Piper v Nominal Defendant

[2003] QCA 557

SUPREME COURT OF QUEENSLAND

CITATION:

Piper v Nominal Defendant [2003] QCA 557

PARTIES:

DAVID RONALD PIPER
(applicant/appellant)
v
THE NOMINAL DEFENDANT
(respondent/respondent)

FILE NO/S:

Appeal No 2596 of 2003
SC No 11401 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme 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, Williams JA and Mackenzie J concurring as to the order made, Davies JA dissenting

ORDER:

Appeal dismissed with costs

CATCHWORDS:

INSURANCE - MOTOR VEHICLES - COMPULSORY INSURANCE LEGISLATION - WHERE IDENTITY OF VEHICLE CANNOT BE ESTABLISHED - QUEENSLAND - GENERALLY - where appellant involved in a motor vehicle accident with an unidentified vehicle - where appellant's uncle suggested he should seek legal advice - where appellant's uncle suggested he see a friend of his, O'Donnell - where O'Donnell did not inform appellant that he was an industrial advocate and not a lawyer - where notice not given to the Nominal Defendant within three months of accident - where notice given to the Nominal Defendant within nine months and contained an excuse for the delay - where appellant's excuse for the delay was that he believed O'Donnell was a lawyer - whether reasonable for appellant to assume O'Donnell was a lawyer

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

COUNSEL:

R J Douglas SC, with G R Mullins, for the appellant
K N Wilson SC, with K F Holyoak, for the respondent

SOLICITORS:

Carter Capner, town agents for Giudes & Elliott      (Townsville), for the appellant
O'Shea Corser & Wadley for the respondent

1. DAVIES JA: On 18 December 2002 the appellant applied in the Supreme Court for a declaration pursuant to s 39 of the Motor Accident Insurance Act 1994 ("the Act") that the appellant has remedied the non-compliance referred to in that section or an order pursuant to that section authorizing the appellant to proceed further despite that non-compliance. In the further alternative the appellant sought a declaration that a notice dated 3 October 2002 was a complying notice pursuant to s 37 of the Act and in the further alternative a declaration that the claimant had provided reasonable excuse for the delay. The Nominal Defendant was the respondent in each case. On 27 February 2003, the learned primary judge refused to make any of the orders or declarations sought and dismissed the appellant's application.

1. The appellant's amended grounds of appeal were as follows:

1. her Honour erred in holding that the appellant had not provided a reasonable excuse for the delay in providing a notice to the respondent under s 37(3) of the Motor Accident Insurance Act 1994;

2.          her Honour erred in holding that the excuse given by the appellant was not a reasonable excuse for the delay in the circumstances;

3.          her Honour erred in applying an objective test to the question as to whether the excuse…