Webber v Nominal Defendant

[2007] QDC 382

DISTRICT COURT OF QUEENSLAND

CITATION:

Webber v Nominal Defendant [2007] QDC 382

PARTIES:

NASEE WEBBER

(Plaintiff)

v

NOMINAL DEFENDANT

(Defendant)

FILE NO.:

2626 of 2007

PROCEEDING:

Application to extend time

DELIVERED ON:

07 December 2007

DELIVERED AT:

Brisbane

HEARING DATE:

27 November 2007

JUDGE:

Judge Brabazon QC

ORDER:

Application granted.

CATCHWORDS:

LIMITATION OF ACTIONS – EXPIRY OF LIMITATION PERIOD – EXTENSION OF LIMITATION PERIOD –agreement by defendant to extend limitation period – whether further extension by the Court would amount to breach of contract – causes of delay – whether prejudice to the defendant

Motor Accident Insurance Act 1994

Cases considered:

Spencer v Nominal Defendant [2007] QCA 254
Russo v Aiello (2003) HCA 53

COUNSEL:

Mr R. Morgan  for the plaintiff

Mr R. Dickson for the defendant

SOLICITORS:

Queensland Law Group for the plaintiff

Cooper Grace Ward Lawyers for the defendant

The issue

1. Mrs Webber says that she was injured in a motor vehicle accident on 22 January 2004. The usual limitation period of three years expired on 22 January 2007. Proceedings had not been commenced by then. The defendant agreed to extend the limitation period to 22 July 2007. No proceedings were commenced by that date.

1. This Court has power to extend the period of limitation.[1] She requests an extension. The defendant says that it should not be granted. Should the Court extend time, or refuse her application?

   [1]Motor Accident Insurance Act 1994 s 57(2)(b).

The decided cases

1. Careful submissions were made by counsel, experienced in this area of the law. References were made the key decisions of the Court of Appeal, and to helpful decisions of single judges, in the Supreme Court and this Court.

1. The Court of Appeal decisions are Morrison-Gardiner v Car Choice P/L & Another [2004] QCA 480; Winters v Doyle & Another [2006] QCA 110; Spencer v Nominal Defendant [2007] QCA 254.

1. The decision of the High Court in Russo v Aiello (2003) HCA 53 was mentioned. However, the statutory requirements of the Motor Accident Act 1988 (NSW) were different:

“A court must dismiss proceedings commenced in respect of a late claim if the court is satisfied that the claimant does not have a full and satisfactory explanation for the delay in making the claim”.

1. In this case, attention should be focused on these issues:

·     The length of the delay;

·     The reasons for the delay;

·     Any prejudice to the defendant;

·     The roles of the plaintiff and her solicitors;

·     The interests of justice, from the point of view of the community, the plaintiff, and the defendant;

·     The impact of any contract about an extension of time;

·     The exercise of the Court’s discretion.

The facts

1. Mrs Webber, and her husband, say that they were hurt in the accident of 22 January 2004. She was 22 years of age. She was born in Thailand, had a brief education, and worked there as a cook, barmaid and waitress. She married Mr Morris Webber there, and they moved…