Round one to the defendants. Back to your corners.

11 March 2010 Topics: Insurance

Boulter v Batten and Suncorp General Insurance Limited [2010] QDC 56, 5 March 2010

There is a perception that courts sometimes “bend over backwards” to assist self acting parties. Few would dispute the social utility of courts assisting self acting parties, provided that the interests of justice are not compromised. This case highlights however that courts will not shy away from applying sound legal principle even where the consequences for the self acting party are potentially dire.

Ms Boulter, a self acting claimant, seeks damages for injury sustained in a motor vehicle accident on 9 January 2007. Her claim is regulated by the Motor Accident Insurance Act 1994 (the “MAIA”). Liability for the accident was admitted by the Second Defendant early in the claim.

In July 2009, with the end of the three year limitation period approaching, the Second Defendant wrote to Ms Boulter suggesting she may wish to take certain specific steps to protect her interests. A couple of months prior to this, the Second Defendant had also drawn Ms Boulter’s attention to the statutory requirement that the parties hold a compulsory settlement conference prior to the commencement of proceedings (s51A). No attempt was made by Ms Boulter to comply with s51A before she filed proceedings for her claim on 8 January 2010.

The Second Defendant brought an application to strike out Ms Boulter’s proceeding arguing that it was a nullity. In support of its application, the Second Defendant relied upon the decision of Horinack v Suncorp Metway (2000) QCA 441 which had found that proceedings commenced in breach of the MAIA were a nullity. That argument was always going to be an ambitious one in light of the High Court’s subsequent decision in Berowra Holdings v Gordon (2006) 225 CLR 364. The accuracy of Horinack’s case had been specifically questioned by Chief Justice Spieglman in the NSW Court of Appeal decision in Hamilton v Merck & Co [2006] NSWCA 55 (although this decision is not specifically cited in the judgment).

Ms Boulter represented herself at the hearing. She advanced no legal arguments. She protested her ignorance of the requirements of the MAIA.

His Honour, Judge Dorney QC, applying the principles in Berowra Holdings, found Ms Boulter’s proceeding was not a nullity but it was liable to a discretionary strike out. Taking into account the following matters, he exercised his discretion to strike out the proceeding:

  • Ms Boulter’s actual or ostensible knowledge of the requirements of the MAIA. Her ostensible knowledge was gained by her previous engagement of three separate law firms at various times during her claim;
  • Ms Boulter’s awareness of the need to commence proceedings within three years. His Honour appears to have interpreted this to mean a familiarity with the legal process connected with the claim;
  • Ms Boulter’s demonstrated unwillingness to make any attempt to comply with the MAIA.

The strike out applied despite there being no arguable prejudice to the Defendants. It means that Ms Boulter’s claim is now arguably out of time giving the Defendants rights to resist it based upon the Limitation of Actions Act 1974.

It seems unlikely we have heard the last of this matter. His Honour hinted in the judgment at other avenues which may exist for Ms Boulter. One assumes she will now seek an order under s57(2)(b) MAIA to commence further proceedings once a compulsory conference has been held. It remains to be seen whether Ms Boulter can win round two or whether there will be a TKO.




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