Day v Munroe & Suncorp Metway Insurance Ltd [2005] QSC 303

State Reporting Bureau t^\ fa fiasco Queensland Government Department of Justice and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION JONES J REVISED COPIES ISSUED State Reporting Bureau Date: 13 October, 2005 No 427 of 2005 KIMBERLEY ANNE DAY Applicant and BZOURNE ANTHONY MUNROE and First Respondent SUNCORP METWAY INSURANCE LIMITED 2nd Respondent (ACN 075 695 966) CAIRNS ..DATE 12/10/2005 JUDGMENT WARNING : The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 5 -- HIS HONOUR: The applicants in each case were injured in the 1 same motor vehicle accident on 19 October 2002. Each has made a claim for damages which has been acknowledged as a complying claim for the purpose of the Motor Accident Insurance Act 1994 (hereafter "the Act") . The statutory regime under the Act 10 prohibits the commencement of legal proceedings until a claimant and the insurer have participated in a compulsory conference, and if the claim is not settled each has made a mandatory final offer. 20 In relation to these three claims, no such conference has yet been held, nor can that occur before the expiration of the limitation period on 19 October 2005. Each applicant seeks leave to commence proceedings now with consequential orders that the action be stayed until such a conference is held, and 30 offers made, as if they were done in accordance with s.51A of the Act . Confronted with the views expressed by his Honour Judge McGill in Lindsay versus Ammaalii (2004) QDC28, the applicants are 40 prepared to give undertakings that they will not argue that the proposed delayed conference and final offer did not have the same effect as if made pursuant to the Act. The respondents' position is that the giving of such undertakings is an unnecessary subterfuge. 50 The applicants are in the position of having given a notice of claim which is acknowledged to be complying. Each of them, therefore, falls within the ambit of section 57 of the Act, 12102005 Tl/LFG M/T CNS1/2005 (Jones J) 2 JUDGMENT 60 -- 2 of 5 -- 12102005 Tl/LFG M/T CNS1/2005 (Jones J) which permits the commencement of proceedings after the expiration of the limitation period. The respondents have no objection to the period being extended beyond the six months so long as it is related to compliance with the statutory provisions of undertaking the compulsory conference and making the final offer. 1 10 Mr Houston of Counsel for the applicants raised a concern of that proposal by the respondent, that in the event that due compliance is not made it might lead to an invalidation of the 20 commencement of the proceedings. He argued for greater certainty by commencing within the limitation period, and claimed that the respondents' position is protected by the undertakings which his clients are prepared to give. 30 Mr Durward of Senior Counsel on behalf of the respondents argues that that is not so. The respondents wish to have the benefit of the statutory requirements which resort to section 57 will allow without any prejudice to the applicants. 40 The application raises an interesting issue about the effects of granting leave to commence proceedings in these circumstances, and the deferring of the holding of a compulsory conference and the making of a mandatory offer. However, I do not feel it necessary in this instance to 50 examine that issue. The applicants' position is properly covered by the terms of section 57 of the Act. 3 JUDGMENT 60 -- 3 of 5 -- 12102005 Tl/LFG M/T CNS1/2005 (Jones J) The down side which Mr Houston of Counsel for the applicants 1 identified as a risk - of the subsequent overturning of the compulsory conference and/or mandatory offer - seems to me to be somewhat speculative. Those steps in the process are quite routine, and are not usually the subject of allegations of 10 invalidity. In any event, such a declaration would involve the Court and would not necessarily result in the applicants' course of action being lost. I am not convinced there is any reduced certainty because the commencement of the proceeding is only permitted pursuant to section 57 of the Act. If there is, it comes about because the applicants have not pursued their respective claims with due celerity. The respondents on 22 March 2004 admitted liability to pay damages in full, but contended that each applicant was guilty of contributory negligence. The applicants proposed a compulsory conference on 3 November 2004. There followed argument about the sufficiency of the information supplied, but no satisfactory explanation is given why the matter could not have progressed to a point of their having held the compulsory conference before October 2005. 20 30 40 In those circumstances it seems to me that the respondents should not be denied the benefits of the statutory processes provided for under the Act, or have its rights substituted to 50 the enforcement of the personal undertakings of the applicants. I am satisfied that with proper diligence and compliance with the statutory provisions, the matter can be quickly brought to the point of holding a compulsory 4 JUDGMENT 60 -- 4 of 5 -- 12102005 Tl/LFG M/T CNS1/2005 (Jones J) conference, and if that is unsuccessful then to the 1 commencement of proceedings. For these reasons I dismiss the plaintiffs ' application, and instead I will make the orders as proposed by the respondents 10 in the document which is now initialled by me and placed with the papers. 20 I will take that course now, and that order provides that there will be no order for costs. 30 50 5 JUDGMENT 60 -- 5 of 5 --