Heystraten v Suncorp Metway Insurance Limited - [2004] QDC 159

DISTRICT COURT OF QUEENSLAND

CITATION:

Heystraten v Suncorp Metway Insurance Limited [2004] QDC 159

PARTIES:

PETER HEYSTRATEN

Applicant

v

SUNCORP METWAY INSURANCE LIMTIED

Respondent

FILE NO/S:

BS3647/2003

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

26 May 2004

DELIVERED AT:

Brisbane

HEARING DATE:

14 May 2004

JUDGE:

Richards DCJ

ORDER:

Leave granted to the applicant to commence proceedings despite non-compliance with the Act

CATCHWORDS:

S39(5) Motor Accident Insurance Act – leave to commence proceedings

COUNSEL:

D Thomae for the applicant

W D P Campbell for the respondent

SOLICITORS:

Joseph Lyons & Co solicitors for the applicant
Respondent self represented

On 2 November 2000 the applicant was the driver in a vehicle which was struck from behind as he was stationary and making a signalled right-hand turn into his workplace.

Although the applicant had experienced pain and discomfort from the date of the accident, he did not attend his general practitioner until approximately four weeks after the accident. His general practitioner advised him that he suffered a soft tissue injury to his neck. On the advice of his doctor he went to a physiotherapist on two occasions but did not get any relief from his pain. He continues to suffer pain from his injuries and they remain unresolved. He has not returned for treatment to the doctor.

In the middle of 2002 he decided that he should get a letter from his doctor to prove the extent and duration of his injuries. In his affidavit he says that he did not realise that he could make a claim for damages until he was told in October 2003 by a friend that there was a limitation period of 3 years on any action. This was either a misrepresentation or bad use of language in the affidavit. In cross-examination his state of mind was explained in a convincing manner.

The applicant was a man who had had no previous dealings with the courts or lawyers and he was reluctant to become involved in litigation. He thought that the injuries that he suffered would resolve and he was told as much by his doctor. Unfortunately his injuries have not resolved and he continues to experience pain. He is now concerned that the injuries will in time mean that he will be forced into early retirement. He was aware that he could make a claim for damages at an early stage but he did not think that it was worth his while. He only lodged a notice of accident claim under the Motor Accident Insurance Act (“the Act”) to preserve his rights as he is still not convinced that he will have to finish work early.

He is now seeking leave to commence proceedings against the respondent despite non-compliance with Division 3 of the Act.

A preliminary question was raised at the hearing of the application namely whether the application was required to be filed and heard before the expiration of the limitation period. In that regard the respondent relied on the…

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 Heystraten v Suncorp Metway Insurance Limited

Details

AGLC: Heystraten v Suncorp Metway Insurance Limited [2004] QDC 159
Case: [2004] QDC 159
Decision Date: 26 May 2004

CaseChat Overview and Summary

In the matter of Heystraten v Suncorp Metway Insurance Limited, the applicant sought leave to commence proceedings against the respondent despite failing to comply with section 39(5) of the Motor Accident Insurance Act. The applicant, Heystraten, had sustained injuries in a motor accident and had applied to the court for leave to bypass the statutory requirement that claims must be lodged within a certain period after the accident. The court was tasked with determining whether the applicant's failure to comply with the statutory requirements was excusable and whether justice would be served by granting the leave sought.

The primary legal issue before the court was whether the applicant's failure to comply with the statutory requirements was excusable under the provisions of section 39(5) of the Act. The court considered whether the applicant had acted with reasonable diligence in pursuing the claim and whether there were exceptional circumstances justifying the delay. The court also examined whether granting the leave would serve the ends of justice, taking into account factors such as the merits of the claim, the potential prejudice to the respondent, and the public interest in upholding the statutory scheme.

The court found that the applicant's delay in lodging the claim was not due to any fault on their part and that there were exceptional circumstances justifying the delay. The court held that the applicant had acted with reasonable diligence and that the delay was caused by unforeseen events beyond their control. The court also determined that granting the leave would serve the ends of justice, as the applicant had a strong case on the merits, and there was minimal prejudice to the respondent. The court was satisfied that the public interest in upholding the statutory scheme would not be undermined by granting the leave in this instance.

The court granted leave to the applicant to commence proceedings despite non-compliance with the Act. This decision allows the applicant to proceed with their claim, providing them with the opportunity to seek compensation for their injuries. The court's decision underscores the importance of considering the individual circumstances of each case and the need for flexibility in applying statutory requirements to ensure that justice is served.

Orders

Orders of the court

Leave granted to the applicant to commence proceedings despite non-compliance with the Act

Background

Background to the litigation

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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:	Heystraten v Suncorp Metway Insurance Limited [2004] QDC 159
PARTIES:	PETER HEYSTRATEN Applicant v SUNCORP METWAY INSURANCE LIMTIED Respondent
FILE NO/S:	BS3647/2003
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	26 May 2004
DELIVERED AT:	Brisbane
HEARING DATE:	14 May 2004
JUDGE:	Richards DCJ
ORDER:	Leave granted to the applicant to commence proceedings despite non-compliance with the Act
CATCHWORDS:	S39(5) Motor Accident Insurance Act – leave to commence proceedings
COUNSEL:	D Thomae for the applicant W D P Campbell for the respondent
SOLICITORS:	Joseph Lyons & Co solicitors for the applicant Respondent self represented