Young v Nominal Defendant

[2000] QCA 2

[YOUNG v THE NOMINAL DEFENDANT]

[2000] QCA 2

COURT OF APPEAL

McPHERSON JA
DAVIES JA
BYRNE J

No 9103 of 1999

JENNIFER JOY YOUNG                  Respondent (Plaintiff)

and

THE NOMINAL DEFENDANT               Applicant (Defendant)

BRISBANE

..DATE 01/02/2000

JUDGMENT

DAVIES JA: This is an application by the Nominal Defendant pursuant to section 118 of the District Court Act 1967 for leave to appeal against a judgment of a District Court other than a final judgment.

The judgment was one requiring the applicant to fully comply with its duty of disclosure under Part 4 Division 4 of the Motor Accident Insurance Act 1994 by disclosing documents which the applicant had contended it was entitled to withhold from disclosure pursuant to section 48(3) of that Act. That subsection provides:

"If an insurer has reasonable grounds to suspect a claimant of fraud, the insurer may withhold from disclosure under this Division information or documentary material (including reports that would, apart from this subsection, have to be disclosed under subsection (2)) to the extent the disclosure would alert the complainant to the discovery of the grounds of suspicion or could help in the furtherance of fraud."

The learned District Court Judge in making the order rejected the applicant's contention that it had reasonable grounds to suspect the respondent of fraud and it is that conclusion which it is submitted by the applicant requires the granting of leave to appeal.

The fraud of the respondent which the applicant contended it had reasonable grounds to suspect was said to be as to the involvement of another vehicle in the accident in which she was undoubtedly involved.  She alleged in her plaint that another vehicle travelling in the opposite direction to hers, by overtaking when it was unsafe to do so, forced her to drive her vehicle off the road and ultimately out of control into a tree. 

The applicant contended before the learned primary Judge that the respondent had not complained to anyone at the accident scene about being run off the road by another vehicle and, in effect, that the Court should infer from that that the applicant had reasonable grounds to suspect that the respondent was now fraudulently claiming that another vehicle was involved.

That may, perhaps, be understating the applicant's submissions a little because the applicant, to be fair to it, also relied on some other evidence from which it was submitted fraud could reasonably be inferred.

The facts do not support the first of the contentions to which I have referred.  Ms Scantlebury, who arrived at the accident scene shortly after the respondent's vehicle had collided with a tree, said that the respondent, who was then trapped in her car, was plainly visibly hurt.  She was conscious but groggy and bleeding heavily.  When asked by her what had happened the respondent said, "Another car."  Ms Scantlebury said that although the respondent did not say that she had been run off the road, that is what she inferred had happened.

Little more of substance was pointed to by the applicant in this Court as establishing reasonable grounds for suspecting fraud.  Indeed, as was discussed during the course of argument, a number of matters such as the blown tyre, the allegation of being affected by alcohol, and the allegation that she had been without sleep for a period of time were either proved to be untrue or plainly amenable to other inferences.

It is not surprising, in my view, in the circumstances that the learned primary Judge held that the applicant did not have reasonable grounds to so suspect.  More importantly for present purposes, it can be seen that no satisfactory basis has been established for the granting of leave to appeal.  The applicant submitted that it was implicit in the primary Judge's conclusion that where there is conflicting evidence upon a factual issue, the proof of which could ground a suspicion of fraud, an insurer cannot (or perhaps can, but only rarely and in the most extreme case) have reasonable grounds to suspect the claimant of fraud.  I have taken that submission from the applicant's outline, but it was repeated by Mr Lane in his oral argument before us today. 

In my view that is not an accurate submission.  In the first place, the evidence before the primary Judge did not necessarily establish any conflict of evidence.  Indeed, it is impossible, in my view, to say of the evidence said to be conflicting with the respondent's version to Ms Scantlebury that it, in fact, does conflict.

Secondly, it follows from what I have said that his Honour was not implying what is attributed to him.  He was saying no more than in the circumstances of this case, as I have stated them, including the evidence of Ms Scantlebury, the applicant did not have reasonable grounds to suspect this respondent of fraud.  For those reasons, in my view, the application should be refused.

McPHERSON JA:  I agree.

BYRNE J:  I agree.

McPHERSON JA:  The application for leave to appeal is dismissed.  The order is that the applicant will pay the costs of and incidental to this application.

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