Spencer v Nominal Defendant

Case [2007] QCA 254

SUPREME COURT OF QUEENSLAND

CITATION:

Spencer v Nominal Defendant [2007] QCA 254

PARTIES:

GRANT ROYSTON DAVID SPENCER
(applicant)
v
NOMINAL DEFENDANT
(respondent)

FILE NO/S:

Appeal No 3387 of 2007
DC No 504 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

8 August 2007

DELIVERED AT:

Brisbane

HEARING DATE:

24 July 2007

JUDGES:

de Jersey CJ, Keane JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for leave to appeal refused

2. Applicant to pay respondent's costs to be assessed

CATCHWORDS:

LIMITATIONS OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – APPLICATION OF THE STATUTES TO PARTICULAR CAUSES OF ACTION – MOTOR VEHICLE INSURANCE – where applicant sought extension of time under s 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld) within which to commence proceedings for damages for personal injuries – where consent order dispensed with need to comply with certain requirements of Act and specified date by which action must be commenced – where applicant did not commence action by that date – whether learned primary judge correctly exercised discretion under
s 57(2)(b) regarding relevance of reason for delay – whether learned primary judge correctly identified reason for delay

District Court of Queensland Act 1967 (Qld), s 118(3)

Limitation of Actions Act 1974 (Qld), Pt 3

Motor Accident Insurance Act 1994 (Qld), s 51D, s 57(2)(a), s 57(2)(b)

Bazley v Nominal Defendant [2006] QDC 379; BD 1567 of 2006, 10 November 2006, discussed

Dempsey v Hack [2005] QCA 34; Appeal No 8721 of 2004, 18 February 2005, applied

Harvey v Phillips (1956) 95 CLR 235, cited

House v The King (1936) 55 CLR 499, applied

Morrison-Gardiner v Car Choice Pty Ltd & Anor [2004] QCA 480, Appeal No 5494, 5576 and 7409 of 2004, 17 December 2004, applied

Rockett & Anor v The Proprietors of "The Sands" BUP 82 [2001] QCA 99; Appeal No 4355 of 2000, 20 March 2001, cited

Winters v Doyle & Anor [2006] QCA 110; Appeal No 8286 of 2005, 13 April 2006, applied

COUNSEL:

G W O'Grady for the applicant
P Ambrose SC, with R B Dickson, for the respondent

SOLICITORS:

Taylors Solicitors for the applicant
WHD Lawyers for the respondent

  1. JERSEY CJ:  de I have had the advantage of reading the reasons for judgment of Keane JA.  I agree with the orders proposed by His Honour and with his reasons.

  1. KEANE JA: The applicant was involved in a motor vehicle accident on 15 July 2003. In March 2004, solicitors engaged by the applicant to pursue a claim for damages for personal injury suffered by him in the accident gave the respondent a notice of accident claim form pursuant to s 37 of the Motor Accident Insurance Act 1994 (Qld) ("the Act"). On 16 April 2004, the respondent advised the applicant's then solicitors that the respondent accepted…

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Spencer v Nominal Defendant [2007] QCA 254
Case
[2007] QCA 254
Decision Date

CaseChat Overview and Summary

The applicant, Spencer, sought an extension of time to commence proceedings for damages for personal injuries arising from a motor vehicle accident. The application was made under section 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld). A consent order had previously been made, dispensing with certain requirements of the Act and specifying a date by which the action had to be commenced. The applicant failed to meet this date and applied for an extension of time, which was denied by the primary judge. The applicant sought leave to appeal the decision of the primary judge.

The legal issues in this case were whether the primary judge correctly exercised the discretion under section 57(2)(b) of the Act in relation to the relevance of the reason for the delay, and whether the primary judge correctly identified the reason for the delay. The applicant argued that the primary judge had not properly considered the reason for the delay and that the delay was not significant enough to warrant denying the extension of time. The respondent contended that the primary judge had correctly exercised the discretion and that the delay was significant enough to warrant denying the extension of time.

The court found that the primary judge had correctly exercised the discretion under section 57(2)(b) of the Act in relation to the relevance of the reason for the delay. The court also found that the primary judge had correctly identified the reason for the delay. The applicant had delayed in taking action for an extended period of time, despite having been aware of the need to take action, and had not provided a satisfactory explanation for the delay. The court held that the delay was significant enough to warrant denying the extension of time. The application for leave to appeal was refused, and the applicant was ordered to pay the respondent's costs.

Orders

Orders of the court

1. Application for leave to appeal refused

2. Applicant to pay respondent's costs to be assessed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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