Pertzel v Qld Paulownia Forests Ltd - [2008] QCA 287

SUPREME COURT OF QUEENSLAND

CITATION:

Pertzel v Qld Paulownia Forests Ltd & Anor [2008] QCA 287

PARTIES:

BERT ALFRED PERTZEL
(plaintiff/respondent)
v
QLD PAULOWNIA FORESTS LTD
(first defendant/not a party to the appeal)
ALLIANZ AUSTRALIA INSURANCE LIMITED
ABN 15 000 122 850
(second defendant/appellant)

FILE NO/S:

Appeal No 2073 of 2008
DC No 1084 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

19 September 2008

DELIVERED AT:

Brisbane

HEARING DATE:

25 July 2008

JUDGES:

Keane JA, Mackenzie AJA and Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Application for leave to appeal granted1.

Appeal allowed and the orders below set aside only to the extent that questions (c) and (d) each be answered "No"2.

Respondent to pay one quarter of the appellant's costs of the appeal to be assessed on the standard basis3.

CATCHWORDS:

INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – RISKS INSURED – RELATIONSHIP WITH WORKERS' COMPENSATION CLAIMS – where the respondent commenced proceedings seeking compensation for injuries sustained whilst driving a vehicle belonging to his employer – where the appellant was the insurer of the vehicle – whether the respondent's claim was a "motor vehicle accident claim" as that term is defined under s 4 of the Motor Accident Insurance Act 1994 (Qld)

INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – RIGHTS AND LIABILITIES OF INSURER IN RESPECT OF DEFENCE AND COMPROMISE – QUEENSLAND – where the appellant acknowledged receipt of the respondent's claim and commenced the pre-trial procedures as required under the Motor Accident Insurance Act 1994 (Qld) – where the appellant was acting under the honestly held mistaken belief that the statutory policy of insurance covered the circumstances of the respondent's claim – where the appellant later sought to rely upon an exclusionary clause under the statutory policy of insurance to deny its liability to the respondent – where the respondent had pursued his claim against the appellant at the expense of other potential avenues for compensation – whether the commencement by the appellant of the pre-trial procedures under the Act constituted a binding representation that the insurance policy issued by the appellant responded to the respondent's injuries – whether the appellant was estopped from now relying upon the exclusionary clause in order to avoid its liability to the respondent

TRADE AND COMMERCE – TRADE PRACTICES ACT 1974 (CTH) AND RELATED LEGISLATION – TERMINOLOGY – TRADE OR COMMERCE – GENERAL PRINCIPLES – whether the appellant's dealings with the respondent in relation to the respondent's claim constituted conduct "in trade or commerce" – whether the appellant engaged in misleading or deceptive conduct "in trade or commerce" as prohibited under s 52 of the Trade Practices Act 1974 (Cth)

District Court of Queensland Act 1967 (Qld), s 118(3)
Motor Accident Insurance Act 1994 (Qld), s 4, s 37,…

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.

Keep reading for free

Create a free CaseChat account to read Pertzel v Qld Paulownia Forests Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] QCA 287
Decision Date: 19 September 2008

CaseChat Overview and Summary

Pertzel v Qld Paulownia Forests Ltd is a significant decision from the High Court of Australia concerning the interpretation of motor vehicle accident insurance policies, particularly in the context of workers' compensation claims. The respondent, who was an employee of the appellant, sustained injuries while driving a vehicle belonging to his employer. The appellant, the insurer of the vehicle, was subsequently sought for compensation. The central issue before the court was whether the respondent's claim qualified as a "motor vehicle accident claim" as defined by section 4 of the Motor Accident Insurance Act 1994 (Qld). This definition is crucial as it determines the scope of coverage under the compulsory third-party motor vehicle insurance policy.

The court addressed whether the insurer's initiation of pre-trial procedures under the Motor Accident Insurance Act 1994 (Qld), after acknowledging the respondent's claim, constituted a binding representation that the insurance policy covered the respondent's injuries. The insurer had acted under the mistaken belief that the statutory policy covered the respondent's circumstances. The court also examined whether the insurer could be estopped from denying its liability by relying on an exclusionary clause in the insurance policy. Furthermore, the court had to determine if the insurer's conduct in handling the claim constituted misleading or deceptive conduct under the Trade Practices Act 1974 (Cth), specifically if it occurred "in trade or commerce."

The High Court found that the respondent's claim did not qualify as a "motor vehicle accident claim" under the Act, as it was intertwined with a workers' compensation claim. The court ruled that the insurer's initiation of pre-trial procedures did not bind it to cover the respondent's injuries due to the mistaken belief about policy coverage. Additionally, the court held that the insurer was not estopped from relying on the exclusionary clause, as the respondent had not been misled by the insurer's actions. The court also concluded that the insurer's conduct did not constitute misleading or deceptive conduct under the Trade Practices Act 1974 (Cth). Consequently, the appeal was allowed, and specific questions were answered negatively, while the respondent was ordered to pay a portion of the appellant's costs of the appeal.

Orders

Orders of the court

Application for leave to appeal granted1.

Appeal allowed and the orders below set aside only to the extent that questions (c) and (d) each be answered "No"2.

Respondent to pay one quarter of the appellant's costs of the appeal to be assessed on the standard basis3.

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] QCA 287
PARTIES:	BERT ALFRED PERTZEL (plaintiff/respondent) v QLD PAULOWNIA FORESTS LTD (first defendant/not a party to the appeal) ALLIANZ AUSTRALIA INSURANCE LIMITED ABN 15 000 122 850 (second defendant/appellant)
FILE NO/S:	Appeal No 2073 of 2008 DC No 1084 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Application for leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	19 September 2008
DELIVERED AT:	Brisbane
HEARING DATE:	25 July 2008
JUDGES:	Keane JA, Mackenzie AJA and Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Application for leave to appeal granted1. Appeal allowed and the orders below set aside only to the extent that questions (c) and (d) each be answered "No"2. Respondent to pay one quarter of the appellant's costs of the appeal to be assessed on the standard basis3.
CATCHWORDS:	INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – RISKS INSURED – RELATIONSHIP WITH WORKERS' COMPENSATION CLAIMS – where the respondent commenced proceedings seeking compensation for injuries sustained whilst driving a vehicle belonging to his employer – where the appellant was the insurer of the vehicle – whether the respondent's claim was a "motor vehicle accident claim" as that term is defined under s 4 of the Motor Accident Insurance Act 1994 (Qld) INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – RIGHTS AND LIABILITIES OF INSURER IN RESPECT OF DEFENCE AND COMPROMISE – QUEENSLAND – where the appellant acknowledged receipt of the respondent's claim and commenced the pre-trial procedures as required under the Motor Accident Insurance Act 1994 (Qld) – where the appellant was acting under the honestly held mistaken belief that the statutory policy of insurance covered the circumstances of the respondent's claim – where the appellant later sought to rely upon an exclusionary clause under the statutory policy of insurance to deny its liability to the respondent – where the respondent had pursued his claim against the appellant at the expense of other potential avenues for compensation – whether the commencement by the appellant of the pre-trial procedures under the Act constituted a binding representation that the insurance policy issued by the appellant responded to the respondent's injuries – whether the appellant was estopped from now relying upon the exclusionary clause in order to avoid its liability to the respondent TRADE AND COMMERCE – TRADE PRACTICES ACT 1974 (CTH) AND RELATED LEGISLATION – TERMINOLOGY – TRADE OR COMMERCE – GENERAL PRINCIPLES – whether the appellant's dealings with the respondent in relation to the respondent's claim constituted conduct "in trade or commerce" – whether the appellant engaged in misleading or deceptive conduct "in trade or commerce" as prohibited under s 52 of the Trade Practices Act 1974 (Cth) District Court of Queensland Act 1967 (Qld), s 118(3) Motor Accident Insurance Act 1994 (Qld), s 4, s 37,…