Nominal Defendant v Smith

[2016] QSC 227

SUPREME COURT OF QUEENSLAND

CITATION:

Nominal Defendant v Smith [2016] QSC 227

PARTIES:

NOMINAL DEFENDANT

(applicant)

v
VIKKI ANN SMITH

(respondent)

FILE NO/S:

BS No 9138 of 2016

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

28 September

DELIVERED AT:

Brisbane

HEARING DATE:

28 September

JUDGE:

Martin J

ORDER:

Application dismissed.

CATCHWORDS:

TORTS – NEGLIGENCE – STATUTES, REGULATIONS, ETC - APPLICABILITY AND EFFECT IN ACTIONS FOR NEGLIGENCE – RELATING TO VEHICLES AND TRAFFIC – PARTICULAR STATUTES, REGULATIONS, ETC – where the applicant sought a declaration that the respondent could not establish that it had made proper search and inquiry for the purposes of s 31(2) of the Motor Accident Insurance Act 1994 (Qld) – whether it is a prerequisite to the commencement of any proceeding against the Nominal Defendant that there must have been proper inquiry and search which fails to establish the identity of the motor vehicle

Motor Accident Insurance Act1994 (Qld), s 31(2)

Nominal Defendant v Meakes (2012) 60 MVR 380; [2012] NSWCA 66

COUNSEL:

J Rolls for the applicant

K C Fleming QC for the respondent

SOLICITORS:

Jensen McConaghy Lawyers for the applicant

CMC Lawyers for the respondent

The Nominal Defendant seeks, by way of an originating application, a declaration that the respondent cannot establish that proper inquiry and search has been made pursuant to s 31(2) of the Motor Accident Insurance Act 1994 (the Act) to establish the identity of the motor vehicle in the respondent’s notice of accident claim form, dated 8 January 2016.

In August 2015, the respondent served a notice of accident claim form, but because it had not been dated, the Nominal Defendant did not accept that it complied with the Act.  Nevertheless, the respondent was asked by the Nominal Defendant to advise what steps she had undertaken in order to satisfy the proper inquiry and search requirement imposed by the Act.  Those details were eventually provided. 

Given the decision I have reached, I do not need to engage in a detailed examination of the circumstances of the alleged accident, or of the steps taken by the defendant to satisfy the requirements contained in s 31(2) of the Act. It provides:

“(2)   In any legal proceedings, it is to be presumed that a motor vehicle can not be identified if it is established by affidavit or oral evidence that proper inquiry and search have been made and have failed to establish the identity of the motor vehicle.”

It is submitted for the Nominal Defendant that it is a prerequisite to the commencement of any proceedings against the Nominal Defendant that there must have been proper inquiry and search which fails to establish the identity of the motor vehicle.  Further, it is submitted that the satisfaction of this requirement is a condition precedent to any action against the Nominal Defendant.  Mr Fleming QC, who appeared for the respondent, accepted the analysis of the legal principles as advanced by the applicant. Notwithstanding that acceptance, I do…