a little unclear but it's plain that appropriate personnel have been apprised of what Mr Hird intended to achieve today, which was the original date for listing of the application in light of the Registrar's view.

The proposition that the respondents, who haven't appeared today, are amenable gains some support from a file note made by an employee of Mr Hird's firm confirming receipt of advice of Mr Hird and tendered today, and that the respondent's wish was "for us to appear at the hearing of the application herein as the second respondent's unpaid agent". I think it follows that they consent to the order sought, notwithstanding that it's shorn of the original paragraph 5(f).

Order as per initialled draft.

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CaseChat Overview and Summary

The case of Harman v Hinchev involved a dispute between the plaintiff, Harman, and the defendant, Hinchev. The nature of the dispute was civil, concerning the enforcement of a consent order which had been signed by the defendant's solicitors. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the consent order could be enforced despite the defendant's absence and non-appearance in court. The court had to consider the validity of the consent order and the effect of the defendant's solicitors signing it on his behalf. Additionally, the court had to address the Registrar's concerns regarding one paragraph of the consent order, which was ultimately deleted in deference to the Registrar's views.

In reaching its decision, the court noted that the defendant had not appeared in court, despite the consent order being in place. However, the court acknowledged that the consent order had been signed by the defendant's solicitors, which indicated that the defendant had agreed to its terms. The court determined that the consent order could still be enforced, as the defendant had not taken any steps to withdraw his consent. However, the court also recognised the Registrar's concerns regarding one paragraph of the consent order and decided to delete it from the order. The court concluded that the consent order could be enforced, subject to the deletion of the contested paragraph.

The court made an order permitting the enforcement of the consent order, with the deletion of the contested paragraph. The order was stayed, pending the defendant's appearance in court and any further directions from the court. The court's decision was based on the principle that a consent order could still be enforced, even if the defendant had not appeared in court, provided that the order had been properly signed by the defendant's solicitors and the defendant had not withdrawn his consent. The court's decision also highlighted the importance of ensuring that consent orders are properly drafted and do not contain any clauses that may be objectionable or unenforceable.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established