Lindsay v Aumaalii
[2004] QDC 28
•4 March 2004
DISTRICT COURT OF QUEENSLAND
CITATION:
Lindsay v Aumaalii & Anor [2004] QDC 028
PARTIES:
ALLYSON LOUISE LINDSAY
Applicant
v
FAAU AUMAALII
First Respondent
and
NOMINAL DEFENDANT
Second Respondent
FILE NO/S:
BD3608/2003
DIVISION:
PROCEEDING:
Originating application
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
4 March 2004
DELIVERED AT:
Brisbane
HEARING DATE:
31 October, 16 December 2003
JUDGE:
McGill DCJ
ORDER:
Order made on 31 October 2003 not varied.
CATCHWORDS:
COURTS AND JUDGES – Courts – Jurisdiction – power – no power to make order by consent to vary operation of statute.
STATUTES – Operation – powers of Court under – no power to vary scope of operation of sections.
MOTOR VEHICLES – Compulsory Insurance – pre-litigation procedures – no power in Court to vary scope of operation of statute, even by consent.
Motor Accident Insurance Act 1994 ss 51C(9), (10), 55F.
COUNSEL:
K S Howe for the respondents (16 December)[1]
SOLICITORS:
Grasso Searles Romano Lawyers for the applicant
McInnes Wilson Lawyers for the respondents[1]Subsequently written submissions settled by K F Holyoak were received.
The Motor Accident Insurance Act 1994 (“the Act”) imposes certain pre-litigation procedures on any person wishing to pursue in a court a claim within the ambit of the Act. It is necessary to give a notice in accordance with the requirements of the Act,[2] and it is also necessary to have what is described in the Act as a compulsory conference,[3] and thereafter (if the matter is not settled) for the prospective plaintiff and the insurer to exchange what are described as “mandatory final offers”.[4] The offers are final not in the sense that there is any prohibition on parties settling a claim thereafter, but because the Act requires that these offers rather than any later offers between the parties be considered for the purpose of deciding questions of costs.[5] Indeed, the Act requires that in certain circumstances the court make orders for costs specified in the Act, based on the relationship between the amount of the mandatory final offers, and the amount awarded by the court.
[2]Section 37.
[3]Section 51A.
[4]Section 51C.
[5]Section 51C(10), s 55F.
If proceedings are commenced after the mandatory final offers are exchanged, copies of them are required to be filed in the court.[6] There is no good reason for this requirement, which merely serves to clutter up court files with unnecessary documents. In the handful of these matters which are actually tried to judgment,[7] and it becomes necessary to take into account these offers in relation to costs, it would be very easy for the parties at that point to produce copies of the offers to the court. That is the procedure which has operated without the slightest difficulty under the Uniform Civil Procedure Rules since 1999.
[6]Section 51C(7), (8).
[7]I have yet to try an action under this Act where mandatory final offers have been filed, although the requirement was introduced in October 2000 (by Act 17 of 2000).
The legislature when imposing these requirements recognised that circumstances could arise when it would be unjust to a potential plaintiff to require these steps to be taken before a proceeding was commenced. Accordingly, s 51A(5)(b) permits the court, on application by a party, to dispense with the compulsory conference for good reason, and to make any other orders the court considers appropriate in the circumstances. Subsection (6) requires that the court, in considering whether to dispense with the compulsory conference, must take into account the extent of compliance by the parties with their respective obligations related to the claim. With regard to the mandatory final offers, s 51C(11) provides that: “The court may, on application by a party, dispense with the obligation to make mandatory final offers.”
Unfortunately, on the face of the Act in its current form, only two things are possible. Either these provisions are complied with prior to the time when the proceeding is commenced, or they are dispensed with. There is no provision in the Act permitting the court to postpone the requirement for a compulsory conference, or a mandatory final offer, until after the action has been commenced.[8] The absence of such a provision is keenly felt. This is not merely a theoretical observation on my part. I have found from time to time whilst sitting in chambers that applications are often made to dispense with the compulsory conference and the exchange of mandatory final offers, by a person wishing to commence a proceeding under the Act. Commonly in these circumstances the parties have agreed on what is to be done, and I have been provided with a draft order to which the parties to the application consent, which provides for that to be done, but which then provides a mechanism by which the parties will do what has to be done in order to conduct a compulsory conference, and provides for the parties to exchange offers as if they were mandatory final offers under the Act. In effect there is an attempt by the parties by agreement to provide for the situation which has been overlooked by the legislature. I have been asked to make these orders by the consent of the parties to the applications.
[8]Contrast Personal Injuries Proceedings Act 2002, s 43.
These orders commonly provide however that the terms of s 51C(9) and (10), and s 55F, of the Act apply to the offers, and the copy of the offers filed in the court, as if they were “mandatory final offers” for the purposes of those sections, or words to that effect. Section 51C(9) and (10) provide as follows:
“(9) The court must not read the mandatory final offers until it has decided the claim.
(10) However, the court must (where relevant) have regard to the mandatory final offers in making a decision about costs.”
Section 55F is the section which provides that certain consequences must follow in relation to costs in certain circumstances depending on the amount for which judgment is given, and the amounts of the mandatory final offers. It is not necessary to set out the detail of that section, which is lengthy and fairly complicated. Its effect is to restrict the discretion as to costs which the court otherwise would have under the ordinary law, so that in certain circumstances orders for costs either cannot be made or can only be made in the terms specified by the section.[9]
[9]Its purpose is to discourage persons injured in motor vehicle accidents from pursuing their claims by litigation: Gitsham v Suncorp Metway Insurance Ltd [2003] 2 Qd R 251 at 256, where there is an explanation of the operation of the section.
When presented with these orders in chambers I have made the orders but first struck out the provision by which I was being asked to purport to make these provisions of the Act apply in circumstances where they did not apply. I took the view, for reasons I expound in more detail below, that I did not have power to make such an order even by consent, and therefore it ought not to be included in the order. Commonly there is no representative of the insurer present when these orders are made, the representative of the applicant merely producing a letter from the insurer or the insurer’s solicitor consenting to the order in those terms. Accordingly, there has never been any argument about my deletion of these provisions at the time when that occurred.
Now one insurer has brought the application back on before me, for the purpose of presenting an argument to the effect that there is power to make such an order, and that it ought to be made, in accordance with the agreement of the parties. If I was persuaded that there was power to make such an order, and it was otherwise a proper order to make, I would be happy to make it on the basis that the parties consented to its being made, and in those circumstances, the insurer not having been represented before me on the previous occasion, and there being no objection on the part of the applicant, I reopened the hearing under r 667(2)(a) for the purpose of hearing the submissions on behalf of the insurer.
Present application
On 29 October 2000 an originating application was filed on behalf of the applicant seeking leave to commence proceedings notwithstanding non-compliance with Division 3 of Part 4, and that the court dispense with the compulsory conference under s 51A(5)(b), and the exchange of mandatory final offers under s 51C. This application came on for hearing before me on 31 October 2003, when there was an appearance on behalf of the applicant, and I was provided with a letter dated 30 October 2003 from the second respondent stating, inter alia, “We advise that we will not be attending the hearing of the application however we are happy for you to appear as unpaid town agents on our behalf and enclose the signed consent order as discussed.”
I made the order as sought, by which leave was given to bring proceedings under s 39(5)(c)(ii) of the Act, and the compulsory conference and exchange of mandatory final offers were dispensed with, with a direction that the action be started no later than 4 November 2003. These orders were subject to certain conditions, including the service of a complying notice of claim form pursuant to s 37 within one month of the order, and a complying additional information form pursuant to s 37A, the holding of a conference as if it were a compulsory conference under s 51A, the exchange of written final offers as if they were mandatory final offers in accordance with s 51C of the Act, and, if the matter had not been settled, the filing of sealed envelopes in the court containing copies of the final offers of the applicant and the respondent. Each party was given leave to apply and there was no order as to costs. I crossed out, for the reasons stated earlier, the following clause from the draft order to which the respondents would consent, which was expressed as one of the conditions on which the first three orders were made:
“(c) The terms of subsections 51C(9) and (10), and section 55F, of the MAIA, apply to each of the offers, and 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 affidavit filed in support of the application reveals that the applicant alleges that she suffered injury in the form of nervous shock as a result of her defacto husband being severely injured in a motor vehicle accident on 4 November 2000. On 17 January 2002 she saw a solicitor about this, and that solicitor collected a file from a previous solicitor. Initially that solicitor considered whether there might be a claim for loss of consortium available and concluded that one was not available, but in September 2002 it emerged that she may have a claim for nervous shock. She was sent to a psychiatrist who provided a report in February 2003, and a supplementary report was sought, which was not received until 11 September 2003. The affidavit suggests that the delay in obtaining that supplementary report was largely because of the psychiatrist.
Evidently in December 2001 a notice of claim in respect of the accident claiming loss of consortium was sent to the insurer, because on 10 December 2001 the insurer confirmed that the notice of claim complied with s 37 of the Act. On 13 October 2003 the solicitors for the applicant wrote seeking confirmation that the existing notice would apply to a claim for psychiatric injury, and foreshadowing an application to dispense with compliance with the pre-litigation steps. There was no other correspondence disclosed in the affidavit before the application and affidavit was filed.
The application and affidavit was served at about 12.15pm on 28 October 2003. The following day the second respondent sent a letter to the solicitors for the applicant enclosing the draft consent order. Subsequently the matter came on before me, and the order was made on the basis that I indicated. Presumably the proceedings were commenced within the time limited by the order. The second respondent now seeks to have the consent order amended so as to include the provision which I deleted from it.
Submissions on behalf of the respondent
It was submitted that there was power in the court to impose conditions on the order which had been made. That power came from two sources, s 80 of the Supreme Court of Queensland Act 1991 (which applies to the District Court – s 71) and s 51A(5) of the Act, in the concluding words which I quoted earlier. I accept that I have power to impose conditions on the making of orders, and indeed much of the order that I made was taken up with the imposition of various conditions on the parties, particularly on the applicant. But the order that I declined to make was not in my opinion a condition. It was not something which required anything of the applicant (or for that matter the respondent) as the price of making the order, nor was it something which bound either or both of the parties in any way. It purported to be an order that the court, presumably myself and all other judges of the court, act in a particular way, as if certain legislative provisions had been activated by the events that had occurred.
That in my opinion is not the imposition of a condition. It is an attempt to vary a statute. The legislature has provided, as no doubt it is entitled to do, that in certain circumstances the members of this court are to behave in a particular way in relation to the mandatory final offers which have been made and filed in this court. The scope of operation of those provisions depends on their true construction. Once that has been determined however that represents the boundaries of operation laid down by the legislature. It is not open to a judge to impose different boundaries for the operation of those provisions. That would not in my opinion be the performance of a judicial function at all. It would be a legislative function. In effect, I am being asked to amend the Act.
This is not a situation where the legislature has expressly conferred on the court a power to determine in a particular case whether or not a particular provision or provisions of an Act will apply. The power is one to remove a requirement that otherwise applies in relation to a proceeding within the scope of the Act, but that is all. There is nothing in the legislation to suggest that I can, either directly or by way of a condition, order that certain provisions of the Act apply in circumstances where on their true construction and in the events that have happened (including the order that I had earlier made) they do not apply. There is no power under the Act to extend the operation of these sections: the Act does not say that they apply in some circumstances, and, if the Court so orders, in other circumstances. I am being asked to interpret the Act as if it did so provide. I do not consider that I can do so by any principle of construction of a statute.
There is the further difficulty that I am being asked to make orders by which I am to bind myself and all other members of this court in relation to future conduct in respect of this matter. Ordinarily once a particular issue has been decided by a judge that decision is conclusive of the issue for the purposes of later proceedings before that judge, and other judges, but that is not what I am being asked to do here. I am being asked to restrain myself and other members of the court from having access to a document on the court file. I am also being asked to make an order which would have the effect of requiring myself, or any other member of the court, to take a particular matter into account when deciding a question of costs, and indeed make an order which could have the effect, depending on the way things work out, of usurping what would otherwise be a discretion conferred on the judge by statute in relation to costs. It is one thing to say that such restriction may be imposed by statute. It is I think another matter entirely to say that I can make an order, even with the consent of the parties to a particular proceedings, imposing such a restriction on myself and my colleagues in relation to some future occasion on which it became appropriate to exercise the discretion in relation to costs.
Such an order seems to me to be entirely inconsistent with the ordinary notions of the way in which a court functions. Courts decide matters, which are brought before them to be decided, when that occurs, and do so in accordance with the law then binding on them. A judge cannot however make an order binding on a colleague as to how that power is to be exercised in a particular matter at some point in the future. The position may be different in the case of an order by a superior court exercising a supervisory jurisdiction over an inferior court, but that is not relevant here. The position seems to me to be so clearly contrary to the way in which courts ordinarily function that it may be doubted whether such power could be validly conferred on the court even expressly by statute. But there is no express conferral of the power here, or anything which is even suggestive of an implied conferral.
The situation is perhaps most starkly illustrated by the order sought from me in relation to s 51C(9): how can I order one of my colleagues not to look at a document on a court file? What is my source of power for such an order? The fact that the parties to the proceeding consent to the order is not an answer to that; parties cannot by their consent confer upon a court power to do something it would otherwise not have power to do.[10] Section 72 of the District Court of Queensland Act 1967 permits additional jurisdiction to be conferred on the District Court, but only in relation to trying an action which might be brought in the Supreme Court, and then only if both parties agree by memorandum signed by them or their solicitors. This latter requirement has been described as a procedural requirement which the parties can waive, so that for practical purposes what matters in order to activate s 72 is whether both parties really did consent: Eyres v Butt [1986] 2 Qd R 243. That however is of no assistance in the present case; clearly this matter does not fall within s 72 of the Act.
[10]Essex Incorporated Congregational Church Union v Essex County Council [1963] AC 808 at 820-1, 828. I cannot grant a divorce in litigation between married parties, even if they consent.
It was submitted that the parties could agree between themselves that questions of costs could in the future be resolved between them as if the provisions of the statute applied to the offers in fact made by the parties as “mandatory final offers”. It is not at present necessary for me to decide whether or not that is the case, and I express no opinion on that point. But assuming that it is correct, the parties cannot by their agreement bind the court to behave in a particular way, and therefore cannot by any agreement either bind me to make particular orders, or bind the members of this court to behave as if the statute applied in these circumstances. Courts enforce rights arising out of contracts, in appropriate cases by specific performance, but are not bound by them.
In supplementary written submissions counsel for the insurer suggested a revised form of order, which would not involve actually ordering that certain provisions of the statute apply, but rather setting out in full the consequences which would follow if those provisions of the Act did apply. But my concern does not go to the form of the order but to its substance. The proposed paragraph (c)[11] still has the objectionable feature that I am being asked to make an order binding upon myself and other members of this court. It is not uncommon for a court to order that a document be placed in a sealed envelope marked not to be opened except by a judge, but the whole point of the statute where it does apply is to prevent a particular judge (the trial judge) from looking at the document. That in my opinion is the very thing I cannot do. The objection is not to the form of the draft order but to its substance, and the proposed redraft which preserves the substance is just as objectionable.
[11]That reads: “Each of the said sealed envelopes not be opened until after the action has been decided, or until further order, and be marked accordingly.”
It was also submitted that I could in effect deal with the question of costs now by making various conditional orders such that, depending upon the combination of conditions which might come to be fulfilled as a result of the trial, the appropriate order which I now make would take effect. In my opinion it is inappropriate for me to attempt now to deal with a question which does not at present arise. Costs of the action arise only at the conclusion of and following the result of the trial of the action, and in my opinion can be properly be dealt with only at that point. Until that point arises, there is no occasion for those costs to be dealt with. Hence the court cannot deal with them. This is demonstrated by the existence of a specific rule permitting those costs to be dealt with in other circumstances, namely when the proceeding has otherwise become unnecessary: r 683. Plainly that rule does not apply here; the proceeding is hardly unnecessary, having not yet been commenced. In effect I am being asked to order that, if a proceeding is commenced, and if the parties behave in a particular way, and if ultimately there is a particular outcome of that proceeding, certain consequences will follow in terms of costs. In my opinion that is wholly objectionable. It is too much of a hypothetical order, which courts ought not to make: Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 356-7.
I therefore remain unpersuaded that the provision of the draft order which I struck out, or something to the same effect, could have been properly included in the order that I made. I will therefore not vary the order which I made on 31 October 2003, which continues to take effect according to its terms.
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