Anderson v Nominal Defendant [2004] QDC 119

DISTRICT COURT OF QUEENSLAND CITATION: Anderson v Nominal Defendant [2004] QDC 119 PARTIES: TONY KENNETH ANDERSON Applicant v NOMINAL DEFENDANT Respondent FILE NO/S: 839/2004 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 13 May 2004 DELIVERED AT: Brisbane HEARING DATE: 17 March 2004 JUDGE: Shanahan DCJ ORDER: Application allowed. The Nominal Defendant is presumed to be satisfied that notice was given as required under Division 3 of Part 4 of the Motor Accident Insurance Act 1994. CATCHWORDS: NOTICE OF MOTOR VEHICLE ACCIDENT – Whether the Nominal Defendant conclusively presumed to be satisfied that a notice of accident was given as required by the Act – Where the applicant would otherwise be barred from continuing proceedings – Where the applicant had delivered its notice of accident outside the three month period and had never provided a reasonable excuse for the delay. MISTAKE ON THE PART OF THE NOMINAL DEFENDANT – Where the Nominal Defendant had erroneously responded to the applicant’s original notice of accident by denying that it was the insurer – Where the Nominal Defendant based its response on a search conducted as at the time of receiving the notice and not as at the date of the accident – Whether the Nominal Defendant could subsequently rely on a defect in the notice as an answer to the claim in circumstances where it had not alerted the applicant to the defect. Legislation cited: Motor Accident Insurance Act 1994 (Qld): ss 37, 39 -- 1 of 10 -- 2 Cases cited: Miller v The Nominal Defendant [2003] QCA 558 COUNSEL: Mr A Munt for the applicant Mr J Clifford QC for the respondent SOLICITORS: Trilby Misso for the applicant Broadley Rees for the respondent [1] This is an application for a declaration pursuant to s 39(3) of the Motor Accident Insurance Act 1994 (Qld) (“MAIA”) that the respondent is conclusively presumed to be satisfied that notice with respect to a motor vehicle accident was given by the applicant as required under Division 3 of that Act and that, pursuant to s 39(5)(a)(ii) of the Act, the applicant is entitled to proceed further with his claim for personal injuries arising out of that accident. History of the matter [2] It is necessary to consider the history of the matter. [3] On 10 October 2001 the applicant was involved in a motor vehicle accident. He obtained the name of the driver of the second vehicle, a Mr B J Galvin, but not that vehicle’s registration number. An off-duty police officer attended the scene. He also did not note the registration number of the car. On 15 November 2001 the applicant reported the incident to the police. On 16 November 2001 the applicant completed a notice of accident claim form pursuant to s 37 MAIA and nominated solicitors acting on his behalf (Exhibit VJH-1 to affidavit of V J Hefferan). On that form the registration number of the vehicle “most at fault” was left blank although it was identified as a white 1981 Ford Falcon sedan (Exhibit VJH-1, affidavit of V J Hefferan). [4] The three month period in which notice should have been given to the Nominal Defendant (pursuant to s 37(2)(a) MAIA) expired on 10 January 2002. The notice was forwarded to the Nominal Defendant by post on 8 February 2002 (affidavit of D J Draydon). No excuse, reasonable or otherwise, was given for the delay as required by s 37(3) MAIA. No separate notice containing a reasonable excuse for the delay was ever given to the Nominal Defendant. -- 2 of 10 -- 3 [5] The Nominal Defendant received the notice of claim form on 13 February 2002. [6] By letter dated 14 February 2002 the Nominal Defendant responded pursuant to s 39(2) MAIA denying that the Ford was unidentified and denying that the Nominal Defendant was the insurer of the Ford. The Nominal Defendant identified the Ford as registration number 759-DRK. The notice of accident claim form was returned to the applicant’s solicitors. [7] Further enquiries revealed that Suncorp Metway Insurance Limited (“Suncorp”) was the compulsory third party insurer of that vehicle. [8] On 19 February 2002 the notice of accident claim form was sent to Suncorp. Suncorp retained investigators to examine the circumstances of the accident. Those investigations revealed that the driver of the car, Mr Galvin, stated that he was driving a white 1984-85 Ford XF sedan registration number 759-DRK. It was this vehicle which he said he was driving at the time of the accident (Exhibit DD2 to affidavit of D J Draydon). [9] However, a statement from a Mr M B Bliesner indicated that, in fact, he was the registered owner of a cream 1981 Ford XD Falcon sedan registration number 759- DRK at the time of the accident. He had purchased that vehicle on 19 December 2000 and traded it in for another vehicle on 21 November 2001 (Exhibit DD2 to affidavit of D J Draydon). That vehicle was thus in the possession of Mr Bliesner at the date of the accident and both parties agree that that vehicle could not have been the one involved in the accident. [10] The nomination by the Nominal Defendant of the vehicle 759-DRK as being that involved in the accident came about as a result of the Nominal Defendant conducting a search of vehicles registered to Mr Galvin as at the date the notice of claim form was received and not as at the date of the accident (Transcript p 4). The vehicle obviously became registered to Mr Galvin after the date of the accident and he appears to have been mistaken in his account to the Suncorp investigators insofar as the identity of the vehicle was concerned. -- 3 of 10 -- 4 [11] By letter of 24 March 2003 to the applicant’s solicitors, Suncorp denied liability on the basis that “the alleged vehicle 759-DRK was not owned by Bradley Galvin at the day of the alleged accident.” [12] By letter of 15 April 2003 the applicant’s solicitors advised the Nominal Defendant of Suncorp’s response and advised that, because of the uncertainty, the claim would need to be pursued against both Suncorp and the Nominal Defendant. [13] By letter of 19 January 2004, the solicitors for the Nominal Defendant advised that since the provisions of s 37 MAIA had not been complied with and that the nine month period after the motor vehicle accident had since expired (s 37(3)), the plaintiff was prevented from proceeding further with the claim (s 39(8)). [14] The nine month period expired on 10 July 2002. [15] This application was filed on 5 March 2004. The legislation [16] The relevant provisions of the Motor Accident Insurance Act 1995 are: “Section 31 (1) If personal injury is caused by, through or in connection with a motor vehicle, the insurer for the statutory insurance scheme is to be decided in accordance with the following principles – (a) if the motor vehicle is an insured motor vehicle – the insurer under the CTP insurance policy is, subject to this Division, the insurer; … (d) if the motor vehicle, or insurer under its CTP insurance policy, cannot be identified – the Nominal Defendant is the insurer. … -- 4 of 10 -- 5 Section 37 (1) Before bringing an action in a court for damages for personal injury arising out of a motor vehicle accident, a claimant must give written notice of the motor vehicle accident claim to the insurer or one of the insurers, against which the action is to be brought … (2) The notice must be given – (a) if it is to be given to the Nominal Defendant because the motor vehicle cannot be identified – within three months after the motor vehicle accident; … (3) If notice of a motor vehicle accident claim is not given within the time fixed by this section, the obligation to give the notice continues and a reasonable excuse for the delay must be given in the notice or by separate notice to the insurer but, if a motor vehicle cannot be identified and the notice is not given to the Nominal Defendant within nine months after the motor vehicle accident, the claim against the Nominal Defendant is barred. … Section 39 (1) If notice of a motor vehicle accident claim is given to an insurer under this Division or purportedly under this Division – (a) the insurer must, within 14 days after receiving the notice give the claimant written notice – (i) stating whether the insurer is satisfied that the notice has been given as required under this Division; and (ii) if the insurer is not satisfied – identifying the non-compliance and stating whether the insurer waives compliance with the requirements; -- 5 of 10 -- 6 … (2) If an insurer to which notice of a motor vehicle accident claim is given under this Division or purportedly under this Division is not, for the purposes of the claim the insurer of the motor vehicle to which the claim relates under the statutory insurance scheme, the insurer must, instead of responding to the notice under subsection (1), give the claimant written notice denying that the insurer is the insurer under the statutory scheme. (3) If notice of a motor vehicle accident claim is given to an insurer under this Division or purportedly under this Division, and the insurer does not respond to the notice within 14 days after receiving it, the insurer is conclusively presumed to be satisfied the notice was given as required under this Division. … (5) A claimant’s failure to give notice of a motor vehicle accident claim as required under this Division prevents the claimant from proceeding further with the claim unless – (a) the insurer – (i) has stated that the insurer is satisfied notice has been given as required under this Division or the claimant has taken reasonable action to remedy the non- compliance; or (ii) is presumed to be satisfied notice has been given as required under this Division; or (b) the insurer has waived compliance with the requirement; or (c) the court, on application by the claimant – (i) declares that the claimant has remedied the non-compliance; or (ii) authorises further proceedings based on the claim despite the non-compliance. … -- 6 of 10 -- 7 (8) If a claim against the Nominal Defendant is barred because the claim relates to personal injury caused by, through or in connection with a motor vehicle that cannot be identified and the claimant failed to give notice of claim under this Division within nine months after the motor vehicle accident, the Nominal Defendant cannot waive compliance with the requirement to give notice within the time allowed by this Division, nor can the court give leave to bring a proceeding in a court despite the non- compliance.” The applicant’s arguments [17] The applicant submitted that the Nominal Defendant chose to respond to the notice served upon it pursuant to s 39(2) MAIA denying that the Nominal Defendant was the insurer. This was done on the purported identification of the motor vehicle which later proved to be incorrect. The Nominal Defendant did not respond pursuant to s 39(1) MAIA identifying any non-compliance and stating either that the Nominal Defendant waived compliance or would allow a reasonable period to remedy the non-compliance. [18] It was submitted that the vehicle remains unidentified and that, pursuant to s 39(1)(a), the Nominal Defendant was required to give the applicant written notice stating whether the Nominal Defendant was satisfied that the notice had been given as required and, if not so satisfied, identifying the non-compliance. The Nominal Defendant failed to so respond. The Nominal Defendant first raised non- compliance after the nine month period had expired. If that issue had been raised within the nine months, the applicant could have rectified the situation by providing a reasonable excuse. [19] It was submitted that having failed to identify such non-compliance within 14 days after receiving the notice, the Nominal Defendant was, pursuant to s 39(3) MAIA conclusively presumed to be satisfied the notice was given as required under Division 3 of Part 4 MAIA. Accordingly, pursuant to s 39(5)(a)(ii), the applicant was entitled to further pursue his claim. -- 7 of 10 -- 8 The respondent’s arguments [20] It was submitted that the applicant had never given a reasonable excuse for the delay. The Nominal Defendant, since it contended that it was not the insurer, was required to give notice denying that it was the insurer. It gave that notice. Even if the Nominal Defendant was wrong in its denial, the applicant was not relieved of the obligation imposed by s 37(3) MAIA to provide a reasonable excuse for the delay. A reasonable excuse was never given. Reliance was placed on Miller v The Nominal Defendant [2003] QCA 558 where the Court of Appeal concluded that the court had no jurisdiction to give leave to bring a proceeding where no notice of claim containing a reasonable excuse for delay, or a separate notice of reasonable excuse, was given within the nine month period specified in s 37(3). It was submitted that in the light of that decision, there was no jurisdiction to grant the applicant leave to continue with his claim pursuant to s 39(5)(a)(ii). [21] It was submitted that there was no breach of s 39 to enable the applicant to rely on s 39(3). That subsection had no application where the insurer had responded to the notice in accordance with its obligation under s 39(2). Findings [22] It is clear that there has been no compliance by the applicant with the requirements of s 37 MAIA in that the claim was given outside the three month period provided by s 37(2)(a) and that the obligation to give a reasonable excuse for the delay within nine months of the accident (s 37(3)) has also not been complied with. The applicant clearly gave instructions to his solicitors and completed the notice of accident claim form on 16 November 2001. This was well within the three month period. The delay in submitting that form to the Nominal Defendant has never been explained. [23] The Nominal Defendant chose to respond to the claim form pursuant to s 39(2) MAIA in that it was not the insurer of the vehicle. That subsection provides that such a response can be made by the insurer “instead of responding to the notice under subsection (1).” Thus, pursuant to s 39(3), the insurer has responded to the -- 8 of 10 -- 9 notice within the 14 days required. However, the specific response was engendered by a mistake made by the Nominal Defendant. [24] As indicated in argument, the Nominal Defendant had searched for motor vehicles registered in the name of the second driver as at the date the claim was received rather than as at the date of the accident. That search revealed a Ford motor vehicle registered to that driver and insured by Suncorp. It was obviously assumed by the Nominal Defendant that it was this vehicle involved in the accident. It is unclear whether any proper enquiries had been made by the applicant’s solicitors in an endeavour to identify the vehicle at that time. [25] In any event, as a result of that mistake, the Nominal Defendant responded pursuant to s 39(2) on 14 February 2002. As a result, further enquiries by Suncorp did not reveal that the motor vehicle 759-DRK was not involved in the accident until the applicant’s solicitors were advised on 24 March 2003. By that time the nine month period during which the applicant could have given a reasonable explanation for delay had long expired. [26] I am of the view that the Nominal Defendant should have responded pursuant to s 39(1). It was because of its own mistake that it responded pursuant to s 39(2). In my view it is now inappropriate to rely on that response to argue that the applicant is precluded from relying on the presumption contained in s 39(3). If that were to be the case, a decision to respond pursuant to s 39(2), however mistaken or contrary, would defeat a claimant in circumstances where the nine month period had expired. Had the Nominal Defendant responded pursuant to s 39(1) the applicant would have had time to remedy the non-compliance by providing a reasonable excuse for the delay, if one was available. [27] I am of the view that because no response was made by the Nominal Defendant pursuant to s 39(1), as it should have been, that the Nominal Defendant has not responded as required and should be conclusively presumed to be satisfied that the notice was given as required under Division 3 of Part 4 MAIA. [28] The application is allowed. Pursuant to s 39(5)(a)(ii), the Nominal Defendant is presumed to be satisfied that the notice was given as required under Division 3 of -- 9 of 10 -- 10 Part 4 of the Motor Accident Insurance Act 1994. The applicant thus can proceed on the claim. [29] I will hear the parties as to costs. -- 10 of 10 --