Parker v Ford & Anor (No. 2)

[2011] QDC 193

[2011] QDC 193

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2903 of 2011

SCOTT LINDSAY PARKER	Plaintiff
and
AMANDA EDITH FORD	First Defendant

and

RACQ INSURANCE LIMITED               Second Defendant

BRISBANE

..DATE 16/08/2011

ORDER

CATCHWORDS

Motor Accident Insurance Act 1994 s 3(e), s 41, s 47, s 50(3)

When court ordered holding of a compulsory conference on the claimant's application, parties were invited to make submissions about coasts - respondent had not failed to comply with "a request under" s 47 - award of costs considered an appropriate ancillary or consequential order where insurer had failed to comply with its duty of cooperation
HIS HONOUR:  This is Parker v Ford, 2903 of 2011.  There are
no appearances.  The court has published to the parties
yesterday reasons for its conclusions and invited submissions
as to what are appropriate orders, including any order about
costs which for the reasons intimated the Court was inclined
to award the applicant claimant: [2011] QDC 163. Pursuant to the invitation, submissions have been submitted electronically by both sides and formal leave to read and file those will be granted.

The court makes an order in terms of the initialled draft
supplied by Mr Rangiah SC for the applicant.  It provides that
the second respondent pay the applicant's costs of and
incidental to the application to be assessed on the standard
basis if not agreed.

Mr Williams' submissions opposed the making of any costs order
against his client, essentially on the basis that the
application was unnecessary, that in due course the applicant
would have been provided with opportunities to undergo medical
examinations belatedly required by the second respondent so
that following relevant reports becoming available the
compulsory conference which is holding up the commencement of
a proceeding by the applicant could occur.

The order for costs is made on the basis of the court's view
that for seven months or so, from the end of 2010, the second
respondent was responsible for delay by ignoring requests by
the applicant for advice as to whether he was required to
submit to medical examinations.  The obligation of the second
respondent to cooperate is clearly set out in section 47 of
the Motor Accident Insurance Act 1994 which imposes similar
obligations on a claimant in section 45.  Other indications in
the Act that a cooperative approach is expected may be found
in the objects section, section 3, which identifies one of the
Act's objects as, "(e) to encourage the speedy resolution of
personal injury claims resulting from motor vehicle
accidents." An insurer is required by section 41 to attempt
to resolve a claim, something which one would think would be
promoted by a more speedy record than the second respondent
established.

Once it responded to the request to advise whether it required
medical examinations, it proposed a schedule which subsequent
events show involved more delay than was necessary and also
chopped and changed by deleting from the panel of medical
people it proposed the doctor chosen by the applicant.

As to the availability of costs orders, it is not clear to me
that section 47(4) applies, in that there doesn't seem to be
any "request under this section" made on the plaintiff's
behalf.  However, I am of the view that in the absence of any
general provision of the kind found in other legislation
limiting a court's jurisdiction or power to order costs, jurisdiction or power to do so exists under section 50(3) which entitles the Court to make consequential or ancillary orders if either claimant or insurer fails to comply with a duty imposed under division 4, in particular. The second respondent has so failed. An instance of the court's making a costs order in circumstances of some similarity to the present is RACQ Insurance Limited v Wilkins [2010] 2 Queensland Reports 552.

It was not suggested the court was not entitled to order
costs.  An additional reason for doing so on this occasion is
the second respondent's attempting to defeat the application
by asserting that in the circumstances the District Court
lacked jurisdiction.  It was that issue which led to the
court's having to reserve its decision.

Order as per initialled draft.

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