O'Dare v Vitanza

[2004] QDC 339

DISTRICT COURT OF QUEENSLAND

CITATION:	O’Dare v Vitanza & Ors [2004] QDC 339
PARTIES:	WARREN DALKEITH O’DARE (Applicant) v VINCE VITANZA (First Respondent) and BRISBANE CITY COUNCIL (Second Respondent) and TOM BROWN (Third Respondent) and ALLIANZ AUSTRALIA INSURANCE LIMITED (Fourth Respondent)
FILE NO:	BD 2462 of 2004
PROCEEDING:	Application to extend time
ORIGINATING
COURT:	Brisbane
DELIVERED ON:	13 August 2004
DELIVERED AT:	Brisbane
HEARING DATE:	August 2004
JUDGE:	Judge Brabazon QC
ORDER:	Application to extend time allowed
CATCHWORDS:	LIMITATIONS OF ACTIONS – PERSONAL INJURIES – where application to commence proceedings pursuant to s 57(2)(b) of MAIA.
Motor Accidents Insurance Act 1994, s 57(2)(b) Crain v Crocker & Anor [2004] QDC 151 Morrison–Gardiner v Car Choice Pty Ltd & Anor [2004] QSC 124
COUNSEL:	Mr H Scott-Mackenzie for the applicant Ms R Treston for the respondents
SOLICITORS:	Burns Lawyers for the applicant McInnes Wilson Lawyers for the second, third and fourth respondents

1. This is an application by Mr O’Dare, that he be allowed to bring court proceedings against the respondents pursuant to s 57(2)(b) of the Motor Accidents Insurance Act.

2. The relevant facts can be shortly stated. Mr O’Dare says that he was injured on 4 April 2001. He consulted solicitors in June of that year, and they delivered his Notice of Accident claim form on 12 July 2001.

3. On 24 July 2001 Allianz Australia Insurance confirmed that the Notice complied, and admitted liability. It reserved any rights in relation to the limitation period. A good deal of time then passed before the applicant requested a joint orthopaedic examination, on 17 September 2003. The arrangements about the examination took a long time until finally there was an agreement to see Dr Pincus, made on 29 March this year.

4. On 22 April Allianz advised the applicant’s solicitors that it would cancel the appointment for Dr Pincus and close its file unless valid proceedings were received within 14 days. That did not happen. On 21 May Allianz advised the solicitors that the appointment for Dr Pincus had been cancelled and that they were relying on the limitation period. That attitude has resulted in this originating application being filed on 13 July.

5. The significant facts are these. The Notice was given promptly to the insurer. The delay on the plaintiff’s part is explained by changes in staff in the offices of the solicitors for him. They failed to prepare a file memoranda and establish and maintain a “limitation diary”. In the circumstances, that delay should not be attributed to Mr O’Dare.

6. His solicitors acted promptly once they discovered that the period of limitation had expired.

7. There is unlikely to be any prejudice (none is mentioned) to the respondents consequent upon any extension of time being granted. There is an admission of liability. The injuries suffered by Mr O’Dare as a result of the accident are well documented. There remains an assessment of his present medical condition and the extent of his disabilities.

8. If Mr O’Dare is not allowed to bring a proceeding in the court, even though the period of limitation has ended, he will be permanently shut out from bringing a proceeding in respect of this claim.

9. If there is a discretion to be exercised under s 57, then, it is clear that it should be exercised in Mr O’Dare’s favour.

10. The controversy here is really about the true meaning of s 57. On behalf of Mr O’Dare, it was submitted that it applies to this situation, even though the limitation period has expired. That view was taken in earlier decisions in favour of similar applications – see Morrison–Gardiner v Car Choice Pty Ltd & Anor (2004) QSC 124 and Crain v Crocker & Anor (2004) QDC 151.

11. Both those decisions are presently the subject of appeals to the Court of Appeal. That is because, it is said, the operation of s 57(2) should be limited to cases where the Notice of Claim is given less than six months prior to the expiry of the limitation period.

12. In this case, the submissions by counsel for the respondents is as follows:

“4.

The respondent submits that the proper construction of s.57(2) of the Motor Accident Insurance Act 1994 (Qld) (“the MAIA”) is that s.57(2)(b) does not confer an unfettered or open ended discretion to permit the commencement of proceedings notwithstanding the prior expiration of the ordinary limitation period, where:

4.1	there is no compliance with the requirements of Division 5A;
4.2	no application for an order permitting the bringing of such proceeding is made until after the expiry of the limitation period.

5.

The Respondent contends that:

5.1	because of the way in which s.57(2) is drafted, in light of the amendments affected to the legislation in 2000, there is no power for the Court to make an order in the circumstances of this case under s.57(2)(b);
5.2	alternatively, the power conferred by s.57(2)(b) should only be exercised where a Notice of Claim is delivered to a CTP insurer within six months prior to the expiry of the limitation period;
5.3	further, and alternatively, an application for an order pursuant to s.57(2)(b) should be made before the expiry of the limitation period.

6.

The reference to the “limitation period” in paragraph 5.3 hereof refers to both the ordinary limitation period, or, if applicable, the limitation period as extended pursuant to s.57 by a period of six months from the date of the giving of the complying Notice of Claim, but not otherwise.

7.

It is submitted that the only sensible construction to be applied to s.57(2) is that it should only operate where a complying Notice of Claim is given so late that the pre- litigation provisions of the MAIA could not be satisfied before the expiry of the limitation period.

8.

Thus, an insurer who accepts, or is deemed to accept a late Notice of Claim should be allowed the six month period provided for in s.41 and s.51A to consider the claim, and attempt to resolve it. If the claim cannot be resolved, then the Claimant should not be prevented from commencing proceedings by the expiry of the limitation period.

9.

Practically, this limits the operations of s.57(2) to cases where the Notice of Claim is given less than six months prior to the expiry of the limitation period.”

1. The appropriate course is to adopt the approach in the earlier decisions, and decline to accept those submissions.

2. Different orders have been suggested by counsel for each side. Subject to any further submissions, I would be inclined to make an order in the form put forward by counsel for the respondents – though there may be submissions about the appropriate order for costs. My provisional view is, that the respondents should not automatically receive the costs of this application, in which they were very likely to fail. Perhaps the solicitors should pay the costs?