Hornby v Opbroek

[2015] QDC 101

DISTRICT COURT OF QUEENSLAND

CITATION:

Hornby v Opbroek & Anor [2015] QDC 101

PARTIES:

SARAH ELIZABETH HORNBY
(plaintiff)

v

REECE PAUL MICHAEL OPBROEK
(first defendant)

and

AAI LIMITED (ABN 48 005 297 807)
(second defendant)

FILE NO:

4108/13

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

11 May 2015

DELIVERED AT:

Brisbane

HEARING DATE:

29 April 2015

JUDGE:

Dorney QC DCJ

ORDERS:

1.     It is ordered that the question particularised in the application be decided separately from all other questions before the trial of this proceeding but that the application filed 3 March 2015 be otherwise dismissed.

2.     All parties have leave to file, and serve, written submissions, if any, on costs by 4pm 18 May 2015.

CATCHWORDS:

Separate question determined – application of legislation to proceeding – dependant on pleaded cause of action

COUNSEL:

A F Maher for the Applicant/Plaintiff

G O’Driscoll for the Respondent/Second Defendant

SOLICITORS:

Carter Capner for the Applicant/Plaintiff

Jensen McConaghy for the Respondent/Second Defendant

LEGISLATION CITED:

Civil Liability Act 2003

Uniform Civil Procedure Rules 1999, r 483, r 483(1)

Motor Accident Insurance Act 1994, s 5, s 5(1), s 5(1)(a), s 5(1)(a)(i), s 5(1)(b)

Summary Offences Act 2005, s 26(1)(a)

CASES CITED:

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd & Anor (2005) 221 CLR 568

Bayon v Bayon [2014] NSWCA 434

Coley v Nominal Defendant [2004] 1 Qd R 239

Lawes v Nominal Defendant [2008] 1 Qd R 369

Leach v Nominal Defendant [2014] NSWCA 257

Mani v Nominal Defendant [2003] 1 Qd R 248

Raschke v Suncorp Metway Insurance Limited [2005] 2 Qd R 549

Introduction

1. In this proceeding, the plaintiff seeks, pursuant to r 483 of the Uniform Civil Procedure Rules 1999 (“UCPR”), a declaration that the Motor Accident Insurance Act 1994 (“MAIA”) applies to this proceeding and that this question be determined separately from other questions in the proceeding, and before trial. 

1. Because all parties agreed to the tendering, as Exhibit 1, of a Statement of Agreed Facts, I decided that I would make an order for a decision by this Court of a question separately from any other question before the trial of the proceeding: see r 483(1) of the UCPR.  Necessarily, since all parties agreed that there would be no further evidence necessary before the decision on that question was made, I determined that I would then proceed to so decide the question.

Background

1. The proceeding arises out of an incident whereby the plaintiff suffered personal injuries (the details of which are set out in paragraph 6 of Exhibit 1).  Those injuries resulted from broken glass striking the plaintiff’s face and upper body.  The reason for the broken glass was that the first defendant threw a beer bottle at the motor vehicle in which the plaintiff was a passenger (described in Exhibit 1 as “the Holden”).  That bottle smashed against the Holden’s rear door frame. 

1. The legal arguments in this case centred around the circumstances in which the first defendant…