Ward v Wiltshire Australia Pty Ltd - [2008] QCA 93

SUPREME COURT OF QUEENSLAND

CITATION:

Ward v Wiltshire Australia P/L & Anor [2008] QCA 93

PARTIES:

HELEN LOUISE WARD
(appellant)
v
WILTSHIRE AUSTRALIA PTY LTD
ACN 062 820 062
(first respondent)
SUNCORP METWAY INSURANCE LIMITED
ACN 075 695 966
(second respondent)

FILE NO/S:

Appeal No 5611 of 2007
SC No 4081 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 April 2008

DELIVERED AT:

Brisbane

HEARING DATE:

20 February 2008

JUDGES:

McMurdo P, Fraser JA and Mackenzie AJA
Separate reasons for judgment of each member of the Court, Fraser JA and Mackenzie AJA concurring as to the order made, McMurdo P dissenting

ORDER:

Appeal dismissed with costs

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – WRONG PRINCIPLE – PARTICULAR CASES – OTHER CASES – where
s 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld) gave the court a discretion to grant leave to bring a proceeding based on a motor vehicle accident claim notwithstanding the expiry of the limitation period – where the trial judge restricted the favourable exercise of the discretion to cases where the delay was caused by attempts by the appellant to comply with the Act – whether the trial judge acted on a wrong principle by holding that in order to be granted leave it was necessary for the appellant to demonstrate that her delay was occasioned by attempts to comply with the Act

INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – OTHER CASES – QUEENSLAND – where s 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld) gave the court a discretion to grant leave to bring a proceeding based on a motor vehicle accident claim notwithstanding the expiry of the limitation period – where the trial judge had acted on wrong principle – where it was necessary to exercise the discretion afresh – where there had been a significant delay in the proceedings – where the plaintiff had relied upon her solicitor to progress her claim – where the delay was largely attributable to the inaction of the appellant’s solicitor who was mentally incapacitated – where the appellant retained new solicitors – where the solicitors pursued the appellant’s former solicitor and not the respondents – where the appellant’s new solicitors later sought to progress the claim against the respondents – analysis of the enquiry to be made and of the factors relevant to exercising the discretion conferred by s 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld)

Limitation of Actions Act 1974 (Qld), s 31
Motor Accident Insurance Act 1994 (Qld), s 3(a), s 3(aa), s 3(c), s 3(d), s 3(f), s 37, s 37A, s 41, s 41(2), s 45, s 46A, s 47, s 51A, s 51B, s 51C, s 51C(6), s 57, s 57(2)(b)

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, cited

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: [2008] QCA 93
Decision Date: 18 April 2008

CaseChat Overview and Summary

In the case of Ward v Wiltshire Australia Pty Ltd, the appellant sought to appeal against a decision that denied her leave to bring a proceeding based on a motor vehicle accident claim after the limitation period had expired. The decision was made by the trial judge who had discretion under s 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld). The appellant argued that the trial judge had erred by requiring her to demonstrate that her delay in bringing the proceeding was caused by attempts to comply with the Act. The central legal issue was whether the trial judge had applied an incorrect principle in exercising the discretion granted by s 57(2)(b) of the Motor Accident Insurance Act.

The court considered whether the trial judge had acted on a wrong principle by requiring the appellant to demonstrate that her delay was due to attempts to comply with the Act. The court found that the trial judge had indeed applied an incorrect principle in this regard. The court held that the discretion under s 57(2)(b) should be exercised afresh, considering all relevant factors without being limited to the specific cause of delay. The court emphasised that the significant delay in the proceedings was largely attributable to the inaction of the appellant’s former solicitor, who was mentally incapacitated, rather than the appellant herself. Upon retaining new solicitors, the appellant's claim was pursued against the respondents.

The court concluded that the trial judge's discretion needed to be exercised afresh, taking into account the entire context of the delay and all relevant factors. Given the appellant's reliance on her solicitor and the significant delay caused by the solicitor's incapacity, the court found that the appeal did not succeed. The appeal was dismissed with costs awarded against the appellant.

Orders

Orders of the court

Appeal dismissed with costs

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:	Ward v Wiltshire Australia P/L & Anor [2008] QCA 93
PARTIES:	HELEN LOUISE WARD (appellant) v WILTSHIRE AUSTRALIA PTY LTD ACN 062 820 062 (first respondent) SUNCORP METWAY INSURANCE LIMITED ACN 075 695 966 (second respondent)
FILE NO/S:	Appeal No 5611 of 2007 SC No 4081 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	18 April 2008
DELIVERED AT:	Brisbane
HEARING DATE:	20 February 2008
JUDGES:	McMurdo P, Fraser JA and Mackenzie AJA Separate reasons for judgment of each member of the Court, Fraser JA and Mackenzie AJA concurring as to the order made, McMurdo P dissenting
ORDER:	Appeal dismissed with costs
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – WRONG PRINCIPLE – PARTICULAR CASES – OTHER CASES – where s 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld) gave the court a discretion to grant leave to bring a proceeding based on a motor vehicle accident claim notwithstanding the expiry of the limitation period – where the trial judge restricted the favourable exercise of the discretion to cases where the delay was caused by attempts by the appellant to comply with the Act – whether the trial judge acted on a wrong principle by holding that in order to be granted leave it was necessary for the appellant to demonstrate that her delay was occasioned by attempts to comply with the Act INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – OTHER CASES – QUEENSLAND – where s 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld) gave the court a discretion to grant leave to bring a proceeding based on a motor vehicle accident claim notwithstanding the expiry of the limitation period – where the trial judge had acted on wrong principle – where it was necessary to exercise the discretion afresh – where there had been a significant delay in the proceedings – where the plaintiff had relied upon her solicitor to progress her claim – where the delay was largely attributable to the inaction of the appellant’s solicitor who was mentally incapacitated – where the appellant retained new solicitors – where the solicitors pursued the appellant’s former solicitor and not the respondents – where the appellant’s new solicitors later sought to progress the claim against the respondents – analysis of the enquiry to be made and of the factors relevant to exercising the discretion conferred by s 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld) Limitation of Actions Act 1974 (Qld), s 31 Motor Accident Insurance Act 1994 (Qld), s 3(a), s 3(aa), s 3(c), s 3(d), s 3(f), s 37, s 37A, s 41, s 41(2), s 45, s 46A, s 47, s 51A, s 51B, s 51C, s 51C(6), s 57, s 57(2)(b) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, cited