Williams v Furner - [2016] QDC 172

DISTRICT COURT OF QUEENSLAND

CITATION:

Williams v Furner & Anor [2016] QDC 172

PARTIES:

JUSTIN RICHARD WILLIAMS

(Applicant)

v

MATTHEW FURNER

(Respondent)

and

RACQ INSURANCE LIMITED (ABN: 50 009 704 152)

(Second Respondent)

FILE NO/S:

2503/16

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

13 July 2016

DELIVERED AT:

Brisbane

HEARING DATE:

4 July 2016

JUDGE:

Searles DCJ

ORDER:

Application dismissed.1.

2. The Applicant pay the Second Respondent’s costs of and incidental to this proceeding.

CATCHWORDS:

LIMITATIONS OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATIONS PERIODS – GENERALLY – POWER OF COURT TO EXTEND LIMITATION PERIOD – where the applicant made and application pursuant to section 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld) to commence proceedings for personal injury after the expiration of the limitation period –where the applicant has failed to comply with his obligations under the Act – where there has been significant delay in progressing the claim – where the applicant has been incarcerated – where the applicant has failed to provide instructions to his solicitors – where the applicant has been and remains uncontactable – where extensions to the time period in which to commence proceedings have already been given – where there has been no delay on the part of the insurer – whether the applicant should be granted leave to commence proceedings after the expiration of the limitation period.

Motor Accident Insurance Act 1994 (Qld), s57(2)(b)

Limitations of Actions 1974 (Qld)

Uniform Civil Procedure Rules 1999 (Qld)

Allianz Insurance Limited v Corowa [2016] QCA 170

Jonathan v Mangera & Anor [2016] QCA 86

McL v McL [2005] QDC 136

Morrison-Gardiner v Car Choice Pty Ltd [2005] 1 Qd R 378

Paterson v Leigh & Anor [2008] QSC 277

Ward v Wiltshire [2008] QCA 93

COUNSEL:

M X Kehoe for the Applicant

RA Nicholls for the First and Second Respondent

SOLICITORS:

Slater and Gordon Lawyers for the Applicant

Quinlan, Miller and Treston Lawyers for the First and Second Respondent

Nature of the Proceeding

By originating application made 28 June 2016, the Applicant applies for orders, pursuant to section 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld) (‘the Act’) seeking leave to commence proceedings upon the happening of certain events, and of necessity, extension of the limitation period.

The Applicant

The Applicant’s solicitors bring the present application before the Court, not on specific instructions, but by the operation of a general retainer with the Applicant. That is so because the Applicant has not made contact with them since at least October 2013.

Despite repeated attempts by them (including the use of a private investigator), the Applicant’s solicitors have been unable to re-establish contact with the Applicant, and cannot be certain of his whereabouts.[1]
[1]Affidavit of Travis Chambers sworn 27 June 2016, paragraph [7].

Background

The Applicant claims that he suffered personal injury as a result of a motor vehicle accident which occurred on 5 January 2013 (‘Accident’). The First Respondent was the driver of…

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.

Continue reading Williams v Furner

Details

AGLC: Williams v Furner [2016] QDC 172
Case: [2016] QDC 172
Decision Date: 13 July 2016

CaseChat Overview and Summary

Williams brought a claim against Furner, pursuant to section 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld), seeking to commence proceedings for personal injury after the expiration of the limitation period. The matter was heard in the District Court of Queensland. The primary issue before the court was whether Williams should be granted leave to commence proceedings after the expiration of the limitation period.

The court considered the circumstances of the case, including the delay in progressing the claim, Williams' incarceration, his failure to provide instructions to his solicitors, and his continued uncontactability. Despite extensions to the time period already being given, the court found that there had been significant delay on the part of Williams. Furthermore, the court noted that there had been no delay on the part of the insurer. The court found that these factors outweighed any potential justification for extending the limitation period.

Accordingly, the court dismissed the application. The court held that Williams was not entitled to commence proceedings after the expiration of the limitation period. The court also ordered that Williams pay Furner's costs of and incidental to the proceeding.

Orders

Orders of the court

Application dismissed.1.

2. The Applicant pay the Second Respondent’s costs of and incidental to this proceeding.

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

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CITATION:	Williams v Furner & Anor [2016] QDC 172
PARTIES:	JUSTIN RICHARD WILLIAMS (Applicant) v MATTHEW FURNER (Respondent) and RACQ INSURANCE LIMITED (ABN: 50 009 704 152) (Second Respondent)
FILE NO/S:	2503/16
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court of Queensland
DELIVERED ON:	13 July 2016
DELIVERED AT:	Brisbane
HEARING DATE:	4 July 2016
JUDGE:	Searles DCJ
ORDER:	Application dismissed.1. 2. The Applicant pay the Second Respondent’s costs of and incidental to this proceeding.
CATCHWORDS:	LIMITATIONS OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATIONS PERIODS – GENERALLY – POWER OF COURT TO EXTEND LIMITATION PERIOD – where the applicant made and application pursuant to section 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld) to commence proceedings for personal injury after the expiration of the limitation period –where the applicant has failed to comply with his obligations under the Act – where there has been significant delay in progressing the claim – where the applicant has been incarcerated – where the applicant has failed to provide instructions to his solicitors – where the applicant has been and remains uncontactable – where extensions to the time period in which to commence proceedings have already been given – where there has been no delay on the part of the insurer – whether the applicant should be granted leave to commence proceedings after the expiration of the limitation period. Motor Accident Insurance Act 1994 (Qld), s57(2)(b) Limitations of Actions 1974 (Qld) Uniform Civil Procedure Rules 1999 (Qld) Allianz Insurance Limited v Corowa [2016] QCA 170 Jonathan v Mangera & Anor [2016] QCA 86 McL v McL [2005] QDC 136 Morrison-Gardiner v Car Choice Pty Ltd [2005] 1 Qd R 378 Paterson v Leigh & Anor [2008] QSC 277 Ward v Wiltshire [2008] QCA 93
COUNSEL:	M X Kehoe for the Applicant RA Nicholls for the First and Second Respondent
SOLICITORS:	Slater and Gordon Lawyers for the Applicant Quinlan, Miller and Treston Lawyers for the First and Second Respondent