Taskesen v Pumford - [2006] QDC 29

DISTRICT COURT OF QUEENSLAND

CITATION:

Taskesen v Pumford & Anor [2006] QDC 029

PARTIES:

REFIK TASKESEN

(Applicant)

v

JUSTIN JAMES PUMFORD

(First Respondent)

and

SUNCORP METWAY INSURANCE LIMITED        ACN 075 695 966

(Second Respondent)

FILE NO/S:

BD916/05

DIVISION:

Civil

PROCEEDING:

Originating Application

ORIGINATING COURT:

District Court

DELIVERED ON:

24 February 2006

DELIVERED AT:

Brisbane

HEARING DATE:

6 April 2005

JUDGE:

Tutt DCJ

ORDER:

1.   The application be dismissed; and

2.   The applicant pay the respondent’s costs of and incidental to this application as agreed or assessed on the standard basis under the District Court scale.

CATCHWORDS:

Motor vehicle accident – Notice of Claim lodged with the insurer – non-complying notice – “reasonable excuse” not given – whether applicant should have court’s leave to proceed further with claim after cessation of period of limitation.

Motor Accidents Insurance Act 1994 ss 37, 39 and 57.

Horinack v Suncorp Metway Insurance Ltd [2001] Qd R 266

Morrison-Gardiner v Car Choice Pty Ltd & Anor; Crain v Crocker & Anor; O’Dare v Vitanza & Ors [2004] QCA 480

Thomas v Transpacific Industries Pty Ltd [2003] 1 Qd R 328

COUNSEL:

Mr M Horvath for the applicant.

Mr D Reid for the first and second respondents.

SOLICITORS:

Shane Ellis for the applicant.

Mr D Reid directly instructed by the second respondent.

Introduction

By application filed 17 March 2005 the applicant seeks a number of orders the effect of which, if successful, will enable him to proceed with his claim for damages for personal injuries he sustained in a motor vehicle collision which occurred on 23 December 2000. The orders sought involve a consideration of ss 37, 39 and 57 of the Motor Accidents Insurance Act 1994 as amended (“the Act”) and their application to the circumstances of the applicant’s claim for damages. Ultimately the applicant seeks the court’s leave to bring a proceeding based upon his claim for damages for the personal injuries he sustained, even though the limitation period within which he is obliged to bring such a proceeding has ended.

Facts

The applicant was injured in a motor vehicle collision on 23 December 2000 at the intersection of the Ferny Footway and the Gold Coast Highway at Burleigh Heads, Queensland.[1]
[1]Exhibit “PM-3” to the affidavit of P Matus filed 17 March 2005.

In January 2001 he consulted the firm Aylward Game Solicitors (“the solicitors”) and instructed them to claim damages against the respondents to this application for the personal injuries he sustained in the collision.[2] The first Notice of Claim form was completed by the applicant on 18 January 2001 ie. within one month of the collision. By letter dated 5 October 2001 from the solicitors to Suncorp Metway Insurance Ltd (“Suncorp”) the compulsory Third-Party Insurer of the respondent’s motor vehicle the solicitors state that they first took instructions from the applicant “about the possibility of making a personal injuries claim on 7 September 2001”.[3] This statement would appear to be inconsistent with the applicant’s evidence.
[2]Paragraph 16 of the applicant’s affidavit filed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] QDC 29
Decision Date: 24 February 2006

CaseChat Overview and Summary

The case of Taskesen v Pumford involves a dispute stemming from a motor vehicle accident. The plaintiff, Taskesen, lodged a notice of claim with the defendant's insurer, Pumford, but the notice was found to be non-compliant. Taskesen subsequently applied to the court for leave to proceed with the claim after the limitation period had expired, arguing that there was a reasonable excuse for the delay. The matter was heard in the Supreme Court of Victoria.

The legal issues before the court were whether the non-compliance with the notice of claim requirements was sufficient to warrant the granting of leave to proceed and whether a reasonable excuse existed to extend the limitation period. The court considered the statutory framework governing motor vehicle accident claims, particularly focusing on the requirements for a valid notice of claim and the discretion available under the statute to extend the limitation period.

The court found that the notice of claim was indeed non-compliant and that Taskesen had not provided a reasonable excuse for the delay. The court emphasised that the statutory requirements for a notice of claim are mandatory and must be strictly adhered to. Given the lack of a reasonable excuse, the court declined to exercise its discretion to extend the limitation period. Consequently, the application was dismissed.

The final orders of the court were that the application be dismissed and that the applicant pay the respondent's costs of and incidental to this application as agreed or assessed on the standard basis under the District Court scale.

Orders

Orders of the court

1. The application be dismissed; and

2. The applicant pay the respondent’s costs of and incidental to this application as agreed or assessed on the standard basis under the District Court scale.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Taskesen v Pumford & Anor [2006] QDC 029
PARTIES:	REFIK TASKESEN (Applicant) v JUSTIN JAMES PUMFORD (First Respondent) and SUNCORP METWAY INSURANCE LIMITED ACN 075 695 966 (Second Respondent)
FILE NO/S:	BD916/05
DIVISION:	Civil
PROCEEDING:	Originating Application
ORIGINATING COURT:	District Court
DELIVERED ON:	24 February 2006
DELIVERED AT:	Brisbane
HEARING DATE:	6 April 2005
JUDGE:	Tutt DCJ
ORDER:	1. The application be dismissed; and 2. The applicant pay the respondent’s costs of and incidental to this application as agreed or assessed on the standard basis under the District Court scale.
CATCHWORDS:	Motor vehicle accident – Notice of Claim lodged with the insurer – non-complying notice – “reasonable excuse” not given – whether applicant should have court’s leave to proceed further with claim after cessation of period of limitation. Motor Accidents Insurance Act 1994 ss 37, 39 and 57. Horinack v Suncorp Metway Insurance Ltd [2001] Qd R 266 Morrison-Gardiner v Car Choice Pty Ltd & Anor; Crain v Crocker & Anor; O’Dare v Vitanza & Ors [2004] QCA 480 Thomas v Transpacific Industries Pty Ltd [2003] 1 Qd R 328
COUNSEL:	Mr M Horvath for the applicant. Mr D Reid for the first and second respondents.
SOLICITORS:	Shane Ellis for the applicant. Mr D Reid directly instructed by the second respondent.