New South Wales Supreme Court CITATION : LKC Technology v Coastliner & Anor [2003] NSWSC 817 HEARING DATE(S) : 29 August 2003 JUDGMENT DATE : 5 September 2003 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass DECISION : The Notice of Motion brought by Suncorp is dismissed. The Notice of Motion brought by Coastliner is dismissed. I reserve all questions of costs. CATCHWORDS : Summary dismissal - misconceived application - motor vehicle accident - per quod servitium amisit action - triable questions of fact. LEGISLATION CITED : Motor Accidents Act 1988. Motor Accident Insurance Act 1994 (Qld), s 37. CASES CITED : GIO Australia Ltd v Robson & Anor (1997) 42 NSWLR 439. Kenbrad Pty Ltd v Vakauta [2001] NSWCA 204. LKC Technology Pty Ltd previously trading as L K Computech Systems & Services Pty Limited (Plaintiff) PARTIES : v Coastliner Pty Limited (Defendant/Cross-Claimant) Suncorp Metway Insurance Limited (Cross-Defendant) FILE NUMBER(S) : SC 20142 of 2002 Mr M Cahill (Plaintiff) COUNSEL : Mr M Claridge (Defendant/Cross-Claimant) L Boyd (Cross-Defendant) Konstan Lawyers (Plaintiff) SOLICITORS : Gells Lawyers (Defendant/Cross-Claimant) Hunt & Hunt (Cross-Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Master Malpass Friday 5 September 2003 20142 of 2002 LKC Technology Pty Ltd previously trading as L K Computech Systems & Services Pty Limited v Coastliner Pty Limited & Anor JUDGMENT 1 MASTER: Mr Kypreos (Kypreos) is a director and shareholder of LKC Technology Pty Ltd (LKC). He is also an employee of LKC. 2 Coastliner Pty Ltd (Coastliner) conducts tours. Kypreos went on a four-wheel drive tour of Fraser Island conducted by Coastliner. The vehicle used for the tour had registration number 517 CMS. 3 During the course of the tour, the vehicle stopped and Kypreos proceeded to alight to inspect a shipwreck. 4 It is alleged that whilst descending hinged built-in access steps, the steps moved and Kypreos lost his footing. He claims to have suffered personal injury in this incident as a consequence of the negligence of Coastliner. 5 Kypreos gave notice under the provisions of the Motor Accidents Act 1988 (NSW) to the insurer of the vehicle, Suncorp Metway Insurance Limited (Suncorp). Suncorp took the stance that the incident was not a motor vehicle accident under the Motor Accident Insurance Act 1994 (Qld) (the Act) and denied liability. 6 He brought proceedings in the District Court claiming damages arising out of the personal injury. LKC has also brought proceedings claiming damages in a per quod servitium amisit action (alleging deprival of the services of Kypreos). Both proceedings are now in this Court. 7 In the LKC proceedings, Coastliner has filed a Defence (which raises issues of non-compliance with the Act) and brought a Cross-Claim against Suncorp. Coastliner claims indemnity under the statutory Compulsory Third Party Insurance Policy (CTP) issued in respect of the vehicle. It is a policy for a motor vehicle insuring against lability for injury caused by, through or in connection with the motor vehicle. 8 Suncorp has declined to indemnify Coastliner under the policy. 9 Suncorp now moves to have the Amended Cross-Claim dismissed (Notice of Motion filed on 10 December 2002). The expressed basis of the application is that LKC has not given the notice required by s 37 of the said Act. This section requires inter alia a claimant to give written notice of a claim to the insurer before bringing an action in a court for damages for personal injury arising out of a motor vehicle accident. 10 Coastliner also now moves to have the Statement of Claim in the LKC proceedings dismissed (Notice of motion filed on 16 January 2003) on the same basis. 11 Both Notices of Motion were heard on 29 August 2003. As a matter of convenience, they were heard together. It was common ground, that Coastliner did not wish to proceed with its Notice of Motion in the event that the Notice of Motion brought by Suncorp was unsuccessful. 12 At the outset, it needs to be appreciated that the relief being sought in each Notice of Motion is that of summary dismissal. If relief is granted, the unsuccessful party or parties will be deprived of having their case determined at trial. 13 The court has a discretionary power to grant summary relief. However, there is well-established authority that governs the exercise of that discretion. The effect of that authority has been expressed in a number of different ways. One manner of expression is that relief is only available in what might be described as clear cases. The onus rests with the party seeking summary dismissal. 14 All parties have made written submissions. These have been supplemented orally. In the course of these submissions, a host of issues (including questions of fact) have been thrown up. It became clear that a trial of all issues may be a complex exercise. It may be in the interests of all parties to consider whether or not at least certain of the issues can be first determined as separate questions. 15 In its submissions, Suncorp disputes that the LKC claim is a claim arising out of a motor vehicle accident. However, it also submits that if the LKC proceedings are a claim arising out of a motor vehicle accident, then the proceedings are a nullity by reason of failure to comply with provisions of the Act. 16 It is not disputed that the notice contemplated by the Act has not been given. However, it is said that if such notice was required Suncorp has inter alia waived compliance with those requirements. 17 It is said by Suncorp that the requirement to give notice is mandatory and that an action cannot be brought until the requirements have been complied with. It is further said that because the three-year limitation period has expired, the power of the court to grant leave is no longer exercisable. 18 There is a lack of common ground on these matters. Also, it may be observed that there seems to be conflict between the authorities relied on by Suncorp and those which have been decided by the courts of this State. If these mattes require decision, it needs to be borne in mind that there may be statutory differences. 19 Before dealing with issues that were argued by Suncorp, I should first look at certain matters which were not addressed by it. It seems to me, that these matters demonstrate that the application for summary dismissal is not only misconceived but a cynical exercise. 20 On the arguments presented by Suncorp, the application can only succeed if the court is dealing with a claim arising out of a motor vehicle accident. This is contrary to the stance taken by Suncorp in denying liability for the claim made by Kypreos and in denying indemnity to Coastliner under the CTP (this being done on the basis that the incident was not a motor vehicle accident). The Amended Cross-Claim is said to be doomed to failure, not because of any of its own features, but by reason of failure on the part of LKC to give notice (which is a matter relevant to the viability of the proceedings brought by it). In these circumstances, the success of Suncorp's application is dependent upon the failure of the LKC proceedings (they must first be dismissed). As it was not argued, I put aside any question as to whether or not in these circumstances Suncorp is in a position entitling it to have the Amended Cross-Claim dismissed. 21 Despite these matters, illogically, the court is first asked to look at whether or not the Notice of Motion brought by Suncorp can succeed. 22 The authorities make it clear that the hearing of an application for summary dismissal is not the appropriate forum for determining issues of fact. If the application throws up a triable issue on a question of fact, then it is doomed to failure. Such a question of fact should either be decided as a separate question or left for trial. 23 In my view, the application made by Suncorp does throw up triable issues of fact. There are issues concerning whether or not the claim made by LKC is governed by the provisions of the Act. There are also questions as to whether or not, in the event that the Act has application, there has been inter alia a waiver of the statutory requirements. 24 In my view, Suncorp has failed to satisfy the court that this is one of the clear cases required by the authorities. The discretionary remedy is to be exercised having regard to the relevant circumstances of the particular case before the court and so that justice is best served between the parties. In my view, justice is best served by a dismissal of the Notice of Motion brought by Suncorp. 25 Before concluding this judgment, I should mention that submissions have been made by Coastliner on the question of whether or not the proceedings brought by LKC can be categorised as an action propounding a motor accident claim. Suncorp contends that this is an issue which it is not necessary to decide for the purposes of its Notice of Motion. Accordingly, it is not an issue that needs to be presently resolved. However, it may be of assistance, if some brief observations are made concerning it. Uninstructed by authority, it might be thought that a claim per quod servitium amisit was not an action in a court for damages for personal injury. A corporation does not suffer personal injury in the sense contemplated by the Act. The nature of the action propounded by LKC has been described as a claim for damages for loss by an employer of the services of an injured person. It is an action for loss of income and profits that the employer would have derived from the services of the employee if uninjured. In GIO Australia Ltd v Robson & Anor (1997) 42 NSWLR 439, it was held that the statutory policy did respond to the employer's claim for damages. In Kenbrad Pty Ltd v Vakauta [2001] NSWCA 204, the Court of Appeal followed its earlier decision in Robson . Further, it held that the notice requirements of the New South Wales legislation had application to a per quod servitium action. This result may flow from the particular and different language which is had by that legislation. However, for present purposes, these considerations need not be pursued. 26 In the circumstances, it is unnecessary to proceed to deal with the Notice of Motion brought by Coastliner. As it has no further utility, it is appropriate that it be dismissed. 27 The Notice of Motion brought by Suncorp is dismissed. The Notice of Motion brought by Coastliner is dismissed. I reserve all questions of costs. ********** Last Modified: 09/09/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.