Soliman v Abbey - [1999] QSC 318

IN THE SUPREME COURT
OF QUEENSLAND

No.1469 of 1992

Brisbane
Before the Hon. Mr Justice Derrington
[Soliman v Abbey & Anor]
BETWEEN:
  ABLA SOLIMAN
  Plaintiff
AND:
  KAREN MAREE ABBEY
  First Defendant
AND:
  FAI GENERAL INSURANCE CO LTD
  Second Defendant
AND:
  IAN RUSSELL GOULD
  Third Defendant
REASONS FOR JUDGMENT - DERRINGTON J

Judgment delivered 18 October 1999

CATCHWORDS: PRACTICE - Motor Accident Insurance Act 1994 - notice to insurer - action not to be brought within six months of notice - action statute barred at end of six months - leave of court to commence action earlier - whether insurer has power of waiver in respecting time.

COSTS - liability of parties to costs of application for abridgment of time to bring action - duty of insurer to assist in avoidance of unnecessary costs.

Motor Accident Insurance Act 1994 ss 37, 39(1), 39(5)

Counsel: Mr JR Webb for the applicant
Mr MA Baker (solicitor) for the respondent

Solicitors: Gall Standfield for the applicant
Clayton Utz for the respondent

Hearing Date: 14 October 1999

IN THE SUPREME COURT
OF QUEENSLAND

No. 1469 of 1992

Brisbane
Before the Hon. Mr Justice Derrington
[Soliman v Abbey & Anor]
BETWEEN:
  ABLA SOLIMAN
  Plaintiff
AND:
  KAREN MAREE ABBEY
  First Defendant
AND:
  FAI GENERAL INSURANCE CO LTD
  Second Defendant
AND:
  IAN RUSSELL GOULD
  Third Defendant
REASONS FOR JUDGMENT - DERRINGTON J

Judgment delivered 18 October 1999

This is an application by the husband of the above named plaintiff for leave to be joined forthwith in this action in respect of a claim for loss of consortium with the plaintiff as a result of her injuries which are the basis of her claim against the defendants.
The application for leave and for joinder at once is necessary because, although the applicant gave a notice to the insurer under s. 37 of the Motor Accident Insurance Act 1994, the prohibition by s. 39(5) of the commencement to be of his proceedings within 6 months of the notice would delay it to a time when it would be statute barred. A copy of ss. 37 and 39 is annexed. The original reason for this is the lateness of the notice to the insurer. It does not arise from any defect in the Act.
The second defendant did not oppose the application, for the court may give leave to commence the action despite the applicant’s non-compliance with the relevant Division, and plainly it would have done so. The only issue is whether either side should pay the other’s costs of the application.
The respondent argues that the applicant should pay its costs because it was made necessary by his delay in giving notice in the first instance. It is correct that the delay is insufficiently explained: either the applicant did not seek advice early enough or the possibility of such a claim may not have been raised by the solicitor originally advising his wife. Further, the respondent indicated at an early stage that it would not oppose the application, subject only to the issue of costs for which it asked $300, the payment of which was to be postponed until the completion of the action.
The applicant asks that the respondent pay his costs because it was asked to waive the applicant’s non-compliance by a letter of 6 October 1999 and declined to do so. It is argued that this was without any meritorious reason. The applicant invokes the general thrust of the Act and the philosophy of the Rules of Court as to the expeditious and inexpensive conduct of proceedings.
The respondent replies that it could not waive the point because the Act contains mandatory provisions; and in any case the reference to waiver by the insurer in those provisions would not assist the applicant because the right of waiver given to it by s. 39(5) is limited to waiver under s. 39(1) of compliance in respect of a notice which has been given.
The applicant argues that the waiver referred to sub s. (5) is a general power of waiver and includes waiver of the period prescribed to elapse before the action is commenced.
Because s. 37 expressly permits the insurer to waive compliance in respect of non-compliance of an actual notice with the requirements of that section, it is deceptively attractive to read the reference in s. 39(5) to the insurer’s power of waiver of compliance with the requirement as referring to that. However, the reference to waiver of “compliance with the requirement” is directed to what has gone before in the same sentence, that is the claimant’s giving of notice to the insurer as required under that Division of the Act; and that Division requires both that a notice be given and that its content comply with certain specified requirements. There is no reason why that expression should be read down so as to limit it in the manner suggested. In their context, the words suggest no such limitation. Further it is an important consideration that for practical reasons, the insurer’s power to waive should extend to the case where the notice has not been given at all. There is not reason in law or in logic why such facilitative provision towards a fair and efficient disposal of the business should be deprived of such a reasonable and practical tool. The insurer’s claim in that respect should be rejected.
That does not mean that the applicant succeeds. The insurer’s power of waiver plainly does not extend to waiving the further requirement that six months or more should elapse before action is commenced. That is an entirely different matter from the requirements concerning the giving of notice as to which the power of waiver in s. 39 applies. Quite apart from the ordinary meaning of the words and their contextual support, this is made clear in sub s. (5)(a)(I) where the waiting period is expressed to commence from the giving of the notice on one hand and the waiver of it on the other. Since the power of waiver relied on by the applicant does not extend to this matter, and there is no other such power, the applicant’s argument fails.
In turn, this does not mean that the respondent should be awarded its costs of the application. Although it had no power to waive the prohibition against commencement of the action before the prescribed time as requested in the letter of the applicant’s solicitors of the 6 October, it could have, and should have, indicated then that it would not rely upon the statutory provision or would provide a short letter of consent if the applicant had wished to make an ex parte application for leave of the court to abridge the time under s. 39(5)(c). In accordance with the Act it had already made an admission of liability to the applicant and the success of an application for the leave to the court would clearly be successful.
On the applicant’s side, he was similarly at fault. The relief was necessary because of his delay in giving notice in the first place. Moreover the applicant’s solicitors had asked expressly for a waiver, which was not open to the respondent to provide.
A fair attribution of costs leads to an order that the applicant pay the respondent’s costs limited to $100 to cover the respondent’s costs of considering his request and making an appropriate response. These costs are to be paid only upon the determination of the action. Otherwise, as each side was in error in seeking an order for costs, each side should bear its own costs and no further order should be made in that respect.
It Is Therefore Ordered That the applicant have leave to bring his proceeding forthwith despite that at least six months have not elapsed since the relevant notice was given; and that for that purpose the applicant be joined as a plaintiff in these proceedings; And That the applicant pay the respondent its costs of and incidental to the application limited to the sum of $100, such costs to be payable only upon the determination of this action.