Weeks v Nominal Defendant

[2005] QCA 118

SUPREME COURT OF QUEENSLAND

CITATION:

Weeks v Nominal Defendant [2005] QCA 118

PARTIES:

CHRISTOPHER HENRY WEEKS
(applicant/respondent)
v
NOMINAL DEFENDANT
(respondent/applicant)

FILE NO/S:

Appeal No 11351 of 2004
DC No 2301 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

22 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

8 April 2005

JUDGES:

McPherson and Jerrard JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Leave to appeal refused and application dismissed
2.    Applicant should pay the respondent’s costs of the       application, assessed on the standard basis

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – appeal required consideration of whether particular circumstances constituted a reasonable excuse for delay – no important questions of law raised on appeal – whether leave to appeal should be granted

INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – WHERE IDENTITY OF VEHICLE CANNOT BE ESTABLISHED – QUEENSLAND – EXTENSION OF TIME – motor vehicle accident caused by unidentified vehicle – respondent did not submit notice of claim to the Nominal Defendant within three months as required by s 37(2)(a) of Motor Accident Insurance Act 1994 (Qld) – respondent gave excuse for the delayed notice within nine months of the accident – Nominal Defendant claimed the excuse was not reasonable – respondent sought and received declaration from District Court judge that he had remedied non-compliance with s 37(2)(a) by provision of a ‘reasonable excuse’ – whether on the facts it was open to the judge to make the finding that the excuse was reasonable

District Court of Queensland Act 1967 (Qld), s 118
Motor Accident Insurance Act 1994 (Qld), s 37, s 39

Hope v Bathurst City Council (1980) 144 CLR 1, applied
Miller v Nominal Defendant [2003] QSC 081; (2003) 38 MVR 416, considered
Miller v Nominal Defendant [2003] QCA 558; (2003) 39 MVR 548, applied
Perdis v Nominal Defendant [2003] QCA 555; [2004] 2 Qd R 64, applied
Piper v Nominal Defendant [2003] QCA 557; [2004] 2 Qd R 85, applied

COUNSEL:

K N Wilson with R B Dickson for the applicant
G W Diehm with A Luchich for the respondent

SOLICITORS:

Tress Cox for the applicant
Kelly & Agerholm for the respondent

1. McPHERSON JA: This is an application by the Nominal Defendant for leave to appeal against a decision of Tutt DCJ declaring that pursuant to s 39(5)(c)(i) of the Motor Accident Insurance Act 1994 the claimant Christopher Weeks (who is the respondent in this Court) had remedied his non-compliance with s 37(2)(a) of the Act in failing to give timely notice to the Nominal Defendant of the motor vehicle accident claim in respect of which he proposes to sue for personal injuries. The point was made that, correctly speaking, a contravention…