Angus v Conelius & Anor [2007] QCA 190 [2008] 1 Qd R 101

SUPREME COURT OF QUEENSLAND CITATION: Angus v Conelius & Anor [2007] QCA 190 PARTIES: SHIRLEY BERYL ANGUS (plaintiff/applicant/appellant) v MARIA JOHANNA CONELIUS (first defendant/not party to appeal) SUNCORP METWAY INSURANCE LIMITED ACN 075 695 966 (second defendant/respondent) FILE NO/S: Appeal No 11131 of 2006 SC No 689 of 2004 DIVISION: Court of Appeal PROCEEDING: Application for Extension of Time/General Civil Appeal ORIGINATING COURT: Supreme Court at Townsville DELIVERED ON: 8 June 2007 DELIVERED AT: Brisbane HEARING DATE: 30 May 2007 JUDGES: Williams JA, Jerrard JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDER: 1. Application for an extension of time granted 2. Appeal dismissed 3. Appellant pay the respondent’s costs, assessed on the standard basis CATCHWORDS: STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – RULES OF CONSTRUCTION – GENERALLY – where the appellant was injured in a motor vehicle accident – where the respondent issued the appellant with a request for information pursuant to Motor Accident Insurance Act 1994 (Qld), s 45 – where the appellant rejected the request – where the respondent applied for an order requiring compliance with the request – whether the giving of the order was proper Motor Accident Insurance Act 1994 (Qld), s 45 Gitsham v Suncorp Metway Insurance Ltd [2002] QCA 310; [2003] 2 Qd R 251, considered Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48; Appeal No 7137 of 2005, 3 March 2006, applied -- 1 of 9 -- 2 Suncorp Metway Insurance Ltd v Hill [2004] QCA 202; [2004] 2 Qd R 681, considered COUNSEL: D O J North SC for the applicant R J Douglas SC, with E J Williams, for the respondent SOLICITORS: Bennett & Philp (Brisbane) acting as Town Agent for Roati & Firth Lawyers (Ingham) Cleary & Lee for the respondent [1] WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Jerrard JA and I agree with all that he has said therein. I would, however, add a brief observation of my own. [2] Once proceedings are commenced in a court the Uniform Civil Procedure Rules 1999 (Qld) ("UCPR") impose obligations on a plaintiff in a personal injury matter to inform the defendant of the particulars of the claim, and to keep the defendant informed of material changes which occur prior to trial. Examples are r 150 and r 155 relating to matters which must be included in a pleading, r 211 dealing with disclosure of documents, and r 547 requiring the plaintiff to lodge a statement of loss and damage. [3] As Jerrard JA has pointed out in his reasons, one of the objects of the Motor Accident Insurance Act 1994 (Qld) ("the Act") is to encourage the speedy resolution of personal injury claims (s 3). To facilitate that, the legislation provides a mechanism, including the holding of a compulsory conference and the exchange of settlement offers, designed to facilitate the resolution of the claim before the commencement of proceedings. To enable the parties, and the insurer in particular, to be in a position to undertake meaningful dialogue with respect to settlement, the Act provides in Part 4 mechanisms to ensure that full disclosure is made prior to the commencement of proceedings. Section 45 is one of the relevant provisions in that regard. [4] Nothing in the Act, and nothing in s 45 in particular, provides that those mechanisms cease to be operative once court proceedings are commenced. There is no reason why the provisions of Part 4 of the Act cannot be read and applied in conjunction with the rules found in the UCPR. Indeed it could be said that the provisions of the Act and the UCPR are complementary. The fact that an insurer- defendant after proceedings had been commenced in a court could obtain the information in question from the claimant-plaintiff either by relying on the provisions of the Act or the rules does not create a problem which requires the court to conclude that the legislative intention must have been that only one of those two available procedures was intended to be operative at that stage. [5] I agree with the orders proposed by Jerrard JA. [6] JERRARD JA: This matter was an application for an extension of time within which to appeal, and an appeal against orders made in the Supreme Court on 17 November 2006, ordering the appellant to provide information requested by the respondent’s solicitors in a letter to the appellant’s solicitors dated 6 March 2006. There was no order as to costs. The grounds of appeal primarily contended that the learned primary judge was wrong in the conclusion that the provisions of s 45 of the Motor Accident Insurance Act 1994 (Qld) (“the Act”) applied to the appellant in the -- 2 of 9 -- 3 circumstances. That error was said to have led the learned judge into making the order. An alternative argument, less pressed, was that if s 45 did apply, the learned judge failed to recognise a discretion existed not to make the order sought, and that on a proper exercise of discretion the judge should not have made the order. [7] The respondent did not oppose the extension of time (one day) which was asked for, and acknowledged there was no prejudice. It contended the appeal was without merit and raised no important question of law or practice, and was about the exercise of a discretion in an interlocutory procedure. The respondent argued the appellant accordingly bore a heavy burden in persuading this Court to overturn the order. [8] The appellant is the plaintiff in an action filed in the Supreme Court on 18 October 2004, and served on 2 August 2005. The action concerns a motor vehicle accident which happened on 21 July 2001; the appellant gave the required notice under the Act on 19 August 2001. It was deemed compliant on 4 October 2001, and on 7 October 2004 consent orders were made under s 51A(5) of the Act permitting the appellant to begin proceedings for damages before the compulsory conference required by s 51A was held, and making other orders. A compulsory conference was held in accord with those other orders on 13 July 2005, and mandatory final offers were exchanged; then the claim and statement of claim were served, and on 15 August 2005 the respondent’s notice of intention to defend and defence was filed. [9] Relevantly to the appellant’s argument on this appeal, her statement of loss and damage was served on 19 September 2005, and a mediation conducted on 7 December 2005. Mr North SC, for the appellant, took the Court to a document provided in September 2004 by the appellant to the respondent, apparently in response to an earlier request by the respondent, also made under s 45 of the Act. It described the appellant’s economic loss in the same terms as in the statement of loss and damage filed after the compulsory conference. The point made was that the respondent had that information – the basis of the claim for economic loss – some 10 months before the conference in July 2005, and sufficient time before that conference to ask the further questions now purportedly asked under s 45. [10] The claim for economic loss was in these terms: “Had it not been for the accident the plaintiff had intended to return to part-time work when Alex commenced high school in 2002 before increasing her hours to full-time employment when her daughter Marissa commenced high school in 2004. The injuries have prevented the plaintiff from increasing her level of employment beyond her present capacity.” Mr North SC also made the point that prior to the compulsory conference, the respondent had certified that the matter was ready for trial. However, on 6 March 2006, the respondent’s solicitor forwarded a letter to the appellant’s solicitor seeking information by way of a statutory declaration under s 45 of the Act, in relation to the appellant’s past and future economic loss claims. [11] The section relevantly reads: “45 Duty of claimant to cooperate with insurer -- 3 of 9 -- 4 (1) A claimant must cooperate with the insurer and, in particular – (a) must provide the insurer with copies of reports and other documentary material (including written statements made by the claimant or by witnesses) in the claimant’s possession about the circumstances of the accident or the claimant’s medical condition or prospects of rehabilitation; and (b) must give information reasonably requested by the insurer about – (i) the circumstances of the accident out of which the claim arose; and (ii) the nature of the injuries resulting from the accident and of any consequent disabilities and financial loss; and (iii) if applicable – the medical treatment and rehabilitation services the claimant has sought or obtained; and (iv) the claimant’s medical history (as far as it is relevant to the claim), and any other claims for compensation for personal injury made by the claimant. (2) The claimant must – (a) provide the copies of reports and other documentary materials within 1 month after giving notice of the motor vehicle accident claim or, if the reports or material come into the claimant’s possession later, within 1 month after they have come into the claimant’s possession; and (b) respond to a request under subsection (1)(b) within 1 month after receiving it. (3) If, after notice of a claim is given to the insurer but before the claim is resolved, the claimant becomes aware of a significant change in the claimant’s medical condition, or in other circumstances, relevant to the extent of the claimant’s disabilities or financial loss, the claimant must, within 1 month after becoming aware of the change, inform the insurer of the change. (7) Any information provided by a claimant under this section must be verified by statutory declaration if the insurer requires it to be verified by statutory declaration.” [12] The letter of 6 March 2006 read: “We refer to previous correspondence and pursuant to Section 45 of the Motor Accident Insurance Act 1994 as amended, we would ask that you kindly provide the following by way of Statutory Declaration:- -- 4 of 9 -- 5 1. Exact details of what enquiries the claimant made for work as a Teachers’ Aide at the Bohle State School either prior to or following the accident (including the names of any person the claimant may have approached in relation to same and the date of the claimant’s enquiries); 2. Exact details of what employment offers were made to the claimant in relation to any employment at the Bohle State School either prior to or following the accident (including the names of those people, the dates of those discussions and the outcome); 3. Exact details of any employment offers made to the claimant to increase her hours as a Teachers’ Aide by the Bohle State School either prior to or following the accident (including the names of those people, the dates of those discussions and the outcome); 4. Exact details of what enquiries the claimant made for work as a Teachers’ Aide or in any other occupation other than at the Bohle State School either prior to or following the accident (including details of how those enquiries were made and details of any discussions the claimant may have had with persons in relation to the availability of work or job offers); 5. Exact details of any employment offers made to the claimant without her having made enquiries either prior to or following the accident (nominating the name of the prospective employer and/or its representative that provided the offer along with the date and details of any discussion/s). We ask that you kindly provide the Statutory Declaration within one (1) month of receiving this request.” [13] The appellant’s solicitors contended in reply to that letter that the information sought was not a “reasonable request”, and that in any event the questions really constituted interrogatories. The appellant’s position was that if the respondent wanted to interrogate the plaintiff, now that proceedings in court had begun, it was necessary to obtain leave to do so pursuant to the Uniform Civil Procedure Rules 1999 (Qld) (“the UCPR”). Time passed, and the respondent applied by application dated 13 September 2006 for orders under s 50 of the Act that the appellant provide its solicitors with the information requested, under s 45. The learned judge so ordered on 17 November 2006. That is the order appealed. [14] The learned trial judge held that the information asked for was undoubtedly relevant to the claim made for economic loss, and to any reasonable assessment of the strength of that claim. The reasons for judgment record that it was not really argued before the learned judge that the information was not reasonably sought, although it had been argued that the questions appeared to be in the nature of interrogatories. The learned judge considered that the appellant’s argument, that the information -- 5 of 9 -- 6 was asked for too late, could not be sustained, given the judgments of this Court in Suncorp Metway v Hill [2004] 2 Qd R 681 and Gitsham v Suncorp Metway Insurance Limited [2003] 2 Qd R 251. Mr North SC argued on this appeal that the statements applied by the learned judge, particularly from the decision in Suncorp v Hill, were obiter, and s 45 of the Act was not applicable in the circumstances to the appellant. [15] His primary argument was that s 45, which appears in Division 3 of Part 4 of the Act, appears well before Division 6 of Part 4, which deals with “Proceedings in court”; and that s 45 is concerned with the object of the speedy resolution of a claim at or before the time of the mandatory conference contemplated by Division 5A of Part 4 of the Act. The written argument contended that: “If settlement is not possible then, and an action is instituted, then, it is submitted, the provisions governed by the rules of Court should apply rather than the provisions of the Act which appear to be expressly directed to the pre-litigation resolution of claims.”1 [16] The appellant necessarily submitted that this Court should not follow the obiter statement in Suncorp v Hill, regarding both s 45 and s 47 (which imposes a similar duty upon an insurer to co-operate with the claimant) that: “Those obligations respectively imposed by ss 45 and 47 would last until settlement of the claim or determination of it by judgment.”2 Mr North SC suggested there may be inconsistency between that statement and the statement by White J, giving the judgment of the court, in Gitsham v Suncorp Metway. At [69] of those reasons for judgment, Her Honour wrote: “What is clear, contrary to the position urged on his Honour, is that this information needs to be requested and provided prior to the compulsory conference. Without it an insurer would be disadvantaged in attempting to formulate a final offer of settlement. That does not mean that an insurer can delay seeking information unreasonably and whether it has done so in these claims can only be assessed on a consideration of the whole of the dealings between the parties not just the final round of correspondence.” [17] That statement by the Court in Gitsham reflected the facts in the matter then under consideration, in which the claimant plaintiffs (more than one appeal was heard together) contended that the common insurer was engaged in “stalling” tactics in requesting information about damages pursuant to s 45, because the insurer was endeavouring to avoid or delay the compulsory conference. The judgment, with respect, went no further than the facts required and did not declare that information asked for under s 45 was only relevant, and could only be sought, prior to the holding of the compulsory conference. [18] As to the merits of the appellant’s primary argument, neither s 45 nor s 47 – nor the other provisions in Division 3, providing inter alia for jointly arranged expert reports, and the examination of a claimant – is expressed to be inapplicable once legal proceedings are brought based on the claim. No obvious reason exists as to why the obligations and rights given by those sections should end at the compulsory 1 The appellant’s written outline, paragraph [15]. 2 At [22] of the reasons for judgment in Suncorp Metway Insurance Limited v Hill [2004] 2 Qd R 681 at 688. -- 6 of 9 -- 7 conference. There is also a contextual implication that they do not. The obligation imposed on a claimant by s 45(3) expressly continues till the claim is “resolved”. That resolution could be by agreement or by judgment. (That obligation on the claimant is separate from the obligation on legal practitioners identified in Legal Services Commissioner v Mullins [2006] LPT 012.) The obligation on the claimant under s 45(3) therefore continues after proceedings have begun in a court. Mr North SC submitted that the word “claim” in s 45(3) had a more limited meaning than, and did not include, an action or proceeding in a court based on the claim, and referred to the discussion on “claim” in Newberry v Suncorp Metway Insurance Ltd [2006] 1 QdR 519. But s 52(4) of the Act, appearing in Division 6 headed “Proceedings in court”, reads: “If judgment is given in favour of the claimant on the claim ...” A judgment could only be given in a legal proceeding, and is a manner of resolving a claim. [19] The provisions of s 50 likewise lead to the conclusion that the other obligations in s 45 also continue after proceedings have begun. Section 50 reads: “50 Courts power to enforce compliance with divs 2, 3 and 4 (1) If a claimant fails to comply with a duty imposed under division 2, 3, or 4, the court may, on the insurer’s application, order the claimant to take specified action to remedy the default within a time specified by the court. (2) If an insurer fails to comply with a duty imposed under division 3 or 4, the court may, on the claimant’s application, order the insurer to take specified action to remedy the default within a time specified by the court. (3) The court may make consequential or ancillary orders.” [20] The Act defines “court” in s 4, in relation to a claim, to mean: “(a) if a proceeding based on the claim has been brought - the court hearing the proceeding; or (b) if no proceeding based on the claim has been brought - a court with jurisdiction to hear the claim.” Hence the reference in s 50 to a court ordering a claimant to take specified action includes a court before which a proceeding has already been brought; that conclusion is necessarily inconsistent with the essential argument advanced by the appellant. [21] Mr R Douglas SC, for the respondent, reminded the court of the very limited capacity when the Act was passed (in 1994) for a court to order a medical examination, and of the recency within which the UCPR made provision for joint expert reports. He submitted that it would considerably disadvantage claimants if the like construction now contended for regarding s 45 was applied to the other provisions in Division 4, including s 47 and s 46. He also reminded the Court that the compulsory nature of the conference was only enacted in the year 2000, and s 45 and s 47 had each existed since 1994, albeit in slightly different terms. Further, comparable legislation in New South Wales (the Motor Accident Act 1988, No 102 of NSW, and the Motor Accidents Compensation Act 1999, No 41 of NSW) each contained (in s 48(3) and s 85(4) respectively) a specific provision that the duty of a claimant to co-operate legislated for in those Acts, applied only until court -- 7 of 9 -- 8 proceedings were commenced in respect of a claim. The Queensland legislation does not so provide, and, unlike the legislation in New South Wales, does place a comparable obligation on the insurer. His other submissions included that, on the appellant’s argument, what Mr Douglas SC saw fit to describe as the adversarial protocol would once again apply when a proceeding started, when it had not before. Those arguments support the construction which is strongly suggested by the terms of s 45(3) and the contents of s 4 and s 50, namely that the obligation imposed in each of s 45 and s 47 continues as described in Suncorp v Hill. [22] Mr North SC pointed to the delay by the respondent in asking its last lot of s 45 questions, and the point was valid; he nevertheless had to concede that had those same questions been asked, say, three years earlier, he could not sensibly have objected to them. The objection was only because they were asked now and not then. The delay, he contended, gave rise to a discretion to decline to order that the questions be answered. Depending on the circumstances, a judge will have a discretion to decline to order answers be given. If a court came to the conclusion that questions were being asked as a “stalling” tactic, or for some object other than getting information relevant to resolving the claim, it would be very unlikely answers would be required. Likewise if the questions were asked very late – such as after a claimant gave evidence. [23] I consider the learned trial judge correct in this matter, in the view that the circumstances here did not give rise to a discretion to order against answering. Mr North SC complained, as part of his argument on the alternative basis, namely that the discretion should have been exercised in his favour, that the questions went further than would be permitted by interrogatories, in that they sought out potential evidence and the names of possible witnesses, but he expressly did not argue that the questions were asked with any object in mind other than assisting to bring the matter to a conclusion. Absent an attack of that nature, once it is concluded s 45 continued to apply, no proper reason appeared for declining to order the appellant answer the questions. [24] For that reason I consider there is no merit in law in the appellant’s argument, and there is really none on the facts. The respondent was asking for information relevant to assessing the appellant’s claim for damages, and information which the appellant will ultimately have to disclose to enable assessment of her damages. There is no injustice to the appellant in giving relevant information in answer to questions asked under s 45, caused by the fact that proceedings have started and that other potential avenues of getting information may be available to the defendant. The defendant is entitled to reasonable information and the appellant should provide it, as ordered. [25] I would allow the application for an extension of time, but dismiss the appeal and order that the appellant pay the respondent’s costs of the application assessed on the standard basis. [26] ATKINSON J: I agree with the reasons of Jerrard JA and the orders proposed. [27] There is no warrant in the statute for the construction urged by the applicant that the duty to give information reasonably requested found in s 45(1) of the Motor Accident Insurance Act 1994 (Qld) (MAIA) is extinguished once the compulsory conference is held. -- 8 of 9 -- 9 [28] The duty in s 45(1) is conditioned upon the request being reasonably made. That the request was made after the compulsory conference is not of itself sufficient to conclude that the information was not reasonably requested. [29] The court has the discretionary power under s 50(1) of the MAIA, to compel compliance with the duty. That power necessarily connotes a power to refuse to compel compliance. It is not possible to list in advance all of the circumstances which may give rise to the exercise of the discretion to refuse to compel compliance; but this is not a case where the discretion should be exercised in that way. -- 9 of 9 --