RACQ Insurance Ltd v Wilkins

SUPREME COURT OF QUEENSLAND

CITATION:

RACQ Insurance Ltd v Wilkins [2009] QSC 365

PARTIES:

RACQ INSURANCE LTD (ACN 009 704 152)
(applicant)
v
KATHRYN WILKINS
(respondent)

FILE NO:

10609 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

16 November 2009

DELIVERED AT:

Brisbane

HEARING DATE:

30 October 2009

JUDGE:

Applegarth J

ORDER:

Order in accordance with draft order

CATCHWORDS:

INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – QUEENSLAND – where respondent was injured in a motor vehicle accident in Queensland and was obliged to comply with statutory obligations under the Motor Accident Insurance Act 1994 (Qld) to provide medical reports and undergo medical examination – where the respondent has commenced proceedings in the Supreme Court of the Australian Capital Territory – whether the Supreme Court of Queensland has jurisdiction to enforce the respondent’s statutory obligations under the Queensland Act

Acts Interpretation Act 1954 (Qld), s 14A(1)
Jurisdiction of Court (Cross-Vesting) Act 1993 (ACT), s 5, s 9
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Qld), s 4
Motor Accident Insurance Act 1994 (Qld), s 4, s 37, s 40, s 45, s 46A, s 50
Service and Execution of Process Act 1992 (Cth), s 21

Betella v O’Leary [2001] WASCA 266, cited
Hamilton v Merck & Co Inc (2006) 66 NSWLR 48, cited
Hodgson v Dimbola Pty Ltd t/as Towers Removals [2009] ACTSC 59, cited
Horinack v Suncorp Metway Insurance Ltd [2001] 2 Qd R 266, cited
Kelly v The Queen (2004) 218 CLR 216, applied
Paterson v Leigh & Anor [2008] QSC 277, cited
The Official Trustee in Bankruptcy v Buffier (2005) 54 ACSR 767, cited

COUNSEL:

K F Holyoak for the applicant
J Pappas for the respondent

SOLICITORS:

Cooper Grace Ward for the applicant
United Legal for the respondent

1. The issue for determination on this application is whether the commencement of proceedings in the Supreme Court of the Australian Capital Territory (“ACT”) for damages for personal injury deprives this Court of jurisdiction to enforce compliance with the respondent’s statutory obligations under s 45 and s 46A of the Motor Accident Insurance Act 1994 (Qld) (“the Act”) to provide medical reports and to undergo a medical examination.

Facts

1. The respondent was injured in a motor vehicle accident that occurred on

   
   

   5 November 2006 in Bundaberg, when she was the passenger on a motorcycle that collided with a car. Both vehicles were registered in Queensland. The respondent is the compulsory third-party insurer of the car. On 13 April 2007 the applicant received the respondent’s Notice of Accident Claim Form made pursuant to the Act. By letter dated 31 August 2007 the applicant informed the respondent’s then-solicitors that they considered that the insured driver of the car breached a duty of care and this breach contributed to the cause of the accident. It admitted liability to the extent of 75 per cent, and asserted that the respondent also contributed to her injuries by failing…