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Young v Keong

Young v Keong

Case [1998] QCA 100 22 May 1998

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IN THE COURT OF APPEAL	[1998] QCA 100
SUPREME COURT OF QUEENSLAND

Appeal No. 2202 of 1997

Brisbane

[Young v Keong & Ors]

BETWEEN:

PAUL ANDREW YOUNG

(Plaintiff) Appellant

AND:

CLIFFORD KEONG

(Second Defendant) Respondent

AND:

GORDON HANCOCK

(Third Defendant) Respondent

AND:

SUNCORP INSURANCE & FINANCE

(Fourth Defendant) Respondent

NOMINAL DEFENDANT
(First Defendant)

McPherson J.A.
Pincus J.A.
Williams J.

Judgment delivered 22 May 1998.

Separate reasons for judgment of each member of the Court; McPherson J.A. and Williams J. concurring as to the orders made; Pincus J.A. dissenting.

APPEAL DISMISSED WITH COSTS

CATCHWORDS:	PROCEDURE - appellant failed to give notice to insurer as required by s.37(1) Motor Accident Insurance Act 1994 - whether bar against “bringing” an action without notice differs in any real sense from a bar against “commencing” an action - whether notice requirements are mandatory such that non-compliance bars an action - whether notice to Nominal Defendant for New South Wales constituted notice under the Queensland Act - definition of “motor vehicle” for purposes of s.5(1) Motor Accident Insurance Act 1994 considered.
Motor Accident Insurance Act 1994, ss. 5, 37, 39. Transport Infrastructure (Roads) Regulation 1991, r.12. Hill v Holt (1992) 28 N.S.W. L.R. 329. Serhan v Serhan (1996) 24 MVR 4.
Counsel:	Mr G Radcliffe for the appellant Mr J Clifford Q.C., with him Mr M O’Sullivan, for the respondents.
Solicitors:	Attwood Marshall for the appellant. Witheriff Nyst for the respondents.
Hearing Date:	11 March 1998.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 2202 of 1997

Brisbane

Before

McPherson J.A.
Pincus J.A.
Williams J.

[Young v. Keong & Ors]

BETWEEN:

PAUL ANDREW YOUNG

(Plaintiff) Appellant

AND:

CLIFFORD KEONG

(Second Defendant) Respondent

AND:

GORDON HANCOCK

(Third Defendant) Respondent

AND:

SUNCORP INSURANCE & FINANCE

(Fourth Defendant) Respondent

NOMINAL DEFENDANT
(First Defendant)

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 22 May 1998

I agree with the reasons of Williams J., which I have had the advantage of reading, for

dismissing this appeal with costs.

Like his Honour, I can see no difference of substance between “bringing” an action or a

proceeding, and “commencing” an action. Expressions like these have been used synonymously in

legislation for a very long time. For example, s.4 of the Statute of Frauds 1660 provided that “No

action shall be brought ...” on various promises not in writing. Section 4 was re-enacted in the same

terms in Queensland in s.5 of the Statute of Frauds and Limitations of 1867. The proviso to s.9 of

that Statute used the expression “in actions to be commenced ...”. Section 8 of the current Limitation

of Actions Act 1974 uses all three expressions. It speaks in s.8(1)(a) of “an action to be brought ...”.

In s.8(1)(b), it is “an action ... commenced ...”; and in s.8(2), there is a reference to “the time for

bringing proceedings”. In all three contexts these expressions are used indiscriminately and not as terms

having particular meanings…

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 Young v Keong

Details

AGLC: Young v Keong [1998] QCA 100
Case: [1998] QCA 100
Decision Date: 22/05/1998

CaseChat Overview and Summary

The case of Young v Keong involved a dispute where the appellant, Young, sought damages for injuries sustained in a motor accident. The insurer, Keong, argued that Young had failed to comply with the statutory requirement under section 37(1) of the Motor Accident Insurance Act 1994 to give notice to the insurer before instituting proceedings. The dispute was brought before the court to determine whether the failure to give notice constituted a bar to the action and whether the notice provided to the Nominal Defendant for New South Wales was sufficient under the Queensland Act. Additionally, the court was tasked with interpreting the definition of "motor vehicle" as it pertains to section 5(1) of the Motor Accident Insurance Act 1994.

The primary legal issues before the court were whether the requirement to give notice to the insurer before bringing an action was mandatory, and if non-compliance with this requirement constituted an absolute bar to the proceedings. The court also needed to determine whether the notice given to the Nominal Defendant for New South Wales complied with the statutory requirements under the Queensland Act and whether the vehicle involved in the accident qualified as a "motor vehicle" under the definition provided in the Act.

In resolving these issues, the court examined the statutory language and legislative intent behind the notice provisions and concluded that the notice requirement was indeed mandatory. The court found that non-compliance with this requirement could bar an action from proceeding. Regarding the notice to the Nominal Defendant for New South Wales, the court determined that it did not satisfy the notice requirements under the Queensland Act. Furthermore, the court clarified the definition of "motor vehicle" and found that the vehicle in question did not meet the criteria as defined in the Act.

The court ordered that the appellant's action be dismissed due to the failure to provide the required notice to the insurer. Additionally, the court clarified that the definition of "motor vehicle" under the Act did not encompass the vehicle involved in the accident, thereby affecting the applicability of the statutory scheme to this particular case.

Orders