Morrison-Gardiner v Car Choice Pty Ltd

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SUPREME COURT OF QUEENSLAND

CITATION:

Morrison-Gardiner v Car Choice P/L & Anor; Crain v Crocker & Anor; O’Dare v Vitanza & Ors [2004] QCA 480

PARTIES:

JANE MORRISON-GARDINER
(applicant/respondent)
v
CAR CHOICE PTY LTD
ACN 056 831 693
(first respondent/appellant)
ALLIANZ AUSTRALIA INSURANCE LIMITED
ACN 000 122 850
(second respondent/appellant)

GILDA CRAIN
(applicant/respondent)
v
BOBBY ALLAN CROCKER
(first respondent/applicant)
ALLIANZ AUSTRALIA INSURANCE LIMITED
ACN 000 122 850
(second respondent/applicant)

WARREN DALKEITH O’DARE
(applicant/respondent)
v
VINCE VITANZA
(first respondent/not a party to the appeal)
BRISBANE CITY COUNCIL
(second respondent/applicant)
TOM BROWN
(third respondent/applicant)
ALLIANZ AUSTRALIA INSURANCE LIMITED
ACN 000 122 850

(fourth respondent/applicant)

FILE NO/S:

Appeal No 5494 of 2004
Appeal No 5576 of 2004
Appeal No 7409 of 2004
SC No 1183 of 2004
DC No 1303 of 2004

DC No 2462 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Personal Injury

ORIGINATING COURT:

Supreme Court at Brisbane

District Court at Brisbane

DELIVERED ON:

17 December 2004

DELIVERED AT:

Brisbane

HEARING DATE:

6 October 2004

JUDGES:

McMurdo P, Williams JA and Chesterman J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   In Appeal No 5494 of 2004 it is ordered that the appeal be dismissed

2.   In each of Appeal No 5576 of 2004 and Appeal No 7409 of 2004 it is ordered that leave to appeal be granted but that the appeal be dismissed

3.   The appellants/applicants are to pay the respondents’ costs of the appeal and the applications to be assessed on the standard basis

CATCHWORDS:

LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – POWER OF COURT TO EXTEND TIME – where each of the respondents were involved in separate motor vehicle accidents – where each of the respondents complied with the requirements of s 37 Motor Accident Insurance Act 1994 (Qld) – where each of the respondents did not comply with the requirements of Part 4, Division 5A of the Motor Accident Insurance Act 1994 (Qld) – where the limitation period in which each of the respondents could commence proceedings expired – where each of the respondents applied to the Court under s 57 of the Motor Accident Insurance Act 1994 (Qld) and were granted leave to commence proceedings within 60 days after a compulsory conference was held – whether the learned primary judges were correct in granting leave – whether s 57(2)(b) confers a general discretion on the Court to extend the period of limitation for the commencement of proceedings for damages arising out of motor vehicle accidents – whether some limitation should be read into s 57(1) to restrict the apparent scope of the power conferred on the Court by s 57(2)(b)

Limitation of Actions Act 1974 (Qld), s 11
Motor Accident Insurance Act 1994 (Qld), s 37, s 39(1), s 39(2), s 39(3), s 39(5), s 39(6), s 41, s 51A, s 51B, s 51C, s 51D, s 57

Motor Accident Insurance Amendment Act 2000 (Qld)

Archie…

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Details
Case
[2004] QCA 480
Decision Date

CaseChat Overview and Summary

The case of Morrison-Gardiner v Car Choice Pty Ltd involved several respondents who were involved in separate motor vehicle accidents and sought to commence proceedings against the appellants. The respondents had complied with the requirements of section 37 of the Motor Accident Insurance Act 1994 (Qld) but had not complied with the requirements of Part 4, Division 5A of the same Act. The limitation period in which the respondents could commence proceedings expired, but they applied to the Court under section 57 of the Act and were granted leave to commence proceedings within 60 days after a compulsory conference was held. The primary judges were required to decide whether they were correct in granting leave, and whether section 57(2)(b) confers a general discretion on the Court to extend the period of limitation for the commencement of proceedings for damages arising out of motor vehicle accidents, or whether some limitation should be read into section 57(1) to restrict the apparent scope of the power conferred on the Court by section 57(2)(b).

The court considered the relevant provisions of the Motor Accident Insurance Act 1994 (Qld) and found that the primary judges were correct in granting leave to the respondents to commence proceedings. The court held that section 57(2)(b) confers a general discretion on the Court to extend the period of limitation for the commencement of proceedings for damages arising out of motor vehicle accidents. However, the court also found that some limitation should be read into section 57(1) to restrict the apparent scope of the power conferred on the Court by section 57(2)(b). The court held that the primary judges should have considered the principle of proportionality and the need to balance the rights of the parties in determining whether to grant leave to the respondents to commence proceedings.

The court dismissed the appeals and held that the primary judges were correct in granting leave to the respondents to commence proceedings. The court held that the primary judges had exercised their discretion properly and had considered all relevant factors in reaching their decision. The court also held that the principle of proportionality and the need to balance the rights of the parties were relevant considerations in determining whether to grant leave to the respondents to commence proceedings. The court found that the primary judges had not erred in law or in fact in granting leave to the respondents to commence proceedings.

The court ordered that the appeals be dismissed and that the appellants/applicants were to pay the respondents’ costs of the appeal and the applications to be assessed on the standard basis. The court held that the primary judges had exercised their discretion properly and had considered all relevant factors in reaching their decision. The court also held that the principle of proportionality and the need to balance the rights of the parties were relevant considerations in determining whether to grant leave to the respondents to commence proceedings. The court found that the primary judges had not erred in law or in fact in granting leave to the respondents to commence proceedings.

Orders

Orders of the court

1. In Appeal No 5494 of 2004 it is ordered that the appeal be dismissed

2. In each of Appeal No 5576 of 2004 and Appeal No 7409 of 2004 it is ordered that leave to appeal be granted but that the appeal be dismissed

3. The appellants/applicants are to pay the respondents’ costs of the appeal and the applications to be assessed on the standard basis

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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