McAlister v Nominal Defendant

[2010] QDC 36

DISTRICT COURT OF QUEENSLAND

CITATION:

McAlister v Nominal Defendant [2010] QDC 36

PARTIES:

DANIEL JOHN MCALISTER

Applicant

AND

NOMINAL DEFENDANT

Respondent

FILE NO/S:

OA136/10

DIVISION:

PROCEEDING:

Originating application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

19 February 2010

DELIVERED AT:

Brisbane

HEARING DATE:

10 February 2010

JUDGE:

McGill DCJ

ORDER:

1.        The compulsory conference in respect of the applicant’s claim against the respondent is dispensed with.

2.        The exchange of mandatory final offers is dispensed with.

3.        The application is otherwise dismissed.

4.        The applicant pay the respondent’s costs of and incidental to the adjournment on 3 February 2010 to be assessed.

5.        Otherwise, the costs of and incidental to the application abide the event of the proceeding to be commenced to enforce the applicant’s claim against the respondent.

CATCHWORDS:

MOTOR VEHICLES – Compulsory insurance – pre-litigation procedures – jurisdiction - compulsory conference – criminal proceedings pending from incident – effect of delay.

Motor Accident Insurance Act 1994 s 51A(5), 51C(11).

Woolworths Ltd v Graham [2007] QDC 301 – followed.

COUNSEL:

P. Gibson (solicitor) for the applicant

S.A. Sullivan (solicitor) for the respondent

SOLICITORS:

Shine Lawyers for the applicant

DLA Philips Fox for the respondent

1. The applicant seeks leave under s 57(2)(b) of the Motor Accident Insurance Act 1994 (“the Act”) to commence a proceeding in the court within 60 days of one of three nominated events occurring, one of which being the holding of a conference pursuant to ss 51A and 51B of the Act and the exchange of final mandatory final offers in accordance with s 51C. The applicant also seeks that the court fix a time and place for the compulsory conference under s 51A(5)(a). The respondent initially did not oppose the former order, but subsequently submitted in substance that the compulsory conference should be dispensed with, but the court should make orders ensuring that the proceeding to be commenced not proceed to trial until some criminal proceedings related to the facts giving rise to the applicant’s claim have been determined, and that I give a direction to ensure that the conference contemplated by r 553 actually take place and fulfil something like the function of the compulsory conference contemplated by the Act.

Jurisdiction

1. The material initially relied on by the applicant did not establish that this court had jurisdiction to entertain the application. The jurisdiction of the court to entertain an application under the Act is contained in s 50 of the Act, which empowers “the court” to do certain things. By s 4 the term “court”, in relation to a claim in circumstances where no proceeding based on the claim has been brought, means “a court with jurisdiction to hear the claim.” That will always include the Supreme Court, but in order to show that an application in relation to a claim is properly brought in the District Court, it is necessary to show that the District Court has jurisdiction to hear the claim made by the applicant.

1. If the applicant has claimed a particular…