Bonilla v Bonilla & Anor [2020] QDC 339

DISTRICT COURT OF QUEENSLAND CITATION: Bonilla v Bonilla & Anor [2020] QDC 339 PARTIES: CATALINA LAVERDE BONILLA (applicant) v OSCAR BONILLA (first respondent) and ALLIANZ AUSTRALIA INSURANCE LIMITED ABN 15 000 122 850 (second respondent) FILE NO/S: 2792 of 2020 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 2 October 2020, ex tempore DELIVERED AT: Brisbane HEARING DATE: 2 October 2020 JUDGE: Rackemann DCJ ORDER: The application is dismissed. The applicant’s solicitors are to pay the respondents’ costs of and incidental to the application. CATCHWORDS: EXPIRATION OF LIMITATION PERIOD – MOTOR VEHICLE INSURANCE – application pursuant to section 57(2)(b) Motor Accident Insurance Act for leave to commence proceedings within an extended time beyond limitation period – complying notice but no instructions from client for more than two years – whether discretion should be exercised to extend limitation period LEGISLATION: Motor Accident Insurance Act 1994 (Qld) s 57(2)(b) COUNSEL: L Pearcy (sol) for the applicant M Forbes for the first and second respondent SOLICITORS: Kemp Law for the applicant Jensen McConaghy Lawyers for the first and second respondent -- 1 of 3 -- 2 [1] This is an application pursuant to section 57(2)(b) of the Motor Accident Insurance Act for leave to commence proceedings within a longer period than the limitation period. The application was brought on short notice due to the pending expiration of the limitation period. [2] As counsel for the respondents pointed out, that was unnecessary, because an order allowing a longer period under section 57(2)(b) can be made even after the expiration of the limitation period. See Morrison-Gardiner v Car Choice Pty Ltd [2005] 1 Qd R 378 at para 89. The solicitor for the applicant submitted, however, that the expiration of the limitation period would be a matter which would weigh against an application for the exercise of discretion. [3] I should note that this is a case in which a compliant notice of claim was given. It is accepted that this is a case in which the discretion under section 57(2)(b) is enlivened. The difficulty for the applicant is in demonstrating that there is a basis for the favourable exercise of that discretion. That is because, as the solicitor for the applicant acknowledged in his written outline of submissions, the applicant’s solicitors have not had any contact from the applicant for more than two years and are not in a position to advise as to her current circumstances, or even as to whether she wishes to proceed with her claim. Accordingly, the affidavit of the solicitor filed in support of the affidavit is very short. It contains no information as to whether the claim would fall within the monetary jurisdiction of this Court. While it baldly asserts that the applicant has not been able to comply with pre-Court requirements of the Act, there is no explanation as to the reason why that is so. [4] As counsel for the respondents pointed out, an order pursuant to section 57(2)(b) is not merely made for the asking. The onus lies on the applicant to show a good reason why the discretion ought be exercised in the applicant’s favour. The applicant’s material is simply bereft of any substantial evidence of matters which would justify a favourable exercise of discretion. The application is dismissed. [5] The respondents should have their costs of the application. The respondents ask for the costs to be paid by the applicant’s solicitor, since it is the solicitor who is responsible for the application being brought. The solicitor responds to the effect that he was simply doing what he thought was appropriate to protect his client’s interests; however, it is evident that the application was brought to further litigation in respect -- 2 of 3 -- 3 of which no instructions had been received for more than two years, and to do so by making a meritless application which was unnecessary to make at this time and in respect of which he held no instructions to make. In the circumstances, I consider that costs should be ordered to be paid by the solicitors. I order the applicant’s solicitors pay the respondents’ costs of and incidental to the application. -- 3 of 3 --