Saltner v. Watson & Anor - [2007] QSC 191

SUPREME COURT OF QUEENSLAND

CITATION:

Saltner v Watson & Anor [2007] QSC 191

PARTIES:

KEVIN JOSEPH SALTNER
(applicant)
v
LEE CHARLES WATSON
(first respondent)
and
RACQ INSURANCE LIMITED
(second respondent)

FILE NO:

BS4930 of 2007

DIVISION:

Trial Division

PROCEEDING:

Originating application

DELIVERED ON:

8 August 2007

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

4 July 2007

JUDGE:

Wilson J

ORDER:

THE ORDER OF THE COURT IS THAT:

1. The compulsory conference of the Applicant and the Second Respondent required by subsection 51A(1) of the Motor Accident Insurance Act1994 (“MAIA”) in respect of the Applicant’s claim for damages for personal injury arising out of a motor vehicle accident which occurred on 14 March 2004 along the Bruce Highway at Flaggy Rock in the State of Queensland (“the claim”) be dispensed with, pursuant to subsection 51A(5)(b) of the MAIA.

2. The obligation of the Applicant and the Respondent to exchange written final offers under subsection 51C(1) of the MAIA (“mandatory final offers”) be dispensed with, pursuant to subsection 51C(11) of the MAIA.

3. Pursuant to section 57(2)(b) of the MAIA, an action for damages be started by the Applicant in respect of the claim by no later than 30 August 2007 (“the action”) and copies of the claim and statement of claim be provided to the Respondent within fourteen (14) days of the action being so started.

4.     The orders in paragraphs 1 and 2 of this Order are made on conditions that, subject to any further order:-

(a) The action, if started, be stayed until each of, and the last of, the following has occurred:-

(i) The Applicant and the Respondents hold a conference that complies in all respects with section 51A of the MAIA as if it were a compulsory conference within the meaning of, and for the purposes of, that section (“the conference”) and the terms of section 51A of the MAIA apply to the conference as if it were a compulsory conference;

(ii) The Applicant and the Respondents hold and conduct the conference in all respects in accordance with the procedures and other provisions contained in section 51B of the MAIA as if the conference were a compulsory conference within the meaning of that section, and the terms of section 51B of the MAIA apply to the conference as if it were a compulsory conference;

(iii) The Applicant and Respondents exchange written final offers which must remain open for 14 days and be in accordance with, and comply in all respects with, subsections 51C(1), (2), (3), (4) and (5) of the MAIA as if the provisions of those subsections had not been dispensed with (“the offers”);

(iv)    The Applicant and the Respondents participate in the compulsory conference by 10 November 2007 or within such further time as the Court may allow;

(v)     The Applicant does provide to the solicitors for the respondents a statutory declaration in the form of a statement of loss and damage at least fourteen days prior to the…

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.

Continue reading Saltner v. Watson & Anor

Details

AGLC: Saltner v Watson [2007] QSC 191
Case: [2007] QSC 191
Decision Date: 8 August 2007

CaseChat Overview and Summary

Saltner, the applicant, sought to bring an action for damages against Watson, the first respondent, and another party, the second respondent, following injuries sustained in a motor vehicle accident that occurred on 14 March 2004 at Flaggy Rock, Queensland. The applicant's solicitors had failed to initiate proceedings within the statutory limitation period due to an administrative oversight, resulting in the applicant's inability to commence the action in time. The primary legal issue before the court was whether it should exercise its discretion to extend the time for the applicant to commence the action under the Motor Accident Insurance Act 1994 (Qld). The court had to consider whether the applicant's failure to meet the statutory deadline was due to circumstances beyond their control and if it was in the interests of justice to grant the extension.

The court acknowledged the applicant's administrative failure as the cause for the delay and recognised that the applicant had no control over this oversight. It also noted that the applicant had acted promptly upon discovering the error and had sought to mitigate the consequences by applying for an extension. The court concluded that the delay was not due to any fault or neglect on the part of the applicant and that it was in the interests of justice to allow the applicant to commence the action. Accordingly, the court exercised its discretion to extend the time for the applicant to commence the action, provided that certain conditions were met. These conditions included the exchange of written final offers, participation in a conference, and the provision of a statutory declaration by the applicant.

The court ordered that the compulsory conference and the exchange of written final offers required by the Motor Accident Insurance Act 1994 be dispensed with, subject to the applicant and the respondents fulfilling certain conditions. These conditions included holding a conference in accordance with the Act, exchanging written final offers, and participating in the compulsory conference by a specified date. The court also ordered that the applicant commence the action by a certain date and provide copies of the claim and statement of claim to the respondents within fourteen days of starting the action. Additionally, the court granted each party liberty to apply for further orders, with a requirement for three business days' notice in writing. The court made no order as to costs.

Orders

Orders of the court

THE ORDER OF THE COURT IS THAT:

1. The compulsory conference of the Applicant and the Second Respondent required by subsection 51A(1) of the Motor Accident Insurance Act 1994 (“MAIA”) in respect of the Applicant’s claim for damages for personal injury arising out of a motor vehicle accident which occurred on 14 March 2004 along the Bruce Highway at Flaggy Rock in the State of Queensland (“the claim”) be dispensed with, pursuant to subsection 51A(5)(b) of the MAIA.

2. The obligation of the Applicant and the Respondent to exchange written final offers under subsection 51C(1) of the MAIA (“mandatory final offers”) be dispensed with, pursuant to subsection 51C(11) of the MAIA.

3. Pursuant to section 57(2)(b) of the MAIA, an action for damages be started by the Applicant in respect of the claim by no later than 30 August 2007 (“the action”) and copies of the claim and statement of claim be provided to the Respondent within fourteen (14) days of the action being so started.

4. The orders in paragraphs 1 and 2 of this Order are made on conditions that, subject to any further order:-

(a) The action, if started, be stayed until each of, and the last of, the following has occurred:-

(i) The Applicant and the Respondents hold a conference that complies in all respects with section 51A of the MAIA as if it were a compulsory conference within the meaning of, and for the purposes of, that section (“the conference”) and the terms of section 51A of the MAIA apply to the conference as if it were a compulsory conference;

(ii) The Applicant and the Respondents hold and conduct the conference in all respects in accordance with the procedures and other provisions contained in section 51B of the MAIA as if the conference were a compulsory conference within the meaning of that section, and the terms of section 51B of the MAIA apply to the conference as if it were a compulsory conference;

(iii) The Applicant and Respondents exchange written final offers which must remain open for 14 days and be in accordance with, and comply in all respects with, subsections 51C(1), (2), (3), (4) and (5) of the MAIA as if the provisions of those subsections had not been dispensed with (“the offers”);

(iv) The Applicant and the Respondents participate in the compulsory conference by 10 November 2007 or within such further time as the Court may allow;

(v) The Applicant does provide to the solicitors for the respondents a statutory declaration in the form of a statement of loss and damage at least fourteen days prior to the compulsory conference.

5. Each party have liberty to apply by giving three business days notice in writing to the other party.

6. There be no order as to costs.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Saltner v Watson & Anor [2007] QSC 191
PARTIES:	KEVIN JOSEPH SALTNER (applicant) v LEE CHARLES WATSON (first respondent) and RACQ INSURANCE LIMITED (second respondent)
FILE NO:	BS4930 of 2007
DIVISION:	Trial Division
PROCEEDING:	Originating application
DELIVERED ON:	8 August 2007
DELIVERED AT:	Supreme Court, Brisbane
HEARING DATE:	4 July 2007
JUDGE:	Wilson J
ORDER:	THE ORDER OF THE COURT IS THAT: 1. The compulsory conference of the Applicant and the Second Respondent required by subsection 51A(1) of the Motor Accident Insurance Act1994 (“MAIA”) in respect of the Applicant’s claim for damages for personal injury arising out of a motor vehicle accident which occurred on 14 March 2004 along the Bruce Highway at Flaggy Rock in the State of Queensland (“the claim”) be dispensed with, pursuant to subsection 51A(5)(b) of the MAIA. 2. The obligation of the Applicant and the Respondent to exchange written final offers under subsection 51C(1) of the MAIA (“mandatory final offers”) be dispensed with, pursuant to subsection 51C(11) of the MAIA. 3. Pursuant to section 57(2)(b) of the MAIA, an action for damages be started by the Applicant in respect of the claim by no later than 30 August 2007 (“the action”) and copies of the claim and statement of claim be provided to the Respondent within fourteen (14) days of the action being so started. 4. The orders in paragraphs 1 and 2 of this Order are made on conditions that, subject to any further order:- (a) The action, if started, be stayed until each of, and the last of, the following has occurred:- (i) The Applicant and the Respondents hold a conference that complies in all respects with section 51A of the MAIA as if it were a compulsory conference within the meaning of, and for the purposes of, that section (“the conference”) and the terms of section 51A of the MAIA apply to the conference as if it were a compulsory conference; (ii) The Applicant and the Respondents hold and conduct the conference in all respects in accordance with the procedures and other provisions contained in section 51B of the MAIA as if the conference were a compulsory conference within the meaning of that section, and the terms of section 51B of the MAIA apply to the conference as if it were a compulsory conference; (iii) The Applicant and Respondents exchange written final offers which must remain open for 14 days and be in accordance with, and comply in all respects with, subsections 51C(1), (2), (3), (4) and (5) of the MAIA as if the provisions of those subsections had not been dispensed with (“the offers”); (iv) The Applicant and the Respondents participate in the compulsory conference by 10 November 2007 or within such further time as the Court may allow; (v) The Applicant does provide to the solicitors for the respondents a statutory declaration in the form of a statement of loss and damage at least fourteen days prior to the…