Wanless v Fry

[2007] QDC 375

DISTRICT COURT OF QUEENSLAND

CITATION:

Wanless v Fry and Anor [2007] QDC 375

PARTIES:

DENISE MARIE WANLESS

(Applicant)

AND

MARK ANTHONY FRY

(First respondent)

AND

ALLIANZ AUSTRALIA INSURANCE LIMITED ACN 000 122 850

(Second Respondent)

FILE NO/S:

BD1670/04

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

6 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

14 September 2007

JUDGE:

Searles DCJ

ORDER:

APPLICATION PURSUANT TO S57 (2) (B) MOTOR ACCIDENT INSURANCE ACT 1994 FOR LEAVE TO COMMENCE PROCEEDINGS DISMISSED WITH COSTS

CATCHWORDS:

APPLICATION FOR LEAVE TO COMMENCE PROCEEDINGS S57 [2] [B] MOTOR ACCIDENT INSURANCE ACT 1994

COUNSEL:

Mrs J.O McClymont for the applicant

Mr R.A.I Myers for the respondent

SOLICITORS:

Spranklins Solicitors for the applicant

Sciacca’s Lawyers & Consultants for the second respondent

1. This is an application for leave pursuant to s 57(2)(b) of the Motor Accident Insurance Act 1994 (Act) to issue proceedings against the respondent despite non‑compliance with s 51A of the Act and, in the event leave is granted, that such proceedings, once instituted, be stayed pending compliance by the Applicant with s 51A of the Act.

1. Section 50A provides:

“(1)Before the claimant brings an action in a court for damages for personal injury arising out of a motor vehicle accident, there must be a conference of the parties (“compulsory conference”).

(2)Each party may call the compulsory conference:

(a)        at a time and place agreed between both parties; or

(b)        if the relevant date has passed – at a reasonable time and place nominated by the party calling the conference.

(3)        For subsection (2)(b), the relevant date is:

(a)        the date falling 6 months after the claimant gave notice to the insurer of the claim; or

(b)        if the insurer required additional information, the later of the following:

(i)         the date falling 6 months after the claimant gave notice to the insurer of the claim;

(ii)       the date falling 1 month after the claimant gave the insurer the completed additional information form.

(4)        The parties may for good reason dispense with the compulsory conference by agreement.

(5)        The court may, on application by a party:

(a)        fix the time and place for the compulsory conference; or

(b)        dispense with the compulsory conference for good reason;

and make any other orders the court considers appropriate in the circumstances.

(6)        In considering whether to dispense with the compulsory conference, the court must take into account the extent of the compliance by the parties with their respective obligations related to the claim.”

1. Section 57 provides:

“Alteration of period of limitation

(1)If notice of the motor vehicle accident claim is given under Division 3, or an application for leave to bring a proceeding based on a motor vehicle accident claim is made under Division 3, before the end of the period of limitation applying the claim, the claimant may bring a proceeding in court based on the claim even though the period of limitation has ended.

(2)However, the proceeding may only be brought after the end of…