McDonald v Oceangale

[2004] QDC 283

DISTRICT COURT OF QUEENSLAND

CITATION:

McDonald  v Oceangale & Anor [2004] QDC 283

PARTIES:

WILLIAM JOHN McDONALD

Applicant

v

OCEANGALE PTY LTD

First Respondent

and

ALLIANZ AustraliaN INSURANCE LIMITED

Second Respondent

FILE NO/S:

D319/04

DIVISION:

Civil Jurisdiction

PROCEEDING:

Application

ORIGINATING COURT:

Southport  

DELIVERED ON:

6 September 2004

DELIVERED AT:

Southport

HEARING DATE:

19 July 2004, further written submissions delivered on
27 July 2004

JUDGE:

Rackemann  DCJ

ORDER:

Application allowed.

CATCHWORDS:

LIMITATION OF ACTIONS – TORTS AND PERSONAL INJURY – APPLICATION OF THE STATUTES TO PARTICULAR CAUSES OF ACTIONS – MOTOR VEHICLE INSURANCE – application of order under s57(2)(b) Motor Accident Insurance Act 1994.

Legislation cited:

Motor Accident Insurance Act 1994

Cases cited:

Bermingham v Priest [2003] 1 Qd R 263

Crain v Crocker [2004] QDC 151

Kash v SM & TJ Cedergren Builders & Ors [2004] 1 Qd R 643

Morrison-Gardiner v Car Choice Pty Ltd [2004] QSC 124

COUNSEL:

Mr M E Pope for the applicant  

Ms R M Treston for the respondents

SOLICITORS:

Gall Standfield & Smith for the applicant  

McInnes Wilson for the respondents  

1. This is an application for an order, pursuant to s 57(2)(b) of the Motor Accident Insurance Act 1994 in order to allow a longer period for proceedings to be brought, the limitation period having expired. Section 57 proceeds, in part, as follows:

“(1)     If notice of a motor vehicle accident claim is given under division 3, or an application for leave to bring a proceeding based on a motor vehicle accident claim is made under division 3, before the end of the period of limitation applying to the claim, the claimant may bring a proceeding in court based on the claim even though the period of limitation has ended.

(2)      However, the proceeding may only be brought after the end of the period of limitation if it is brought within-

(a)  6 months after the notice is given or leave to bring the proceeding is granted; or
(b)  a longer period allowed by the court.

(3)      If during the last 14 days of the period of limitation, the claimant wants to give a notice of claim under division 3 but is unsure to which insurer the notice should be given, the notice is validly given if it is given to the commission.”

1. The applicant was injured as a result of a motor vehicle accident which occurred on 16 February 2001.  He promptly engaged solicitors and a compliant notice of accident claim form was delivered on 12 March 2001.  The second respondent duly accepted the form as compliant and a partial admission of liability has been made. 

1. By 28 October 2003 the applicant had undergone all medical examinations asked of him and had disclosed all medical reports.

1. During November and the early part of December 2003 the applicant’s solicitors endeavoured to arrange the compulsory conference, which was ultimately convened on 9 December 2003 but was adjourned, by agreement, on the basis that the parties would return in late January 2004.  The conference was not,…