Suncorp v Loweke & Anor [1998] QCA 356

4 His Honour considered s. 5 of the Act and determined, for the purposes of the application before him, that the Act applied and ordered that the applicant here be joined as a second defendant in the action.

5 The question whether the case pleaded in this action falls within s. 5(1) of the Act, bearing in mind the scheme and objects of the Act, may well be one that will be of considerable interest to those litigating in this field. The applicant has presented weighty argument that the Act cannot apply to a case such as this, although the respondents have also presented a strong argument that the Act should apply. It is not necessary for any conclusion to be reached for the purposes of this application.

6 The question is whether leave should be given so that this argument can be determined by this Court by way of an interlocutory appeal or whether it is better determined by the Court by way of an appeal at the conclusion of the trial.

7 Findings of fact made at the trial may well be relevant to the sensible determination of whether this case is covered by the Act: evidence at trial sometimes raises issues of fact not precisely pleaded. This supports the respondents' contention that this application is premature.

8 In addition, whilst the plaintiff is currently still within her statutory time limits to commence an action against the applicant, should this matter proceed by way of an interlocutory appeal in which the plaintiff is unsuccessful at an interim level, but is ultimately successful, the plaintiff may become statute-barred from pursuing her claim against the applicant.

9 The applicant requires leave to appeal pursuant to s. 118(3) the District Court Act 1967. An application for leave to appeal from an interlocutory judgment will usually be refused unless it appears that the decision below is attended with sufficient doubt to warrant it being reconsidered, and also that, supposing the decision below to be wrong, substantial injustice would result if leave were refused: see Westpac Banking Corporation v. Klef Pty Ltd[1] applying Decor Corporation Pty Ltd v. Dart Industries.[2]

10 Whilst the correctness of the decision of the learned chamber judge may be arguable, his decision is not plainly wrong. The interests of justice in this case are clearly best served by determination of the issues between all the parties in this action at trial. If findings are made at trial against the applicant, an appeal can then be brought to this Court as to the applicability of the Act. That question is best determined at that time.

11 I would refuse the application for leave to appeal with costs.

1 I agree. Mr Williams Q.C. likened the form of the application in the present matter to proceedings by way of demurrer designed to raise on the pleadings a point of interpretation of the relevant statutory provisions. But the plaintiff's action is for damages for negligence or its equivalent, in which the facts as they are proved to be at trial are all-important irrespective of what the particulars in the present form may say. Speaking in Rogers v. Rawlings [1969] Qd.R. 262, 275, of a demurrer to a statement of claim against a third party in a negligence action, Lucas J. said:

"It may well be that in this case, when all the evidence, relevant to the particulars pleaded, is given, a state of affairs will be established in which it could be said that the third party owed a specific duty of care, in some particular respect, towards the plaintiff. That is why the demurrer must be overruled."

His Honour's remarks are even more apposite to a case like this where at the hearing issues of causation are likely to be prominent, and where it is even possible that the particulars may be amended before or during trial.

2 In addition, the imminent expiration of the limitation period, in a case like this, of three years is also a relevant consideration. If the compulsory third party insurer is not joined now, it may well be too late to do so or to institute another action after trial and judgment in the action against the original defendants. For reasons of the kind given in A.M.P. Fire & General Insurance Co. Ltd. v. Dixon [1982] VicRp 83; [1982] V.R. 833, which was cited to us by Mr R.R. Douglas, it is plainly desirable here not to determine the liability, if any, of an insurer or possible insurer before determining the defendant employer is found liable, if at all, to the plaintiff.

3 For all these reasons the matter is not one that requires the attention or intervention of this Court at the present stage.

1 I agree that the application for leave to appeal should be dismissed with costs. I am not persuaded that a determination of the application of the Motor Accident Insurance Act 1994 in respect of the injury complained of by the respondent/plaintiff is one which necessarily must await the trial of the action. However, any such determination is premature without full and precise particularisation of the circumstances in which the plaintiff's injuries were alleged to have occurred. Also relevant to any assessment of the desirability of determining such a question as a preliminary issue is the question of whether it is possible to ensure that the determination is binding on the other defendants and the mechanics of achieving that objective.

2 Having regard to these considerations it cannot be said that there has been any miscarriage in the exercise of the discretion of the learned primary judge.

[1] (unreported, Queensland Court of Appeal, No. 8204 of 1998, delivered 16 October 1998, at p. 7).

[2] [1991] FCAFC 844; (1991) 33 F.C.R. 397, 398-400.