Winters v Doyle

[2006] QCA 110

SUPREME COURT OF QUEENSLAND

CITATION:

Winters v Doyle & Anor  [2006] QCA 110

PARTIES:

CLINTON WINTERS
(plaintiff/applicant/appellant)
v
GREGORY DOYLE
(first defendant/first respondent/first respondent)
AUSTRALIAN ASSOCIATED MOTOR INSURERS LIMITED ACN 004 791 744
(second defendant/second respondent/second respondent)

FILE NO/S:

Appeal No 8286 of 2005
DC No 746 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Civil) and General Civil Appeal

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

13 April 2006

DELIVERED AT:

Brisbane

HEARING DATE:

30 March 2006

JUDGES:

Williams and Keane JJA and Fryberg J
Separate reasons for judgment of each member of the Court, Williams and Keane JJA concurring as to the orders made, Fryberg J dissenting in part

ORDERS:

1. Application for leave to appeal granted

2. Appeal dismissed

3. Plaintiff to pay the respondents' costs of and incidental to the application and the appeal to be assessed on the standard basis

CATCHWORDS:

LIMITATION OF ACTIONS - CONTRACTS, TORTS AND PERSONAL ACTIONS - APPLICATION OF THE STATUTES TO PARTICULAR CAUSES OF ACTION - MOTOR VEHICLE INSURANCE - where applicant sought an extension of time under s 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld) within which to commence proceedings for damages as a result of personal injuries suffered in motor vehicle accident - where applicant sought leave to appeal under s 118(3) of the District Court of Queensland Act 1967 (Qld) - where no evidence of the delay being caused by the requirements of the MAI Act - where applicant's solicitors allowed limitation period to pass - where essential witness is no longer able to be located through neither party's fault - whether leave should be granted and whether learned primary judge correctly exercised discretion under s 57(2)(b) of the MAI Act

District Court of Queensland Act 1967 (Qld), s 118
Motor Accident Insurance Act 1994 (Qld), s 57

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, cited
Hoy & McCormack v Honan & Anor [1997] QCA 250; Appeal No 4058 of 1996, 19 August 1997, distinguished
Morrison-Gardiner v Car Choice Pty Ltd [2004] QSC 124; SC No 1183 of 2004, 11 June 2004, cited
Morrison-Gardiner v Car Choice Pty Ltd [2005] 1 Qd R 378; [2004] QCA 480, followed

COUNSEL:

J A Griffin QC, with G J Cross, for the applicant/appellant
R J Douglas SC for the respondents

SOLICITORS:

Elysean Legal for the applicant/appellant
Dillons for the respondents

1. WILLIAMS JA:  I have had the advantage of reading the reasons for judgment of Keane JA, and there is nothing I wish to add thereto.  I agree with the orders proposed.

1. KEANE JA: Mr Winters (to whom I shall refer as "the plaintiff") applied, pursuant to s 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld) ("the MAI Act"), for an extension of time within which to commence proceedings for damages against the respondents as a result of personal injuries suffered by the plaintiff in a motor vehicle accident which occurred on 9…