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Compliance conditions - back to the future

26 September 2013

On 31 October 2007, we sent an E-alert on our success in an unreported decision (Williams v BM Alliance Coal Operations Pty Ltd Supreme Court Application No. 7645/2007) in which we successfully insisted that the Court should include certain conditions in its order granting conditional compliance.

The conditions in question included that prior to the compulsory conference, the claimant deliver its draft application and affidavit material supporting an application to extend the limitation period and, unless the insurer waived the limitation period defence,  the claimant would bring his application to determine the limitation period issue prior to the compulsory conference.

Since then, further case law has evolved perhaps demonstrating the individuality of the particular judges hearing the various applications and perhaps the distinguishing facts in each instance. 

Suffice to say, on what appears to be the same sort of issue, on some occasions the Court accepted the insurer's submission that it was to the parties' benefit to conclusively determine the limitation period issue prior to the compulsory conference and, on some occasions, didn't.

In Kovacic v Local Government Workcare [2013] QFC256, Justice Henry examined the issue again and the competing authorities. 

On 2 September 2013 Justice Henry accepted there was merit in conclusively determining the limitation period defence prior to the expiration of the pre-proceedings and included such terms in the compliance conditions.

That judgment should assist insurers.

Of course, upon full appreciation of the basis for the extension of the limitation period defence, the insurer may waive the limitation period defence and save the costs of an unnecessary application.

 

For more information contact:

Cameron Seymour | Partner
Mullins Lawyers
t +61 7 3224 0360
f +61 7 3224 0333
cseymour@mullinslaw.com.au

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