Mitchell v. Thurlow

[2009] QDC 258

[2009] QDC 258

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2026 of 2004

MARK WILLIAM MITCHELL	Plaintiff
and
RONALD JAMES THURLOW & ANOR	Defendant

BRISBANE

..DATE 29/06/2009

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 24 - application for renewal of plaintiff's claim stayed by court order to permit steps required under the Motor Accident Insurance Act 1994 to be completed - more than 5 years had elapsed since filing of claim - renewals ordered by the Registrar did not cover the whole period - court ordered 2 successive renewals.

HIS HONOUR:  The plaintiff/applicant, Mr Mitchell, was injured as a passenger in a motor vehicle accident.

The Motor Accident Insurance Act 1994 controls the way in which he may proceed to recover damages by insisting upon steps being taken such as a compulsory conference with the respondent, which means that effectively here Suncorp Metway Insurance Limited; the insurer has admitted liability for the incident, but not that it is responsible for the extent of all the adverse consequences Mr Mitchell might attribute to it.

To avoid limitations problems, an order was obtained from the Deputy Registrar in BD 1784 of 2004 on the 1st June 2004 permitting an action for damages to be started by Mr Mitchell in respect of his claim by no later than 27th June 2004 pursuant to Section 51D(3) of the Act.

A compulsory conference under subsection (1) was dispensed with.  As is customary, the order ordered that the action if started be stayed until various identified steps required by the Act were gone through.  The matter has dragged on without resolution because of the way in which Mr Mitchell's medical condition has developed. 

It's not necessary to go through all the details.  Recently Mr Mitchell has undergone a spinal fusion.  The insurer has been  desirous over the years of obtaining further information regarding his condition and the implications of it so far as its liability might be concerned.
It has proved difficult to hold the compulsory conference which the insurer now understandably desires for various reasons.  Given the stay in the Registrar's order, it has been necessary pursuant to Rule 24 for the applicant to obtain renewals of the claim to keep it alive for service.  The claim was filed on the 8th June 2004.

The parties appear to have assumed that renewals had been obtained from the Registrar yearly to keep the claim alive.  My own scrutiny of the file overnight suggested that that was not so and that the necessary approach to the Registrar in or about June 2008 had not occurred.

The first renewal, according to the Court's order sheet, was obtained on the 23rd June 2005 and curiously in the form "Renew claim for 2 (two) months from 8/06/05."  The second renewal on the 15th June 2006 was to "renew claim for 12 months from 8/8/05."  The 8th August date obviously flowed from the two month extension previously quoted.

Then on 25th August 2006, a Registrar's order was made in terms of "Renew claim for 12 months from 8/9/06."  That followed by one on 29 October 2007  renewing the claim for "12 months from 8/8/07."

As noted, there was nothing done by the Registrar at any time during 2008.  One wonders why from the beginning there were not renewals for a year by reference to the anniversary of the filing of the claim.  The claim appears to have lapsed a couple of times.  Sub-rule (3) is of great assistance to Mr Mitchell in the circumstances, permitting renewal of a claim whether or not it's in force.

A Judge had to be applied to, by reason of sub-rule (4) which requires the Court's leave be obtained before a claim may be renewed for a period any part of which falls on or after the fifth anniversary of the date when the claim was originally filed.

Given that sub-rule (2) permits renewals only for periods of up to a year, it appeared to me necessary for the Court to make two orders, one curing the omission in respect of the last year, when a renewal ought to have happened; otherwise there may be little point in a renewal sought by the applicant for 12 months from the 8th or 9th June 2009 if the claim had somehow become bad because it wasn't in force on the starting date.  The need to make it clear that the claim has been kept alive by renewals covering the whole of the time that's elapsed explains why multiple renewals are included in the same order.

The cooperative attitude of the respondent insurer, which is what one would expect in the circumstances, has been persisted in by Mr Freis, and I'd say correctly, notwithstanding the potential for taking of unfriendly technical points which a close examination of the circumstances may have unearthed.

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