Amos v Veljkovic & Anor [2009] QDC 159

DISTRICT COURT OF QUEENSLAND CITATION: Amos v Veljkovic & another [2009] QDC 159 PARTIES: SCOTT ROBERT AMOS (Applicant) v MILOSH VELJKOVIC (Respondent) AND ALLIANZ AUSTRALIA INSURANCE LIMITED ABN 1500 0122 580 (Second Respondent) FILE NO/S: D384/07 PROCEEDING: Application ORIGINATING COURT: District Court Southport DELIVERED ON: 18 June 2009 DELIVERED AT: Southport HEARING DATES: 1 June 2009 JUDGE: Newton DCJ ORDER: Applicant’s action dismissed in terms of Registrar’s order of 26 October 2007. LEGISLATION: Motor Accident Insurance Act 1994 S57(2)(b) CASES: Moga v AAMI [2008] QCA 79 Morrison-Gardiner v Car Choice P-L & Anor; Crain v Corcker & Anor; Odare v Vitanza & Ors [2004] QCA 480. CATCHWORDS: LIMITATION OF ACTIONS - CONTRACTS, TORTS AND PERSONAL ACTIONS – APPLICATION OF THE STATUTES TO PARTICULAR CAUSES OF ACTION - MOTOR VEHICLE INSURANCE – where applicant sought an extension of time under s57(2)(b) of the Motor Accident Insurance Act 1994 (Qld) within which to commence proceedings for damages as a result of personal injuries suffered in motor vehicle accident – where Registrar granted extension of time subject to conditions – whether applicant breached those conditions. COUNSEL: R Morgan for the applicant R A I Myers for the first and second respondent SOLICITORS: Trilby Misso Lawyers for the plaintiff Moray & Agnew for the first and second respondent -- 1 of 5 -- 2 [1] The applicant, Scott Robert Amos, sought leave to commence proceedings by an originating application filed on 9 August 2007, seeking to recover damages for personal injuries arising from a motor vehicle accident. The application was brought pursuant to s57(2)(b) of the Motor Accident Insurance Act 1994. 1 [2] A consent order was made by a Registrar on 26 October 2007 giving leave to the applicant to commence proceedings conditional upon the applicant providing, within 14 days of the consent order (a) All PAYG payment summaries, pay slips, activity statements and all other relevant documents indicating the income of the applicant for the period since 30 June 1995 to the current date; (b) A statutory declaration detailing the applicant’s employment history for the period since 30 June 1995 to the current date; (c) Clinical notes for Dr P Somaia for the period since 1995 to the current date; (d) A statutory declaration detailing the reasons why the applicant did not lodge a tax return for the years ended 30 June 1995 to 30 June 2000 (inclusive); (e) Such other information or documents reasonably requested by the respondents. [3] Clause 4 of the Registrar’s order provided that any breach of the terms of the order was a breach of the condition of the consent order and any future proceedings of the applicant against the respondent in regard to the subject accident would be dismissed or struck out. [4] The second respondent, Allianz Australia Insurance Limited complains that there has been no compliance whatsoever with the provisions of clause 2 of the Registrar’s order and opposes the applicant’s continued pursuit of his claim. [5] The applicant has sworn to a belief that he lodged all tax returns “up until the ABN system came in” (1 July 2000).2 No tax return for any of these years has been provided to the respondent. This in my view amounts to a clear breach of clause 2(a) of the Registrar’s order. I am unable to accept that the breach relates to disclosure of documents which did not exist in which circumstance the court 1 Section 57(2)(b) provides that the proceeding may be brought after the end of the period limitation if it is brought within a longer period allowed by the court. 2 Statutory declaration dated 19 July 2007 exhibited as document SGA107 to the affidavit of Shane Graeme Alexander filed 12 May 2009. -- 2 of 5 -- 3 obviously would not penalise a party for disobedience of an order which is impossible to carry out. [6] I note the judgement of Atkinson J in Moga v AAMI3 where Her Honour stated: (a) “(44) There is a distinction between a consent order which embodies the terms of a contract between the parties and a consent order based on the parties’ willingness to submit to an order on certain terms. The distinction was explained by Lord Denning MR in Siebe Gorman & Co Limited v. Pneupac Limited [1982] 1 WLR 185 as follows; ‘It should be clearly understood by the profession that, when an order is expressed to be made “by consent” it is ambiguous. There are two meanings to the words “by consent” … one meaning is this: the words “by consent” may evidence q real contract between the parties. In such a case the Court will only interfere with such an order on the same grounds as it would with any other contract. The other meaning is this: the words “by consent” may mean “the parties hereto not objecting”. In such a case there is no real contract between the parties. The order can be altered or varied by the Court in the same circumstances as any other order that is made by the Court without the consent of the parties. In every case it is necessary to discover which meaning is used. Does the order evidence a real contract between the parties? Or does it only evidence an order made without obligation?’ [45] What is demonstrated by the orders made in this case is that there was an agreement between the parties to request the Magistrates Court to make the orders which were interlocutory and discretionary and it was within the power of the Court to make such orders, decline to make such orders or make different orders notwithstanding the terms of any agreement between the parties. The power to the Court to vary the orders was expressly recognised in paragraph 4 of the order of 22 May 2006 which recited that the orders in paragraphs 1 and 2 were made on conditions ‘subject to any dispensation or relaxation from the same which may be subsequently granted by a Court’. This provision is inconsistent 3 [2008] QCA 79 at paras [44] and [45]. -- 3 of 5 -- 4 with the consent order being the embodiment of a contract between the parties which could only be set aside or varied on the same grounds on which a contact could be set aside or varied. Rather it suggests submission to the jurisdiction of the Court”. [7] Even accepting that the court does retain jurisdiction over the subject matter of the consent order, I can see no compelling reason to grant further extension of time to enable the applicant to comply with his obligations in relation to the provision of copies of his tax returns for the years of 1995 to 2000. The matter has dragged on since the Registrar’s order was made and it is difficult to conclude anything other than the applicant has acted unreasonably in his failure to comply with the obligations he accepted in terms of the Registrar’s consent order. [8] In Morrison-Gardiner v Car Choice P-L & Anor; Crain v Corcker & Anor; Odare v Vitanza & Ors 4 Chesterman J (as he then was) stated that “it is not surprising that Parliament should, as part of the legislative scheme governing the processes for making a motor vehicle accident claim, confer power on the Court to extend the period imposed by the Limitation of Actions Act whose application to the claim has been largely supplanted. This is not to say that the discretion conferred by s 57(2)(b) is to be exercised without proper attention to the context in which it is conferred. Section 3 of the Act explains that its objects include keeping ‘the costs of insurance at a level the average motorist can afford’ and encouraging ‘the speedy resolution of personal injury claims’. It provisions are designed to achieve the prompt assessment of claims by an insurer who is given, for that purpose, comprehensive information by the claimant relatively soon after the accident. There are inducements and penalties to encourage both claimants and insurer to compromise the claim by making realistic and timely offers of settlement. The Act lays down procedures which the parties must follow to produce a settlement or a case which is ready for trial without delay. The discretion to permit the commencement of proceedings after the expiration of a limitation period is to be exercise din this context. It is clearly meant to ameliorate the plight of a claimant which is unable to comply with the requirements of the Act in time to commence proceedings and who, if justice is to be done, should be given the extension. The 4 [2004] QCA 480 -- 4 of 5 -- 5 discretion is likely to be exercised favourably only in those cases where a claimant’s circumstances make it difficult to comply with the requirements of the Act and commence proceedings within three years or where, despite making conscientious efforts to comply with the requirements of the Act, a claimant nevertheless does not do so within three years of the accident. Any delay on the part of a claimant in complying with the Act’s requirements or in applying for an extension of time will be relevant to the exercise of the discretion. Claimants who ignore the obligations imposed on then by the Act or who make no conscientious effort to comply with them are unlikely to obtain an extension of time though, of course, each case must be decided on its individual merits.”5 [9] Nothing of the claimant’s circumstances in the present case have been revealed in seeking to explain any difficulty in complying with the terms of the Registrar’s order. The applicant must on the basis of his statutory declaration have filed tax returns for the years 1995 to 2000. Surely he could not believe that he had done so if there was in fact no basis for such a belief. Not one of these returns, or at least a copy thereof, has been provided to the second respondent in compliance with clause 2(a) of the Registrar’s order. I can only conclude that there has not been a conscientious effort on the part of the applicant to comply with the order of 26 October 2007. [10] The claim should be dismissed in accordance with clause 4 of the Registrar’s order of 26 October 2007. The applicant is ordered to pay the second respondent’s costs of this application to be assessed on the standard basis. 5 Ibid at paras [80], ]81] & [82]. -- 5 of 5 --