Dispensing with compulsory conference and mandatory offers

McAlister v Nominal Defendant [2010] QDC 36

Pursuant to section 57(2)(b) of the Motor Accident Insurance Act 1994 (“the Act”) the applicant sought to commence proceedings within 60 days of one of three nominated events occurring, one of which being the holding of a conference pursuant to ss 51A and 51B of the Act and the exchange of final mandatory final offers in accordance with s 51C.

The circumstances of the motor vehicle claim were complicated by criminal charges being commenced after some considerable time against the alleged driver. The Nominal Defendant made various submissions reflecting the criminal charges and trial, in essence, for these matters to be first dealt with and hence for orders to stay certain steps in the civil litigation, including making of UCPR offers. The criminal charges were further complicated by the accused being in prison in NSW on unrelated matters.

Firstly, his Honour McGill considered jurisdiction as the amount of the claim was not readily apparent. After adjourning the application and receiving further affidavit evidence as to quantum his Honour was satisfied the jurisdiction of the District Court was appropriate.

His Honour noted the practice of insurers relying on police investigations, which were not available to them in this case because of the listed criminal trial. The accused had also refused to speak to their loss adjusters, which added weight to the utility of any conference being dispensed with.

However, given the uncertainty about the criminal matter his Honour was not prepared to intervene further than dispensing with the pre proceedings conference and offers:

[17] It seems to be common ground that there should be a proceeding commenced, and that it should be able to proceed, at least to some extent. That should be allowed. However, I think it would be undesirable for me to seek to exercise detailed control stretching into the future in relation to that matter. I think the appropriate course is to say that all I am actually determining at the moment is that the action should be commenced, the pleadings should proceed and disclosure should take place, and if there are other relevant interlocutory steps they should be completed. I suspect that at that point it would be desirable for the action to be left until the criminal proceeding is concluded, so long as that process is not unreasonably delayed. However, I do not think that I should attempt to formulate just when that point will occur, or attempt to stay the proceeding now at that point; any such decision should be made by a court once the point has been reached where it is appropriate to stay the proceeding, if that point is reached.

[18] In the same way, I do not think it is necessary or appropriate for me to make an order that there definitely be a conference under r 553. If a situation arises where there is a real dispute between the parties as to whether such a conference should be held, an application can be made and that can be resolved. At the moment, it seems to me that it would be sensible to have such a conference at an appropriate time, but that is really all I could say at the moment and it would not be of assistance to the parties for me to attempt to formulate an order or direction giving effect to such a vague proposition.

[19] With regard to the request that I give a direction preventing offers from being made, I am not persuaded that that course is appropriate. Certainly the respondent at the present time does not have the advantage of further information on the police brief, or other information which may emerge in the course of the criminal trial, but if it comes to that neither does the applicant. In terms of making offers, both parties are in the dark, but I am not persuaded that that is a good reason why offers should not be made under the rules. If it emerges that the ordinary regime under the rules should not be followed in this matter because of considerations of this nature, any decision of that kind should be left until it becomes necessary to decide the point, that is, until the point is reached where there is a relevant offer and it is submitted that some other order as to costs is appropriate. I consider a decision affecting that question now on my part would be premature.

[20] In the same way, I do not think I should give a direction now as to whether or not it is appropriate for a request for trial date to be signed at any particular point of time in the future. That I think should be left to the common sense of the parties; if that breaks down, one party or the other can make the appropriate application to the court and the court will then decide what is appropriate at that time in the light of the situation as it exists then. That is a better way to decide things than for me to attempt to determine now what the situation will be at some time in the future, and what the response ought to be in that situation.

[21] In all the circumstances, it seems to me overall that the appropriate course is to dispense with the compulsory conference and the exchange of mandatory final offers. That will allow the applicant to commence a proceeding before the expiration of the limitation period. However, I do not think that I should make any further orders or directions in relation to that proceeding; my expectation is that it will proceed at least for some months, and hopefully there will be no further disputes between the parties as to what is the appropriate course to follow. If such dispute arises, it can be decided in the light of the situation that has developed at that point.

Brisbane Barrister – David Cormack

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