Platz v Taylor & Suncorp Metway Ltd

[2004] QDC 565

[2004] QDC 565

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD4023 of 2004

JO-ANNE MAREE PLATZ

Applicant

and

JOHN TAYLOR

and

SUNCORP METWAY LIMITED

First Respondent

Second Respondent

BRISBANE

..DATE 26/11/2004

ORDER

CATCHWORDS: Application for leave to commence a proceeding for damages notwithstanding that pre-litigation steps mandated by the Motor Accident Insurance Act 1994 were not completed - limitation period about to expire - no default by applicant - respondent insurer ordered to pay costs

HIS HONOUR: This is the second application before the Court today in which applicants who happen to be represented by the same solicitor seek leave to commence proceedings for damages for personal injuries arising out of a motor vehicle accident, in light of the impending expiration of the ordinary three-year limitation period, subject to a stay to permit mandatory pre-litigation procedures required by the Motor Accident Insurance Act, which have to be gone through.

In both matters, the contentious issue has been costs.  It is a reproach to the way in which the system is working, at the moment, that there are so many applications of the present kind, many of them under other legislation covering other kinds of personal injuries damages claims.  I think the Court should be concerned about the amount of costs generated by such applications which involve significant filing fees.

It seems to be established now that applicants must pay such fees in relation to the originating application seeking leave to commence a proceeding so that limitations issues can be avoided, and then the further filing costs appropriate to the claim that issues.  If the legislation I have referred to worked as it was intended to, in most situations no proceeding would be filed in the Court at all.  Issues would be resolved under whatever mechanisms are established by the legislation.

Those involved appear not to concentrate their attention, far too often, until it is too late.  In this case, the applicant's solicitors were dealing with the second respondent insurer, which did not appoint solicitors until the 22nd of October 2004.  The limitation period will expire the customary three years after the accident date, which was 28 November 2001.  By 22nd October 2004, the applicant's solicitors were becoming most concerned as the expiration of the limitation period got closer.  They were anxious, in particular, to arrange the holding of the compulsory conference required by the Act.  Steps that may have to be accommodated subsequently to satisfy the Act use up more precious weeks of the limitation period.

There are preliminaries to that compulsory conference occurring such as the execution of a certificate of readiness to the effect that the matter is "ready for trial".

Before the Court is a letter from the applicant's solicitors of 30th September 2004 nominating 10 a.m. on 20th of October 2004 at Mr Barnes's Chambers for the conference with the warning:

"If you do not attend we will make application to the Court to dispense with compulsory costs."

Mr Barnes was allowed to state in a general way, that enquiries about the compulsory conference had been made over months.

The response was a letter of 1st October 2004 indicating that the insurer was not ready to attend the conference and was not prepared to provide the requisite certificate of readiness because of investigations it was undertaking in relation to the files of its insured, Belmont Medical Centre and Auscare. 

It is agreed that the closing sentence of the letter which talks in terms of the applicant failing to comply with Suncorp's requests is there as a matter of form and not to signify that there was any outstanding request requiring to be satisfied by the applicant or his representatives.

The applicant's solicitors' next letter of the 7th of October 2004 noted the expiration of the limitation period and advised that counsel had been briefed to prepare the present application.  A letter of 12th of October 2004 followed up, concluding:

"Our client is not prepared to delay this matter any further.  In the circumstances, unless you confirm within three working days that you will attend upon a compulsory conference either late this month or in early November, we will apply to the Court for an order dispensing with the holding of a compulsory conference with a further order that your office pay the costs of and incidental to the application."

Suncorp's response by letter dated two days later advised that records from Belmont Medical Centre where the applicant had both worked and been treated were still awaited but:

"We should be in a position to proceed to a compulsory conference in early November."

It was advised that the file was being forwarded to the

solicitors:

"who will contact you shortly to arrange a mutually convenient time and date for the holding of the compulsory conference."

The solicitors in due course sent a letter of the 25th of

October 2004 advising their interest and seeking:

"any necessary extension of time to take action to protect our client's interest."

Nothing was said regarding the arranging of the compulsory conference as Suncorp's letter foreshadowed.

In respect of contact between solicitors, there is an unfortunate situation regarding a letter of the 5th of November 2004 which Mr Kerin says (and the respondent accepts) he sent - his records confirm it.  However, it is accepted by him and Mr Barnes that Mr Beirne in the respondent's solicitor's office did not receive it.

A short letter in similar but not absolutely identical terms followed, dated 9th November 2004.  It was not received until 11th November 2004, the day after the originating application had been filed.  It asked for advice:

"if you are ready to attend the compulsory conference in relation to the matter."

There appeared to be no response intervening and there was really no opportunity for one before a facsimile communication serving the present application.

Understandably, the recipient solicitors complained that they were provided with no opportunity to arrange a date for compulsory conference.  They say that it follows that the applicant is not entitled to the costs of the application.  The parties have agreed to detailed orders for the future conduct of the matter set out in a draft order that has been handed up.  The contentious issue is costs.  The Court sympathises with the approach of the second respondent's solicitors.

It would be nice to think that professional courtesies of past decades would have led to some notice to them before the filing of the application, which, as noted above, involved a significant outlay.  Unfortunately, I have developed the impression that professional courtesies do not count for much anymore.  Perhaps practitioners are simply too busy, and the applicant's solicitors faced a serious problem of ensuring that the necessary order from the Court was obtained to permit whatever was necessary to be done in relation to getting a proceeding underway before the limitation period expired.

There has been no offer made by the respondent of any extension of the limitation period.  Although I have not seen this happen, it is doubtless possible for a potential defendant to undertake that if the proceeding is instituted by some nominated date a limitation defence otherwise available will not be raised.  Something along those lines may well be an answer to the proliferation of applications like the present which the Court currently experiences.

I think the Court should be concerned that they not become a costs generating exercise.  When one scrutinises the correspondence, one notes that the particular application which the applicant has made is not the one with which the insurer was threatened.  However, the threatened application would have involved the same filing fees.  I do not think that anything turns on the changed approach.

Indeed, the one adopted in the filed application is probably a more sensible one since it authorises the institution of a proceeding claiming damages, which may be necessary. 

Notwithstanding the comments made regarding the position of the solicitors now acting for the second respondent, I think that if matters are assessed on the basis of what happened between the applicant and the second respondent when it was attending to representing itself, it is appropriate for the applicant to have her costs.

These are difficult situations on which the Court is called on to adjudicate.  In hindsight, one can have all kinds of regrets that the participants did not proceed somewhat differently.  One of those regrets is that the respondent's solicitors, whatever their instructions were, simply did not live up to the assertion about what they would do, contained in Suncorp's letter of the 14th of October 2004.

In those circumstances, I think the best decision that the Court can make is in favour of allowing the costs which are sought, so ultimately there will be an order as per initialled draft.

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