Lindsay v Aumaalii - [2004] QDC 28

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…

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 Lindsay v Aumaalii

Details

AGLC: Lindsay v Aumaalii [2004] QDC 28
Case: [2004] QDC 28
Decision Date: 4 March 2004

CaseChat Overview and Summary

Lindsay v Aumaalii involved a dispute between the plaintiff, Lindsay, and the defendant, Aumaalii, concerning an accident that occurred between the defendant's vehicle and a motorcycle ridden by the plaintiff. The case was heard in the Supreme Court of Queensland, where the primary issue was whether the court had the authority to make an order varying the operation of a statute, specifically the Motor Accident Insurance Act 1994, even by consent of the parties. The case raised questions about the extent of the court's jurisdiction and the principles governing statutory interpretation and the enforcement of legislative intent.

The legal issue before the court was whether it had the power to make an order by consent that would alter the operation of a statute, particularly the Motor Accident Insurance Act 1994. The court needed to determine if it could vary the scope of the statute's operation to accommodate the consent of the parties, even though such an order would have significant implications for the statutory scheme designed to ensure compulsory insurance coverage for motor vehicles. The case hinged on the interpretation of the court's jurisdiction and the role of consent in modifying statutory provisions.

The court found that it lacked the power to make an order by consent that would vary the operation of a statute. It held that the statutory framework established by the Motor Accident Insurance Act 1994 was designed to operate uniformly and could not be altered by judicial consent. The court emphasised the importance of maintaining the integrity of the legislative intent and the public policy objectives underpinning the compulsory insurance scheme. It concluded that any attempt to vary the scope of the statute, even by consent, would be beyond the court's jurisdiction.

The final orders of the court were that the order made on 31 October 2003 was not to be varied. The court upheld the original order, reaffirming its stance that it did not have the authority to alter the operation of the statute, regardless of the consent of the parties involved.

Orders

Orders of the court

Order made on 31 October 2003 not varied.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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