Hooper v. Robinson & Ors [2002] QDC 80 (19 April 2002)

[2] According to the statement of claim on 6 October 1998 the plaintiff purchased a ticket to travel from Brisbane to Dubbo and then from Dubbo to Adelaide from the company operating the bus on which he was travelling at the time of the injury; he was unsure which of the second, third and fourth defendants was the company concerned, but the fifth defendant was the compulsory third party insurer of the bus on which he was travelling under a policy of insurance issued under the South Australian equivalent of the Motor Accident Insurance Act. The first, third and fifth defendants have admitted in the defence that the bus was owned and operated by the third defendant. The plaintiff alleged that his injury was caused by the negligence of the first defendant who was the driver of the bus at the time, or in the alternative, by the negligence or breach of contract or both of the company operating the bus. The particulars of negligence of the driver are concerned with the operation of the vehicle; the particulars of negligence of the bus operator relate to the design of the vehicle, and in particular the presence of a paper towel dispenser which had sharp edges capable of inflicting a laceration on a person who fell against them. It also alleged that the plaintiff's condition was exacerbated by the failure of the bus operator to provide a first aid kit on board.

[3] The first, third and fifth defendants filed on 11 January 2002 a document headed "Conditional Notice of Intention To Defend". However, the body of the document follows Form 6, the form for a Notice of Intention to Defend, rather than Form 7, the form for a Conditional Notice of Intention to Defend. In particular, it does not assert that the defendants dispute the jurisdiction of the court or set out any reason for doing so. Further, there is attached a defence, something which is not required in a case of a Conditional Notice of Intention to Defend unless and until it becomes unconditional under r.144(5). Accordingly, in my opinion, the document filed by the defendant was in substance a Notice of Intention to Defend, and the inclusion of the word "conditional" in the title should be disregarded.

[4] In the defence, the first, third and fifth defendants admit that the plaintiff was a passenger on the bus which was driven by the first defendant, and that the plaintiff purchased a ticket for travel on 6 October 1998, which was a contract between the plaintiff and the third defendant, that that contract contained the implied term alleged in para. 4 of the statement of claim, and that at about 9 a.m. on 11 October 1998 the bus was being driven between Cobar and Broken Hill in New South Wales. The defendants did not admit that the plaintiff was injured as alleged and deny that there was any negligence on the part of the first defendant or any negligence or breach of contract on the part of the third defendant. It appears however that there is no real dispute that the plaintiff did suffer an injury while he was on the bus, since it is alleged in para. 5 of the defence that "medical assistance was immediately provided to the plaintiff by the first defendant by way of application of a clean compress over the wound", and that subsequent arrangements were made to assist him, and that his injuries were aggravated and exacerbated by his own action in cutting skin from the laceration with a pair of scissors. It appears therefore that there will be no dispute at the trial that something happened to the plaintiff while he was on the bus that day.

[5] The New South Wales Motor Accidents Act 1988 provides in s.42:

"(1) It is a duty of a person who is entitled to make a claim to

ensure that a written report of the motor accident concerned is made

to a member of the police force (whether under the regulations made

under the Road Transport (Safety and Traffic Management) Act

1999 or otherwise) within 28 days after the date of the accident.

(3) If, because of injuries received in a motor accident, a person is unable to make a written report of the accident within the 28 day period, the written report may be made within 28 days after the date on which the person might reasonably be expected to have been able to make the written report.

(4) If a person commences proceedings in respect of a claim

without having complied with the duty under this section, the person must provide a full and satisfactory explanation to the court for the non-compliance.

(5) If the court is satisfied that sufficient cause existed to justify the

delay in making the written report and that a written report of the accident was made within such period as the court considers reasonable, having regard to the duty under this section, the court may allow the proceedings to continue."

[6] The section formally provided in subsection (2):

"Unless such a report is made (by any person) within 28 days after the date of the motor accident concerned, the claimant is not entitled to commence court proceedings in respect of the claim".

That subsection however was repealed prior to the accident in the present case. Clearly therefore failure to make the report is not a bar to commencing the action.

[7] It is also relevant to note the provision of s.40(2) which contains a definition of a full and satisfactory explanation, which is relevant to s.42(4):

"In this part, reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation. The explanation is not a satisfactory explanation unless a reasonable person in the position of a claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay."

[8] It is common ground that the accident was not reported to police in writing within 28 days after the date on which it occurred. The plaintiff did not assert that there was any inability to make a written report within that period so as to bring into operation s.42(3). Accordingly, on the face of it s.42(4) applies, so that there was an obligation on the plaintiff to provide to the court a full and satisfactory explanation for the non-compliance, and under s.42(5) it is a matter for the court to decide whether to allow the proceeding to continue. If the court decides not to, presumably the proceeding should be struck out. Accordingly, this section affects the enforceability of the plaintiff's rights.

[9] In purported compliance with that obligation, and in accordance with a requirement imposed by Part 24C of the District Court Rules (New South Wales) relating to the motor accident list, the plaintiff included in the statement of claim the date of the accident and the following:

"(b) The accident was not reported in compliance with s.42[1] of the Act. The plaintiff was a passenger on the bus at the time he sustained his injuries and immediately reported those injuries to the first defendant;

(c) A claim was made in respect to the accident on the fifth defendant on or about 9 July 1999. The claim was made more than six months after the relevant date of the claim under s.43 of the Act but within 12 months of the date of the accident. The bus involved in the accident was initially unidentified and the plaintiff claimed against the Nominal Defendant (NSW). The bus was subsequently identified and the plaintiff then gave notice to the fifth defendant;

(d) The plaintiff is entitled to commence proceedings as the fifth defendant denied all liability on 30 August 1999".

[10] The applicants submitted that the requirements of s.42 apply to the present case, as a consequence of the decision in Rogerson, and that there had been a failure to comply with s.42(1). Although the plaintiff had been injured as long ago as October 1998, and had sought legal advice some time in mid April 1999, no report was made to police until 23 January 2002, after the defendants' application was filed. It was submitted that a reasonable person would not have failed to comply as long as did the plaintiff, or that a reasonable person would not have been justified in experiencing the delay which the plaintiff had experienced, so that I could not be satisfied that the plaintiff had provided the full and satisfactory explanation for the non-compliance and therefore should not allow the proceeding to continue. In such a situation the appropriate course was to strike the proceeding out.

[11] The plaintiff made a number of submissions in response, which are summarised as follows:

(a) The filing of an unconditional Notice of Intention To Defend involved a waiver of any irregularity such as that which the defendants now assert: r.144(6).

(b) The requirements of s.42 were procedural rather than substantive, since they did not affect the existence, extent or enforceability of the rights and duties of the parties in the action, so that they do not apply notwithstanding the decision in Rogerson;

(c) The defendants had no standing to apply to strike out the plaintiff's claim; s.42 simply placed an obligation on the plaintiff to explain the delay in the course of the action.

(d) The plaintiff was able to provide a full and satisfactory explanation to the court for non-compliance.

[12] The jurisdiction of a court may be restricted or limited in various ways. The jurisdiction of the District Court of Queensland is limited in terms of the amount of money for which judgment may be given by s.68 of the District Court Act 1967. Its jurisdiction is also subject to territorial limitations arising both from the territorial limits of the legislative capacity of the Parliament of Queensland and the express terms of its constituent legislation. The former is concerned with limitations on the sort of claim which can be entertained, and the sort of relief which can be granted, by the court. The latter is concerned with limitations on the persons against whom a claim can be entertained. The latter limitation can always be waived; anyone can submit to the jurisdiction of a court if desired, but ordinarily the consent of the party the subject of the proceeding cannot give to a court jurisdiction to entertain a claim, or grant relief, of a kind which the court does not have jurisdiction to entertain or grant[2].

[13] All courts have some territorial restrictions on jurisdiction, but it is always open to a person sought to be made a party to proceedings before such a court to submit to the jurisdiction of the court. In a traditional system where jurisdiction was activated by the issue of a writ, that submission was effected by the defendant's appearing before the court in response to the writ. Originally that involved physical appearance, but more recently it was achieved by filing a written Entry of Appearance.

[14] The provisions for a Conditional Notice of Intention to Defend are concerned with providing a mechanism by which a defendant can dispute whether the court has jurisdiction to entertain a claim against that defendant. Although it is possible to use the mechanism to dispute the jurisdiction of the court to entertain the particular claim the subject of the proceeding, it is unnecessary to do so and it is sufficient to bring the matter to the attention of the court by any means which are effective for that purpose. A court of limited jurisdiction must always be astute to ensure that it has jurisdiction to entertain the matter before it, regardless of how the party proceeded against raises that question, or indeed whether that party does so.

[15] The present question however is not concerned with either subject matter jurisdiction or party jurisdiction; the defendants' contention is rather that this action cannot be pursued against them because a provision of the Act says that it cannot, and New South Wales law applies because the plaintiff's injury was suffered in New South Wales. That is not an issue which justifies the filing of a Conditional Notice of Intention to Defend; rather, it can be pleaded by way of defence, or the basis of an application for summary judgment under r.293, or, if the case is clear enough, the subject of an application to strike out the proceeding under r.171. In Young v. Keong [1998] QCA 100; [1999] 2 Qd.R. 335 it was held appropriate to strike out a proceeding commenced in Queensland where the requirements of s.37 of the Motor Accident Insurance Act 1994 had not been complied with, notwithstanding that they were regarded as procedural rather than substantive requirements.

[16] Accordingly, in my opinion the fact that the Notice of Intention to Defend was filed is not a bar to an application to strike out the proceeding for failure to comply with s.42 of the New South Wales Act, nor do the defendants lack standing to apply for the proceeding to be struck out on that ground. The issue can be as conveniently dealt with on that application as in any other way.

Does s.42 of the New South Wales Act apply to a Queensland action?

[17] The next question is whether s.42 applies if the action is brought in Queensland. The action in Young v. Keong was a Queensland one and it was held that the procedural provision of the Queensland Act applied to it, notwithstanding that the accident took place and the injury was suffered in New South Wales. Certainly provisions of this nature were ordinarily and traditionally regarded as procedural provisions.

[18] However, the decision in Rogerson changed not only the traditional choice of law rule, but also the boundary between procedural and substantive law, at least insofar as that was relevant to determining what law was to be applied to an action anywhere as part of the lex loci delicti. The High Court in the judgment of the majority at p.543-4 dealt, in a fairly general way, with the definition of substantive law for these purposes in the following terms:

"Matters that affect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance, not with issues of procedure. Or to adopt the formulation put forward by Mason CJ in McKain[3]: `Rules which are directed to governing or regulating the mode or conduct of court proceedings' are procedural and all other provisions or rules are to be classified as substantive. These principles may require further elucidation in subsequent decisions, but it should be noted that giving effect to them has significant consequences for the kinds of case in which the distinction between substance and procedure has previously been applied. First, the application of any limitation period, whether barring the remedy or extinguishing the right, would be taken to be a question of substance not procedure (which is the result arrived at by the statutes previously referred to). The application of any limitation period would, therefore, continue to be governed (as that legislation requires) by the lex loci delicti. Secondly, all questions about the kinds of damage, or amounts of damage that may be recovered, would likewise be treated as substantive issues governed by the lex loci delicti".

[19] The High Court there did not deal in terms with what might be called notice requirements, but it seems to me that it is difficult to characterise such provisions as rules which are directed to governing or regulating the mode or conduct of court proceedings. They are in effect rules which say that there will not be any court proceedings unless certain steps have been previously taken. Such provisions, it seems to me, are more readily characterised as matters that affect the existence, extent or enforceability of the rights or duties of the parties to an action. Such guidance as the High Court has provided in Rogerson seems to me to indicate that provisions such as s.42 of the New South Wales Act, or for that matter, provisions under s.39 of the Queensland Motor Accident Insurance Act, are to be regarded as substantive rather than procedural for the purposes of the application of the new choice of law rule laid down in that decision.

[20] I was referred to the decision of a judge of the compensation court of New South Wales in Gregson v. L & M R Dimasi Pty Ltd [2000] NSWCC 47, where reference was made to certain provisions of the Workplace Injury and Management and Workers' Compensation Act 1998 of New South Wales which were said to "preclude access to the court until after the lapse of a particular period and particular events." These provisions were described by that judge as "clearly procedural" on the basis that "they imposed prerequisites before any proceeding to enforce a right can be instituted, neither destroying the right or precluding the remedy". I have, with respect, some difficulty in coming to grips with the distinction between a provision which precludes access to the court until after a particular event, and a provision which precludes a remedy, and even more difficulty in reconciling such a distinction (if there be one) with the clear and straightforward distinction laid down by the High Court in Rogerson. On the whole I do not find the judgment in that case persuasive.

[21] I have not been referred by either counsel to any New South Wales decision on the question of whether s.42 is properly characterised as procedural or substantive when applying the characterisation laid down by the High Court in Rogerson. Such limited additional research as I have been able to undertake has not revealed any decision overlooked by them[4], although I would not regard my efforts as by any means excluding the possibility that there are such decisions, possibly lots of them, in existence. I have also not been able to find any Queensland decisions which have considered how the various provisions of the Motor Accident Insurance Act can be characterised for such purpose, which might well have been very helpful. I am guided therefore only by the benefit of such exposition as the High Court has provided, and in my opinion s.42 is now to be characterised as substantive, at least for the purposes of the rule in Rogerson, and therefore is applicable to the present litigation even though it is pending in a Queensland Court.

[22] It was then submitted on behalf of the plaintiff that, although the plaintiff had not complied with s.42(1), the plaintiff had provided a full and satisfactory explanation to the court and the court should exercise its power under subsection (5) to allow the proceedings to continue. The plaintiff was unaware of the requirements of the section until recently, and his solicitor was not aware of the terms of s.42 until shortly before the proceedings were commenced in October last year. The solicitor did not initially realise that the obligation to provide a notice was a continuing obligation, a position which is understandable in the light of the terms of s.42.

[23] After the application was filed a written report was forwarded to the Broken Hill Police Station. In response, a police officer at that station advised the plaintiff's solicitors that the report had been received, and that the police would not be taking any action as it was not a matter for police investigation. It did not involve a collision, and in the absence of an allegation that the bus driver had swerved deliberately, it was not a matter for police inquiry. That result is entirely unsurprising; given the nature of the incident the subject of the present action the report to the police would be at best a hollow formality. It could not possibly serve any useful purpose. It was certainly not a useful means of bringing the matter to the attention of the fifth defendant, something which had been done in a more useful way some time ago.

[24] The plaintiff's solicitors initially could not identify the relevant vehicle, and gave notice to the Nominal Defendant of New South Wales in April 1999. The New South Wales Motor Accidents Authority however ascertained that the fifth defendant was the compulsory insurer of all of the vehicles in the Greyhound Pioneer fleet, so that it was appropriate to address correspondence to that insurer. Whether or not that was the case, correspondence was subsequently addressed to the fifth defendant, and on 26 May 1999 (about 7½ months after the date of the accident) the insurer advised that it was attempting to obtain a report from the first defendant, and forwarded a Motor Accident Personal Injury claim form for completion by the plaintiff. Presumably that was completed and promptly returned.

[25] Further, the fifth defendant was able to obtain a statement from the first defendant on 13 September 1999, in the course of which he advised that he recalled an incident where one of the passengers suffered a laceration to his head, and was able to give some detail about it. He said that after the incident even before he arrived at Broken Hill, he advised Greyhound of it, and the matter was reported to the terminal manager at Broken Hill[5]. The interview also indicates that in May 1999 the first defendant received a fax from Greyhound Pioneer about the matter. It is therefore clear that the defendants were appraised of the plaintiff's intention to make the claim in the first half of 1999, and there cannot be any prejudice to the defendants because of the failure to notify the police within 28 days of the date of the accident, or indeed for a long time thereafter.

[26] I was referred to the decision of Master Greenwood of the Supreme Court of New South Wales in Sullivan v. Eremer (1991) 14 MVR 137, where he said at p.138:

"Section 42 of the Motor Accidents Act is one of a number of sections which deal with matters preliminary to court proceedings. The philosophy of the Act requires the claimant, the person against whom the claim is made and the third party insurer to look to settlement without the necessity of litigation. The scheme of the Act places an obligation on the claimant to inform the insurer and the person against whom the claim is made of all relevant details. The insurer is required by s.45 to deal with a claim as quickly as possible. To this end s.52 of the Act precludes a claimant from commencing court proceedings until six months after the claim has been made. A necessary part of this scheme is that the details of the accident be reported to the police as soon as possible and it is for this reason that s.42 is such an integral part of the pre-litigation procedures".

[27] Insofar as the purpose of the Act is to assist in the gathering of evidence which would be relevant to the defence of the defendants and the insurer, the report to the police would in the particular circumstances of this case not have been of assistance because the police were not likely to investigate the matter anyway. Insofar as the general philosophy of the Act facilitates pre-litigation settlement negotiations, that objective has been satisfied in the present case because there has been the opportunity for such negotiations, which presumably were terminated as a result of a denial of all liability by the fifth defendant on 30 August 1999, as alleged in the statement of claim. It is admitted that the notice of claim was served on the fifth defendant on 9 July 1999, but alleged that that notice had no application to the plaintiff's claim. I am not concerned with the resolution of any dispute on that point. There is no denial of the allegation that the fifth defendant denied all liability on 30 August 1999, so presumably that was true.

[28] The question of whether the plaintiff has provided a full and satisfactory explanation, in the light of s.40(2), requires reference to a full account of the conduct including the actions, knowledge and belief of the complainant from the date of the accident until the date of providing the explanation. I am satisfied that that has been done, particularly in the light of the allegation in the statement of claim and the affidavits of the plaintiff and his solicitor. The question of whether it is a satisfactory explanation depends on whether a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay. In my opinion, a reasonable person in the position of the complainant would not have notified the police unless and until advised by solicitors that it was necessary to do so for the purposes of complying with the provisions of the relevant statute, and the claimant behaved reasonably in not giving notice. I am satisfied therefore that a full and satisfactory explanation has been provided.

[29] I should say however that it is not at all clear from the terms of subsection (5) that the provision of a full and satisfactory explanation is a condition precedent to the exercise of the discretion in subsection (5) to allow the proceedings to continue. That subsection makes the discretion dependent upon the court's satisfaction of something different, namely that sufficient cause existed to justify the delay in making the written report, and that a written report of the accident was made within such period as the court considered reasonable having regard to the duty under the section. I am satisfied that sufficient cause existed to justify the delay in making the written report, in the light of the considerations to which I have referred. I am satisfied that the report was made within a reasonable period, given that I regard the report as an empty formality which simply had to be done in order to satisfy the requirement of the Act. Apart from that the report was a waste of time and no doubt would have been regarded as such by the New South Wales police. In such circumstances I do not think it matters when the report was made, and accordingly the period within which it was in fact made was a reasonable one.

[30] I am therefore satisfied that the discretion arises under subsection (5). Given the particular and unusual circumstances under which this injury came to be caused, I think that s.42 was of less than its usual significance in the general scheme of the Act, as explained by Master Greenwood, and that it is appropriate that the plaintiff's claim be allowed to proceed, notwithstanding that that section was not complied with. It was not suggested on behalf of the defendants that they suffered any prejudice as a result of the failure of the plaintiff to comply with s.42 in accordance with its terms, or at some earlier date than he did.

[31] Accordingly I will allow the proceedings to continue and the defendants' application is dismissed. In my opinion, costs should follow the event. I order the first, third and fifth defendants to pay the plaintiff's costs of and incidental to the application to be assessed.

[1] See reply filed 30 January 2002, para. 2.

[2] There is a limited statutory exception to this rule in s.72 of the District Court Act 1967.

[3] [1991] HCA 56; (1991) 174 CLR 1 at 26-27.

[4] I did find that in Janetzki v. Janetzki [2001] VSC 328 Beach J treated the notice requirements in s.43 of the Act as applying to an action in Victoria in respect of an injury suffered in an accident in New South Wales.

[5] The plaintiff also deposed to having submitted a written complaint to the third defendant on arrival at the bus station in Adelaide.