Suncorp Metway Insurance ltd v Monreal

[2004] QDC 79

DISTRICT COURT OF QUEENSLAND

CITATION:

Suncorp Metway Insurance ltd v Monreal [2004] QDC 079

PARTIES:

SUNCORP METWAY INSURANCE LIMITED   Applicant  

RENEE NICOLE MONREAL        

 Respondent

FILE NO/S:

D16 of 2004

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court

DELIVERED ON:

19 April 2004

DELIVERED AT:

Ipswich

HEARING DATE:

5 April 2004

JUDGE:

Richards

ORDER:

That the application be transferred to the Supreme Court to a date to be fixed.

CATCHWORDS:

Motor Accident Insurance Act 1994 – jurisdiction to hear application.

COUNSEL:

Mr R Green for the applicant

Mr P Witham solicitor for the Respondent

SOLICITORS:

Jensen McConaghy for the appellant

Keith Scott and Associates for the respondent

1. The applicant has brought an application pursuant to s45(1) of the Motor AccidentInsurance Act 1994 to compel the Respondent to produce documents.

1. The applicant received a Notice of Accident Claim Form from the respondent in January 2002 in relation to an accident occurring on 23 September 2001. They admitted liability for the accident on 25 February 2002 and consequently sought information pursuant to section 45(1) of the Act. Although some of the material has been provided to the applicant there are still a number of documents outstanding.

1. The respondent claimed past economic loss in the vicinity of $180,000 and future economic loss in excess of $200,000. Not surprisingly, the applicant pressed for information on the claim for economic loss and the respondent did not provide that information to the applicant despite a number of requests for the information in correspondence.

1. At the hearing of this matter the respondent maintained that the court does not have  jurisdiction to hear the application given the monetary amount of the claim. There was no cross application to dismiss the claim and no notice was given to the applicant that the question of jurisdiction would be raised.

1. The jurisdiction to hear a claim under the Motor Accident Insurance Act [MAIA] is found in s50 of the MAIA providing that “the court may, on the insurer’s application, order the claimant to take specified action to remedy the default within a time specified by the court”. “Court” is defined by s.4 of the MAIA for the purposes of this application as “(b) if no proceeding based on the claim has been brought a court with jurisdiction to hear the claim”. The monetary jurisdiction for a claim in the District Court is $250,000.

1. In submissions relating to jurisdiction, the respondent relied on the statutory declaration provided by the claimant wherein she indicates the amount of damages being sought for economic loss. The applicant submitted in reply that the statutory declaration should not be treated as definitive of jurisdiction, is merely an opening ambit claim and that it is obvious from the filing of the application in the District Court that the applicant is of the clear belief that this matter will resolve within the monetary jurisdiction of the District Court.

1. There is no doubt that the submissions of the applicant have some merit, however, the fact remains that the only evidence put before the court on this application in relation to the amount of the claim is the Statutory Declaration provided by the claimant.

1. On the face of this evidence it seems to me that the only conclusion that I can reach is that this court does not have the jurisdiction to hear this application.

1. The only question remaining is that whether the claim should be dismissed with costs or whether the application should be transferred to the Supreme Court pursuant to s.85 of the District Court Act 1967 which provides:

“(1) this section applies if the District Court considers the court does not have jurisdiction to hear and decide a proceeding started in the court.
(2) If the District Court considers the Supreme Court has jurisdiction to hear the proceeding the District Court may, by order, transfer the proceeding to the Supreme Court.
(3) Subsection (2) does not apply to a proceeding that may be struck out under subsection (4) or (5).
 (4) If the District Court considers that the party who started the proceeding knew, or should have known, that the court did not have jurisdiction to hear the proceeding, the court may strike out the proceeding and order the party who started the proceeding to pay the costs of the party to the proceeding.
(5) If the District Court does not have jurisdiction and the proceeding may not be transferred under subsection (2) or struck out under subsection (4), the court –
(a) must strike out the proceeding; and
 (b) may order the party who started the proceeding to pay the costs of the party to the proceeding.”

1. It is submitted on behalf of the applicant that an order should be made under subsection (2) because it was not suggested that there was to be a challenge to the jurisdiction of the court and that as a matter of logic and common sense it will eventually come within the jurisdiction of this court.

1. The respondent submits that the applicant should never have started in this court and therefore the applicant should be penalised by dismissing the claim and ordering costs against them.

1. This submission is wrongly founded in my view. There was ample reason for the applicant bringing the application in this court and no suggestion from the respondent that it should have been brought in the Supreme Court. Furthermore, the matter would not have proceeded to court at all if the respondent had complied with the reasonable requests of the applicant for information. In those circumstances, I am not inclined to dismiss the application. The proper course is to simply transfer the matter to the appropriate forum.

1. Having found that the court does not have jurisdiction to hear the matter it follows that I do not have the power to consider the question of costs.

ORDER

1. The application is transferred to the Supreme Court to a date to be fixed.