Aon decision and UCPR 5, 242 & 467 – setting down of a trial date

Hemmings v Suncorp Metway Insurance Ltd [2010] QDC 305

CATCHWORDS:

PROCEDURE – DISTRICT COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – OTHER MATTERS – where the defendant filed an application to have a trial date set down without a request document – where the plaintiff’s claim was for damages for personal injuries from a motor vehicle accident on 16 February 2001 – where proceedings were commenced on 13 February 2004 – where the plaintiff’s solicitor signed a certificate of readiness for compulsory conference stating all investigative material required for trial had been obtained – where the plaintiff’s solicitor advised the defendant’s solicitor on 3 April 2009 that statements on the defendant’s behalf at the compulsory conference prompted further investigations – where as a result of those investigations the plaintiff’s solicitor was advised that documents were located at the Office of the State Coroner, the disclosure of which was believed to assist in determining liability – where disclosure of the documents was refused on public interest grounds – where the pleadings subsequently closed on 3 June 2010 – where following the closure of pleadings the plaintiff’s solicitor caused a notice of non party disclosure to be prepared and forwarded to the court – where the plaintiff opposed the defendant’s application because of the ongoing investigation – exercise of the court’s discretion as to whether to dispense with the request for trial date.

Issues

Liability was in issue. The defendant insurer in a CTP motor vehicle personal injuries accident (2001) made an application pursuant to UCPR 467 for a trial date to be set, without the request for trial date (form) being tendered on the basis of the plaintiff’s solicitor having signed a certificate for readiness for the conference some 16 months previously. The proceeding had been commenced on 13 February 2004, but not progressed. Following the conference it appears a line of enquiry was opened with respect to potential toxicology of the defendant’s insured driver who was deceased, which culminated in a request under the Right to Information Act (Qld) to the Coroner, which was refused. However, in the refusal the decision maker noted:

“One factor that favours disclosure is the public interest in insurance companies obtaining information to enable them to determine liability. If insurers were not able to determine liability of claims the cost of insurance premium would become prohibitive. I believe that the disclosure of some of the information held on this Coroner’s file will assist you in determining liability but not at the expense of the personal information privacy rights of the deceased.”

The plaintiff after pleadings closed on 3 June 2010 issued a Notice of Non-Party Disclosure pursuant to UCPR 242 to the Coroner, but at the time of the hearing it had not been responded to.

Against this background, there was significant period of significant delay by all parties (4 and three quarter years), without the defendant pressing it either; together with potential prejudice as one of the defendant’s witnesses, Sergeant Wednt was on sick leave pending investigations into a brain tumour and surgery.

In resolving the competing interests and UCPR 5, Irwin DCJ considered the principles of Aon Risk Services Australia Limited v ANU [2009] HCA 27; [2009] 83 ALJR 951 at length (pages 17 – 21 of the ex tempore judgment). It is a helpful application of the High Court decision.

Irwin DCJ

  • The line of inquiry was well known to the defendant and it was a matter which may be determinative of liability and should be allowed.
  • The plaintiff was entitled to wait until pleadings closed to issue the Notice of Non-Party Disclosure – Knight v Kulver and the Medical Superintendent, Pindara Hospital [2001] QCA 254, because ‘directly relevant’ to the pleadings included any Reply.
  • Furthermore, the plaintiff was not precluded from further investigations following the signing of a certificate of readiness in circumstances where a line of inquiry had been opened by the defendant. The plaintiff had adequately explained the delay and it was distinguishable from Aon.
  • As far as the police witnesses, his Honour was satisfied they could refresh their memory from statements made and the Sergeant Wednt was optimistic about the brain tumour.
  • In the end, his Honour did not dismiss the application, but adjourned it to allow the investigations identified to be completed in a timely manner in terms of UCPR 5.

 

Brisbane Barrister – David Cormack

Related Posts

Recent Comments

    Categories