Suncorp General Insurance Ltd v Loweke, Workcover Queensland and Transit Australia Pty Ltd

[1998] QCA 356

IN THE COURT OF APPEAL	[1998] QCA 356
SUPREME COURT OF QUEENSLAND

Appeal No. 8875 of 1998

Brisbane

[Suncorp v. Loweke & Anor.]

BETWEEN:

SUNCORP GENERAL INSURANCE LIMITED

(ACN 075 695 966)

(Second Defendant) Applicant

AND:

BETTY MAY LOWEKE

(Plaintiff) Respondent

AND:

WORKCOVER QUEENSLAND

(Defendant by Election) Respondent

TRANSIT AUSTRALIA PTY LTD

(ACN 065 794 943)

(First Defendant)

McMurdo P.
McPherson J.A.

Muir J.

Judgment delivered 10 November 1998

Separate reasons for judgment of each member of the Court; each concurring as to the order made.
APPLICATION FOR LEAVE TO APPEAL REFUSED WITH COSTS.

CATCHWORDS:	CIVIL - personal injuries - at work and associated with a motor vehicle - application for leave to appeal from interlocutory order allowing joinder as second defendant of insurer under Motor Accident Insurance Act 1994 - whether the case as pleaded could come within that Act
Motor Accident Insurance Act 1994 Part 4 Divisions 2 & 3 District Court Act 1967 s118(3) Westpac Banking Corporation v. Klef Pty Ltd (C.A. No. 8204 of 1998, 16 October 1998) Rogers v. Rawlings [1969] Qd.R. 262 AMP Fire & General Insurance Co. v. Dixon [1982] V.R. 833
Counsel:	Mr S.C. Williams QC for the applicant Mr R.J. Douglas for the respondent WorkCover Queensland Mr D.J. Campbell for the respondent Loweke
Solicitors:	Quinlan Miller & Treston for the applicant McInnes Wilson for the respondent WorkCover Queensland Boyce Garrick for the respondent Loweke
Hearing Date:	27 October 1998

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 8875 of 1998

Brisbane

Before McMurdo P.
McPherson J.A.
Muir J.

[Suncorp v. Loweke & Anor.]

BETWEEN:

SUNCORP GENERAL INSURANCE LIMITED

(ACN 075 695 966)

(Second Defendant) Applicant

AND:

BETTY MAY LOWEKE

(Plaintiff) Respondent

AND:

WORKCOVER QUEENSLAND

(Defendant by Election) Respondent

TRANSIT AUSTRALIA PTY LTD

(ACN 065 794 943)

(First Defendant)

REASONS FOR JUDGMENT - McMURDO P.

Judgment delivered 10 November 1998

1 This is an application for leave to appeal from a decision of a District Court judge in
chambers granting leave to the plaintiff to join the applicant as the second defendant in the action.

1. The plaintiff sued the first defendant, who employed her as a bus driver, for damages for

   personal injuries, allegedly suffered in the course of her employment. The plaint alleged that the

   seats fitted within the driving compartments of the buses were broken and defective in as much as

   the seats had collapsed and were tilted at an angle such that, in occupying the seats, one was forced

   to adopt a posture which accommodated the tilt and that driving the buses whilst the seats were in

   that condition caused the respondent to sustain injuries to her neck and back.

2. WorkCover Queensland elected to be joined as a defendant and pleaded that the plaintiff’s

   action was incompetent because of non-compliance with the relevant notice provisions of Divisions

   2 and 3 of Part 4 of the Motor Accident Insurance Act 1994 (“the Act”). The plaintiff then

   brought an application to the District Court judge below under r. 23(2) of the District Court Rules

   to join the applicant as the second defendant in the action and for other necessary ancillary orders

   pursuant to the Act. The applicant argued that the Act did not apply to the factual situation

   disclosed by the respondent’s pleading.

3. His Honour considered s. 5 of the Act and determined, for the purposes of the application

   before him, that the Act applied and ordered that the applicant here be joined as a second

   defendant in the action.

4. The question whether the case pleaded in this action falls within s. 5(1) of the Act, bearing in mind the scheme and objects of the Act, may well be one that will be of considerable interest to those litigating in this field. The applicant has presented weighty argument that the Act cannot apply

   to a case such as this, although the respondents have also presented a strong argument that the Act

   should apply. It is not necessary for any conclusion to be reached for the purposes of this

   application.

5. The question is whether leave should be given so that this argument can be determined by

   this Court by way of an interlocutory appeal or whether it is better determined by the Court by way

   of an appeal at the conclusion of the trial.

6. Findings of fact made at the trial may well be relevant to the sensible determination of

   whether this case is covered by the Act: evidence at trial sometimes raises issues of fact not

   precisely pleaded. This supports the respondents’ contention that this application is premature.

7. In addition, whilst the plaintiff is currently still within her statutory time limits to commence

   an action against the applicant, should this matter proceed by way of an interlocutory appeal in

   which the plaintiff is unsuccessful at an interim level, but is ultimately successful, the plaintiff may

   become statute-barred from pursuing her claim against the applicant.

8. The applicant requires leave to appeal pursuant to s. 118(3) the District Court Act 1967.

   An application for leave to appeal from an interlocutory judgment will usually be refused unless it

   appears that the decision below is attended with sufficient doubt to warrant it being reconsidered,

   and also that, supposing the decision below to be wrong, substantial injustice would result if leave were refused: see Westpac Banking Corporation v. Klef Pty Ltd[1] applying Decor Corporation

   Pty Ltd v. Dart Industries.[2]

   [1]             (unreported, Queensland Court of Appeal, No. 8204 of 1998, delivered 16 October 1998, at p. 7).

   [2] (1991) 33 F.C.R. 397, 398-400.

9. Whilst the correctness of the decision of the learned chamber judge may be arguable, his

   decision is not plainly wrong. The interests of justice in this case are clearly best served by

   determination of the issues between all the parties in this action at trial. If findings are made at trial

   against the applicant, an appeal can then be brought to this Court as to the applicability of the Act.

   That question is best determined at that time.

10. I would refuse the application for leave to appeal with costs.

    IN THE COURT OF APPEAL

    SUPREME COURT OF QUEENSLAND

Appeal No. 8875 of 1998

Brisbane

Before McMurdo P.
McPherson J.A.
Muir J.

[Suncorp v. Loweke & Anor]

BETWEEN:

SUNCORP GENERAL INSURANCE LIMITED
ACN 075 695 966

(Second Defendant) Applicant

AND:

BETTY MAY LOWEKE

(Plaintiff) Respondent

AND:

WORKCOVER QUEENSLAND

(Defendant by Election) Respondent

TRANSIT AUSTRALIA PTY. LTD.
ACN 065 794 943

(First Defendant)

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 10 November 1998

1. I agree. Mr Williams Q.C. likened the form of the application in the present matter to

   proceedings by way of demurrer designed to raise on the pleadings a point of interpretation of the

   relevant statutory provisions. But the plaintiff’s action is for damages for negligence or its equivalent,

   in which the facts as they are proved to be at trial are all-important irrespective of what the

   particulars in the present form may say. Speaking in Rogers v. Rawlings [1969] Qd.R. 262, 275,

   of a demurrer to a statement of claim against a third party in a negligence action, Lucas J. said:

   “It may well be that in this case, when all the evidence, relevant to the particulars pleaded, is given, a state of affairs will be established in which it could be said that the third party owed a specific duty of care, in some particular respect, towards the plaintiff. That is why the demurrer must be overruled.”

   His Honour’s remarks are even more apposite to a case like this where at the hearing issues of

   causation are likely to be prominent, and where it is even possible that the particulars may be

   amended before or during trial.

2. In addition, the imminent expiration of the limitation period, in a case like this, of three years

   is also a relevant consideration. If the compulsory third party insurer is not joined now, it may well

   be too late to do so or to institute another action after trial and judgment in the action against the

   original defendants. For reasons of the kind given in A.M.P. Fire & General Insurance Co. Ltd.

   v. Dixon [1982] V.R. 833, which was cited to us by Mr R.R. Douglas, it is plainly desirable here

   not to determine the liability, if any, of an insurer or possible insurer before determining the

   defendant employer is found liable, if at all, to the plaintiff.

3. For all these reasons the matter is not one that requires the attention or intervention of this

   Court at the present stage.

4. The application should be dismissed with costs.

   IN THE COURT OF APPEAL

   SUPREME COURT OF QUEENSLAND

Appeal No. 8875 of 1998

Brisbane

Before McMurdo P.
McPherson J.A.
Muir J.

[Suncorp v. Loweke & Anor.]

BETWEEN:

SUNCORP GENERAL INSURANCE LIMITED

(ACN 075 695 966)

(Second Defendant) Applicant

AND:

BETTY MAY LOWEKE

(Plaintiff) Respondent

AND:

WORKCOVER QUEENSLAND

(Defendant by Election) Respondent

:

TRANSIT AUSTRALIA PTY LTD

(ACN 065 794 943)

(First Defendant)

REASONS FOR JUDGMENT - MUIR J

Judgment delivered 10 November 1998

1. I agree that the application for leave to appeal should be dismissed with costs. I am not

   persuaded that a determination of the application of the Motor Accident Insurance Act 1994 in

   respect of the injury complained of by the respondent/plaintiff is one which necessarily must await

   the trial of the action. However, any such determination is premature without full and precise particularisation of the circumstances in which the plaintiff's injuries were alleged to have occurred.

   Also relevant to any assessment of the desirability of determining such a question as a preliminary

   issue is the question of whether it is possible to ensure that the determination is binding on the other

   defendants and the mechanics of achieving that objective.

2. Having regard to these considerations it cannot be said that there has been any miscarriage

   in the exercise of the discretion of the learned primary judge.