Crawford v Forna & Anor [2016] QSC 309

Douglas J

The issue for his Honour was whether to grant the second defendant’s application for summary judgement. The plaintiff was involved in a motor vehicle accident on 9 December 2007 and completed a notice of accident claim form in early 2008. However, due to the slow progression of the claim, the plaintiff required and obtained by consent an order under s.57(2)(b) of the Motor Accident Insurance Act 1994.

After further delay, an order was granted on 16 September 2015 for the plaintiff to submit to medical re-examination and the plaintiff was given leave to commence proceedings within 60 days of either a compulsory conference being held, the date of agreement to dispense with the conference or an order by the court dispensing the compulsory conference.

Importantly, the order stated that if the conference was not held on or before 28 November 2015, it would be dispensed with and the plaintiff would have 60 days (by 28 January 2016) to commence her claim. No compulsory conference was held and a claim was not commenced by 28 January 2016.

Legislation

Section 51D of the Motor Accident Insurance Act 1994 (Qld) relevantly provides:

(4) The expiry of the time within which an action should be started under subsection (1), (2) or (3) does not prevent the claimant from starting the action but-

(a) the court may (unless the claimant establishes a reasonable excuse for the delay) order the claimant to pay, in any event, the insurer’s costs arising out of the delay; and

(b) the court may, on the insurer’s application, make an order fixing a time limit within which the action must be started.

(5) If the claimant fails to start an action in the court within a time limit fixed under subsection (4)(b), the claim is barred.

The second defendant submitted that the order fixed a limit pursuant to s 51D(4)(b). The plaintiff submitted that the order was pursuant to s 51A(5) which does not permit the fixing of a time within which the action must be started.

Consideration

Douglas J found:

[13] The issue then is whether the order should be construed as one fixing a time limit under s 51D(4)(b).  Section 51D(4)(b) is the only section in the Act appropriate for the fixing of such a time limit.  The question then is whether the order made was one that could be regarded as made under s 51D(4)(b) or whether it is more appropriate, for example, to characterise it as an order made under s 51A(5).

[15] In my view the power to make other orders under s 51A(5) does not mean that an order which, on its face, has the effect of fixing a time limit within which the action must be started should not be given the force which it otherwise deserves.  The order requiring the applicant to commence her proceedings within 60 days from 28 November 2015 can readily be characterised as one fixing a time limit within which the action must be started under 51D(4)(b).  It seems appropriate to me, therefore, to treat it as such an order which leads to the consequence that her claim is barred under s 51D(5).

[18] I have referred to the plaintiff’s history of delay and non-compliance with the provisions of the Act. Part of that was explicable by her later accidents and health problems but her failures to keep in touch with her solicitors, her delays in responding to what appear to be normal requests for medical re-examinations and her and her solicitors’ delays, particularly during the critical period between 28 November 2015 and 28 January 2016, were not adequately explained. I was asked not to visit her solicitors’ failings on her but the plaintiff herself would have had great difficulty in persuading me that she had made a “conscientious effort to comply” with the Act.  That was made more difficult by the absence of any sworn affidavit by her addressing those issues. If I had needed to I would have dismissed that application on the merits also.

The second defendant’s application for summary judgement was granted.

David Cormack – Brisbane Barrister & Mediator

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