Machno v Stickley - [2013] QDC 148

DISTRICT COURT OF QUEENSLAND

CITATION:

Machno v Stickley & Anor [2013] QDC 148

PARTIES:

ELI MACHNO
(plaintiff)

v

JOHN STICKLEY
(first defendant)

and

QBE INSURANCE (AUSTRALIA) LIMITED
ABN 79003191035
(second defendant)

FILE NO:

69/12

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Rockhampton

DELIVERED ON:

4 July 2013

DELIVERED AT:

Brisbane

HEARING DATE:

17 June 2013

JUDGE:

Smith DCJ

ORDER:

Application dismissed

CATCHWORDS:

PRACTICE AND PROCEDURE - Application to strike out claim and statement of claim - Plaintiff under an incapacity - could the Plaintiff engage in compulsory conference and make mandatory final offer under Motor Accident Insurance Act 1994 (Q) without consent of the Public Trustee

Corrective Service Act 2006 (Q) schedule 4
Motor Accident Insurance Act 1994 (Q) ss 51B and C
Penalties and Sentence Act 1992 (Q) s 4
Public Trustee Act 1973 (Q) ss 91, 94, 95
Uniform Civil Procedure Rules r 171

Di Carlo v Kashani-Malaki & Anor [2012] QCA 320
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Kashani-Malaki v Di Carlo [2012] QSC 139
Tyler v Krause [2003] 1 Qd R 453

COUNSEL:

T. Matthews for the Applicant Second Defendant
T. Arnold for the Respondent Plaintiff

SOLICITORS:

Jensen McConaghy solicitors for the Applicant Second Defendant
Rees R and Sydney Jones for the Respondent Plaintiff

Introduction

This is an application by the Second Defendant pursuant to Uniform Civil Procedure Rule 171 that the claim and statement of claim be struck out.

The basis of this application is that the proceedings have been impermissibly commenced as the Plaintiff was under an incapacity as a prisoner at the time of a mandatory settlement conference held under the provisions of the Motor Accident Insurance Act 1994(Q) (“MAIA”).

Background

The Plaintiff, who was born on 30 March 1985, was injured in a collision which occurred on 9 August 2009 between Yeppoon and Emu Park on the Capricorn Coast.

The Plaintiff issued proceedings for damages concerning this accident on 9 October 2012. On 21 November 2012 the defendant filed a notice of intention to defend and defence alleging contributory negligence on the basis that the Plaintiff was aware that the First Defendant (the driver) was intoxicated.

On 14 March 2013 an amended defence was filed. In the amended defence (aside from issues of contribution) the Second Defendant alleged that as the Plaintiff had been sentenced to a term of four and a half years imprisonment on 12 October 2010, actions taken under the MAIA and the proceedings were a nullity and were liable to be struck out under rule 171.

The affidavit of Paul Birkett discloses that a notice of accident claim form was sent to the insurer on 30 September 2009. By correspondence on 12 October 2009 the second Defendant confirmed the notice was compliant.

The solicitors for the Plaintiff advised the Second Defendant by letter on 10 February 2012 that the Plaintiff had been sent to jail and was due to be released on 12 April 2012.

By letter dated 26 July 2012…

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.

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Details

Case: [2013] QDC 148
Decision Date: 4 July 2013

CaseChat Overview and Summary

The application in Machno v Stickley was brought before the Supreme Court of Queensland. The plaintiff, Machno, sought to sue the defendant, Stickley, over an incident involving a motor vehicle accident. The plaintiff was under a disability and the Public Trustee was appointed to manage the plaintiff's affairs. The dispute centred on whether the plaintiff, without the consent of the Public Trustee, could engage in a compulsory conference and make a mandatory final offer under the Motor Accident Insurance Act 1994 (Q). The court was tasked with determining whether the plaintiff could participate in these processes without the Public Trustee's consent.

The legal issues that the court had to address included the interpretation of the Motor Accident Insurance Act 1994 (Q) sections 51B and 51C, and the interplay between these provisions and the Public Trustee Act 1973 (Q) sections 91, 94, and 95. Additionally, the court had to consider whether the plaintiff, as a person under a disability, was capable of engaging in the compulsory conference and making the final offer without the Public Trustee's involvement. The court also examined the relevance of the Corrective Services Act 2006 (Q) schedule 4 and the Penalties and Sentences Act 1992 (Q) section 4 to the plaintiff's capacity to engage in the proceedings.

The court found that the plaintiff, despite being under a disability, had the capacity to engage in the compulsory conference and make the mandatory final offer under the Motor Accident Insurance Act 1994 (Q) without the Public Trustee's consent. The court reasoned that the provisions of the Motor Accident Insurance Act 1994 (Q) and the Public Trustee Act 1973 (Q) were not inconsistent and could be reconciled. The court concluded that the plaintiff's disability did not preclude them from participating in the compulsory conference and making the final offer, as these actions were within the scope of the plaintiff's legal capacity. The application to strike out the claim and statement of claim was dismissed.

No further orders were made by the court, and the application was dismissed. The plaintiff's ability to proceed with the lawsuit remained intact, and the compulsory conference and mandatory final offer process could continue without the need for the Public Trustee's consent. The court's decision provided clarity on the interaction between the Motor Accident Insurance Act 1994 (Q) and the Public Trustee Act 1973 (Q) in the context of a plaintiff under a disability.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Machno v Stickley & Anor [2013] QDC 148
PARTIES:	ELI MACHNO (plaintiff) v JOHN STICKLEY (first defendant) and QBE INSURANCE (AUSTRALIA) LIMITED ABN 79003191035 (second defendant)
FILE NO:	69/12
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Rockhampton
DELIVERED ON:	4 July 2013
DELIVERED AT:	Brisbane
HEARING DATE:	17 June 2013
JUDGE:	Smith DCJ
ORDER:	Application dismissed
CATCHWORDS:	PRACTICE AND PROCEDURE - Application to strike out claim and statement of claim - Plaintiff under an incapacity - could the Plaintiff engage in compulsory conference and make mandatory final offer under Motor Accident Insurance Act 1994 (Q) without consent of the Public Trustee Corrective Service Act 2006 (Q) schedule 4 Motor Accident Insurance Act 1994 (Q) ss 51B and C Penalties and Sentence Act 1992 (Q) s 4 Public Trustee Act 1973 (Q) ss 91, 94, 95 Uniform Civil Procedure Rules r 171 Di Carlo v Kashani-Malaki & Anor [2012] QCA 320 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Kashani-Malaki v Di Carlo [2012] QSC 139 Tyler v Krause [2003] 1 Qd R 453
COUNSEL:	T. Matthews for the Applicant Second Defendant T. Arnold for the Respondent Plaintiff
SOLICITORS:	Jensen McConaghy solicitors for the Applicant Second Defendant Rees R and Sydney Jones for the Respondent Plaintiff