Horinack v Suncorp Metway Insurance Ltd [2000] QCA 441

[1] McPHERSON JA: For the reasons given by White J, I agree that the appeal should be allowed with costs and the cross-appeal dismissed with costs.

[2] I reach that conclusion with some regret. It is, I predict, only a matter of time before we are asked to consider whether the written notice contemplated in s 37 of the Act "contains" an explanatory statement if it is attached by a paper clip rather than by means of a staple. On such refined distinctions are the rights of injured persons now made to depend.

[3] Here, however, for reasons I cannot altogether fathom, the explanatory statement did not even accompany the notice.

[4] WHITE J: The appellant, Suncorp, appeals from a decision of a chamber judge giving leave to the respondent, Ms Horinack, to bring proceedings pursuant to s 39(5)(c) of the Motor Accident Insurance Act 1994 ("the Act"). The learned chamber judge dismissed Ms Horinack's application for declarations that her notice of claim was compliant with the requirements of s 37 of the Act or, alternatively, that she had remedied any non-compliance and she has cross-appealed from those orders. Ms Horinack sustained personal injury on 31 January 1996 when the stationary car in which she was travelling as a passenger was struck from behind by a motor vehicle whose driver had compulsory third party insurance cover with Suncorp. The collision occurred on the Pacific Highway at Currumbin. Ms Horinack was and is a resident of Victoria.

[5] The Act requires that before bringing an action in a court for damages for personal injury arising out of a motor vehicle accident a claimant must give written notice of the claim to the insurer against which the action is to be brought within nine months after the motor vehicle accident occurred, s 37(2). If notice of a claim is not given within that period, the obligation to give the notice continues and the notice, when given, must contain an explanation of the delay. Ms Horinack's Melbourne solicitors retained Brisbane solicitors towards the end of 1998 who advised on the requirements of the Act. By letter dated 24 December 1998 the Brisbane solicitors notified Suncorp of the accident and Ms Horinack's intention to claim damages as required by s 34(1)(b) of the Act.

[6] On 4 January 1999 the Brisbane solicitors sent Suncorp by facsimile transmission a notice of claim completed by Ms Horinack and sworn by her on 23 December 1998 in purported compliance with s 37(1) of the Act. The information in the notice of claim was on a proforma which the limited evidence adduced below would suggest was a form approved by the Motor Accident Insurance Commissioner of Queensland in accordance with s 10(3) of the Motor Accident Insurance Regulation 1994 ("the Regulation"). The form does not contain a section devoted to providing an explanation for delay in giving notice of the claim although it does allow for extra pages to be attached. Ms Horinack's notice of the claim itself contained no explanation for the delay. Instead the Brisbane solicitors wrote in the covering letter

"By way of explanation of the delay we are instructed that:-

1. Ms Horinack was unaware of the time constraint; and

2. She was receiving treatment through the Transport Accident Commission, when that ceased she found it emotionally difficult to deal with the issue of litigation until encouraged to do so by relatives and friends.

As a matter of urgency we are seeking an Affidavit clarifying the reasons for the delay."

The notice of claim was received by Suncorp on 6 January 1999, however no affidavit as referred to in the letter was received until the hearing of the application on 30 June 1999 and although it contained no explanation it made reference to Ms Horinack's statutory declaration of 11 June 1999 which did contain such an explanation.

[7] By letter dated 27 January 1999 the Brisbane solicitors wrote to Suncorp setting out, inter alia, an explanation for Ms Horinack's delay in giving the notice of claim. Suncorp contends that it did not receive that letter until provided with a file copy in June 1999. Whether it did or not is irrelevant for the resolution of this appeal. It was, however, clear from a telephone conversation between the Brisbane solicitors and a Suncorp officer on 2 February 1999 after the solicitors had received a letter from Suncorp that Suncorp had not then received the letter dated 27 January 1999. In its letter Suncorp noted that it had received the s 37 notice of claim and informed the Brisbane solicitors that Ms Horinack had not complied with the requirements of s 37 because she had not provided an explanation for the delay as required by s 37(4). Suncorp sought an explanation sworn to by Ms Horinack.

[8] The period of limitation of three years provided for in the Limitation of Actions Act 1974 in respect of Ms Horinack's personal injury claim expired on 30 January 1999. If her notice of claim complied with the requirements of s 37 of the Act then the limitation period applicable to her claim, by virtue of s 57(1) and (2) of the Act was extended to 4 (or 6) July 1999.

[9] Suncorp continued to maintain that the notice of claim was non-compliant with s 37 because Ms Horinack had not provided a sworn explanation for her delay. The Brisbane solicitors sent Suncorp a statutory declaration from Ms Horinack containing an explanation for the delay on 21 June 1999. On 24 June an application was filed on her behalf seeking declarations pursuant to s 39(5)(b)(i) and (ii) of the Act that her notice of claim had been given as required or that she was to be taken to have remedied non-compliance or for leave to bring proceedings despite non-compliance pursuant to s 39(5)(c).

[10] A writ claiming damages for the injuries which she sustained in the motor vehicle accident on 30 January 1996 was issued on behalf of Ms Horinack on 30 June 1999. The application came on for hearing on the same day.

[11] Three issues of construction arise for consideration on this appeal:

* must an explanation for the delay be "contained" in the notice of claim;

* must the explanation for the delay be sworn by the claimant; and

* the scope of s 39(5).

[12] Section 37 provides relevantly,

"(1) Before bringing an action in a court for damages for personal injury arising out of a motor vehicle accident, a claimant must give written notice of the claim to the insurer ...

(a) containing a statement, sworn by the claimant, of the information required by regulation; and

(b) containing an offer of settlement, or a sworn statement of the reasons why an offer of settlement cannot be made; and

(c) accompanied by the documents required by regulation.

(4) If the notice is not given within the time fixed by this section, the obligation to give the notice continues and the notice, when given, must contain an explanation of the delay ..."

The notice referred to in subs (4) is a reference back to the notice of claim in subs (1) although the information required to be in a notice given under s 37 as specified in s 10(1) of the Regulation does not include an explanation of the delay. Nonetheless the language of the subsection is clear. The notice which must be given by the claimant must "contain" an explanation for the delay. The Chief Justice in Brannigan v Nominal Defendant [1999] QCA 347; [2000] 2 Qd R 116 said of this provision at 119

"Whatever the result of omitting arguably less consequential information required by regulation (s 37(1)(a)), a matter on which we were addressed, the circumstances that the section itself specifically - and in mandatory terms - requires that the explanation be included in the notice, and the potential relevance to the promotion of the objects of the Act of requiring such an explanation, strongly suggest that a notice purportedly given under s 37(4) which does not contain the necessary explanation should be regarded as insufficient for the purposes of the sub-section."

McPherson JA queried whether the subsection is to be read as literally as the language might suggest, posing a situation where the explanation accompanies the notice rather than being contained in it, at 122. Against that possibility is the circumstance that the draftsman has made provision for certain documents to accompany the notice of claim in s 37(1)(c). The relevant ordinary meaning of "contain" is "to have or hold within itself; comprise, include": Concise Oxford Dictionary. A notice of claim which does not include within it an explanation for the delay if it is made after nine months from the date of the motor vehicle accident is, in my view, insufficient for the purposes of s 37(4).

[13] It is not to the point to suggest that the form does not expressly provide for an explanation to be given. The obligation to do so is found in the Act. It may be argued that this is an unduly exact construction of what is essentially beneficial legislation. Some of the objects of the Act are referred to in the judgments in Brannigan. Amongst its purposes is to improve the previous regime in respect of claims for personal injury arising out of motor vehicle accidents by early rehabilitation opportunities for which the 9 months notification period was instituted, and to provide procedures designed to bring about the speedy resolution of claims, avoiding wherever possible the institution of legal proceedings to enforce those claims, vol 328 Queensland Parliamentary Debates pp 6902-3.

[14] The Act imposes stringent obligations on the insurer to respond to a notice of claim purportedly given pursuant to s 37. Within one month of receipt of the notice (even if out of time) the insurer must notify the claimant if the insurer is satisfied that the notice is in conformity with the section or, if not, waiving compliance, or giving a claimant at least a month to remedy non-compliance, s 39. Therefore, if an appropriate explanation for the delay was given in a separate document, such as an affidavit, but delivered together with or even a few days or so later than the notice of claim it is most likely that the insurer would waive any perceived non-compliance. The tenor of s 39(1)(a) and (b) is that some information required by s 37 in the notice of claim may be omitted or may be, so far as the insurer contends, insufficient, but may, subsequently, be provided . If the insurer continues to insist that there has been non-compliance, the claimant is not without remedy. The claimant may make an application to the court for declarations of the kind sought by Ms Horinack.

[15] Turning to the further question, whether the Act requires the explanation to be sworn by the complainant, there are a number of inconsistencies between the requirements of the Act and of the Regulation as to what is required to be sworn in the notice of claim. Section 37(1) requires that the written notice of claim must contain a statement "sworn by the claimant of the information required by regulation". The information required by the relevant regulation, s 10(1), does not include an explanation for the delay if the claim is made more than nine months after the motor vehicle accident. Section 37(1)(b) requires that the notice of claim contain "an offer of settlement, or a sworn statement of the reasons why an offer of settlement cannot yet be made". Section 10(2) of the Regulation repeats this obligation but neglects to provide that this statement of reasons as to why an offer cannot yet be made must be sworn. This is of no moment for two reasons - the obligation is in the Act and s 10(3) of the Regulation provides

"... and the statements of fact contained in the notice must be sworn by the claimant."

[16] There is, therefore, no express requirement in the Act that the explanation be sworn by the claimant but it must be so by implication. The claimant must give written notice of the claim and the notice must contain an explanation of the delay. Section 4 defines "claimant" to mean "a person by whom, or on whose behalf, a claim is made". Mr DB Fraser QC, for Ms Horinack, submitted that the explanation could be given by an agent, in this case the solicitors. The solicitors did not make the claim "on behalf of" Ms Horinack as would an attorney acting under a power of attorney or a guardian or administrator. Ms Horinack made the claim on her own behalf. The scheme of division 3 of the Act suggests that the legislature requires a claimant personally to make the claim. If a claimant is unable to do so because of disability or absence, provided the person making the claim can establish an entitlement to act for the injured person, that is sufficient. If not the matter may be put before the insurer who may or may not waive compliance. If not, an application to court may be made. The Act does not fall to be interpreted by reference to difficult cases, particularly here where they can be accommodated. Section 37(4) incorporates the explanation into the notice. Section 10(3) of the Regulation requires the statements of fact in the notice of claim to be sworn by the claimant. This clear direction can assist in the construction of s 37. The Act was assented to on 7 March 1994 when ss 1 and 2 commenced. The remaining provisions commenced on 1 September 1994 (1994 SL No 175). The Regulation was made by the Governor-in-Council on 11 August 1994. Sections 1 and 2 commenced on 12 August 1994 and the remaining provisions commenced on 1 September 1994, that is, the same date as the Act. They clearly constitute together an entire regime. Section 10(3) of the Regulation is confirmatory of what is implicit in s 37(1) and (4), that the explanation must be given by the claimant herself and that it be sworn, Hales v Bolton Leathers Ltd [1951] AC 531 per Lord Normand at 544, followed by Lord Fraser in Jackson v Hall [1980] 2 WLR 118 at 129. See also Sachs J in at 27.

[17] The final matter concerns the ambit of s 39(5)(c). The learned chamber judge considered that he could give leave to bring proceedings pursuant to that provision because he had a wide discretion, that no prejudice was discernible and it was fair and just to do so.

[18] Contrary to the submissions advanced on behalf of Ms Horinack an application for leave to bring proceedings must be brought within the ordinary limitation period. That this is so is clear from s 57 of the Act. It provides

"(1) If notice of a motor vehicle accident claim is given under division 3 (Claims procedures), or an application for leave to bring a proceeding based on a motor vehicle accident claim is made under division 3, before the end of the period of limitation applying to the claim, the claimant may bring a proceeding in court based on the claim even though the period of limitation has ended.

(2) However, the proceeding may only be brought after the end of the period of limitation if it is brought within 6 months of the day on which the notice is given or leave to bring the proceeding is granted."

[19] This means that a claimant may bring a legal proceeding based on a motor vehicle accident of the kind covered by the Act in one of two circumstances

* if a notice of claim has been given under the claims procedure in division 3 (and this must be a reference to a complying claim), or

* an application for leave to bring the legal proceeding based on such a claim is made (which must be a reference to an application made pursuant to s 39(5)(c)).

There is a third process whereby a legal proceeding may be commenced which is, strictly, encompassed in the first. That occurs when a court declares that a complying notice of claim has been given, s 39(5)(b)(i) or that a claimant is taken to have remedied non-compliance, s 39(5)(b)(ii). The notice then becomes a notice of claim for the purpose of division 3 and the insurer is deemed to have received notice when the declaration is made, s 41(3)(b). The scheme of division 3 envisages that an insurer is to have six months from the receipt of the notice of claim to make necessary investigations, decide if liability will be admitted and to make an offer (or counter-offer) of settlement, s 41. This six months provision is reflected in s 39(5)(a)(i) which permits a claimant to bring proceedings in a court only when six months have elapsed after the claimant has given notice of the claim or the insurer has waived compliance with the notice requirements. That six month period is further reflected in s 57(2) which extends the limitation period by six months when an application for leave to bring a proceeding is made within the period of limitation.

[20] It follows that s 39(5)(c) does not confer a general discretion on a court to give leave to bring a proceeding in a court despite non-compliance, if the application to do so is brought outside the period of limitation. There is, therefore, no basis as a matter of construction for making such an order nunc pro tunc and it follows that the statement in McKelvie v Page [1999] 2 Qd R 259 that leave can be granted nunc pro tunc cannot stand.

[21] Finally, there was misunderstanding below when his Honour reserved his decision and indicated that judgment would not be delivered immediately and counsel for Suncorp indicated that no point would be taken if that occurred after 4 (or 6) July 1999. It does not advance the matter to rehearse the apparent misunderstanding. It does not affect the outcome. Suffice it to comment that s 57(2) extends the period of limitation by six months if there is a conforming notice of claim, but the legal proceeding must be commenced within that six months. If his Honour had found that there was a conforming notice of claim then the concession must have been that Suncorp would take no issue that the legal proceeding would be commenced after the expiration of that six month period. His Honour, correctly, did not find that the notice of claim was sufficient. The "concession" therefore had no operation.

[22] It also follows that the writ issued on 30 June 1999 is a nullity.

[23] The appeal should be allowed and the cross-appeal dismissed with costs.

[24] JONES J: I have had the advantage of reading the reasons prepared by White J. I agree with those reasons and with the orders she proposes.