Singh v Hill

Case [2019] QCA 227

SUPREME COURT OF QUEENSLAND

CITATION:

Singh v Hill & Anor [2019] QCA 227

PARTIES:

ISHMEET SINGH as litigation guardian for JASMEET KAUR
(appellant)
v
NETA HILL
(first respondent)
RACQ INSURANCE LIMITED
ACN 009 704 152
(second respondent)

FILE NO/S:

Appeal No 4361 of 2019
SC No 1491 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Brisbane – [2019] QSC 79 (Boddice J)

DELIVERED ON:

25 October 2019

DELIVERED AT:

Brisbane

HEARING DATE:

26 August 2019

JUDGES:

Sofronoff P and Gotterson JA and Flanagan J

ORDERS:

1.   Allow the appeal.

2.   Set aside any order of the learned primary judge, dismissing the originating application filed 13 February 2019.

3.   The originating application filed 13 February 2019 is granted.

4.   Order that pursuant to s 57(2)(b), the appellant may commence proceedings within 60 days of a compulsory conference.

5.   There be no order as to costs in respect of the originating application filed 13 February 2019.

6.   The second respondent pay the appellant’s costs of the appeal.

CATCHWORDS:

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – PERSONAL INJURY OR FATAL ACCIDENTS PROCEEDINGS – PRELIMINARY MATTERS – where the appellant seeks to commence proceedings in respect of personal injuries allegedly sustained in a car accident involving the first respondent – where the second respondent is the compulsory third party insurer – where the appellant complied with all pre-court steps except for attending to a compulsory conference and exchanging of mandatory final offers – where the appellant and second respondent agreed on seven occasions to extend the limitation period – where the appellant did not instruct her solicitors to make a settlement offer on the basis that her injuries were yet to resolve – where the appellant’s solicitors refused to proceed until they received instructions to make a settlement offer – where the limitation period has now expired – where the appellant applied under s 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld) for an extension to the limitation period – where the appellant argued below that she did not have capacity during the limitation period to give instructions – where the learned primary judge declined to exercise the discretion to extend time – where the learned primary judge found that the appellant had capacity – where instead, the learned primary judge found that the appellant had unreasonably failed to give her solicitors instructions, had no basis for believing an extension to the limitation period could be easily achieved, and had prioritised her own circumstances over her claim – whether the learned primary judge erred in the exercise of discretion

Limitation of Actions Act 1974 (Qld), s 11
Motor Accident Insurance Act 1994 (Qld), s 57

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, applied
Jonathan v Mangera & Anor (2016) 75 MVR 143; [2016] QCA 86, applied
Morrison-Gardiner v Car Choice Pty Ltd [2005]…

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AGLC
Singh v Hill [2019] QCA 227
Case
[2019] QCA 227
Decision Date

CaseChat Overview and Summary

In Singh v Hill, the appellant sought to commence personal injury proceedings relating to a motor vehicle accident. The compulsory third party insurer, the second respondent, was joined as a party. The appellant applied for an extension of the limitation period under s 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld). The primary judge declined to extend the limitation period, finding that the appellant had unreasonably failed to give instructions to her solicitors and had prioritised her circumstances over her claim. The appellant appealed the decision.

The legal issues in this case centred around whether the primary judge erred in declining to extend the limitation period. The appellant argued that she did not have capacity to give instructions to her solicitors during the limitation period. The primary judge found that the appellant had capacity and had unreasonably failed to give instructions. The appeal focused on whether the primary judge's decision was correct, particularly in light of the appellant's capacity to give instructions and the reasons for her failure to do so.

The primary judge's reasoning was grounded in the appellant's failure to give instructions to her solicitors, despite having a detailed schedule of damages and having travelled overseas. The primary judge found no basis for the appellant's assertion that she believed an extension of the limitation period was easily achievable. The primary judge also rejected the appellant's claim of lack of capacity, finding her interactions with her former solicitors demonstrated capacity. The primary judge concluded that the appellant had prioritised her circumstances over her claim, leading to the decision not to extend the limitation period.

The appeal was allowed, and the primary judge's order was set aside. The Court granted the originating application, permitting the appellant to commence proceedings within 60 days of a compulsory conference. The second respondent was ordered to pay the appellant's costs of the appeal, with no order as to costs in respect of the originating application.

Orders

Orders of the court

1. Allow the appeal.

2. Set aside any order of the learned primary judge, dismissing the originating application filed 13 February 2019.

3. The originating application filed 13 February 2019 is granted.

4. Order that pursuant to s 57(2)(b), the appellant may commence proceedings within 60 days of a compulsory conference.

5. There be no order as to costs in respect of the originating application filed 13 February 2019.

6. The second respondent pay the appellant’s costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In identifying these legal principles, the learned primary judge further observed:[82]“Whilst it is not a precondition to the exercise of the discretion that the delay was caused by attempts to comply with that Act [Ward v Wiltshire Australia Pty Ltd (2008) 51 MVR 1 at 9 [33]], it is relevant to bear in mind that it is a serious matter for a Court to override a defence otherwise available to the defendant [Winters v Doyle [2006] 2 Qd R 285 at [34] per Keane JA]. Ultimately, each case turns on its own merits.”[82]Reasons at [57].The decision below After setting out the background facts to the application and the legal principles above, the learned primary judge summarised the parties’ submissions. His Honour’s observation that the appellant had completed all pre-court steps, except for attending a compulsory conference and exchanging mandatory final offers, is undisputed. The appellant draws attention to his Honour’s summary of her submissions below wherein his Honour stated that “[her] initial solicitors wrongly determined that there was a need for an expert report on the cause of the collision”.[83] It is apparent from the relevant circumstances outlined above that this statement is incorrect. In the period between 16 July 2015 and 9 February 2016, RACQ sought three extensions to the limitation period while it waited to receive the traffic reconstruction report from the first respondent’s solicitors.[84] This error forms the basis of ground 3 in the notice of appeal to which I will return.[83]Reasons at [58].[84]See [21] above. Upon a consideration of the material, his Honour’s conclusion was that the appellant was not conscientious in the pursuit of her claim. Her failure to give instructions “was not reasonable in circumstances where [her former solicitors] had provided a detailed schedule to damages for that purpose” and she had travelled overseas.[85] There was, according to his Honour, no basis for the appellant’s assertion that she believed “an extension [to the limitation period] was easily to be achieved upon request”, given the warnings she received to the contrary.[86][85]Reasons at [64]-[65].[86]Reasons at [66]. His Honour then addressed the appellant’s submission that her failure to give instructions was because of her lack of capacity at material times, as opined by Dr Mathew.[87] His Honour rejected that submission for two reasons. First, he rejected Dr Mathew’s opinion as being inconsistent with other psychiatric reports which Dr Mathew expressly relied upon, namely the reports of Dr Kar and Dr Boulnois.[88] Secondly, his Honour thought that the appellant’s interactions with her former solicitors demonstrated that she had capacity to give instructions.[89][87]Reasons at [67].[88]Reasons at [67]-[69].[89]Reasons at [70]. As to that, his Honour referred to a number of emails from the appellant to her former solicitors. He noted that the appellant had provided information to her solicitors by way of emails on 6 March and 29 September 2014.

Ratio Decidendi

Legal Principle Established

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