Moga & Ors v. Australian Associated Motor Insurers Limited & Anor ; Moga v Australian Associated Motor Insurers [2008] QCA 79

SUPREME COURT OF QUEENSLAND

CITATION: Moga & Ors v Australian Associated Motor Insurers Limited & Anor ; Moga v Australian Associated Motor Insurers Limited [2008] QCA 79

PARTIES: TUAMAALO MOGA (first plaintiff/ first respondent) TUAMAALO MOGA as Litigation Guardian for LAAULI KEVIN MOGA (second plaintiff/ not a party to the appeal) TUAMAALO MOGA as Litigation Guardian for TAUTAU ALMA MOGA (third plaintiff/ not a party to the appeal) TUAMAALO MOGA as Litigation Guardian for AITA SELINA MOGA (fourth plaintiff/ not a party to the appeal) TUAMAALO MOGA as Litigation Guardian for MALELEGA LETHE MOGA (fifth plaintiff/ not a party to the appeal) FALESALAFAI MOGA (sixth plaintiff/ second respondent) FALEFIA MOGA (seventh plaintiff/ third respondent) v AUSTRALIAN ASSOCIATED MOTOR INSURERS LIMITED (ACN 004 791 744) (first defendant/ first appellant) SUNCORP METWAY INSURANCE LIMITED (ACN 075 695 966) (second defendant/ second appellant) / TAISESEGI MOGA (plaintiff/ respondent) v AUSTRALIAN ASSOCIATED MOTOR INSURERS LIMITED (ACN 004 791 744) (defendant/ appellant)

FILE NO/S: Appeal No 7678 of 2007 / Appeal No 7677 of 2007 / SC No 4601 of 2006 / SC No 4606 of 2006

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 4 April 2008

DELIVERED AT: Brisbane

HEARING DATE: 25 February 2008

JUDGES: McMurdo P, Atkinson and Mullins JJ / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: Appeals each dismissed with costs

CATCHWORDS: INFERIOR COURTS – QUEENSLAND – MAGISTRATES COURTS – JURISDICTION – where parties involved in a personal injuries matter obtained Magistrates Court consent order to dispense with the compulsory conference and making of final offers required by the Motor Accident Insurance Act 1994 (Qld) – where ‘court’ in relation to a claim under Motor Accident Insurance Act 1994 (Qld) is defined in s 4 as being the court with jurisdiction to hear the claim, as the proceeding had not been brought – whether the Magistrates Court has jurisdiction to order that a proceeding be started in the Supreme Court – whether the Magistrates Court has jurisdiction to dispense with pre-litigation requirements of an Act when the claim for personal injury exceeded the jurisdictional limit of the Magistrates Court – whether court order dispensing with the requirements of s 51A and 51C of the Motor Accident Insurance Act 1994 (Qld) was of no effect / JUDGMENTS AND ORDERS – IN GENERAL – WHAT IS A JUDGMENT OR ORDER – where parties involved in a personal injuries matter obtained Magistrates Court consent order to dispense with the compulsory conference and making of final offers required by the Motor Accident Insurance Act 1994 (Qld) – where orders were interlocutory and discretionary – whether a consent order in the Magistrates Court operated as a binding contract – whether there was a contract made by the parties embodied in the consent order or whether there was an agreement to submit to the order of the court / LIMITATIONS OF ACTIONS – CONTRACTS TORTS AND PERSONAL ACTIONS – APPLICATION OF THE STATUTES TO PARTICULAR CAUSES OF ACTION – MOTOR VEHICLE INSURANCE – where proceedings for a personal injury matter commenced within the limitation period were struck out in the Supreme Court because there was no order of the court having jurisdiction – whether claimants under Motor Accident Insurance Act 1994 (Qld) may commence proceedings outside the limitation period / District Court of Queensland Act 1967 (Qld), s 85 / Motor Accident Insurance Act 1994 (Qld), s 3, s 4, s 51A, s 51B, s 51C, s 51D, s 57 / Magistrates Courts Act 1921 (Qld), s 4, s 4A, s 5, s 5A / WorkCover Queensland Act 1996 (Qld), Schedule 3 / Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1, cited / Ernst & Young v Butte Mining [1996] 2 All ER 623, cited / Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593, cited / General Credits Limited v Ebsworth [1986] 2 Qd R 162, cited / Gower v Woodman Sales Pty Ltd [1988] 2 Qd R 15, cited / Hamling v Australia Meat Holdings P/L [2005] QCA 415, applied / Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27, cited / Morrison-Gardiner v Car Choice P/L & Anor [2004] QCA 480, cited / Paino v Hofbauer (1988) 13 NSWLR 193, cited / Rockett & Anor v the Proprietors of “The Sands” BUP 82 [2001] QCA 99, cited / Siebe Gorman Ltd v Pneupac Ltd [1982] 1 WLR 185, cited / Spencer v Nominal Defendant [2007] QCA 254, considered / Winters v Doyle & Anor [2006] QCA 110, cited

COUNSEL: R B Dixon for the appellants / J W Lee for the respondents

SOLICITORS: Dillons Solicitors for the appellants / Wlodarczyk & Co for the respondents

McMURDO P: I agree with Atkinson J that each appeal should be dismissed with costs. The relevant facts, issues and statutory provisions are set out by her Honour so that my reasons can be more briefly stated than otherwise.

The appeals are from orders of a Supreme Court judge dispensing with pre-litigation requirements of the Motor Accident Insurance Act 1994 (Qld) ("the MAIA") and extending the time under s 57(2)(b) of the MAIA for the respondents to bring an action for damages after the expiry of the limitation period.

The appellant contends that the parties' consent order taken out in the Ipswich Magistrates Court on 22 May 2006 operated as a contract between them. This had the effect that either s 57(2)(b) of the MAIA had no operation or required the discretion under s 57(2)(b) to be exercised by refusing the respondents' application. Those contentions are based on observations of this Court in Spencer v Nominal Defendant¹ which was decided a few days after the orders the subject of these appeals were made.

In Spencer this Court refused leave to appeal from a District Court judge's order refusing an application under s 57(2)(b) to extend time to bring proceedings after the expiry of the limitation period. On 14 July 2006 Mr Spencer and the Nominal Defendant had consented to an order made by a District Court registrar dispensing with statutory pre-litigation requirements under the MAIA and providing that Mr Spencer's action for damages be commenced not later than 14 July 2006. His action was not commenced until 5 October 2006 because of an oversight by his lawyers. The District Court judge observed that the delay was not occasioned by the requirements of the MAIA, and, despite the absence of prejudice to the Nominal Defendant, determined it was inappropriate to make an order under s 57(2)(b) in favour of Mr Spencer. Mr Spencer applied to this Court for leave to appeal. Keane JA (with whom the other members of the Court agreed) observed that the order of 14 July 2006 operated both as a consent order and a contract between the parties. When considering the issue of prejudice to the Nominal Defendant, Keane JA said that the making of an order under s 57(2)(b) would defeat the Nominal Defendant's rights under the consent order when there was no other basis for setting aside that bargain.² Keane JA concluded that it was therefore unsurprising that the District Court judge found that no good reason had been shown to exercise the discretion conferred by s 57(2)(b) in favour of Mr Spencer.³ Accordingly this Court refused leave to appeal.

The consent order of the Ipswich Magistrates Court on 22 May 2006 at the centre of the present appeals is set out in full by Atkinson J.⁴ Of particular relevance are the following portions:

"3.An action for damages be started by the Applicants in respect of the claim by no later than 4th June, 2006 pursuant to subsections 51D(3) and 51D(4)(b) of the MAIA ("the action").

4.The orders in paragraphs 1 and 2 of this Order [dispensing with pre-litigation requirements of the MAIA] are made on conditions … subject to any dispensation or relaxation from the same which may be subsequently granted by a Court :-

…"

The present case can and should be distinguished from Spencer. The first pertinent distinction is that, unlike in Spencer, the present respondents purported to commence their actions by the date agreed in the consent order.

The second pertinent distinction is that in Spencer the consent order was made in the District Court, the court where Mr Spencer's subsequent action for damages was also purportedly commenced and where Mr Spencer's application under s 57(2)(b) was made. By contrast, in the present appeals, the consent order was made in the Magistrates Court but the action for damages was purportedly commenced in and the application under s 57(2)(b) made to the Supreme Court.

A consent order made in the Magistrates Court, like that at the centre of the present appeals, has no effect in respect of an action for damages purportedly commenced in the Supreme Court: Hamling v Australia Meat Holdings P/L.⁵ It follows that in attempting to commence their actions in the Supreme Court, the respondents could not rely on the consent order in the Magistrates Court of 22 May 2006 to dispense with their pre-litigation obligations under the MAIA. This had the result that they had not complied with those obligations and were not entitled to commence their actions in the Supreme Court on 2 June 2006. The primary judge was therefore entitled to strike out their claims filed in the Supreme Court on 2 June 2006: cf Hamling at [40]. Neither party contends to the contrary.

The position in Spencer was quite different. There, the consent order dispensing with the pre-litigation requirements of the MAIA and requiring that Mr Spencer's action for damages commence by 14 July 2006 had been made in the District Court. Mr Spencer did not commence his proceedings as agreed by 14 July 2006. He purported to commence them in the District Court almost three months later on 5 October 2006, after the expiry of the limitation period. He explained the delay as being because of his lawyer's oversight. The primary judge in the District Court exercised his discretion under s 57(2)(b) to refuse Mr Spencer's application. As this Court observed in refusing Mr Spencer's application for leave to appeal from that decision, had Mr Spencer's application under s 57(2)(b) been granted, the Nominal Defendant would have been prejudiced by losing the benefit of the consent order's requirement that the action be commenced by 14 July 2006.⁶

Had the parties to the present appeals reached an agreement to limit their claim to the $50,000 Magistrates Court jurisdictional limit,⁷ the appellant's contentions may well have had substance. But that is not the position. It was common ground that the parties did not agree that the concessions made by the appellant in paragraphs 1 and 2 of the consent order of 22 May 2006 were in return for the respondents consenting to limit their actions for damages to the jurisdictional limit of the Magistrates Court. An affidavit filed by the respondents' lawyer at the relevant time explained that he filed the consent order in the Magistrates Court because he believed this was the most cost-effective method of pursuing his clients' actions.

The concessions made by the appellant in paragraphs 1 and 2 of the order of 22 May 2006 were, under paragraph 4, "subject to any dispensation or relaxation from the same which may be subsequently granted by a Court". The consent order clearly enough contemplated that a court other than the Magistrates Court may subsequently make orders, perhaps like the one the subject of these appeals.

Even accepting the appellant's contention that Spencer has the effect that the order of 22 May 2006 operated as both a consent order and a contract between the parties, the terms of such an agreement are questions of fact to be determined in each case. Nothing in the consent order of 22 May 2006 or the agreement it evidenced prevented the respondents from applying to a Supreme Court judge under s 57(2)(b) and if successful commencing their actions in the Supreme Court. Neither the order nor the agreement leading to it required the primary judge to refuse the application made under s 57(2)(b).

I am also unpersuaded that the learned primary judge in any way erred in the exercise of her discretion under s 57(2)(b) to grant the respondents' application to extend the time within which their actions could be commenced, even though the limitation period had by then expired. The appellant could point to no prejudice resulting from the grant of the application. Unlike in Spencer, the respondents attempted to commence their actions by 4 June 2006 as agreed by the parties in the consent order of 22 May 2006. As Atkinson J points out, had the respondents commenced their actions by 4 June 2006 in the Magistrates Court as they were entitled to do under the consent order of 22 May 2006, they could have applied to transfer their proceedings to the Supreme Court. The learned primary judge rightly identified that the appellant would not suffer any prejudice from the making of the orders under s 57(2)(b) and that the relevant considerations favoured the exercise of the discretion under s 57(2)(b) by granting the respondents' application.

It follows that the appeals should be dismissed with costs.

ATKINSON J: The appellant, Australian Associated Motor Insurers Limited, sought to have set aside orders made by a judge of the Supreme Court sitting in the applications jurisdiction extending the time for the respondents to bring an action for damages, fixing a time within which the action for damages should be started and dispensing with the requirements to hold a compulsory conference and to exchange final offers, and other consequential orders. All of the orders were made pursuant to the Motor Accident Insurance Act 1994 (“the MAIA”). Orders in similar terms were made in proceedings which had been consolidated. It is not suggested that there is any difference in principle between the proceedings.

In order to understand whether those orders ought to have been made and the grounds on which it is now sought to impugn them, it is necessary to consider the background to this litigation.

Pita Moga was killed in a motor vehicle accident which occurred on 4 June 2003. Tuamaalo Moga, his widow, and three of their infant children were injured in the same accident. In the ordinary course, the limitation period for bringing an action for damages for personal injury or dependency based on that accident would expire on 4 June 2006. In fact in this case, except with regard to the infant children, it was 5 June 2006, the first business day following the day on which it would otherwise expire.

Tuamaalo Moga is the first plaintiff in proceeding BS4601 of 2006 and the first respondent to the appeal. Their six children are the second to seventh plaintiffs in BS4601 of 2006. Ms Moga is the litigation guardian for those of the children who are still minors. The sixth and seventh plaintiffs are now adults and are the second and third respondents to the appeal. The plaintiff in the second proceeding, BS4606 of 2006, who was the deceased’s brother, is also his adopted child.

All of the plaintiffs claim damages for loss of dependency and nervous shock arising out of their hearing of the death of the deceased and some also seek damages, as I have mentioned, for personal injury.

The plaintiffs obtained legal representation and it appears that there was considerable correspondence about the claims between the plaintiffs’ legal representatives and the legal representatives of the appellant who is the insurer under the MAIA. However, a number of requirements of the MAIA before legal proceedings may be commenced had not been complied with.

Requirements of the Motor Accident Insurance Act 1993

One of the objects of the MAIA is “to encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents” (s 3(c)). In order to give effect to that purpose the MAIA sets out various procedures which must be complied with before an action can be brought in court for damages for personal injury arising out of a motor vehicle accident: see Part 4 Division 3.

One of the requirements is that there must be a compulsory conference of the parties under s 51A of the MAIA. The section, however, in terms provides that there can be dispensation with the requirement for a compulsory conference either by agreement between the parties or by court order. Subsection (4) provides:

“The parties may for good reason dispense with the compulsory conference by agreement.”

Subsections (5) and (6) provide for dispensation by the court:

“(5)The court may, on application by a party –

(a) fix the time and place for the compulsory conference; or

(b)dispense with the compulsory conference for good reason;

and make any other orders the court considers appropriate in the circumstances.

(6)In considering whether to dispense with the compulsory conference, the court must take into account the extent of compliance by the parties with their respective obligations relating to the claim.”

Section 51C(1) of the MAIA provides that, if the claim has not settled at the compulsory conference, the parties must exchange final written offers unless the court dispenses with this obligation. Section 51C(11) provides that the court may, on application by a party, dispense with the obligation to make mandatory final offers. The parties may not simply agree to dispense with this obligation. If the court dispenses with the obligation to make mandatory final offers, an action for damages should, pursuant to s 51D(3), be started in the court within the period fixed by the court when giving the dispensation of the order.⁸

The sections refer to “the court”. “Court” is defined in s 4 of the MAIA to mean, in relation to a claim –

“(a)if a proceeding based on the claim has been brought – the court hearing the proceeding; or

(b)if no proceeding based on the claim has been brought – a court with jurisdiction to hear the claim.”

As proceedings had not been commenced in this case, the court for any application to be made should have been a court with jurisdiction to hear the claim. The “claim” in the MAIA means a claim for damages based on a liability for personal injury arising out of a motor vehicle accident and, for a fatal injury, includes a claim on behalf of the deceased’s dependants or estate: s 4.

No compulsory conference had taken place in this matter and, rather than reaching an agreement to dispense with a compulsory conference, the parties agreed to request the Magistrates Court in Ipswich for an order dispensing with the compulsory conference and other orders including an order dispensing with the requirement to make final offers.

An order was made in BS 4601 of 2006 by the Magistrates Court in Ipswich on 22 May 2006⁹ which was entitled a “consent order” in the following terms:

“1.The compulsory conference of the Applicants and the Respondents required by subsection 51A(1) of the Motor Accident Insurance Act 1994 (“MAIA”) in respect of each of the Applicant's claims for damages for personal injury and/or nervous shock and/or loss of dependence arising out of a motor vehicle accident which occurred on 4th June, 2003 (“the claim”) be dispensed with, pursuant to subsection 51A(5)(b) of the MAIA.

The obligation of the Applicants and the Respondents to exchange written final offers under subsection 51C(1) of the MAIA (“mandatory final offers”) be dispensed with, pursuant to subsection 51C(11) of the MAIA.

An action for damages be started by the Applicants in respect of the claim by no later than 4th June, 2006 pursuant to subsections 51D(3) and 51D(4)(b) of the MAIA (“the action”).

The orders in paragraphs 1 and 2 of this Order are made on conditions that, subject to any dispensation or relaxation from the same which may be subsequently granted by a Court:-

(a)The action, if started, be stayed until each of, and the last of, the following has occurred:-

(i)The Applicants and the Respondents hold a conference that complies in all respects with section 51A of the MAIA as if it were a compulsory conference within the meaning of, and for the purposes of, that section (“the conference”) and the terms of section 51A of the MAIA apply to the conference as if it were a compulsory conference.

(ii)The Applicants and the Respondents hold and conduct the conference in all respects in accordance with the procedures and other provisions contained in section 51B of the MAIA as if the conference were a compulsory conference within the meaning of that section, and the terms of section 51B of the MAIA apply to the conference as if it were a compulsory conference.

(iii)The Applicants and the Respondents exchange written final offers which must remain open for 14 days and be in accordance with, and comply in all respects with, subsections 51C(1), (2), (3), (4) and (5) of the MAIA as if the provisions of those subsections had not been dispensed with.

Each party have liberty to apply by giving three business days notice in writing to the other party.

There be no order as to costs.”

No action was commenced in the Magistrates Court. Rather proceedings were commenced by claim and statement of claim filed in the Supreme Court on 2 June 2006. The proceedings were started by the date stated in the order of 22 May 2006 and within the limitation period but not in the Magistrates Court as envisaged by its order. The proceedings were started in the Supreme Court because the quantum of damages the subject of the claims was within the jurisdiction of the Supreme Court and outside the jurisdiction of the Magistrates Court. Only the Supreme Court had jurisdiction to hear the claims which were brought which in one proceeding was for damages of $750,000 and in the other, for $300,000.

The defendant obtained orders in the Supreme Court for consolidation of the proceedings. That order was made on an application for particulars of the plaintiffs’ claim, which application was endorsed “The Defendant believes that the Court at Brisbane has jurisdiction to decide the application.”

Then on 6 July 2007 the appellant, who was the first defendant, applied for orders in each proceeding that the action by the plaintiffs be struck out. The respondents to this appeal filed an application for leave to commence the proceedings, pursuant to s 57(2)(b) of the MAIA, on the date set down for the hearing of the appellant’s application for the striking out of the plaintiff’s claim. Both applications were heard by the same judge in the applications jurisdiction on 3 August 2007.

The appellant’s application to strike out

The learned judge struck out the claims by the plaintiffs. This was because the Magistrates Court did not have jurisdiction to order, pursuant to s 51D(3) of the MAIA, that an action for damages be started by the plaintiffs in respect of the claim in the Supreme Court.

Her Honour accepted the appellant’s submission that the claim was for an amount outside the jurisdiction of the Magistrates Court and so that court did not fall within the definition of the “court” in s 4 of the MAIA in which an application could be brought and by which orders could be made. Her Honour held that as a result the proceedings in the Supreme Court were “a nullity”. They had been started without dispensation by the Supreme Court with the requirement to comply with s 51A and s 51C and without an order from that court under s 51D(3). There was no appeal from that decision which was not said to be infected with any error.

The reasons for the lower court’s lack of jurisdiction were examined by this court in Hamling v Australia Meat Holdings P/L.¹⁰ That case concerned an action for damages for personal injury suffered in the workplace which was governed by the WorkCover Queensland Act 1996 (Qld) (“WorkCover Act”). The plaintiff was given leave in the District Court pursuant to s 305 of the WorkCover Act to commence proceedings in the court notwithstanding non-compliance with various pre-litigation procedures required by that Act. The plaintiff commenced proceedings in the District Court and then a year later commenced proceedings in the Supreme Court. The Supreme Court proceedings were struck out as the District Court was not able to give leave to commence proceedings in the Supreme Court. The ordinary reading of s 305 would, Keane JA observed at [31], “tend to suggest that the proceeding which might be commenced by the grant of leave by ‘the court’ was a proceeding in ‘the court’ which granted the leave.” That suggestion was, his Honour said, confirmed by a consideration of the definition of “the court” provided in the Act.

In the WorkCover Act, the “court” was defined to mean “the court having jurisdiction in relation to the amount or matter referred to.”¹¹ The “court”, for the purpose of not only s 305, but also s 302 and s 303 which provided that a claimant could not start proceedings in court without complying with certain pre-litigation procedures unless the court had made an order dispensing with those requirements, must be the court having jurisdiction to hear the claim. His Honour held at [32]-[33]:

“Jurisdiction has been said to be ‘a generic term … generally signifying authority to adjudicate’.¹² The statutory definition of ‘the court’ confirms, in my view, that the reference to ‘the court’ in s 302, s 303(a)(iii) or s 305 can only be a reference to the court which has jurisdiction to hear and decide the proceeding which is actually permitted to be started by reason of that grant of leave.

As the respondent points out, the proceedings started in the Supreme Court claimed damages totalling $468,542. The District Court did not have jurisdiction in relation to that claim as it exceeded the monetary limit imposed on that court’s civil jurisdiction. The Supreme Court, which did have jurisdiction in relation to that claim and in relation to the proceedings started to enforce that claim, was not ‘the court’ which had made ‘an order under’ s 305.”

The appellant in Hamling v Australia Meat Holdings argued that s 85 of the District Court of Queensland Act 1967 (Qld) enabled the District Court to transfer the proceeding to the Supreme Court but, as Keane JA held, that section applies only where the District Court does not have jurisdiction. As s 85(1) provides:

“This section applies if the District Court considers the court does not have jurisdiction to hear and decides a proceeding started in the court.”

Section 5A(1) of the Magistrates Courts Act 1921 (Qld) is in similar terms. It only applies when the Magistrates Court does not have jurisdiction to hear the claim. In those circumstances, it would also lack jurisdiction to make any orders sought dispensing with pre-litigation requirements.

The original proceedings in the Supreme Court in the present matters, which were filed on 2 June 2006, had been started without first gaining dispensation from the pre-litigation requirements of the MAIA by the court with jurisdiction to make such an order. It follows from the reasoning in Hamling v Australia Meat Holdings that those proceedings were therefore, as her Honour held, a “nullity”.¹³ Only the Supreme Court had jurisdiction to make the relevant orders as it was the court with jurisdiction to hear the claim.

The respondents’ applications for leave to commence proceedings

A bar to commencing proceedings in this case was presented by the fact that there was no order of the court having jurisdiction in the proceeding, in this case the Supreme Court, dispensing with the requirements of s 51A and s 51C and setting a date as required by s 51D of the MAIA. That is why the proceedings in the Supreme Court, although commenced within the limitation period, were struck out by Her Honour and why it was necessary for her to make the orders that she did in the plaintiffs’ application if they were to be able to commence proceedings in the Supreme Court.

On the plaintiffs’ applications, the judge at first instance ordered:

“(a)The time for the Applicants to bring an action for damages be extended to 31st August 2007 pursuant to s 57(2)(b) of the Motor Accident Insurance Act 1994 (“the MAIA”);

(b)That an action for damages be started by the Applicants in respect of their claims by not later than 31st August 2007 pursuant to subsection 51D(3) of the MAIA (“the action”);

(c)The compulsory conference of the Applicant and the Respondent required by subsection 51A(1) of the MAIA in respect of each of a claim for damages for personal injury and/or nervous shock and/or loss of dependency arising out of a motor vehicle accident which occurred on 4th June, 2003 (“the claims”) be dispensed with, pursuant to subsection 51A(5)(b) of the MAIA;

(d)The obligation of the Applicants and the Respondents to exchange written final orders under subsection 51C(1) of the MAIA (“mandatory final offers”) be dispensed with, pursuant to subsection 51C(11) of the MAIA;

(e)The orders in paragraphs 2(c) and 2(d) of this Order are made on conditions that, subject to any dispensation or relaxation from the same which may be subsequently granted by a Court:-

(i)The action, if started, be stayed until each of, and the last of, the following has occurred:-

A.The Applicants and the Respondents hold a conference that complies in all respects with sections 51A of the MAIA as if it were a compulsory conference within the meaning of, and for the purposes of, that section (“the conference”) and the terms of section 51A of the MAIA apply to the conference as if it were a compulsory conference;

B.The Applicants and the Respondents hold and conduct the conference in all respects in accordance with the procedures and other provisions contained in section 51B of the MAIA as if the conference were a compulsory conference within the meaning of that section, and the terms of section 51B of the MAIA apply to the conference as if it were a compulsory conference;

C.The Applicants and the Respondents exchange written final offers which must remain open for 14 days and be in accordance with, and comply in all respects with, subsections 51C(1), (2), (3), (4) and (5) of the MAIA as if the provisions of those subsections had not been dispensed with.

(f)Each party have liberty to apply by giving three business days notice in writing to the other party.

(g)There be no order as to costs.”

The order under s 57(2)(b) of the MAIA enabled the adult plaintiffs to commence proceedings in the Supreme Court without fear that they would be met with a limitation defence. The time for commencing their actions within the limitation period had by then passed.

The existence of such a defence is not usually a bar to commencing an action and must be specifically pleaded in the defence before it can be relied upon by a defendant.¹⁴ However s 57 of the MAIA provides that a claimant may only commence proceedings after the expiry of the limitation period in defined circumstances. It provides, inter alia:

“Alteration of period of limitation

(1)If notice of a motor vehicle accident claim is given under division 3, 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 –

(a)6 months after the notice is given or leave to bring the proceeding is granted; or

(b)a longer period allowed by the court.”

The learned judge allowed the period until 31 August 2007 for the plaintiffs to commence proceedings.

The appellant argued on appeal that the order extending the time for the respondents to bring an action for damages to 31 August 2007 pursuant to s 57(2)(b) of the MAIA was made in error as s 57(2)(b) does not authorise deprivation of the appellant of the benefit of the contract which underlay the consent orders of 22 May 2006. The appellant argued that there was no ground to render the contract which resulted in the consent order void or voidable or which entitled the respondents to equitable relief against it. In the alternative, the appellant argued that if s 57(2)(b) did authorise deprivation of the appellant of the benefit of its bargain embodied in the consent order, the learned judge’s discretion miscarried in that the reasons for its exercise were not “the most compelling” having regard to the prejudice to the appellant from its exercise.

Did the consent order operate as a contract?

Fundamental to the appellant’s argument is the proposition that the consent order in the Magistrates’ Court made on 22 May 2006 operated as a binding contract between the parties. The appellant relied in its argument on the decision of this court in Spencer v Nominal Defendant [2007] QCA 254 particularly at [13] where Keane JA, with whom de Jersey CJ and Mullins J agreed, held:

“A consent order operates both as a contract and an order of the court. Whether the contract embodied in a consent order can be set aside depends on ‘the existence of a ground which would suffice to render a simply contract void or voidable or to entitle the party to equitable relief against it.’¹⁵ No such ground is said to exist in this case. To accede to the application under s 57(2)(b) of the Act would be to deprive the respondent of the benefit of the contract which underlay the consent order of 14 July 2006 where there is no other basis for setting aside that bargain.”

In Spencer v Nominal Defendant, the parties had agreed to a consent order by the Registrar of the District Court which was made on 14 July 2006 dispensing with a compulsory conference and the exchange of final written offers of settlement and ordering that an action for damages be started by the plaintiff no later than 14 July 2006. The action for damages was started in the District Court, but not until 5 October 2006. The failure to start the action within the period provided was a result of an oversight on the part of the plaintiff’s solicitors. The parties were held to the bargain embodied in the consent order to commence proceedings in the District Court by 14 July 2006.

There are some important distinctions between that case and the present. The first concerns the nature of the order.

There is a distinction between a consent order which embodies the terms of a contract between the parties and a consent order based on the parties’ willingness to submit to an order on certain terms. The distinction was explained by Lord Denning MR in Siebe Gorman & Co. Ltd v Pneupac Ltd [1982] 1 WLR 185 as follows:

“It should be clearly understood by the profession that, when an order is expressed to be made ‘by consent’ it is ambiguous. There are two meanings to the words ‘by consent’ … One meaning is this: the words ‘by consent’ may evidence a real contract between the parties. In such a case the court will only interfere with such an order on the same grounds as it would with any other contract. The other meaning is this: the words ‘by consent’ may mean ‘the parties hereto not objecting’. In such a case there is no real contract between the parties. The order can be altered or varied by the court in the same circumstances as any other order that is made by the court without the consent of the parties. In every case it is necessary to discover which meaning is used. Does the order evidence a real contract between the parties? Or does it only evidence an order made without obligation?”¹⁶

What is demonstrated by the orders made in this case is that there was an agreement between the parties to request the Magistrates Court to make the orders which were made on 22 May 2006. The orders made were interlocutory and discretionary and it was within the power of the court to make such orders, decline to make such orders or make different orders notwithstanding the terms of any agreement between the parties.¹⁷ The power of the court to vary the orders was expressly recognised in paragraph 4 of the order of 22 May 2006 which recited that the orders in paragraphs 1 and 2 were made on conditions “subject to any dispensation or relaxation from the same which may be subsequently granted by a Court”. This provision is inconsistent with the consent order being the embodiment of a contract between the parties which could only be set aside or varied on the same grounds on which a contract could be set aside or varied. Rather it suggests submission to the jurisdiction of the court.

Jurisdiction of court to make pre-litigation orders

The second difference between the present case and Spencer v Nominal Defendant is that the order that the proceeding be started in Spencer v Nominal Defendant was made by the District Court which had jurisdiction in the proceeding. It was a court with jurisdiction to hear the claim and so was the court which could make the orders dispensing with the pre-litigation requirements and which could set the date by which proceedings must be started.

The orders made by the Magistrates Court in this case were in quite a different category. At the time those orders were made, no proceedings based on the claims had been brought, so the only court, as that term is defined in s 4 of the MAIA, which could make such orders was the court with jurisdiction to hear the claims. The notices of claim showed very serious injuries.¹⁸ The Magistrates Court has jurisdiction to hear a claim for personal injury but only to its monetary limit of $50,000. If the claim was for more than $250,000, as it was, then it could only be started in the Supreme Court.¹⁹ The Magistrates Court did not have jurisdiction to order that the proceeding be started in the Supreme Court or to dispense with the pre-litigation requirements. That is why the court at first instance struck out the proceedings in the Supreme Court. Those proceedings had been started without the necessary dispensation with the pre-litigation requirements.

There was no evidence that the parties had agreed that the proceedings would be commenced in the Magistrates Court. There was no suggestion that the plaintiffs had abandoned any claim in excess of $50,000²⁰ or had given consent jurisdiction to the Magistrates Court in the form required by s 4A of the Magistrates Court Act. The nature of the claims made and injuries suffered in this case meant that the damages claimed were within the jurisdiction of the Supreme Court and not within the jurisdiction of the Magistrates Court. Applying the reasoning in Hamling v Australia Meat Holdings and the definition of court in the MAIA, that meant that the Magistrates Court did not in fact have jurisdiction to make the orders made. It is difficult to see how it could be concluded that there was a binding contract between the parties to request a court without jurisdiction to make ineffective orders or how in the circumstances of this case those orders could embody a binding contract between the parties.

In the circumstances, the learned judge was correct in striking out the respondents’ claims as the court orders dispensing with the requirements of s 51A and s 51C were of no effect and the claims had been commenced without complying with those requirements or obtaining dispensation from the court with jurisdiction to make the orders. The Supreme Court had the power to make those orders and exercised that power.

Extension of time to commence proceedings

As I have already mentioned, there are circumstances where a claimant under the MAIA may commence proceedings outside the limitation period. Section 57(1) of the MAIA provides that in certain circumstances a claimant may bring a proceeding in court based on a claim even though the period of limitation has ended. Section 57(2)(b) relevantly provides that a proceeding may only be brought after the end of the period of limitation if it is brought within a period allowed by the court.

The learned judge extended the time within which the action could be commenced, since the limitation period had by then expired, on discretionary grounds that cannot be criticised. It appears that the delay in commencing proceedings was occasioned by the plaintiffs’ solicitors’ attempts to comply with the requirements of the MAIA. As was said in Winters v Doyle & Anor²¹ and Morrison-Gardiner v Car Choice P/L & Anor²² the discretion conferred by s 57(2)(b) of the MAIA was created to ameliorate the position for claimants who experience difficulty in complying with the technical requirements of the Act within the limitation period, so that claims can be determined fairly on their merits. If it were otherwise the pre-litigation requirements of the MAIA which are apparently intended “to encourage speedy resolution of personal injury claims resulting from motor vehicle accidents”²³ might rather be the cause of claimants being denied an award of damages in meritorious cases.

Even assuming at its highest that the appellant was correct in its argument and the plaintiffs were bound to commence in the Magistrates Court, the appellant accepts that the plaintiffs could have immediately applied for the transfer of the proceedings to the Supreme Court. It is difficult to discern what prejudice is suffered by the appellant because the plaintiffs started their proceedings in the Supreme Court rather than starting them in the Magistrates Court and having them transferred to the Supreme Court. The appellant did not suggest any such prejudice.

Conclusion

There was, in the circumstances of this case for the reasons set out, no binding contract between the parties which obliged the respondent to commence proceedings in the Magistrates Court. The consent order in that court was “a nullity”. Even if it were otherwise, the appellant was unable to point to any prejudice that it had suffered by the proceedings being commenced in the Supreme Court rather than being commenced in the Magistrates Court and transferred to the Supreme Court. The order to extend the time within which the proceedings could be brought was made on discretionary grounds which do not reveal any error made by the judge at first instance.

The appeals should each be dismissed with costs.

MULLINS J: I agree with the reasons of McMurdo P for distinguishing this matter from Spencer v Nominal Defendant [2007] QCA 254, and otherwise agree with the reasons of Atkinson J for why this appeal must be dismissed with costs.

Footnotes

1. [2007] QCA 254; Appeal No 3387 of 2007, 8 August 2007. ↩

2. [2007] QCA 254; Appeal No 3387 of 2007, 8 August 2007 at [13]. ↩

3. [2007] QCA 254; Appeal No 3387 of 2007, 8 August 2007 at [24]. ↩

4. See these reasons at [26]. ↩

5. [2005] QCA 415; Appeal No 4149 of 2005, 11 November 2005 at [33]. ↩

6. [2007] QCA 254; Appeal No 3387 of 2007, 8 August 2007 at [13]. ↩

7. Magistrates Courts Act 1921 (Qld), s 4, s 4A. ↩

8. The Court may also fix the period for starting an action for damages at a later time. ↩

9. A similar order was made in BS 4606 of 2006. ↩

10. [2005] QCA 415. ↩

11. WorkCover Queensland Act 1996 (Qld) Schedule 3. ↩

12. Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 570; [2001] HCA 1 at [2]. ↩

13. at [40].