Boulter v Batten and Suncorp General Insurance Limited [2010] QDC 56

DISTRICT COURT OF QUEENSLAND CITATION: Boulter v Batten and Suncorp General Insurance Limited [2010] QDC 56 PARTIES: ISOBEL BOULTER (Plaintiff) v FREDERICK BATTEN (First Defendant) And SUNCORP GENERAL INSURANCE LIMITED (Second Defendant) FILE NO: BD 60 of 2010 DIVISION: Civil Jurisdiction PROCEEDING: Application ORIGINATING COURT: Brisbane DELIVERED ON: 5 March 2010 DELIVERED AT: Brisbane HEARING DATE: 3 March 20010 JUDGE: Dorney QC DCJ ORDER: (1) The Claim and Statement of Claim filed on 8 January 2010 be struck out for want of compliance with Division 5A of Part 4 of the Motor Accident Insurance Act 1994. (2) The plaintiff pay the defendants’ costs of and incidental to these proceedings, including the costs of this application, to be assessed on the standard basis. (3) Paragraphs 2 and 9 of the affidavit of Isabel Elizabeth Boulter filed by leave on 3 March 2010 be redacted. CATCHWORDS: APPLICATION – Motor Accident Insurance Act (1994), section 51A and section 51C – non-compliance effects – whether pleadings are a nullity – exercise of discretion to strike out. COUNSEL: Plaintiff (self - represented). K. Holyoak for the First Defendant and for the Second Defendant. SOLICITORS: Jensen McConaghy Solicitors for the First Defendant and the Second Defendant. -- 1 of 8 -- 2 Introduction [1] This application brought by the first and second defendants seeks, primarily, orders that the Claim and Statement of Claim filed by the plaintiff on 8 January 2010 be struck out. [2] The application came on for hearing before me on 3 March 2010. At this hearing, the plaintiff, as respondent to the application, was self-represented. [3] At the hearing, certain affidavits were read and filed by leave. Mention should be made of one specific affidavit, being that of the plaintiff sworn 3 March 2010. As a result of objections, properly taken, by counsel for the applicants, I ruled that paragraphs 2 and 9 of that affidavit should be excised. It will, therefore, be necessary in the orders to be made that the registry redact those two paragraphs for the purposes of the file. Background [4] The Claim and Statement of Claim concern the plaintiff seeking damages for personal injuries as a result of a motor vehicle accident on 9 January 2007. The primary allegation is that the plaintiff was a pillion passenger in the motorcycle sidecar driven by the first defendant when the first defendant ran off the road and crashed onto an embankment. [5] Not surprisingly, given the circumstances next to be canvassed, the first and second defendants filed a Conditional Notice of Intention to Defend. In it, it was asserted that the proceedings were irregular primarily because they were “issued with want of compliance” with Part 4, Division 5A of the Motor Accident Insurance Act 1994 (Queensland) (“Act”). [6] The history of steps taken by the plaintiff as recorded in its business records by the second defendant are set out in considerable detail in the affidavit of Darren William Guppy filed 25 February 2010. In particular, in paragraph 17, the following relevant events are asserted: • 23 January 2007: The plaintiff signs Notice of Claim form. • 15 February 2007: The second defendant notifies satisfaction that appropriate Notice had been given pursuant to s 37 of the Act. • 18 July 2007: The second defendant admits liability for the circumstances of the accident. • 2 November 2007: The plaintiff undergoes a medical examination for a report by Dr G Gillett, orthopaedic surgeon. • 26 May 2008: The second defendant phones plaintiff and makes a further offer and explains in some detail the pre-litigation process including the Certificate of Readiness and Compulsory Conference process. • 28 July 2009: The second defendant writes to the plaintiff advising the limitation period is approaching shortly and outlines the various options -- 2 of 8 -- 3 including applying to the court seeking the Court’s approval to file a claim although the steps required under the Act have not been completed. • 21 October 2009: The second defendant contacts the plaintiff by phone to remind her that the limitation period is expiring in January 2010. • 8 January 2010: Claim and Statement of Claim served. [7] It must be observed that a reference to the second defendant is, of course, a reference to employees of the second defendant. It also must be observed that the plaintiff, in oral argument before me, contested the fact that the representatives of the second defendant had communicated anything of relevance to her. [8] Although I will not rely upon those contacts by the representatives of the second defendant because they have been put in issue and not resolved, it matters nothing as to the outcome, particularly where there is no obligation on an insurer such as the second defendant to take such steps. Contentions of respondent/plaintiff [9] The plaintiff was, as already noted, self-represented. She readily admitted that she had, at various times, engaged three sets of solicitors to prosecute her claim. These are set out in detail in that affidavit of Mr Guppy. Although she protested ignorance of the requirements of the Act, the fact that she had given, through her legal representatives, the relevant initiating Notice and the fact that ongoing steps were taken as outlined in Mr Guppy’s affidavit inclines me to the view that she was not unaware that there were obligations under the Act concerning pre-litigation steps. In any event, even if she were to be totally unaware of those steps, the very fact that she has engaged three sets of solicitors for this particular claim shows that she is aware that legal advice is available and, if she has declined to seek it, then despite being a person with limited, if any, monetary resources, she cannot have an expectation that her failure to comply must necessarily mean that any available discretion should be exercised in her favour. Discretionary aspects will be mentioned in more detail later. She pressed no legal arguments. Instances of non-compliance [10] The Court’s attention was drawn to two specific instances of non-compliance with the Act. In the absence of any evidence from the plaintiff about the taking of these steps, and in the presence of specific evidence from Mr Guppy that no such steps have been taken, the Court concludes that compliance with neither s 51A(1) (which deals with the relevant compulsory conference) nor s 51C(6) (which deals with a certificate of readiness) has occurred. [11] With respect to both of those provisions, the obligation is expressed in terms of “must” in circumstances where both provisions require that the obligatory steps be taken “before” the claimant brings an action in a court for damages for personal injury arising out of a motor vehicle accident. The context of both of those provisions is that they lead into the final stage of pre-litigation steps outlined in s 51D of the Act. For the sake of completeness, there is no evidence that any dispensation or leave has been sought or obtained by the plaintiff, such as might otherwise be available under ss 51A and 51C. In particular, no application for leave has been made under Division 5A of Part 4 of the Act, or under s 57 of the Act. -- 3 of 8 -- 4 Legal effect of non-compliance [12] There were two separate, but diverse, effects that were argued by Counsel for the first and second defendants. First, it was contended that such non-compliance as has been outlined renders the proceeding a nullity and liable to be struck out. Secondly, if that first approach is rejected, then the discretion of the Court to strike out the proceeding can, and in this case should, be exercised. [13] It was urged upon me that the decision of the Queensland Court of Appeal in Horinack v Suncorp Metway Insurance Ltd [2001] 2 Qd R 266 where it was held by White J, with whom McPherson JA and Jones J expressly agreed, that non- compliance – there pursuant to s 37 of the Act – meant that the originating process here “is a nullity”: at 272 [22]. As to the submission of that part of the decision in Horinack being binding upon me, I have difficulty with the concept in light of clearly inconsistent decisions of both the High Court of Australia and of the Queensland Court of Appeal subsequent to Horinack. This is particularly so where there was no detailed consideration at all of why in the particular circumstances of non-compliance with s 37 of the Act the originating proceeding should be a nullity. And, as observed later, the concern here is not with s 37. It will be noted that when the High Court considered the general issue in Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364, the arguments made there – which were rejected by the High Court – were to a similar effect. [14] Turning then to Berowra Holdings, what was under consideration was a provision in legislation of New South Wales which stated, in general terms, that particular persons were not entitled to commence court proceedings for damages in respect of the relevant injury against the relevant employer until a period of time had elapsed since a notice of injury was given, although that non-entitlement was subject to certain exceptions. When dealing with the contention of nullity and invalidity, the joint judgment held that, in the adversarial system of justice, choice rests primarily with the parties and it is generally the case that the court’s power of decision or order is exercised upon the application of a party: at 371 [15]. Further, it was held that, generally, there is in law no restriction upon a person’s right to start an action and to carry it to the point at which a choice is cast upon the defendant to make some response in order to avoid judgment in default and that, once the procedural law has been engaged, all parties to the litigation are subject to it: also at 371 [15]. Thus, when the joint judgment came to consider the relevant provision under consideration, it held that the better view is that the provision does not inevitably result in the invalidity of proceedings commenced in contravention of it, either for want of the court’s jurisdiction or because the court has no jurisdiction except to accede to a defendant’s application (whenever brought) to set aside the proceedings and to do so without regard to the procedural history and the relevant Rules of Court: at 376 [34]. In particular, the Court held that the particular provision “does not extinguish rights or create new rights” but, rather, “it postpones the remedy for the common law right to initiate proceedings in a court of competent jurisdiction”: at 376 [35]. Consequently, the “right” which the provision confers “is conferred upon the defendant employer” and must be raised in accordance with the procedural rules pertinent to the particular court”: also at 376 [35]. Thus, such proceedings “are vulnerable to an application by the defendant to strike out the initiating process or to move for summary dismissal, but they are not a ‘nullity’”: at 376 [36]. -- 4 of 8 -- 5 [15] The consideration undertaken by the Queensland Court of Appeal in Phipps v Australian Leisure and Hospitality Group Ltd [2007] 2 Qd R 555 concerned two different sets of provisions. For present purposes, the focus will be upon s 275 of the Workers’ Compensation and Rehabilitation Act 2003. That provision stated that, before starting a proceeding in a court for damages, a claimant “must” give notice under that provision within the relevant period of limitation. It may be remarked that that particular wording is somewhat analogous to the wording relied upon by the defendants in this proceeding. It was held by Keane JA, with whom Muir J agreed, that, consistently with Hamling v Australia Meat Holdings Pty Ltd (No. 2) [2007] 1 Qd R 315, non-compliance with s. 275 does not result in a “nullity” and therefore be bound to be terminated summarily: at 566 [13]. As Keane JA went on to hold, such non-compliance does not mean that it is inevitable that the action should be dismissed since there is a judicial discretion to be exercised in that regard: at 566 [14]. As further observed, the statutory provisions in question in both Berowra Holdings and Hamling were concerned with statutory prohibitions on the commencement of proceedings, with such provisions being clearly directed at the procedural remedy by which substantive rights might be vindicated: also at 566 [14]. [16] Before turning to consider what is involved in what might be loosely termed the Berowra Holdings discretion, I find that in light of the analyses in both Berowra Holdings and Hamling and Phipps, although none directly concerned either of the provisions in question here, the law in Queensland must clearly be that the relevant non-compliance in this proceeding does not lead to a nullity, but rather engages the relevant procedural remedies. It is unnessessary to consider the position whether this Court would be bound by Horinack if it had considered s 51A and s 51C directly. Accordingly, I hold that it is necessary in this particular proceeding to move to the issue of the procedural remedies. Applicable procedural remedies [17] In this particular exercise I am much assisted by the conclusions reached by Daubney J in Semmler v Coles Group Ltd [2008] 2 Qd R 556. There, although considering s 292 of the Workers’ Compensation and Rehabilitation Act 2003, it was held that the commencement of the proceeding contrary to the statutory moratorium imposed by s 292(2) did not render the proceeding a nullity and that such proceeding did engage the jurisdiction and procedural rules of the Supreme Court and was vulnerable to an application to strike it out. Relevantly, s 292(2) was not considered in Phipps or in Hamling. To my mind, that reinforces the conclusion that I have reached about the ability of inferior courts in the appellate structure to reach conclusions consistent with a proper analysis of the legal implications of the legislation in question. Regarding the relevant exercise of a discretion to terminate proceedings commenced contrary to the statutory prohibition, after considering the various arguments advanced, it was held that there was much force in point of principle and policy in the observation by Muir J in Phipps to the effect that a discretion as to whether an action commenced and maintained in breach of a relevant obligation to take a step should lead “normally” to an exercise of discretion in favour of the defendant and that the action be struck out: at 560. [18] Turning, for a moment to the analysis by Keane JA in Phipps concerning the exercise of the relevant discretion discussed in Berowra Holdings, it was noted, first, that the reasons in Berowra Holdings did not explicitly identify the source and nature of the discretion held to exist in that case: at 568 [22]. Next, so far as is -- 5 of 8 -- 6 relevant to the exercise of discretion here, it was held that the question is whether, in light of the prospects of a change in the facts which bear upon an applicant’s entitlement to recover damages from a relevant respondent, a court should refuse to exercise the discretion to terminate the action because, on the facts as they presently stand, it cannot succeed: at 569 [27]. Thirdly, again so far as is relevant here, it was held that in the exercise of the relevant discretion the principal consideration is whether the infirmity in the applicant’s title to sue is likely to be cured: at 569 [28]. In the case in question, Keane JA then noted that it was material that: • There was a real likelihood, amounting to a virtual certainty, that the notice of assessment would issue. • The notice of assessment was likely to issue soon, or at least sufficiently soon for there to be no suggestion that any delay was likely to prejudice the respondent in its ability to have a fair trial. • On the evidence, the notice of assessment soon to issue was likely to show that the applicant had suffered a substantial injury and that that circumstance tended to confirm that a loss of the opportunity to establish an entitlement to damages “on the merits” would be a substantial prejudice to the applicant. • If the action were to be struck out, any new action by the applicant would be defeated by the Limitation of Actions Act 1974 and so the applicant would suffer prejudice in the form of a loss of the opportunity to have her claim determined on the merits: at 569-570 [28]. [19] Furthermore, in Phipps Keane JA noted that it was a material consideration in favour of allowing the action to proceed that no prejudice to the respondent had ensured from the non-compliance, with particular reference to s 275 of the relevant Act. Reverting then, for a moment to Semmler, Daubney J observed that while it needed to be noted that the discretion to terminate proceedings is to be exercised judicially and not punitively, in practical terms it will normally be for a plaintiff in such a case to persuade the court against the exercise of the discretion to terminate: at 560. Accordingly, there was an order for striking out. Consideration of exercise of discretion [20] Even disregarding the history canvassed above insofar as it is asserted on behalf of the defendants that abundant notice of the need to take steps to protect the plaintiff’s interests were given well before the expiration of the limitation period, this Court is still able to be satisfied that, given representation by three sets of solicitors, it was not beyond the capacity of the plaintiff to be informed of necessary compliance steps required under the Act. It is important in terms of procedural steps that the plaintiff was aware of the need to issue a proceeding before the expiration of the relevant limitation period such that the Claim and Statement of Claim were filed on the last day prior to the expiration of that period. Furthermore, there has been no intimation of any kind from the plaintiff that she intends to take any step with respect to all relevant non-compliances. In the circumstances where s 57(2) of the Act, as currently interpreted at appellate level, permits an application to be made subsequent to the expiry of the limitation period, I hold that such is a relevant factor in a case such as this when exercising the discretion. -- 6 of 8 -- 7 [21] While it is readily conceded there may well be cases in which, like Phipps, there is a demonstrated likelihood of remedial steps being undertaken which might well incline a court to refuse to exercise a discretion to strike out the proceeding, I am left in the position where, even acknowledging that the plaintiff is self-represented now despite engaging those three sets of solicitors earlier, the relevant discretion can justifiably be exercised against the plaintiff, particularly where there is absolutely no demonstrated willingness to make any attempt to comply despite the absence of demonstrated prejudice to the defendants. [22] Thus, although the consequences are serious for the plaintiff, she still has open to her a potential avenue to be able to sue for whatever rights she has arising from the motorcycle accident in which she was involved just over three years ago. Orders [23] Having decided to exercise the discretion in favour of the defendants, the relevant order that I will make is that the Claim and Statement of Claim filed on 8 January 2010 be struck out for want of compliance with Division 5A of Part 4 of the Motor Accident Insurance Act 1994. Costs [24] The defendants sought leave to read and file, which was granted, an affidavit concerning costs, being that of Darren William Guppy sworn 3 March 2010. The estimate there, based upon the standard basis of costs and outlays, is $7,500.00. [25] Rule 687(2)(c) of the Uniform Civil Procedure Rules states that, instead of assessed costs, the court may order a party to pay another party an amount of costs fixed by the court. [26] While I would be willing in other circumstances to entertain an application to fix the costs in a proceeding, I am most reluctant to do so here where it is obvious that the plaintiff who would be subject to the costs’ order has no ability to make any relevant submission concerning such fixed costs. In fact, she did not attempt to do so in oral submissions despite the issue being raised with her. In such circumstances, and despite the oral submission of the plaintiff that there was no “readiness” exhibited by the defendant – a submission which was difficult to comprehend in the circumstances – I conclude that when such an outcome as has been held in this case prevails, the costs of and incidental to the proceedings, including the costs of this application, ought to be paid by the unsuccessful party – here, the plaintiff – and that they ought to be assessed on the standard basis. Orders made [27] Consequently, the following orders are to be made: (4) The Claim and Statement of Claim filed on 8 January 2010 be struck out for want of compliance with Division 5A of Part 4 of the Motor Accident Insurance Act 1994. (5) The plaintiff pay the defendants’ costs of and incidental to these proceedings, including the costs of this application, to be assessed on the standard basis. -- 7 of 8 -- 8 [28] Since the defendants have prepared such an order, in draft, subject to a slight amendment, which will be initialled by me, I will make orders in terms of that draft which is signed by me and placed with the papers on the file. Such orders include one concerning redacting parts of the mentioned affidavit. -- 8 of 8 --