Last updated 12 May 2016 This chapter is currently under review.
If a decision is made to commence legal proceedings, the claimant will need to decide which court to proceed in and whether to engage a solicitor.
Initiating a claim
To start proceedings in the Queensland Civil and Administrative Tribunal (QCAT), the claimant must complete an Application for Minor Civil Dispute. The claimant must set out the details of the accident and the nature of the claim (including the amount of damages claimed). The application is then filed with QCAT.
Alternatively, legal proceedings can be commenced in a Queensland court, usually the Magistrates Court.
A filing fee is payable, which varies according to the amount claimed.
Once the application has been filed, a copy must be served on the defendant. Service on the defendant can be arranged through the Magistrates Court for a further fee, or the claimant can serve the application personally.
Once an application or legal proceedings have been served, the defendant must file a response or notice of intention to defend and the defence within 28 days of service, and provide a copy to the claimant and to QCAT. The response or defence must answer all assertions made in the application.
The Queensland Civil and Administrative Tribunal aims to resolve disputes without proceeding to a hearing. The application will first be listed for a directions hearing to determine how the case will proceed. The directions hearing may require attendance in person or by telephone, and QCAT will then make orders detailing the next steps.
Before being set down for hearing, the claim will usually be referred to mediation or a compulsory conference in an endeavour to resolve it without a hearing.
All evidence relied on must be brought to the mediation or compulsory conference and provided to QCAT. The discussions at mediation and conference cannot be referred to at the hearing. If an agreement is not reached at this stage, the case will be listed for hearing.
Proving the case at a hearing
If the claim cannot be resolved, it will proceed to a court or QCAT hearing.
Evidence is given orally at the hearing by those people directly involved in the accident and witnesses to the accident. The drivers of each vehicle and their passengers can give evidence of what they saw and heard. Courts tend to give more weight to the evidence of independent witnesses to an accident (e.g. drivers of other vehicles or pedestrians in the immediate vicinity).
A very useful witness can be the police officer who attended the accident. The identity of the police officer can be ascertained from the traffic incident report. An Application for Traffic Accident Report form, available from CITEC, has to be filled out and a fee paid. This report can also be a useful source of information relating to the circumstances of the accident.
A police prosecution is frequently commenced against one or more of the drivers involved in a collision. Criminal proceedings begun by the police are quite separate from civil proceedings for damages. The outcome of any criminal proceedings will usually be detailed in the traffic incident report.
After judgment or agreement
Once a plaintiff has obtained judgment or has come to an agreement at mediation or compulsory conference, the defendant should pay the amount ordered or agreed. If the defendant fails to pay, advice should be sought from a solicitor, legal aid agency or from QCAT about how to enforce the judgment. Generally, money orders can be enforced with warrants for the seizure and sale of property or redirection of debts or earnings.
Receiving a letter of demand
A letter of demand should never be ignored. If the recipient is insured, the letter should be immediately forwarded to their insurer.
If no insurance is available, the recipient needs to decide if they wish to contest the claim, try to negotiate a settlement or simply agree to it and pay the claim.
If the person who receives a letter of demand believes they were not completely responsible (i.e. the other party may have contributed to the accident), or is uncertain about who is responsible, they should seek legal advice as soon as possible.
Payment of a claim will avoid further expense such as court costs, interest and legal fees.
If the recipient of a letter of demand disputes liability for some or all of the damages, they should respond in writing indicating this. If they accept responsibility but question the amount claimed, a letter should be sent to the claimant seeking further information about how the amount is calculated.
Offers to settle
An offer of settlement can be made at any stage after the accident, preferably after a letter of demand has been received, as long as all material facts about the damage have been gathered. Material that may be relevant to an offer to settle may include:
- any correspondence with the other party (e.g. letters of demand)
- statements of independent witnesses, if any
- the traffic accident report
- at least two smash repairers’ quotes
- the Transport and Main Roads Motor Vehicle Register search (provides information about the registered owner of the vehicle).
It is important when making an offer of settlement that it be carefully worded so as not to admit liability for the accident. It might include a statement that the offer is made without admission of liability and is designed to avoid costly legal proceedings.
The letter should be marked ‘Without Prejudice’ and should avoid disclosing details about the accident that might indicate liability.
When a letter making an offer is not carefully worded, any admission of liability may be used in later court proceedings (e.g. in a later claim for personal injuries). Legal advice about the contents of this type of letter should be obtained. If you hold insurance that might potentially cover the claim, you must obtain permission from the insurer before making an offer to settle (regardless of whether you intend to make a claim under the policy). Failure to do so may void the policy.
If there is no dispute about responsibility for the accident, and the person who is liable is uninsured or does not wish to make a claim on any insurance policy, the claimant may be prepared to accept payment by instalments. However, the claimant is under no obligation to do so.
Insurers which have paid a claim are entitled to take legal action in the name of the insured person to recover the repair costs from the party responsible for the accident. This is known as a right of subrogation (see chapter on Insurance).
Obtaining a release after settlement
When a claim is settled between the parties without a decision of the court, it is advisable for the person or insurer paying the money to obtain a signed release from the claimant. This document is intended to release the payer from any further responsibility.
A claimant should ensure that any release they sign does not prevent subsequent action for damages for personal injury.
If the settled claim only relates to payment of an insurance excess on the claimant’s comprehensive policy, the claimant must not give the other party any release from liability. This will place them in breach of the terms of the policy and could result in them having to repay their insurer for amounts already paid or received. Any release or receipt intended to be given in these circumstances must first be approved by the comprehensive insurer. If there is any doubt, legal advice should be obtained.