Singh v Hill - [2019] QSC 79

SUPREME COURT OF QUEENSLAND

CITATION:

Singh v Hill & Anor [2019] QSC 79

PARTIE:
ISHMEET SINGH as litigation guardian for JASMEET KAUR
(applicant)

v
NETA HILL
(first respondent)
RACQ INSURANCE LIMITED
(ACN 009 704 152)
(second respondent)

FILE NO/S:

No BS1491 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 March 2019

DELIVERED AT:

Brisbane

HEARING DATE:

20 February 2019

JUDGE:

Boddice J

ORDER:

I shall hear the parties as to the form of order and costs.

CATCHWORDS:

PROCEDURE – MISCELLANEIOUS PROCEDURAL MATTERS – PERSONAL INJURY OR FATAL ACCIDENTS PROCEEDINGS – PRELIMINARY MATTERS – where there was a collision between a motor vehicle driven by the applicant and a motor vehicle driven by the first respondent – where the first respondent was insured by the second respondent – where the applicants seeks to claim damages for personal injuries – where the collision occurred six years previously and the notice of claim was issued by the applicant five years previously – where the limitation period has expired – where the applicant now seeks to commence proceedings – whether the applicant has established good reason for the grant of leave to commence those proceedings

Motor Accident Insurance Act1994 (Qld)

Limitation of Actions Act1974 (Qld)

Hsu & Ors v Wang & Ors[2004] QSC 324, considered
Jonathan v Mangera & Anor[2016] QCA 86, applied
Morrison-Gardiner v Car Choice Pty Ltd [2005] 1 Qd R 378; [2004] QCA 480, cited
Paterson v Leigh & Anor [2008] QSC 277, applied
Blundstone v Johnson [2010] QCA 148, cited
Ward v Wiltshire Australia Pty Ltd (2008) 51 MVR 1; [2008] QCA 93, cited
Winters v Doyle & Anor [2006] 2 Qd R 285; [2006] QCA 110, cited

COUNSEL:

M Horvath, with S Lamb, for the plaintiff

K Howe for the defendant

SOLICITORS:

Compensation Partners Lawyers for the plaintiff

QMT Law for the defendant

On 25 August 2012, there was a collision between a motor vehicle being driven by the applicant and a motor vehicle being driven by the first respondent. That latter vehicle was insured by the second respondent.
Despite the collision having occurred over six years ago and a notice of claim having been issued by the applicant over five years ago, no proceeding has been commenced by the applicant claiming damages for personal injuries arising out of that collision.
By application filed 13 February 2019, the applicant seeks leave to now commence a proceeding against the respondents for damages for personal injury caused by that collision.
The application for leave, brought pursuant to s 57 of the Motor Accident Insurance Act1994 (Qld) was filed by her brother, as litigation guardian. On 2 January 2019, the applicant’s brother was appointed her administrator for financial affairs by order of the Queensland Civil and Administrative Tribunal.
The respondents oppose the grant of leave. At issue is whether the applicant has established good reason for the grant of leave to commence…

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 Singh v Hill

Details

AGLC: Singh v Hill [2019] QSC 79
Case: [2019] QSC 79
Decision Date: 29 March 2019

CaseChat Overview and Summary

In the matter of Singh v Hill, the applicant, who was involved in a motor vehicle collision six years prior, sought to claim damages for personal injuries. The first respondent, who was insured by the second respondent, opposed the applicant’s application to commence proceedings after the limitation period had expired. The primary issue before the court was whether the applicant had established good reason for the grant of leave to commence those proceedings. The applicant, who was born in India and had been living in Australia since 2011, first engaged solicitors in April 2013 and lodged a Notice of Claim dated 30 April 2013. Despite receiving detailed advice from the solicitors about the three-year limitation period and the consequences of failing to commence court proceedings by 24 August 2015, the applicant did not take any action until she sought leave to commence proceedings almost two years after the limitation period had expired.

The court considered whether the applicant had made a conscientious effort to comply with the requirements of the Act and whether the interests of justice warranted a grant of leave. The court found that the applicant’s conduct was inconsistent with a conclusion that she had made a conscientious effort to comply with the requirements of the Act. The applicant did not comply with repeated requests by her then solicitors to provide instructions to progress the action, despite being provided with relevant information, including a schedule of damages. The court also noted that the delay had an inevitable impact on the respondent’s ability to fully and fairly defend any proceedings commenced as a consequence of leave being granted. The court concluded that the applicant had not discharged the onus upon her of showing good reason to exercise the discretion in her favour. The application for leave was dismissed, and the court heard the parties as to the form of order and costs.

Orders

Orders of the court

I shall hear the parties as to the form of order and costs.

Background

Background to the litigation

The respondents oppose the grant of leave. At issue is whether the applicant has established good reason for the grant of leave to commence those proceedings. Factual background The applicant was born on 28 September 1985 in India. She commenced living in Australia in 2011. At the time of the collision she was married and had employment. The applicant first engaged solicitors in respect of the collision in April 2013. Those solicitors were provided with detailed instructions as to the circumstances of the collision, the applicant’s injuries and ongoing consequence of those injuries. A Notice of Claim dated 30 April 2013, was lodged by those solicitors, pursuant to the Act. On 20 May 2013, those solicitors provided the applicant with detailed written advice in relation to the steps to be taken in respect of the claim. That advice included details of the relevant legislation, type of available claim, nature and type of damages that may be claimed and process for lodgement and progress of the claim. That advice included specific advice that “[c]ourt proceedings must be commenced within a period of three (3) years from the date of your motor vehicle accident. That is, by 24 August 2015. Failure to commence court proceedings prior to that date may prevent you from pursuing your matter unless you are able to provide a reasonable explanation to the court as to the reasons that you were late.”[1][1] Affidavit of Lee, p 24. Although the Notice of Claim was initially said by the second respondent to be non- compliant in material respects, by letter dated 24 July 2013, the second respondent advised those solicitors that the notice of accident claim form complied with the requirements of the Act. That letter requested the applicant provide relevant information and documentation as to treatment and damages. By letter dated 7 February 2014, the second respondent advised those solicitors that based on further documentation received from the Queensland Police Service, the second respondent did not consider the first respondent had breached a duty of care and had not contributed to the cause of the collision. Accordingly, liability was denied. The letter stated the denial “does not affect any statutory time limits placed upon your client (including the Limitation of Actions Act). We reserve our rights to rely upon any failure by your client to comply with these time limitations.”[2][2] Affidavit of Lee, p 34. By email dated 6 March 2014, the applicant provided further information to those solicitors in respect of the route taken by the applicant and the first respondent. The applicant advised, “I am no more working since the 14th feb 2014, and i am seeing the psychaitrist: dr mario ceaser briganza, and also a psychologist: ms kerryn pinches, both at wharf street wellness on wharf street in tweed heads”. [3][3] Affidavit of Lee, p 35. By letter dated 7 April 2014, the second respondent denied liability in full. The applicant sent a further email on 11 April 2014 to those solicitors seeking confirmation they had received the further information and wanting to know “if everything was going well for the case”. [4][4] Affidavit of Lee, p 38.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The applicant’s conduct is not consistent with a conclusion the applicant has made a conscientious effort to comply with the requirements of the Act.[31] [31] Winters v Doyle [2006] QCA 110 at [24].Conclusion A consideration of the whole of the circumstances favours a conclusion that the interests of justice do not warrant a grant of leave. The applicant did not comply with repeated requests by her then solicitors to provide instructions to progress the action. Those solicitors had provided the applicant with relevant information, including a schedule of damages sufficient to allow the applicant to provide such instructions. Further, the delay has been extensive. It is now over six years since the collision and almost two years since the expiry of the last extension of the limitation period. Those delays have an inevitable impact on the respondent’s ability to fully and fairly defend any proceedings commenced as a consequence of leave being granted. This is a significant consideration, when determining whether it is appropriate to deprive the respondents of the complete defence afforded to them by the Limitation of Actions Act1974 (Qld). The applicant has not discharged the onus upon her of showing good reason to exercise the discretion in her favour. The application for leave is dismissed.Orders I shall hear the parties as to the form of orders and costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Singh v Hill & Anor [2019] QSC 79
PARTIE:	ISHMEET SINGH as litigation guardian for JASMEET KAUR (applicant) v NETA HILL (first respondent) RACQ INSURANCE LIMITED (ACN 009 704 152) (second respondent)
FILE NO/S:	No BS1491 of 2019
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	29 March 2019
DELIVERED AT:	Brisbane
HEARING DATE:	20 February 2019
JUDGE:	Boddice J
ORDER:	I shall hear the parties as to the form of order and costs.
CATCHWORDS:	PROCEDURE – MISCELLANEIOUS PROCEDURAL MATTERS – PERSONAL INJURY OR FATAL ACCIDENTS PROCEEDINGS – PRELIMINARY MATTERS – where there was a collision between a motor vehicle driven by the applicant and a motor vehicle driven by the first respondent – where the first respondent was insured by the second respondent – where the applicants seeks to claim damages for personal injuries – where the collision occurred six years previously and the notice of claim was issued by the applicant five years previously – where the limitation period has expired – where the applicant now seeks to commence proceedings – whether the applicant has established good reason for the grant of leave to commence those proceedings Motor Accident Insurance Act1994 (Qld) Limitation of Actions Act1974 (Qld) Hsu & Ors v Wang & Ors[2004] QSC 324, considered Jonathan v Mangera & Anor[2016] QCA 86, applied Morrison-Gardiner v Car Choice Pty Ltd [2005] 1 Qd R 378; [2004] QCA 480, cited Paterson v Leigh & Anor [2008] QSC 277, applied Blundstone v Johnson [2010] QCA 148, cited Ward v Wiltshire Australia Pty Ltd (2008) 51 MVR 1; [2008] QCA 93, cited Winters v Doyle & Anor [2006] 2 Qd R 285; [2006] QCA 110, cited
COUNSEL:	M Horvath, with S Lamb, for the plaintiff K Howe for the defendant
SOLICITORS:	Compensation Partners Lawyers for the plaintiff QMT Law for the defendant