Jonathan v Mangera

[2015] QDC 195

DISTRICT COURT OF QUEENSLAND

CITATION:

Jonathan v Mangera & Anor [2015] QDC 195

PARTIES:

WARREN JONATHAN

(applicant)

v                  

ZOHRABIBI MANGERA

(first respondent)

RACQ INSURANCE LIMITED ABN 50 009 704 152

(second respondent)

FILE NO/S:

2750 of 2015

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

6 August 2015

DELIVERED AT:

Brisbane

HEARING DATE:

31 July 2015

JUDGE:

Reid DCJ

ORDER:

The application is dismissed.

CATCHWORDS:

Application for leave to commence proceedings within an extended time beyond limitation period – extension of time period – personal injury claim – motor vehicle accident – where insurer admits liability in full – where solicitors lost contact with applicant for over two years – whether extension of time would prejudice respondent – where applicant does not make a conscientious effort to advance claim

CASES:

Morrison-Gardiner v Car Choice Pty Ltd [2005] 1 Qd R 378 – applied

Paterson v Leigh & Anor [2008] QSC 277 – applied

Winters v Doyle & Anor [2006] 2 Qd R 285 – applied

Ward v Wiltshire Australia Pty Ltd & Anor [2008] QCA 93 – applied

LEGISLATION:

Motor Accident Insurance Act 1994 (Qld) s 57(2)(b)

COUNSEL:

L. M. Willson for the applicant

R. A. Nichols for the second respondent

SOLICITORS:

Law Queensland Injury Claims Solicitors Pty Ltd for the applicant

Quinlan Miller & Treston Lawyers for the second respondent

Introduction

1. The applicant seeks an order pursuant to s 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld) (“MAIA”) (incorrectly said in the application to be the Motor Vehicles Insurance Act) that he be given leave to commence proceeding within 60 days of one a number of possible events which must all, in the circumstance of this matter, necessarily occur after the expiration of the normal three year limitation period. Although the application was heard within the limitation period, the application was opposed.

1. The applicant was involved in a motor vehicle accident on 4 August 2012 and claims to have suffered personal injury. In compliance with the MAIA he, through his solicitors, served on the insurer of the other motor vehicle (the second respondent), which vehicle was driven by the first respondent, the relevant notices required by the MAIA. The insurer accepted the notices were compliant with the requirements of the MAIA and subsequently admitted liability in full.

1. The three year limitation period expired on 3 August 2015 and so the applicant is precluded from bringing an action to recover damages unless an order extending time under s 57(2)(b) of the MAIA is made. The reason he has not commenced proceedings is of course that he has not yet complied with some of the requirements of the MAIA. In particular, the insurer has not yet had an opportunity to have him medically examined, and there has not yet been the settlement conference envisaged by s 51A of the MAIA. Other procedural matters have also not yet been completed.

1. The problem has arisen because the applicant’s solicitors were unable to locate him…