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

SUPREME COURT OF QUEENSLAND

CITATION: Morrison-Gardiner v Car Choice P/L & Anor [2004] QSC
124
PARTIES: JANE MORRISON-GARDINER
(applicant)
v
CAR CHOICE PTY LTD
(first respondent)
ALLIANZ AUSTRALIA INSURANCE LIMITED ACN
15 000 122 850
(second respondent)
FILE NO/S: SC No 1183 of 2004
DIVISION: Trial Division
PROCEEDING: Application – Leave to Commence Proceedings
ORIGINATING
COURT: Supreme Court at Brisbane
DELIVERED ON: 11 June 2004
DELIVERED AT: Brisbane
HEARING DATE: 16 March 2004
JUDGE: Holmes J

ORDERS:

1.

pursuant to s 57(2)(b) of the Motor Accident Insurance Act 1994, the time within which the applicant may bring proceedings in respect of a claim for personal injury sustained in a motor vehicle collision on 21 November 2000 be extended to a time not later than 60 days after the date on which a compulsory conference is held pursuant to the Act;

2.

that the compulsory conference referred to in Order 1 be held within 30 days of this order or any decision of the Court of Appeal dismissing an appeal from this order, whichever is the later.

CATCHWORDS: LIMITATION OF ACTIONS – CONTRACTS, TORTS
AND PERSONAL ACTIONS – APPLICATION OF THE
STATUTES TO PARTICULAR CAUSES OF ACTIONS –
MOTOR VEHICLE INSURANCE – where the applicant
sustains injury in motor vehicle accident and a notice of claim
is served in accordance with Division 3 of the Motor Vehicle
Insurance Act 1994 – where the limitation period has since
expired – whether leave to bring a proceeding can be given
pursuant to s 57(2)(b) of the Motor Accident Insurance Act
1994
Motor Accident Insurance Amendment Act 2000, s 3
Motor Vehicle Insurance Act 1994, s 34, s 37, s 39, s 41, s
45, s 47, s 51A, s 51C, s 51D, s 57
Personal Injuries Proceeding Act 2002, 59
Aydar v Pashen [2003] 1 Qd R 601
Bermingham v Priest [2003]1 Qd R 623
Horinack v Suncorp Metway Insurance Ltd [2001] 2 Qd R
266
Kash v SM & TJ Cedergren Builders & Ors [2003] QSC 426
Perdis v Nominal Defendant [2003] QCA 555
Re Tonks [1999] 2 Qd R 671

COUNSEL:

G Mullins SC for the applicant K Holyoak for the respondents
SOLICITORS: Maurice Blackburn Cashman for the applicant
McInnes Wilson for the respondents
Background

The applicant was injured in a motor vehicle accident on 21 November 2000. On 21 May 2001, her then solicitors served a notice of claim on the second respondent pursuant to s 37 of the Motor Accident Insurance Act 1994. On 28 May 2001, the second respondent admitted liability and acknowledged that the notice of claim complied with the requirements of the Act. It seems that the applicant then changed solicitors and there was some delay while the file was transferred. On 29 October 2003 a claim and statement of claim was filed, and it was served the following day. However, s 51A(1) of the Motor Accident Insurance Act requires that a compulsory conference be held before any action for damages for personal injury arising out…

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.

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Details

Case: [2004] QSC 124
Decision Date: 11 June 2004

CaseChat Overview and Summary

The case of Morrison-Gardiner v Car Choice Pty Ltd involved the applicant, Morrison-Gardiner, who sought to bring an action against Car Choice Pty Ltd for motor vehicle insurance issues. The primary legal issue before the court was the interpretation and application of section 57 of the Limitation Act, specifically in the context of the limitation periods for bringing an action after a notice of claim has been given. The court was tasked with determining whether the statutory provisions governing the extension of limitation periods applied to this case, and if so, how the time frames should be calculated.

The court considered the legislative history and previous case law, particularly the decision in Bermingham v Priest. It was established that section 57(1) extends the limitation period when a notice of claim is given or an application for leave is made before the expiration of the ordinary limitation period. Section 57(2) then specifies the duration of this extension. The court found that section 57(2) does not independently grant leave to commence an action but rather sets the timeframes for exercising the benefit provided by section 57(1). The court concluded that the six-month period stipulated in section 57(2)(a) begins from the date the notice of claim is given, not from the limitation date, and that a longer period allowed under section 57(2)(b) must also commence from the notice of claim date.

The reasoning of the court was grounded in a detailed analysis of the statutory language and its practical implications. It was determined that the amendment to section 39(5), the introduction of Division 5A, and the discretionary power in section 57(2)(b) altered the temporal framework previously understood in cases like Horinack. The court found that the six-month waiting period after giving the notice of claim no longer exists, and instead, the timing of the compulsory conference, which can be delayed by either party for six months, plays a crucial role. The court held that the longer period allowed by subsection (2)(b) is a period that commences from the giving of the notice of claim and is not fixed by reference to the limitation date.

In conclusion, the court determined that the statutory provisions were correctly applied in this case, and the applicant's action was not barred by limitation. The court's decision upheld the applicant's right to bring the action within the extended timeframes as provided by section 57 of the Limitation Act.

Orders

Orders of the court

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In Bermingham v Priest, Williams JA considered the construction of s 57 at some length. He regarded s 57(1) as providing for an extension of the limitation period where either a notice of claim was given or there was an application for leave to bring a proceeding under s 39(5) before the end of the ordinary period of limitation; and s 57(2) as fixing the duration of that extension. Section 57(2) did not provide an independent power to grant leave to commence an action. That remained the position, Mr Holyoak said, in relation to the section as amended. Conclusions on construction The symmetry perceived in Horinack, between the six month waiting period after giving the notice of claim and the extension of the limitation period by six months, no longer exists, disrupted by the amendment to s 39(5), the introduction of Division 5A, and the adding of the discretion in s 57(2)(b). The bars to commencement are no longer clearly framed in temporal terms: there is no six month waiting period once the notice of claim is given; instead a great deal turns on the timing of the compulsory conference, which may take place at any time, but may be delayed by either party for six months. But Williams JA’s analysis in Bermingham of the structure of the section still applies. Section 57(1) remains the sub-section which has the effect of extending the limitation period, permitting the proceeding notwithstanding its end. There is no doubt that the plaintiff here falls within one of the two criteria by which she may qualify for the application of the section to her. Sub-section (2) then sets the time frames within which that benefit may be exercised; that is, within six months after the giving of the notice or leave to bring the proceeding is granted, or the longer period allowed by the court. And that is where the discretion to enlarge the time frame, not available when Bermingham was decided, comes in. That longer period allowed by subsection (2)(b), plainly enough, is a longer period than the six months from the giving of the notice of claim provided for in sub- section (2)(a); so (2)(a) and (2)(b) are related, at least to that extent. But to say that the longer period must not commence any earlier than the six month period could, that is to say any earlier than 5 months and 30 days before the limitation date, is to add a gloss to the section which is not warranted by anything in it. That the six month period prescribed in (2)(a) can commence no earlier is a practical consequence of the fact that it must start within the limitation period for the sub- section to apply, and must end after it for any limitation question to arise, but it is not a prescription. It is the giving of the notice of claim which sets the six month period running; the limitation date plays no part in fixing it. Similarly, if a longer period is allowed, it must be a longer period which commences from the giving of the notice of claim, and is not fixed by reference to the limitation date, although the expiry of the latter at some point during the period is, in practical terms, the reason for the application.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Morrison-Gardiner v Car Choice P/L & Anor [2004] QSC 124
PARTIES:	JANE MORRISON-GARDINER (applicant) v CAR CHOICE PTY LTD (first respondent) ALLIANZ AUSTRALIA INSURANCE LIMITED ACN 15 000 122 850 (second respondent)
FILE NO/S:	SC No 1183 of 2004
DIVISION:	Trial Division
PROCEEDING:	Application – Leave to Commence Proceedings
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	11 June 2004
DELIVERED AT:	Brisbane
HEARING DATE:	16 March 2004
JUDGE:	Holmes J

ORDERS:	1.	pursuant to s 57(2)(b) of the Motor Accident Insurance Act 1994, the time within which the applicant may bring proceedings in respect of a claim for personal injury sustained in a motor vehicle collision on 21 November 2000 be extended to a time not later than 60 days after the date on which a compulsory conference is held pursuant to the Act;
2.	that the compulsory conference referred to in Order 1 be held within 30 days of this order or any decision of the Court of Appeal dismissing an appeal from this order, whichever is the later.

CATCHWORDS:	LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – APPLICATION OF THE STATUTES TO PARTICULAR CAUSES OF ACTIONS – MOTOR VEHICLE INSURANCE – where the applicant sustains injury in motor vehicle accident and a notice of claim is served in accordance with Division 3 of the Motor Vehicle Insurance Act 1994 – where the limitation period has since expired – whether leave to bring a proceeding can be given pursuant to s 57(2)(b) of the Motor Accident Insurance Act 1994
Motor Accident Insurance Amendment Act 2000, s 3 Motor Vehicle Insurance Act 1994, s 34, s 37, s 39, s 41, s 45, s 47, s 51A, s 51C, s 51D, s 57 Personal Injuries Proceeding Act 2002, 59
Aydar v Pashen [2003] 1 Qd R 601 Bermingham v Priest [2003]1 Qd R 623 Horinack v Suncorp Metway Insurance Ltd [2001] 2 Qd R 266 Kash v SM & TJ Cedergren Builders & Ors [2003] QSC 426 Perdis v Nominal Defendant [2003] QCA 555 Re Tonks [1999] 2 Qd R 671
COUNSEL:	G Mullins SC for the applicant K Holyoak for the respondents
SOLICITORS:	Maurice Blackburn Cashman for the applicant McInnes Wilson for the respondents
Background