Australian Associated Motor Insurers Ltd v McPaul [2005] QSC 278 [2006] 1 Qd R 201

SUPREME COURT OF QUEENSLAND CITATION: Australian Associated Motor Insurers Ltd v McPaul; Council of the City of Gold Coast v McPaul & Anor [2005] QSC 278 PARTIES: In BS 6239 of 2005 AUSTRALIAN ASSOCIATED MOTOR INSURERS LIMITED ABN 92 004 791 744 (applicant) v MATTHEW MCPAUL (respondent) In BS 7157 of 2005 COUNCIL OF THE CITY OF GOLD COAST (applicant) v AUSTRALIAN ASSOCIATED MOTOR INSURERS LIMITED ABN 92 004 791 744 (first respondent) MATTHEW MCPAUL (second respondent) FILE NO/S: BS 6239 of 2005 BS 7157 of 2005 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court, Brisbane DELIVERED ON: 5 October 2005 DELIVERED AT: Brisbane HEARING DATE: 30 September 2005 JUDGE: de Jersey CJ ORDER: 1. In BS 6239 of 2005: Application refused. Costs reserved, with liberty to apply. 2. In BS 7157 of 2005: Application refused. Costs reserved, with liberty to apply. CATCHWORDS: INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – RIGHTS AND LIABILITIES OF INSURER IN RESPECT OF DEFENCE AND COMPROMISE – QUEENSLAND – where the respondent suffered serious injuries while crossing the street as a five year old – where the applicant was the insurer – whether the applicant could compel the respondent to proceed with a claim to determine liability before the expiration of the -- 1 of 4 -- 2 relevant limitation period Motor Accident Insurance Act 1994 (Qld), s 3(c), s 37, s 39, s 45, s 50 Attard v Hore [2002] QSC 437, cited Horinack v Suncorp Metway Insurance Ltd [2000] QCA 441; [2001] 2 Qd R 266, cited Smale v Sprott [2003] QSC 254; [2004] 1 Qd R 290, cited Suncorp Metway Insurance Ltd v Brown [2004] QCA 325; [2005] 1 Qd R 204, quoted Turvey v Steindl [1997] QSC 2, cited Williams v Zupps Motors Pty Ltd [1990] 2 Qd R 493, cited COUNSEL: S Williams QC for the applicant in BS 6239 of 2005, and for the first respondent in BS 7157 of 2005 K Howe for the applicant in BS 7157 of 2005 M Grant-Taylor SC for the respondent in BS 6239 of 2005, and for the second respondent in BS 7157 of 2005 SOLICITORS: McCullough Robertson Lawyers for the applicant in BS 6239 of 2005, and for the first respondent in BS 7157 of 2005 O’Keefe Mahoney Bennett Solicitors for the applicant in BS 7157 of 2005 Murphy Schmidt Solicitors for the respondent in BS 6239 of 2005, and for the second respondent in BS 7157 of 2005 [1] Section 45 of the Motor Accident Insurance Act 1994 (Qld) (“the Act) obliges a claimant to co-operate with the insurer, and in particular, to reveal certain specified information. The present applicant, AAMI, relies on that provision as authorising the order sought, namely, that the respondent “co-operate with the applicant by bringing within sixty days of the date of this order a proceeding to determine the liability issue only upon the respondent’s cause of action for damages in respect of personal injuries which he suffered as a consequence of a motor vehicle accident which occurred on 27 August 2000 between the respondent and a motor vehicle registered number 330 CXJ driven by Lee Daley and subject to a policy of compulsory third party insurance with the applicant”. The applicant’s objective is to secure a determination on the issue of liability first. [2] The respondent suffered serious injuries on 27 August 2000 while crossing the street. He was then almost five years old. Now he is almost ten. The matter is put to me on the basis he will be left with very substantial residual disabilities. It will not be possible to gauge their extent for some years. [3] The respondent’s mother submitted a notice of claim to the applicant, under s 37 of the Act, in September 2000. The applicant accepted that as a compliant notice (s 39). It is the giving of that notice which enlivens the respondent’s obligation of co-operation under s 45. Mr Williams QC relates it to an object of the Act, being the speedy resolution of claims (s 3(c)). See also Smale v Sprott [2003] QSC 254 and Horinack v Suncorp Metway Insurance Ltd (2001) 2 Qd R 266, 270. -- 2 of 4 -- 3 [4] The applicant’s interest in securing an early determination of liability is to avoid the prejudice which could follow from further delay, until for example the respondent child became obliged to commence proceedings. [5] The primary question is whether s 45(1) is apt to authorise an order of the character sought. To this point, the scope of the section has been tested mostly in the context of the supply of information, to which the obligation is directed “in particular”, although not in my view exclusively. Attard v Hore [2002] QSC 437 for example was a case requiring the execution of an authority for the release of a file. The duty to cooperate under s 45 is not limited to the matters – the provision of reports and supply of information – to which it makes particular reference. [6] In Suncorp Metway Insurance Ltd v Brown [2004] QCA 325, the Court of Appeal read the obligation to co-operate broadly. Williams JA said: ‘The learned judge at first instance construed s 45 of the Act narrowly. Relevantly he said that the “form of words used by the legislature” in s 45 “means literally that the duty is to co-operate with the insurer in the particular ways specified in paras (a) and (b)”. In other words the introductory requirement that a “claimant must co-operate with the insurer” is limited to the particular ways subsequently set out … When regard is had to the objects of the legislation set out in s 3, and in particular the object “to encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents”, the intent of the legislature, in my view, was to impose a broad general duty on a claimant to co-operate with the insurer.’ [7] The question is however whether the obligation is sufficiently broadly cast to extend to requiring a claimant to adopt the course proposed here by the applicant, if that course is in fact appropriate. (Compliance may be enforced under s 50.) [8] Mr Williams submitted that because the respondent gave the notice and became a claimant (s 3), he submitted to the statutory regime. That is certainly true, but the issue remains whether s 45(1) would extend to an order effectively obliging a claimant to commence proceedings at a stage appreciably prior to the expiration of the limitation period. [9] The position taken by Mr Grant Taylor SC, for the respondent, is that there is no power in the court effectively to compel the respondent to commence his proceeding at any particular time: he should not be denied the right to commence it at any stage prior to the expiration of the relevant limitation period – here three years after he attains his majority on 30 October 2013. [10] Courts are bound to respect the operation of the limitations regime. A court cannot, for example, generally require a person to commence proceedings at any stage appreciably prior to the expiration of the limitation period. (See Williams v Zupps Motors Pty Ltd (1990) 2 Qd R 493, 499; Turvey v Steindl (1997) QSC 2, p 5). [11] In similar vein, the question arises whether notwithstanding its breadth, the duty to cooperate under s 45, buttressed by s 50, should be construed as ample to oblige a claimant to commence proceedings at a stage at which the claimant would not -- 3 of 4 -- 4 otherwise have had to commence them, in order to avoid the bar under the limitations legislation; or whether were such a result intended, one might have expected the legislation to provide so clearly or expressly. Because the construction of the legislation for which the applicant contends would effectively deny the respondent his right to commence proceedings at any time before the expiration of the limitations period, that is at his option, the circumstance that the legislature has not addressed that plainly does in my view tell against the applicant’s submission. I do not therefore consider that s 45(1), together with s 50, would be apt to embrace an order of the character proposed here. [12] Accordingly I order that AAMI’s application be refused. The application of the Gold Coast City Council, which was contingent on the success of AAMI’s application, should also therefore be refused. Costs will in each case be reserved, with liberty to apply. -- 4 of 4 --