McKelvie v Page

[1998] QSC 189

IN THE SUPREME COURT  

OF QUEENSLAND
  Writ No.  6801 of 1998
Brisbane

Before Justice Wilson

[McKelvie v Page & Ors]

BETWEEN:

KENT LAURIE McKELVIE
  Plaintiff

AND:

KRISTIAN MICHAEL PAGE
  First Defendant

AND:

NOMINAL DEFENDANT
  Second Defendant

AND:

SUNCORP GENERAL INSURANCE LIMITED
  Third Defendant

REASONS FOR JUDGMENT - WILSON J

Judgment delivered 18 September 1998

CATCHWORDS:     STATUTORY INTERPRETATION - Motor vehicle accident - uninsured vehicle - damages for personal injury - Nominal Defendant - non-compliance with obligation to give notice - granting of leave nunc pro tunc - interpreting leave clauses as jurisdictional rather than procedural - granting of leave to bring fresh proceedings - remedy of non-compliance akin to amendment of a document - extension of limitation period - discretionary considerations.

Corporations Law s 459G, 459 P.

Motor Accident Insurance Act 1994 ss 20, 21, 23, 31, 34, 39, 57.

Transport Infrastructure (Roads) Regulation 1991 Regulation 12.

David Grant & Co Pty Ltd v Westpac Banking Corporation (1995)   184 CLR 114

Emanuele v Australian Securities Commission (1996-97) 188 CLR   114

Hill v Bolt (1992) 28 NSWLR 329

Re Testro Bros Consolidated Ltd [1965] VR 18

Serhan v Serhan (1996) 24 MVR 4

Young v Keong (CA 2202 of 1997, 22 May 1998, unreported)

Counsel:Mr P. de Platter for the plaintiff

Mr K. Wilson for the defendant

Solicitors:  Carew and Company for the plaintiff

O’Shea Corser & Waddley for the defendant

Hearing Date:              24 August 1998

REASONS FOR JUDGMENT - WILSON J

Judgment delivered 18 September 1998

1. The plaintiff Kent Laurie McKelvie sustained serious injuries in a motor vehicle accident on 27 July 1995. He was riding a bicycle which collided with an unregistered motor vehicle.

2. By writ issued on 24 July 1998 he claimed against Kristian Michael Page, the Nominal Defendant and Suncorp General Insurance Limited damages pursuant to s 17 of the Supreme Court Act 1995 (ie damages under the equivalent of Lord Campbell’s Act). There was clearly an error in the indorsement on the writ: what was intended was a claim for damages for personal injuries.

3. The obligation to register a motor vehicle used on a road is to be found in regulation 12 of the Transport Infrastructure (Roads) Regulation 1991. By s 20 of the Motor Accident Insurance Act 1994 it is an offence to drive an uninsured motor vehicle on a road or in a public place and it is an offence for the owner of an uninsured vehicle to permit someone else to drive it on a road or in a public place. On lodging an application to register a vehicle, an applicant must select a licensed insurer (s 21), and a statutory policy of insurance comes into effect when the registration takes effect (s 23).

4. The Nominal Defendant, a body corporate under the Act, has the obligations of a licensed insurer in circumstances where a motor vehicle is not insured and a self-insurer is not the registered owner (s 31(1)(c)), and in circumstances where a motor vehicle or its insurer under the statutory policy cannot be identified (s 31(1)(d)). In the present case

s 31(1)(c) is applicable because the motor vehicle with which the plaintiff’s bicycle collided was unregistered and hence uninsured.

1. The Act requires a plaintiff to give two notices to the insurer against whom a claim may be made - preliminary notice pursuant to s 34 within one month after first consulting a lawyer about the possibility of making a claim and further notice pursuant to s 37 within nine months after the accident or the first appearance of symptoms of the injury. Where there has been a failure to give the second notice, a court may give leave to commence proceedings despite the non-compliance (s 39(5)(c)). Generally proceedings cannot be issued until the expiration of 6 months from the giving of the second notice (s 39(5)), during which time the insurer must attempt to resolve the claim (s 41).

2. The plaintiff first consulted solicitors on 28 August 1995. He terminated those solicitors’ retainer on 1 February 1996, apparently dissatisfied with their failure to furnish him with advice on whether his claim was worth pursuing. He chose to ignore their advice, given before and after he terminated their retainer, that he had to give a Notice of Claim before 26 April 1996 in order to avoid the imposition of “penalties”. Apart from a brief consultation with another solicitor shortly before terminating the first solicitors’ retainer, he did not seek other legal advice until Friday 24 July 1998, when he consulted his present solicitors. Earlier that month he had received a telephone call from an insurance company about a property damage claim arising out of the same accident. The present solicitors conducted a search at the office of Queensland Transport that afternoon, when they ascertained that the motor vehicle involved in the accident had been unregistered at the time of the accident. They caused a writ to be issued against the first and third defendants, who appeared on the search to have been the owner and licensed insurer of the vehicle until its registration had expired on 6 June 1995, as well as against the Nominal Defendant. Later that day they had the plaintiff complete a s 37 notice.

3. Documents received subsequently from the first solicitors revealed that they had ascertained on 9 October 1995 that the vehicle had been unregistered at the time of the accident and that they had sent a s 34 notice to the Nominal Defendant on that day.

4. In the present case there is no issue concerning the giving of the s 34 notice. A notice purportedly pursuant to s 37 was served on the Motor Accident Insurance Commissioner on 24 July 1998, the same day the writ was issued. On 27 July 1998 a copy of the notice was served on the Nominal Defendant. On 6 August 1998 the Nominal Defendant responded to the notice identifying a number of respects in which it did not comply with the requirements of s 37, which it required to be remedied within one month. On 10 August 1998 the plaintiff supplied a statutory declaration responding to the various matters which had been raised.

Application for leave nunc pro tunc

1. The plaintiff seeks (inter alia) leave nunc pro tunc to bring such proceedings despite non-compliance with the notice requirement. This is opposed by the Nominal Defendant.

2. Section 37 is in the following terms–

   “Notice to be given by claimant

37.(1)   Before bringing an action in a court for damages for personal injury arising out of a motor vehicle accident, a claimant must give written notice of the claim to the insurer, or 1 of the insurers, against which the action is to be brought–

(a)containing a statement, sworn by the claimant, of the information required by regulation;  and

(b)containing an offer of settlement, or a sworn statement of the reasons why an offer of settlement cannot yet be made;  and

(c)accompanied by the documents required by regulation.

(2)       The notice must be given within 9 months after the motor vehicle accident or the first appearance of symptoms of the injury.

(3)       However, if the motor vehicle cannot be identified, the notice must be given to the Nominal Defendant within 3 months after the motor vehicle accident.

(4)       If the notice is not given within the time fixed by this section, the obligation to give the notice continues and the notice, when given, must contain an explanation of the delay but, if a motor vehicle accident claim relates to injury caused by, through or in connection with a motor vehicle that cannot be identified and notice of the claim is not given to the Nominal Defendant within 9 months after the motor vehicle accident, the claim against the Nominal Defendant is barred.

(5)       If 2 or more motor vehicles were involved in the motor vehicle accident, the insurer to which a notice of claim is given under subsection (1) must, within 7 days after receiving it, give a copy of the notice to any other insurer of a motor vehicle involved in the motor vehicle accident.

1. The legislation contemplates that a s 37 notice may be given out of time ( except in the case of an unidentified vehicle): s 37(4) provides that the obligation to give the notice continues and that, when given, it must contain an explanation for the delay. See also s 39(1)(a) by which an insurer must respond to a notice within one month of receiving it, even though it may have been given out of time. If the s 37 notice is defective in some respect, the insurer may either waive the non-compliance or allow the claimant a reasonable time within which to comply.

2. By s 39(5), (6) and (7)–

   (5)       A claimant may bring a proceeding in a court for damages based on a motor vehicle accident claim only if–

(a)the claimant has given notice to an insurer who may be liable on the claim under the statutory insurance scheme as required under this Division or the insurer has waived compliance with the requirement and–

(i)at least 6 months have elapsed since the notice or the waiver was given;  or

(ii)the insurer has denied liability on the claim;  or

(iii)the insurer has admitted liability but only in part and the claimant has given the insurer written notice that the extent of liability is disputed;  or

(b)the court, on application by a claimant dissatisfied with the insurer’s response to a notice of a claim under this Division, declares that–

(i)notice of claim has been given as required under this Division;  or

(ii)the claimant is taken to have remedied noncompliance with this Division;  or

(c)the court gives leave to bring the proceeding despite noncompliance with requirements of this Division.

(6)       A declaration that a claimant is taken to have remedied non- compliance with this Division, or an order that a claimant has leave to bring a proceeding despite noncompliance with requirements of this Division, may be made on conditions the court considers necessary or appropriate to minimise prejudice to an insurer from the claimant’s failure to comply with requirements of this Division.

(7)       If a claimant does not comply with the requirements of this Division, a court before which the claimant brings an action for damages on the claim–

(a)may, on the insurer’s application, award in the insurer’s favour costs (including legal and investigation costs) reasonably incurred by the insurer because of the claimant’s default;  and

(b)may only award interest in the claimant’s favour for a period for which the claimant was in default if the court is satisfied there is a reasonable excuse for the default.”

1. In Young v Keong (CA 2202 of 1997, 22 May 1998, unreported) the Court of Appeal held that an action commenced without a s 37 notice having first been given had been properly struck out.  Williams J (with whom McPherson and Pincus JJA agreed) said–

   “Both s 37(1) and 39(5) are in terms mandatory; that is emphasised by the use of the word ‘only’ in the latter provision. In New South Wales it has been held that similar provisions are mandatory and in the absence of an order to the contrary legal proceedings cannot be commenced where there has been non-compliance: Hill v Bolt (1992) 28 NSWLR 329 and Serhan v Serhan (1996) 24 MVR 4. The language of the Queensland provisions is similar, and in my view the result should be the same.

It will be noted that pursuant to s 39(5) the court may give leave to ‘bring the proceeding’ meaning thereby commence the proceeding, ‘despite non-compliance with the requirements of’ ss 37 and 39. No application for leave has been made in this case. It is therefore not appropriate to consider the grounds on which such leave may be granted, and whether or not leave could be granted on the facts of this case.”

1. The Court of Appeal did not deal with the question whether leave may be granted nunc pro tunc.  This is a question of statutory interpretation.  If it does have that power, then whether it should do so in the particular circumstances is a matter to be determined in the exercise of its discretion.

2. Counsel for the Nominal Defendant submitted that a claimant has no right to commence proceedings until one of the requirements in s 39(5) has been met, that this is a matter of jurisdiction rather than procedure, and that accordingly there is no power to grant leave nunc pro tunc.

3. The decisions of the High Court in David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 and Emanuele v Australian Securities Commission (1996-97) 188 CLR 114 give guidance to the general approach to such a question of statutory interpretation.

4. In the David Grant case the High Court considered s 459G of the Corporations Law which provides that–

   “(1)A company may apply to the Court for an order setting aside a statutory demand served on the company.

(2)An application may only be made within 21 days after the demand is so served.”

The Court had to determine whether the time could be extended relying on a general provision elsewhere in the Corporations Law for the extension or abridgement of time.  It held that it could not.  The general provision was displaced by the specific provision.  At p 277 Gummow J (with whom the other members of the Court agreed) said–

“The force of the term ‘may only’ is to define the jurisdiction of the court by imposing a requirement as to time as an essential condition of the new right conferred by s 459G. An integer or element of the right created by s 459G is its exercise by application made within the time specified.”

1. That case was distinguished in Emanuele. There the Australian Securities Commission had applied for the winding up of an insolvent company. Under s 459P of the Corporations Law a winding up application “may only be made [by the ASC] with the leave of the Court.”  The ASC had not obtained leave before bringing the application, and the question before the Court was whether such leave could be granted nunc pro tunc.  All members of the court agreed that it was a matter of statutory interpretation, and by a majority 3-2, the Court held that leave could be granted nunc pro tunc.  Kirby J (one of the majority) discerned a general trend towards interpreting leave clauses as procedural rather than jurisdictional.  Both Brennan CJ and Gaudron J (the dissentients) cautioned against applying a simple dichotomy between jurisdictional and procedural provisions.

2. The inappropriateness of such a simple dichotomy is exemplified by the decision in Young v Keong. In that case the motor vehicle accident in which the plaintiff was injured occurred outside Queensland. The Court of Appeal held that ss 37(1) and 39(5) of the Motor Accident Insurance Act are in terms mandatory, but that for the purposes of private international law the notice requirement is a procedural requirement governed exclusively by the laws of the forum.

3. In Young v Keong the Court of Appeal rejected the argument that the contrast between the provisions of s 37(1) and s 39(5) on the one hand and s 37 (3) and (4) and s 39 (8) on the other indicated that the consequences of failure to give a s 37 notice did not include the barring of a claim. The latter provisions have the express consequence that if due notice is not given to the Nominal Defendant where an unidentified vehicle is involved, any claim against that entity is barred. The Nominal Defendant cannot waive compliance with the notice requirement and a court cannot grant leave to bring the proceeding despite the non-compliance.

4. The legislative scheme is to encourage early resolution of claims and to force a claimant toward negotiating a settlement before bringing an action in a court for damages.  See Young v Keong per McPherson JA. But as Williams J noted in the same case -

   “......s 39 (5)(b) and (c) clearly recognise that for some period of time a claimant may have been in default, in the sense that the claimant had not complied with the requirements of the legislation. In those situations, and in particular where leave pursuant to s 39 (5)(c) has been given, the court may impose one or more of the sanctions provided for in s 39 (7) when making its final orders.”

1. Unlike the provision considered in David Grant, s 39 (5)(c) does not specify any time within which an application for leave must be made. In this regard it is similar to provisions found in companies legislation requiring leave of the Court before proceeding with or commencing proceedings against a company in liquidation. Such provisions have commonly been interpreted as allowing the giving of leave nunc pro tunc: see Re Testro Bros Consolidated Ltd [1965] VR 18.

2. Section 39 (5) provides that a claimant may bring a proceeding for damages only if the requirements of one of three subparagraphs are met. The first of these (the giving of notice, etc) is expressed in the past tense, while the other two are expressed in the present tense. The difference in tense is some indication that the leave requirement in subparagraph (c) can be satisfied nunc pro tunc.

3. I do not accept that it would be inconsistent with the Court of Appeal’s decision in Young v Keong to hold that the Court may grant leave nunc pro tunc. On my reading of that decision, the Court of Appeal left the question open.

4. I have concluded that I do have power to grant leave pursuant to s 39(5)(c) nunc pro tunc. I shall deal with the discretionary considerations below.

Application for leave to bring fresh proceeding

1. The second limb of the plaintiff’s application was for leave to bring a fresh proceeding relying on s 57, which provides

   “(1)     If notice of a motor vehicle accident claim is given under Division 3 (Claims procedures), 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 6 months after the day on which the notice is given or leave to bring the proceeding is granted.”

1. Counsel for the plaintiff submitted that the plaintiff had given his s 37 notice to the Nominal Defendant before the expiration of the period (actually on the last day), and that accordingly the period was extended. An application for leave was made because of the inconsistency between s 57(2) which requires the proceeding to be brought within six months of the giving of notice and s 39(5)(a)(i) which requires at least six months to have elapsed since the s 37 notice was given or waived before the commencement of a proceeding.

2. Counsel for the Nominal Defendant submitted that the plaintiff could not rely on s 57 to extend the limitation period because the notice which he had purported to give under s 37 had not complied with s 37(1) and was therefore invalid.

3. The remedying of the non-compliance is akin to the amendment of a document, and in the absence of any provision to the contrary, has the effect of a notice satisfying s 37 being deemed to have been given when the notice was first given. Accordingly I reject the argument that the plaintiff cannot rely on s 57 because a valid notice was not given before the expiration of the limitation period.

4. A s 37 notice was given to the Nominal Defendant before the expiration of the limitation period with the consequence that the period was extended by force of s 57. Leave would be necessary for the commencement of a fresh proceeding because, having regard to s 57(2), the limitation period is extended only for six months from the giving of the notice. Thus it would be impossible for the plaintiff to comply with s 39 (5)(a) which requires the elapse of at least six months before the commencement of the proceeding.

5. One can envisage circumstances in which a claimant is not able to give a s 37 notice before the expiration of the limitation period. He or she might make an application for leave under s 39 (5)(c) before giving the notice and before the expiration of the limitation period. Leave might be granted on conditions as to the subsequent giving of notice in terms similar to that required by s 37. In those circumstances the limitation period would be extended by s 57, and there would be no inconsistency with s 39 (5)(a).

Discretionary considerations

1. There is no express statement of the factors relevant to the exercise of the discretion to grant leave. What is to be exercised is the standard judicial discretion to do what is just and equitable in all the material circumstances.

2. I have taken into account the legislative context in which the discretion appears, the content of the advice given to the plaintiff by his first solicitors, and his conduct in ignoring that advice and not consulting his present solicitors until just before the limitation period expired. I have also taken into account that the Nominal Defendant has not demonstrated any identifiable prejudice arising from the failure to give a s 37 notice timeously.

3. A factor which weighs heavily against the grant of leave is that there is no evidence before me as to how the accident happened, beyond the fact that there was a head on collision between the plaintiff’s bicycle and a motor vehicle. The plaintiff has no recollection as to how it happened. While I accept that on an application such as this the plaintiff does not have to prove the circumstances of the accident to the same standard as he would have to at trial, I consider that there must be at least some evidence from which an inference of negligence could be drawn. In the absence of some such evidence, I cannot be satisfied that it would not be futile to grant leave.

4. In all the circumstances, in the exercise of the discretion vested in me by s 39 (5)(c), I decline to grant leave.

5. The application is dismissed.