Pertzel v Qld Paulownia Forests Ltd - [2008] QDC 9

DISTRICT COURT OF QUEENSLAND

CITATION:

Pertzel v Qld Paulownia Forests Ltd & Anor [2008] QDC 9

PARTIES:

BERT ALFRED PERTZEL

Plaintiff

AND

QLD PAULOWNIA FORESTS LTD

First Defendant

AND

ALLIANZ AUSTRALIA INSURANCE LTD

Second Defendant

FILE NO/S:

BD1084/04

DIVISION:

PROCEEDING:

Determination of questions before trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

8 February 2008

DELIVERED AT:

Brisbane

HEARING DATE:

10 December 2007

JUDGE:

McGill DCJ

ORDER:

Order that the following questions be decided separately from all of the questions in these proceedings, and answered as follows:
(a) Is the claim made by the plaintiff in these proceedings a “motor vehicle accident claim” as that term is defined in s 4 of the Motor Accident Insurance Act 1994 (Qld)?
           Answer: No.
(b)      If the answer to (a) is in the negative:

     (i)    Is the second defendant estopped or precluded, and if so to what extent, from contending that:
(A) the plaintiff’s claim in these proceedings is not a “motor vehicle accident claim” as that term is defined in the Motor Accident Insurance Act; or,
         (B)        it is not liable to pay such claim, if adjudicated in the plaintiff’s favour, as if it were “a motor vehicle accident claim” as so defined?
           Answer: Yes in respect of both (A) and (B).

     (ii)   Has the second defendant waived any right it may have had to contend that the plaintiff’s claim in these proceedings is not a “motor vehicle accident claim” as so defined?
           Answer: No.
(c) Do the provisions of s 52 of the Trade Practices Act 1974 (Cth) apply to any or all of the second defendant’s pleaded conduct in these proceedings?
           Answer: Yes.
(d) If yes to (c), by any of the pleaded conduct to which it is applicable, by engaging in such conduct, did the second defendant contravene s 52 of the Trade Practices Act?
           Answer: Yes.
(e) If yes to (d), has the plaintiff suffered loss and damage by such contravening conduct, pursuant to s 82 of the Trade Practices Act?
           Answer: No.
Order that the costs of the plaintiff and the second defendant of and incidental to the determination of these questions be each party’s costs in the cause.

CATCHWORDS:

MOTOR VEHICLES – Compulsory Insurance – scope of cover – insurer proceeding as if liable – whether estopped – whether misleading or deceptive conduct

ESTOPPEL – Conduct – licensed insurer proceeding as if liable until limitation period expired – whether insurer estopped from denying liability to indemnify

TRADE PRACTICES – Misleading or Deceptive Conduct – licensed insurer proceeding with claim as if liable under policy until after limitation period expired – whether in trade or commerce – whether misleading – whether loss caused.

Motor Accident Insurance Act 1994.

Trade Practices Act 1974 (Cth) s 52.

Boath v Central Queensland Meat Export Co Pty Ltd and Anor [1986] 1 Qd R 139 – considered.
Brew v Followmont Transport Pty Ltd (No. 2) [2005] 2 Qd R 482 – distinguished.
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] QDC 9
Decision Date: 8 February 2008

CaseChat Overview and Summary

Pertzel v Qld Paulownia Forests Ltd is a case involving a dispute between the plaintiff, Pertzel, and the second defendant, Qld Paulownia Forests Ltd, regarding the scope of cover under a compulsory insurance policy. The plaintiff sought compensation for a motor vehicle accident, and the second defendant initially proceeded as if it were liable under the policy until the limitation period expired. The court was tasked with determining whether the second defendant was estopped from denying liability to indemnify and whether its conduct constituted misleading or deceptive conduct under the Trade Practices Act 1974 (Cth). The primary legal issues were whether the plaintiff's claim fell within the definition of a "motor vehicle accident claim" under the Motor Accident Insurance Act 1994 (Qld), whether the second defendant was estopped from denying liability, whether it had waived its right to contend the claim was not a "motor vehicle accident claim", and whether the second defendant's conduct contravened s 52 of the Trade Practices Act.

The court found that the plaintiff's claim was not a "motor vehicle accident claim" as defined in the Motor Accident Insurance Act. Despite this, it ruled that the second defendant was estopped from contending that the claim was not a "motor vehicle accident claim" and that it was not liable to pay such a claim as if it were one. The court held that the second defendant had not waived any right it might have had to argue the claim was not a "motor vehicle accident claim". It further found that the Trade Practices Act applied to the second defendant's conduct and that it contravened s 52 of the Act by engaging in misleading or deceptive conduct. However, the court ruled that the plaintiff had not suffered any loss or damage due to this conduct, as required under s 82 of the Trade Practices Act.

The court ordered that the questions regarding the nature of the plaintiff's claim and the applicability of estoppel and trade practices law be decided separately and answered as specified. It further ordered that the costs of the plaintiff and the second defendant in relation to the determination of these questions be borne by each party themselves.

Orders

Orders of the court

Order that the following questions be decided separately from all of the questions in these proceedings, and answered as follows:

(a) Is the claim made by the plaintiff in these proceedings a “motor vehicle accident claim” as that term is defined in s 4 of the Motor Accident Insurance Act 1994 (Qld)?

Answer: No.

(b) If the answer to (a) is in the negative:

(i) Is the second defendant estopped or precluded, and if so to what extent, from contending that:

(A) the plaintiff’s claim in these proceedings is not a “motor vehicle accident claim” as that term is defined in the Motor Accident Insurance Act; or,

(B) it is not liable to pay such claim, if adjudicated in the plaintiff’s favour, as if it were “a motor vehicle accident claim” as so defined?

Answer: Yes in respect of both (A) and (B).

(ii) Has the second defendant waived any right it may have had to contend that the plaintiff’s claim in these proceedings is not a “motor vehicle accident claim” as so defined?

Answer: No.

(c) Do the provisions of s 52 of the Trade Practices Act 1974 (Cth) apply to any or all of the second defendant’s pleaded conduct in these proceedings?

Answer: Yes.

(d) If yes to (c), by any of the pleaded conduct to which it is applicable, by engaging in such conduct, did the second defendant contravene s 52 of the Trade Practices Act?

Answer: Yes.

(e) If yes to (d), has the plaintiff suffered loss and damage by such contravening conduct, pursuant to s 82 of the Trade Practices Act?

Answer: No.

Order that the costs of the plaintiff and the second defendant of and incidental to the determination of these questions be each party’s costs in the cause.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Pertzel v Qld Paulownia Forests Ltd & Anor [2008] QDC 9
PARTIES:	BERT ALFRED PERTZEL Plaintiff AND QLD PAULOWNIA FORESTS LTD First Defendant AND ALLIANZ AUSTRALIA INSURANCE LTD Second Defendant
FILE NO/S:	BD1084/04
DIVISION:
PROCEEDING:	Determination of questions before trial
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	8 February 2008
DELIVERED AT:	Brisbane
HEARING DATE:	10 December 2007
JUDGE:	McGill DCJ
ORDER:	Order that the following questions be decided separately from all of the questions in these proceedings, and answered as follows: (a) Is the claim made by the plaintiff in these proceedings a “motor vehicle accident claim” as that term is defined in s 4 of the Motor Accident Insurance Act 1994 (Qld)? Answer: No. (b) If the answer to (a) is in the negative: (i) Is the second defendant estopped or precluded, and if so to what extent, from contending that: (A) the plaintiff’s claim in these proceedings is not a “motor vehicle accident claim” as that term is defined in the Motor Accident Insurance Act; or, (B) it is not liable to pay such claim, if adjudicated in the plaintiff’s favour, as if it were “a motor vehicle accident claim” as so defined? Answer: Yes in respect of both (A) and (B). (ii) Has the second defendant waived any right it may have had to contend that the plaintiff’s claim in these proceedings is not a “motor vehicle accident claim” as so defined? Answer: No. (c) Do the provisions of s 52 of the Trade Practices Act 1974 (Cth) apply to any or all of the second defendant’s pleaded conduct in these proceedings? Answer: Yes. (d) If yes to (c), by any of the pleaded conduct to which it is applicable, by engaging in such conduct, did the second defendant contravene s 52 of the Trade Practices Act? Answer: Yes. (e) If yes to (d), has the plaintiff suffered loss and damage by such contravening conduct, pursuant to s 82 of the Trade Practices Act? Answer: No. Order that the costs of the plaintiff and the second defendant of and incidental to the determination of these questions be each party’s costs in the cause.
CATCHWORDS:	MOTOR VEHICLES – Compulsory Insurance – scope of cover – insurer proceeding as if liable – whether estopped – whether misleading or deceptive conduct ESTOPPEL – Conduct – licensed insurer proceeding as if liable until limitation period expired – whether insurer estopped from denying liability to indemnify TRADE PRACTICES – Misleading or Deceptive Conduct – licensed insurer proceeding with claim as if liable under policy until after limitation period expired – whether in trade or commerce – whether misleading – whether loss caused. Motor Accident Insurance Act 1994. Trade Practices Act 1974 (Cth) s 52. Boath v Central Queensland Meat Export Co Pty Ltd and Anor [1986] 1 Qd R 139 – considered. Brew v Followmont Transport Pty Ltd (No. 2) [2005] 2 Qd R 482 – distinguished. Butcher v Lachlan Elder Realty Pty Ltd (2004) 218…