Young v Keong

[1998] QCA 100

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 distinct from one another.

In this respect there is no identifiable difference between the provisions of s.37(1) of the Motor

Accidents Insurance Act 1994 and those of the corresponding legislation in New South Wales. It

follows that the reasoning in Hill v. Bolt [1992] 28 N.S.W.L.R. 329 and Serhan v. Serhan (1996) 24

M.V.R. 4 is equally applicable here. In the case of a claim for damages for personal injuries arising out

of a motor vehicle accident, the underlying policy of provisions like s.37 of the Act is, broadly stated,

to force the claimant toward negotiating a settlement of the claim before bringing an action “in a court”

for those damages. One of the objects of the Act expressed in s.3(c) is to encourage the speedy

resolution of such claims. To that extent, the principal purpose or effect of those provisions is

procedural or forensic; so they apply to an action brought in Queensland even if, as in the case here,

the accident took place or the injury was sustained in New South Wales: cf. Leroux v. Brown (1852)

12 C.B. 801; 138 E.R. 1119; Stevens v. Head (1993) 176 C.L.R. 433, 456.

In my opinion, the decision below was correct in striking out the action for failure to comply

with s.37(1).

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 - PINCUS J.A.

Judgment delivered 22 May 1998

I have had the advantage of reading the reasons of Williams J. in which the facts and issues are explained. Mr Clifford Q.C., who appeared with Mr M O’Sullivan for the respondents, argued that the scope of operation of the Motor Accident Insurance Act 1994 ("the Act") can be ascertained from

reading s. 5(1) of the Act together with the definition of the expression "motor vehicle" in that section.

Section 5(1) begins:

"This Act applies to personal injury caused by, through or in connection with a motor

vehicle . . ."

and then sets out certain limitations. The definition of "motor vehicle" to which Mr Clifford referred us

is as follows:

" ‘motor vehicle’ means a vehicle for which registration is required under the Transport Infrastructure (Roads) Regulation 1991 or the Motor Vehicles Control Act 1975, and includes a trailer".

An assumption which was perhaps made in the course of argument of this case was that the Act applies

to this accident, although it occurred in New South Wales, because the motor vehicle with which the

respondents are connected was at the relevant time registered in Queensland.

But that is not the test which the definition poses: it speaks of "a vehicle for which registration

is required" and so catches an unregistered vehicle for which registration is required, but not a registered

vehicle for which registration is not required.

The provision on which the respondents principally rely, s. 39(5) of the Act, begins with the

words "A claimant may bring a proceeding in a court for damages based on a motor vehicle accident

claim only if . . ." and Mr Clifford pointed to the definition of "motor vehicle accident", as meaning "an

incident in which personal injury is caused by, through or in connection with a motor vehicle". Again,

this depends upon proof that registration "is required" under the provisions mentioned in the definition

of "motor vehicle". Regulation 12 of the Transport Infrastructure (Roads) Regulation 1991 makes

the obligation to register dependent on use "on a road" which must mean a Queensland road. The

regulation says in effect that a person must not use an unregistered vehicle on a road or permit it to be

used except in certain circumstances. As for the Motor Vehicles Control Act 1975, the other

provision referred to in the definition of "motor vehicle", it does not appear to me that anything in that

Act bears on the problem.

While I agree that, assuming s. 39(5) of the Act applies to this case, that provision justifies the

order the judge made, I cannot agree that the admitted fact that the vehicle in question was at the time

registered in Queensland made it at that time a vehicle for which registration is required by Queensland

law.

I have noted the decision in Mason v. The Nominal Defendant (Queensland) [1987] 2 Qd.R.

190, on s. 4F(1)(b) of the Motor Vehicles Insurance Act 1936 which defined "uninsured motor

vehicle" in terms which are, as to the relevant part, similar to those used in the definition of "motor

vehicle" with which I am concerned. In that case McPherson J. (as his Honour then was), with whom

the other members of the Court agreed, explained that the question was whether a certain vehicle "required registration . . . having regard to the fact that it was, at the time of the collision, being used on

private land" (193) (emphasis added).

In my opinion, the appeal should be allowed and the order made below set aside.

SUPREME COURT OF QUEENSLAND

Appeal No.2202 of 1997

Brisbane

Before McPherson JA
Pincus JA
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 - WILLIAMS J

Judgment delivered 22 May 1997

On 3 June 1995, at approximately 5.10 a.m., the appellant sustained personal injuries when the motor vehicle he was then driving ran off a road in northern New South Wales and careered down a hill. It is alleged by the plaintiff that the cause of his vehicle leaving the road way was the presence of a truck which was travelling in the opposite direction and straddling the centre line of the carriageway. It is the contention of the appellant that either the truck was the 1966 silver Leyland Van, registration No.028-BJJ, owned by the respondent second defendant and driven by the respondent third defendant, or it was and remains an unidentified motor vehicle for whom the Nominal Defendant is responsible. (As the incident occurred in New South Wales it is the Nominal Defendant for that State pursuant to legislation of that State who is the relevant party).

Under cover of a letter dated 26 July 1995 solicitors acting for the appellant gave notice pursuant to the Motor Accidents Act 1988 (NSW) which, for present purposes, can be assumed to be sufficient notice to the Nominal Defendant in that State.

On 24 October 1996 the appellant commenced these proceedings in the District Court Southport (Plaint No. 572 of 1996) against the Nominal Defendant, Keong, Hancock and Suncorp Insurance & Finance. The latter was the comprehensive insurer of the truck registration No. 028-BJJ pursuant to the provisions of the Motor Accident Insurance Act 1994 (Qld). Solicitors for the respondent Suncorp wrote to the appellant’s solicitors on 21 November 1996 contending that the action had been commenced “prematurely” because no notice as required by s.37(1) of the Queensland Act had been given. The letter threatened that unless the proceedings were discontinued an application would be brought to have them struck out. The reply to that letter was dated 28 November 1996 and it asserted that as the accident occurred in New South Wales it was not necessary to comply with the Queensland legislation. It also alleged that there had been compliance with the time limits concerning the delivery of notices under the New South Wales Act. Those contentions were rejected.

Against that background the second, third and fourth defendants applied pursuant to r.23(2) of the District Court Rules 1960 to have the action against them struck out. The District Court judge who heard the application accepted the submissions made on behalf of the respondents and struck the action out. From that order the appellant appeals to this court. The relevant provisions of the Queensland legislation are as follows:

“37(1) Before bringing an action in a court for damages for personal injury ... a claimant must give written notice of the claim to the insurer ... against which the action is to be brought -

(a)	containing a statement, sworn by the claimant, of the information required by regulation; and
(b)	containing an offer of settlement, or sworn statement of the reasons why an offer of settlement cannot yet be made; and
(c)	accompanied by the documents required by regulation.

(2)	The notice must be given within nine months after the motor vehicle accident ...
(3)	However, if the motor vehicle cannot be identified, the notice must be given to the Nominal Defendant within 3 months after the motor vehicle accident.
(4)	If the notice is not given within the time fixed by this section, the obligation to give the notice continues and the notice, when given, must contain an explanation of the delay but, if a motor vehicle accident claim relates to injury caused by, through or in connection with a motor vehicle that cannot be identified and notice of the claim is not given to the Nominal Defendant within 9 months after the motor vehicle accident, the claim against the Nominal Defendant is barred.
...
39(5)	A claimant may bring a proceeding in a court for damages based on a motor vehicle accident claim only if -
(a) the claimant has given notice to an insurer who may be liable on the claim under the statutory insurance scheme as required under this Division ... and -

(i)          at least six months have elapsed since the notice ...; or

(ii)

the insurer has denied liability on ...

(b)

the court, on application by a claimant dissatisfied with the insurer’s response to a notice of a claim under this Division, declares that-

(i)	notice of claim has been given as required under this Division; or
(ii)	the claimant is taken to have remedied non-compliance with this Division; or

(c)

the court gives leave to bring the proceeding despite non-compliance with requirements of this Division.

...

(7)

If a claimant does not comply with the requirements of this Division, a court before which the claimant brings an action for damages on the claim -

(a)	may, on the insurer’s application, award in the insurer’s favour costs ... reasonably incurred by the insurer because of the claimant’s default; and
(b)	may only award interest in the claimant’s favour for a period for which the claimant was in default if the court is satisfied there is a reasonable excuse for the default.

(8)

If a claim against the Nominal Defendant is barred because the claim relates to personal injury caused by, through or in connection with a motor vehicle that cannot be identified and the claimant failed to give notice of claim under this Division within 9 months after a motor vehicle accident, the Nominal Defendant cannot waive compliance with the requirements to give notice within the time allowed by this Division, nor can the court give leave to bring a proceeding in a court despite the non- compliance.”

The first submission by counsel for the appellant was that s.37(1) did not prohibit the commencement of an action, rather the provision prevented “bringing” (or prosecuting) the action in a court. That submission was rejected at the first instance, in my view correctly. It may be that the legislature carefully chose the phrases “before bringing an action” in s.37(1) and “may bring a proceeding” in s.39(5), but in reality there is no distinction between bringing an action and commencing an action. The New Shorter Oxford English Dictionary gives as the relevant meaning for “bring” - “initiate (legal action)”. In each of the sections the reference is clearly to the initiation or commencement of the relevant legal proceedings.

The second submission made by counsel for the appellant was that the consequences of a failure to give the required notice did not include the barring of any action. He drew a contrast with provisions relating to the Nominal Defendant, namely s.37(3) and (4), and s.39(8); those sections have the consequence that if due notice is not given to the Nominal Defendant any claim against that entity is barred.

In counsel’s submission the only relevant sanction was to be found in s.39(7). That argument is, in my view, misconceived. Both s.37(1) and 39(5) are in terms mandatory; that is emphasised by the use of the word “only” in the latter provision. In New South Wales it has been held that similar provisions are mandatory and in the absence of an order to the contrary legal proceedings cannot be commenced where there has been non-compliance; Hill v Bolt [1992] 28 NSWLR 329 and Serhan v Serhan (1996) 24 MVR 4. The language of the Queensland provisions is similar, and in my view the result should be the same.

It will be noted that pursuant to s.39(5)(c) the court may give leave to “bring the proceeding”, meaning thereby commence the proceeding, “despite non-compliance with the requirements of ” ss.37 and 39. No application for leave has been made in this case. It is therefore not appropriate to consider the grounds on which such leave may be granted, and whether or not leave could be granted on the facts of this case. What is important for present purposes is that s.39(5)(b) and (c) clearly recognise that for some period of time a claimant may have been in default, in the sense that the claimant had not complied with the requirements of the legislation. In those situations, and in particular where leave pursuant to s.39(5)(c) has been given, the court may impose one or more of the sanctions provided for in s.39(7) when making its final orders. It is not a case where one has to conclude that there is no scope for operation of sub section (7) if the construction contended for by the appellant is rejected.

Again, there is no substance in the second submission made on behalf of the appellant. S.38 of the Queensland Act deals with the situation where there are multiple insurers

pursuant to the Queensland legislation. The third submission addressed to the court on behalf of the appellant was to the effect that service of notice of a claim against the Nominal Defendant pursuant to the New South Wales legislation was service on one of multiple insurers as provided for by s.38 of the Queensland legislation. Again, that must be rejected. The New South Wales Nominal Defendant scheme is not within the definition of “CTP Insurance Policy” in the Queensland legislation. Documents served in New South Wales in compliance with requirements of the New South Wales legislation cannot, at least in the circumstances of this case, constitute service of documents for purposes of the Queensland legislation.

Finally, it is clear that the Queensland legislation requiring the giving of notice before action is a procedural requirement and therefore governed exclusively by the laws of the forum. It follows that the proceedings were brought in circumstances where there was a failure to comply with mandatory requirements before such action could be commenced. The learned District Court judge was correct in striking out the action.

The appeal should be dismissed with costs.