Choi v Collansi & Anor [2002] QCA 441

1 SUPREME COURT OF QUEENSLAND CITATION: Choi v Collansi & Anor [2002] QCA 441 PARTIES: TERENCE KING HO CHOI (as executor of the estate of Rosanna Choi deceased) (applicant/respondent) v MICHELLE COLLANSI (first respondent) SUNCORP METWAY INSURANCE LIMITED ACN 075 695 966 (second respondent/applicant/appellant) FILE NO/S: Appeal No 6249 of 2002 DC No 1995 of 2002 DIVISION: Court of Appeal PROCEEDING: Application for leave s118 DCA (Civil) ORIGINATING COURT: District Court at Brisbane DELIVERED EXTEMPORE ON: 21 October 2002 DELIVERED AT: Brisbane HEARING DATE: 21 October 2002 JUDGES: McMurdo P, Cullinane and Holmes JJ Separate reasons for judgment of each member of the Court; each concurring as to the orders made ORDER: Application for leave to appeal refused with costs to be assessed. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – LEAVE TO APPEAL - where application for leave to appeal from an interlocutory order – where applicant failed to establish decision appealed from attended by sufficient doubt to warrant reconsideration – where applicant failed to establish substantial injustice would result if leave refused – where application refused District Court Act 1967 (Qld), s118(3) Motor Accident Insurance Act 1994 (Qld) s 51A, s 51B(6)(b), s 51C, s 55F Westpac Banking Corporation v Klef Pty Ltd [1998] QCA 311, Appeal No 8204 of 1998, 16 October 1998, referred to -- 1 of 7 -- 2 COUNSEL: R J Douglas SC for the applicant/appellant F G Forde for the respondent SOLICITORS: Suncorp Metway Insurance Limited for the applicant/appellant Holland & Holland for the respondent THE PRESIDENT: This is an application for leave to appeal under section 118(3) District Court Act 1967 (Qld) from the order of a District Court Judge on the 11th of June 2002 that the compulsory conference between the parties be dispensed with under section 51A(5)(b) Motor Accident Insurance Act 1994 (Qld) ("the Act"). An application for leave to appeal from an interlocutory judgment will usually be refused unless it appears that the decision from which it is sought to appeal is attended with sufficient doubt to warrant it being reconsidered and also that, supposing the decision below to be wrong, substantial injustice would result if leave were refused. Westpac Banking Corporation v. Klef Pty Ltd [1998] QCA 311, Appeal No 8204 of 1998, 16 October 1998. The applicant is the compulsory third party insurer of the first respondent who is not a party to this appeal. The respondent to this appeal is the widower of the deceased, who was killed in a car accident with the first respondent's vehicle. The claim is essentially one for loss of dependency under the Law Reform Act 1995 (Qld). The respondent delivered a section 37 notice under the Act on 27 June 2001 and made an offer of settlement to the applicant -- 2 of 7 -- 3 on 11 September 2001. The applicant declined to make an offer and denied liability on 18 December 2002. On 7 February 2002 the respondent attempted to call a compulsory conference under section 51A of the Act. The applicant declined to take part in any compulsory conference until it had received all investigative material from Queensland Police Service, which the applicant had been told would not be available until any criminal proceedings resulting from the investigations, were concluded. In addition the insured, who alleged the deceased had been drinking, was not cooperating with the applicant. The applicant then decided not to investigate further and, instead, to wait for that material. The respondent, however, was able to obtain some police statements from eye witnesses, which suggested that the driver of the vehicle insured by the applicant was on the incorrect side of the road at the time of the accident. The respondent provided these statements to the applicant. Since his Honour's decision the Coroner has indicated that there will be no inquest and the material sought by the applicant is now available. The application to dispense with the compulsory conference under section 51A(5)(a) was filed on 24 May 2002. The material filed in that application on behalf of the applicant indicated that from the 19th of September 2001 the applicant had information from the Queensland Police Service that no decision had been made as to whether an inquest would be held -- 3 of 7 -- 4 into the death of the deceased and that there was a conflict between the police statements taken from witnesses as to which of the two drivers had crossed the centre line. The investigating police officer told the applicant's solicitor that from his investigation he formed the view that both motor vehicles were travelling close to the centre white line and that one, if not both, had crossed it. Alcohol, speed and other vehicles were not contributing factors to the accident. That tentative opinion is consistent with the information provided to the applicant after the application was heard. The applicant contends that as it had not obtained all investigative material prior to the anticipated compulsory conference it was disadvantaged - see section 51B(6)(b) of the Act. The applicant also claims to have been disadvantaged by not being able to make an informed mandatory final offer under section 51C of the Act, with potential cost ramifications under section 55F of the Act, as to the costs for the gathering of evidence 14 days after dispensing with the compulsory conference. Section 51A of the Act relevantly provides that, "(1) Before the claimant brings an action in a court for damages for personal injury arising out of a motor vehicle accident, there must be a conference with the parties (the compulsory conference). ... (5) The court may, on application by a party - ... (b) dispense with the compulsory conference for good reason; -- 4 of 7 -- 5 and make any other orders the court considers appropriate in the circumstances. (6) In considering whether to dispense with the compulsory conference the court must take into account the extent of compliance by the parties with their respective obligations related to the claim." The learned primary Judge's reasons for dispensing with the compulsory conference were that the Act was aimed at promoting the settlement of claims. The absence of the full report from the Coroner was no basis, in itself, for refusing to attend a conference because offers can be, and under an earlier regime frequently were, based on the material available at that time, for example, here an offer of 50 per cent apportionment of liability could have been made. To not grant the application in a dependency claim could financially affect the claimant. His Honour noted that the delay caused by the unavailability of the insured and the delay in the coronial inquest are not reasons for refusing to dispense with the conference in the context of the history of this matter. The applicant contends that the learned primary Judge erred in comparing the compulsory conference under the Act to the quite different conference provided for in the past under RSC39.30A(4)(e). The applicant also claims his Honour erred in speculating without supporting affidavit material as to the financial prejudice which may be suffered by the complainant, especially when his claim was for loss of personal domestic services. Finally, the applicant contends that the Judge erred in looking at whether there was a reason for the applicant's refusal to take part in the conference rather than -- 5 of 7 -- 6 whether there was a good reason to dispense with the conference. The Judge should have adjourned the application or ordered the conference take place at some future date. What constitutes good reason for dispensing with a compulsory conference under section 51A of the Act will always depend on the facts of each case which can be expected to vary greatly. The subsection confers a wide and unfettered discretion subject to section 51A(6) of the Act. I am far from persuaded that the learned primary Judge erred in the discretionary exercise of deciding that there was good reason for dispensing with the compulsory conference. His Honour correctly adverted to the purpose of the compulsory conference aimed at the early resolution of claims and the reduction of costs. His Honour was also entitled to infer that the loss of the deceased's service to the complainant has caused him financial loss. Whilst his Honour referred to his experience of conferences before the enactment of section 51A of the Act, he did so only in dealing with the applicant's contention that a conference should not be held at the time sought by the respondent. His Honour's consideration of the reasons provided by the applicant for not taking part in the proposed compulsory conference was not a misunderstanding on his Honour's part as to the onus and requirements under section 51A of the Act to dispense with the compulsory conference for good reason. Elsewhere in his extempore reasons his Honour plainly states that the section allows a -- 6 of 7 -- 7 compulsory conference to be dispensed with by the Court only for good reason. This is not a case where the decision appealed from is attended with sufficient doubt to warrant its being reconsidered. Even if it were, the applicant has not established here that substantial injustice would result if leave were refused. There seems to be nothing to stop the applicant from now taking up the respondent's offer of a conference or from now making an offer to settle. The applicant could have applied to dispense with its obligation to make a mandatory final offer under section 51C(11) of the Act if it were concerned with potential costs complications. I would refuse the application for leave to appeal with costs to be assessed. CULLINANE J: I agree. HOLMES J: I agree. THE PRESIDENT: That is the order of the Court. ----- -- 7 of 7 --