Perdis v Nominal Defendant

[2003] QCA 555

SUPREME COURT OF QUEENSLAND

CITATION:

Perdis v Nominal Defendant [2003] QCA 555

PARTIES:

ANDREA ATHENA PERDIS
(applicant/respondent)
v
THE NOMINAL DEFENDANT
(respondent/appellant)

FILE NO/S:

Appeal No 5233 of 2003
DC No 1492 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

15 December 2003

DELIVERED AT:

Brisbane

HEARING DATE:

21 October 2003

JUDGES:

Davies and Williams JJA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.     Leave to appeal granted
2.     Appeal dismissed
3.     Appellant to pay respondent's costs of the appeal

CATCHWORDS:

INSURANCE - MOTOR VEHICLES - COMPULSORY INSURANCE LEGISLATION - WHERE IDENTITY OF VEHICLE CANNOT BE ESTABLISHED - QUEENSLAND - GENERALLY - where respondent injured in motor vehicle accident in September 2002 - where other vehicle involved in accident was unidentified - where respondent consulted a solicitor in November 2002 - where solicitor failed to advise respondent that notice of motor vehicle accident must be given to the Nominal Defendant within three months of the accident or that reasonable excuse for delay must also be given - where notice given to the Nominal Defendant outside three month period but did not include excuse for the delay as required by s 37(3) Motor Accident Insurance Act 1994 (Qld) - where full explanation for the delay given within nine months - where negligence of solicitor was cause of the delay - where respondent's own conduct was reasonably excusable - whether necessary to consider only whether claimant's own actions were reasonably excusable or whether actions of solicitor need also to be reasonably excusable

Motor Accident Insurance Act 1994 (Qld), s 37, s 39

Black v City of South Melbourne [1963] VR 34, considered

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, considered
Quinlivan v Portland Harbour Trust [1963] VR 25, considered

COUNSEL:

K N Wilson SC, with K F Holyoak, for the appellant
D B Fraser QC for the respondent

SOLICITORS:

O'Shea Corser & Wadley for the appellant
Gilshenan & Luton for the respondent

1. DAVIES JA: This is an application for leave to appeal by the Nominal Defendant against a declaration made in the District Court that the respondent had given reasonable excuse to the Nominal Defendant, as required by s 37(3) of the Motor Accident Insurance Act 1994 ("the Act"), in respect of the failure by the respondent to give, within three months of a motor vehicle accident on 6 September 2002, a written notice of her accident claim to the Nominal Defendant. The sole question which arises in the appeal if leave is granted, as identified by Mr Wilson SC for the Nominal Defendant, is whether, in deciding whether a reasonable excuse has been provided within the meaning of s 37(3), it is necessary to consider only whether the claimant's own personal actions were reasonably excusable in the light of what has occurred, or whether, in circumstances where the claimant retained a solicitor…