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

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.
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.
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).
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…

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 McKelvie v Page

Details

AGLC: McKelvie v Page [1998] QSC 189
Case: [1998] QSC 189
Decision Date: 18 September 1998

CaseChat Overview and Summary

In McKelvie v Page, the plaintiff sought to recover damages for personal injury arising from a motor vehicle accident. The plaintiff, Kent Laurie McKelvie, sustained injuries when his bicycle collided with an unregistered motor vehicle driven by Kristian Michael Page. The case involved statutory interpretation and procedural requirements under the Motor Accident Insurance Act 1994 and related regulations. The central issue was whether the Supreme Court could grant leave nunc pro tunc to bring fresh proceedings despite non-compliance with the statutory notice requirement. The court also considered whether the period of limitation could be extended under s 57 of the Act.

The court examined the statutory framework, particularly sections 37 and 39 of the Motor Accident Insurance Act 1994, which require claimants to give written notice of a claim to the insurer or the Nominal Defendant within specified periods. Section 39(5)(c) allows the court to grant leave to bring proceedings despite non-compliance with the notice requirement, but it does not specify any time within which such an application must be made. The court analyzed High Court decisions on statutory interpretation, noting that leave clauses are often interpreted as procedural rather than jurisdictional. The court concluded that it had the power to grant leave nunc pro tunc, but the exercise of this discretion depended on various factors, including the legislative context, the advice given to the plaintiff, and the absence of identifiable prejudice to the Nominal Defendant.

In declining to grant leave, the court emphasized the importance of some evidence suggesting negligence on the part of the defendant, which was absent in this case. The court also considered the plaintiff's conduct in ignoring advice from his initial solicitors and not consulting his current solicitors until shortly before the limitation period expired. Ultimately, the court decided that granting leave would not be just and equitable in the circumstances.

Orders