Not your average State of Origin match! Exploring jurisdictional differences between Queensland and New South Wales concerning proper search and inquiry requirements– Nominal Defendant v Vikki Ann Smith [2016] QSC 227

The claimant lodged an undated Notice of Accident Claim Form in August 2015 relating to an accident where the 'at-fault' driver was not identified. The Nominal Defendant (the defendant) did not accept that the claim form was compliant. The defendant requested the claimant show that she had undertaken proper inquiry and search. The relevant information was provided, but the defendant was unconvinced.

The defendant then sought a declaration from the Supreme Court of Qld (the Supreme Court), by way of an originating application that the claimant would be unable to satisfy the proper inquiry and search requirements of s 31 of the MAIA. The defendant's primary argument was that satisfaction of s 31(2) was a "condition precedent" to bringing her claim as confirmed in the NSW decision of Nominal Defendant v Meakes² (Meakes). On that view, a declaration would restrain the claimant from proceeding any further with her pre-litigated claim against the defendant.

On the claimant's particulars as to proper inquiry of search, Martin J commented that characterising her case as "weak", was charitable. That said, he elected not to delve into a detailed examination of merits, noting the Supreme Court was not required to do so in the absence of legal proceedings.

Martin J observed that the operation of the Nominal Defendant schemes in Qld and NSW respectively operated with "significant differences".

NSW

In Meakes, Basten JA said:

In NSW, a claimant is not permitted to commence proceedings against the Nominal Defendant unless they have fulfilled the due inquiry and search requirements set out in section 34(1) of the MACA. The requirement is thus a "condition precedent" to commencing proceedings.



Martin J considered the Meakes approach and highlighted "that is not the position under this Act [the MAIA]". He placed emphasis on the following wording of s 31(2) of the MAIA:

In accordance with s 31(2) of the MAIA, the requirement to have conducted proper inquiry and search is only enlivened once legal proceedings have commenced. As such, proper inquiry and search forms part of the cause of action in Qld, rather than being a pre-requisite to commence proceedings as is the case in NSW.

Because legal proceedings had not been commenced, the claimant was not required to demonstrate she had complied with the proper inquiry and search requirements as of yet. The defendant's application for a declaration was subsequently dismissed.

This decision confirms that Qld's Nominal Defendant scheme operates with significant jurisdictional differences to its NSW counterpart. In the present case, the defendant was obliged to respond to the claimant's claim according to the full pre-litigation process, before the issue of proper inquiry and search (a disentitling provision) could be further agitated.

Case managers and lawyers should be aware of the scheme differences between NSW and Qld. In Qld a claimant, even with a weak position on proper inquiry and search, is still able to lodge a notice of claim, is entitled to a liability response from the Nominal Defendant, particulars, disclosure, eventual Compulsory Conference and a Mandatory Final Offer. The opposite is the case in NSW.