Perdis v Nominal Defendant

[2003] QDC 154

DISTRICT COURT OF QUEENSLAND

CITATION:

Perdis v Nominal Defendant [2003] QDC 154

PARTIES:

ANDREA PERDIS

Applicant

v

THE NOMINAL DEFENDANT

Respondent

FILE NO/S:

D1492/2003

DIVISION:

PROCEEDING:

Originating application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

3 June 2003

DELIVERED AT:

Brisbane

HEARING DATE:

27 May 2003

JUDGE:

McGill DCJ

ORDER:

Declaration made as sought

CATCHWORDS:

INSURANCE – Motor Vehicles – Nominal Defendant – notice of claim outside three month period – whether “reasonable excuse” given – whether discretion should be exercised.

Motor Accident Insurance Act 1994 s 37(3), s 39(5)(c)(ii)

Miller v The Nominal Defendant [2003] QSC 81 – applied.

Piper v The Nominal Defendant [2003] QSC 39 – considered.

Stanton v DMK Forest Products Pty Ltd [2003] QDC – not followed.

COUNSEL:

D B Fraser QC for the applicant

K N Wilson SC for the respondent

SOLICITORS:

Gilshenan & Luton for the applicant

O’Shea Corser & Wadley for the respondent

1. This is an application under the Motor Accident Insurance Act 1994 (“the Act”) for a declaration that the applicant has provided a reasonable excuse for the delay in giving the respondent notice of a motor vehicle accident claim as required by s 37(1) of the Act, or in the alternative for leave pursuant to s 39(5)(c)(ii) of the Act to proceed further on the basis of the claim despite non compliance with the requirements of Division 3 of Part 4 of the Act.

1. The applicant alleges[1] that she was involved in a motor vehicle accident on 6 September 2002.   She was at the time driving along Ivory Street towards the Story Bridge when a red pickup truck moved in front of her while merging from a feeder lane, in a way which caused her to veer to the right and to slow down slightly.  The vehicle that she was driving was struck from behind by another vehicle which she did not identify at the time, and which did not stop following the collision.  All she can say about this vehicle is that it was a silver car.  The red truck also did not stop after the accident, and the applicant did not otherwise identify it at the time, although she believes that the truck had come from the fire station nearby, and has subsequently observed a red pickup truck with a particular registration coming from that fire station.  She suggests that it was the same truck.  That truck is owned by a fireman who sometimes works at that station, and who when there leaves work at about the time the accident happened, but has no recollection of the incident described, although he cannot say positively that it did not happen or that it did not involve his vehicle.[2]  If the red truck was not the vehicle identified in this way, it is an unidentified vehicle.

   [1]The applicant’s version is taken from her affidavit filed 19 May 2003.

   [2]Affidavit of Barnes filed 27 May 2003 Exhibit RWB2.

1. Following the collision on 6 September 2002 the applicant developed neck pain.   On…