Youngman v Carney & Suncorp General Insurance Pty Ltd

[2002] QDC 160

DISTRICT COURT OF QUEENSLAND

CITATION:

Youngman v Carney & Suncorp General Insurance Pty Ltd [2002] QDC 160

PARTIES:

KERRIN YOUNGMAN

Plaintiff

REBECCA CARNEY

First Defendant

SUNCORP GENERAL INSURANCE PTY LTD

Second Defendant

FILE NO/S:

Plaint 725 / 1999

DIVISION:

District Court

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Southport.

DELIVERED ON:

31 January 2002

DELIVERED AT:

Southport

HEARING DATE:

17 August 2001

JUDGE:

Judge Alan Wilson SC

ORDER:

1.   The First Defendant is removed as a party to the action;

2.   the application is adjourned to a date to be fixed on ten days notice from the applicant to the other parties;

3.   the Plaintiff will pay the Second Defendant’s costs of and incidental to the application in any event.

CATCHWORDS:

CIVIL PROCEDURE – ADDITION OF PARTY
Addition of party after end of limitation period – addition of party when not served.
EQUITY – ESTOPPEL
Insurer’s admission of liability – application for declaration of estoppel based on admission of liability.

Uniform Civil Procedure Rules rr. 69(1), 70(2).
Motor Vehicle Accident Insurance Act, 1994, ss 41(1)(b)(i) and (41)(1)(b)(ii).

COUNSEL:

S. J. Given of Counsel for Youngman.
R. D. Green of Counsel for Suncorp General Insurance

IN THE DISTRICT COURT OF QUEENSLAND
SOUTHPORT

No. 725 . 1999

KERRIN YOUNGMAN

Plaintiff

REBECCA CARNEY

First Defendant

SUNCORP GENERAL INSURANCE PTY LTD

Second Defendant

REASONS FOR JUDGMENT – ALAN WILSON SC, DCJ

(Delivered on 31 January 2002)

1. This is an application for orders regularising the proceedings by causing the correct parties to be named, and for judgment in favour of the Plaintiff for damages to be assessed based on an admission of liability by Suncorp, or a declaration that Suncorp is estopped from resiling from that admission. The proceedings involve, in short, a motor vehicle accident between three vehicles, in which each of the two trailing vehicles collided with the vehicle in front. The Plaintiff was a passenger in the first car in the line of three, and seeks to sue the driver(s) of the vehicle(s) behind her, and their respective insurers.

   Regularising the proceedings

2. The action as presently constituted contains a number of irregularities. The defendant named (Rebecca Carney) was in fact a passenger in the vehicle immediately behind the Plaintiff, and is properly called Rebecca Kearney. The insurer of that vehicle, a Volkswagon, was FAI. Behind the Volkswagon was a Holden Commodore, driven by (or at least insured in the name of) one Anthony Fawaz. Suncorp is the insurer of the Commodore.

3. Clearly then, the proceedings as they stand require some attention. Rebecca Carney (Kearney) is clearly an inappropriate defendant, and Suncorp is not her insurer. Her name ought be struck from the action. The required defendants are presumably Anthony Fawaz (if he was indeed driving the Commodore at the time) and his insurer Suncorp, and a Benjamin James Newton who drove the Volkswagon in which Ms Kearney was a passenger, and his insurer FAI, now the Nominal Defendant.

4. The orders required are thus to remove Kearney’s name and substitute Newton’s, and to add Fawaz and the Nominal Defendant. These orders are not opposed, but the matter does not end there. None of the proposed new defendants have been served with an application to add them, although it may be that the Nominal Defendant can be taken to have some level of notice through FAI’s past involvement in the matter. The application to add defendants also falls outside the relevant limitation period. I am of the view that the failure to serve the proposed new defendants is fatal to an application that they be added, service being required under Rule 70(2).

   Though there is a discretion to ‘order otherwise’ contained in that rule, I can see no reason to exercise it in this case. To do so would be to deprive those parties of even the chance to speak to the loss of the protection afforded them by statutory time limitations. Having taken that view, I make no determination under Rule 69, since as I read it Rule 70 applies to any addition of parties, regardless of the avenue by which they are added.

5. These difficulties do not apply to the removal of unnecessary parties, and I think it appropriate to take at least the first step towards regularising these proceedings by removing the first defendant Rebecca Carney from the proceedings under Rule 69(1).

   Judgment

6. Mr Given, for the Plaintiff has conceded that the application for judgment is premature given that a defence has not yet been filed (Rule 292), and presses only for the alternate orders sought in the form of a declaration.

   The Declaration

7. On 11 September 1998 Suncorp admitted liability by a letter which is now exhibit ‘V’ to the affidavit of Robert Sinnamon filed 3 August 2001 in the following terms:

   “Based on the information available at the time and for the purposes of our obligation under s.41(1)(b)(i) and (ii) of the Motor Accident Insurance Act, 1994, but not otherwise, we hereby give notice that we admit liability in full for the circumstances of the accident only.”

   Suncorp went on to indicate that it did not admit any damage, and to reserve its right to rely on the relevant statutory limitation periods.

   The material indicates the Plaintiff took this to mean that quantum of damages was the only issue to be pursued, and acted on that assumption by incurring costs such as medical expenses and the like. Based on this reliance, she seeks a declaration that Suncorp is now estopped from resiling from this admission of liability.

8. I do not think that such a declaration is necessary at this stage, before Suncorp has filed its defence, as that pleading may make the declaration superfluous. Though there does appear, from Mr Green’s submissions, to be some disagreement about the precise scope of the admission, I do not think it appropriate to attempt to determine that scope until a defence has been filed.

9. Because the application fails now for procedural reasons, it is convenient to adjourn it to enable the plaintiff to remedy the defects. As to costs, the application was precipitate  (and defective) but I think it appropriate to avoid imposing an immediate burden upon the Plaintiff, while allowing the Second Defendant the compensation of a costs order in due course.

10. 

The orders will be:

1.  the First Defendant is removed as a party to the action;

2.  the application is adjourned to a date to be fixed on ten days notice from the     applicant to the other parties;

3.  the Plaintiff will pay the Second Defendant’s costs of and incidental to the      application in any event.