The Plaintiff tendered a Request for Trial Date (RFTD) which the Defendants refused to sign. The Plaintiff filed an application to dispense with the RFTD and the Defendants filed a cross-application for the Plaintiff to submit to an examination of an occupational therapist pursuant to ss 46A and 50 of the Motor Accident Insurance Act 1994 (MAIA).
The issue to be resolved was whether it was reasonable for the Plaintiff to be required to undergo the examination. The Plaintiff submitted he could not attend the specialist within a timely manner and the delay arose from the Defendants conduct in failing to require an assessment earlier .
Burns J noted that it is a matter for the insurer to satisfy the court the examination is neither unreasonable nor unduly repetitious – Behrens v Nguyen  QSC 14, -. His Honour relied on the implied undertaking in r.5 of the UCPR and noted it had not been met by the Defendants because of the delay.
His Honour found the Plaintiff had not been “unreasonable” and hence the discretion under s.50(1) of the MAIA did not arise because there had not been “default” within the meaning of s.46A(3).
The Defendants application was dismissed and the RFTD dispensed with.
Brisbane Barrister and Mediator