Nominal Defendant v Kisse

[2001] QDC 290

DISTRICT COURT OF QUEENSLAND

CITATION:

Nominal Defendant v. Kisse & Anor [2001] QDC 290

PARTIES:

NOMINAL DEFENDANT (Appellant)
v.
THOMAS HELMUT KISSE (Respondent)
And
ANIEL PRASAD

FILE NO/S:

M13803 of 2001
Appeal D4567 of 2001

DIVISION:

PROCEEDING:

Appeal by leave

ORIGINATING COURT:

Magistrates Court Brisbane

DELIVERED ON:

16 November 2001

DELIVERED AT:

Brisbane

HEARING DATE:

5 November 2001

JUDGE:

McGill DCJ

ORDER:

Leave to appeal, appeal allowed, order of 6 September 2000 set aside, order in lieu that application be dismissed and that the action be struck out.  Order Messrs Baker Johnson Solicitors to pay the appellant’s costs of the appeal and the application to be assessed on an indemnity basis

CATCHWORDS:

MOTOR VEHICLES – Compulsory Insurance – notice of claim – who can give - injured claimant dead – Motor Accident Insurance Act 1994 s.4, 37.

PRACTICE – Parties to Actions – survival of cause of action – who may sue to enforce – Succession Act 1981 s.66.

LEGAL PRACTITIONERS – Solicitor and client – authority – death of client – commencement of action without authority – liability for costs

COUNSEL:

J B Rolls for the appellant

SOLICITORS:

Phillips Fox for the appellant
Baker Johnson for the respondent

1. This is an appeal from a decision of a Magistrate who on 6 September 2000 authorised proceedings despite non-compliance with the requirements of division 3 of Part 4 of the Motor Accident Insurance Act 1994 (“the Act”), although he then ordered that proceedings commenced pursuant to that order be stayed until further order. That order was made in the context of an unusual fact situation, one which does not appear to be dealt with expressly by the Act.

1. For the purposes of this appeal, it is appropriate to proceed on the basis that Thomas Helmut Kisse was injured in a motor vehicle accident on 7 September 1998. According to the notice under s.37 of the Act, he was stationary at a pedestrian crossing waiting for children to cross when another vehicle collided with the rear of his vehicle. The other vehicle was identified and apparently insured, but the registration of that vehicle had expired so that it was appropriate to bring a claim against the Nominal Defendant as the deemed statutory insurer of that vehicle.

1. Mr. Kisse consulted solicitors and a notice of claim under s.37 was prepared, and was apparently signed by him on 8 October 1998, but was not given prior to his death by suicide on 2 November 1998. It was then forwarded by those solicitors to the Nominal Defendant on 10 December 1998, being received on 14 December.

1. On 6 September 2001, those solicitors filed in the Magistrates Court at Brisbane a claim and statement of claim, naming as the plaintiff “the personal representatives of Thomas Helmut Kisse (deceased)”, and as defendants the driver of the other vehicle and the Nominal Defendant. That claim apparently has not been served. On the same day there was filed in the court in that proceeding an application seeking leave…