Loading...
Queensland Judgments

beta

Authorised Reports & Unreported Judgments

Exit Distraction Free Reading Mode
  • Unreported Judgment

Dunn v Lawrence

 

[2005] QSC 291

Reported at [2006] 1 Qd R 405

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

18 October 2005

DELIVERED AT:

Brisbane

HEARING DATE:

12 September 2005

JUDGE:

Mackenzie J

ORDER:

1. The application is dismissed

2. The applicant pay the respondent’s costs of and incidental to the application to be assessed

CATCHWORDS:

LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – PERSONAL INJURY CASES - where Part 1 PIPA Notice served within limitation period – where respondent identified a number of non-compliance issues with respect to Part 1 Notice – where respondent did not expressly waive compliance – where respondent requested claimant to remedy non-compliance within 1 month pursuant to s12(3)(b) – where claimant did not take steps to remedy non-compliance – where respondent did not provide notice prescribed by s12(3) -  where agreed limitation period subsequently expired – where claimant applied to court for extension of time pursuant to s59(2) – where pre-condition of s59(2) is that complying notice of claim issued – where applicant argued that notice of claim deemed to be compliant pursuant to s12(3)(a) and s13 of PIPA – whether failure of respondent to respond pursuant to s12(3) triggered the presumption in s13 - whether a complying Part 1 notice of claim issued before the end of the limitation period

Personal Injuries Proceedings Act 2002 (Qld) s59, s12, s13

Haley v Roma Town Council;  McDonald v Romijay Pty Ltd [2005] QCA 3

Kash v SM & TJ Cedergren Builders (2004) 1 Qd R 643

Sultan v New Asian Shipping Co Ltd [2003] QSC 231

COUNSEL:

W L Hampton for the applicant

T Matthews for the respondent

SOLICITORS:

Quinn & Scattini for the applicant

Paul Everingham and Co for the respondent

[2] MACKENZIE J:  This is an application for leave to proceed pursuant to s 59(2)(b) of the Personal Injuries Proceedings Act 2002 (“PIPA”). The applicant was assaulted by the respondent on 23 June 2001.  The injury allegedly relied on, according to the notice of claim delivered pursuant to PIPA occurred during a confrontation following what appears to have been an incident when the respondent was riding his bicycle and the applicant was driving his motor vehicle.  The respondent pleaded guilty to common assault in the Caboolture Magistrates Court on 23 February 2005, although the reason for the long delay in those proceedings being finalised is not explained. 

[3] The PIPA notice of claim was served on 10 September 2002.  Because of the transitional provision in s 77A(2) it was served in time.  On 8 October 2002 the respondent’s then solicitors identified a number of non-compliance issues. The letter stated that the respondent did not waive compliance and required the claimant to remedy non-compliance no later than one month from the receipt of the letter.  While the letter does not specifically state that the respondent considered himself a proper respondent, the terms of the letter, which echo s 12(2)(b) and (c), are consistent with compliance with s 10(1)(a) which applies to a person who considers that he is a proper respondent to the claim. 

[4] The applicant did not respond within the period of one month specified in the respondent’s letter giving notice of alleged non-compliance.  The respondent did not comply with s 12(3) by giving written notice containing information contemplated by s 12(3)(a) or (b) written one month of the end of the period specified in the notice under s 12(2)(c). 

[5] A response from the applicant giving information concerning some of the points of non-compliance was sent on 18 December 2002.  However certain tax returns were not provided because the applicant sought an undertaking that the solicitor would not disclose them to the respondent because, it was said, the applicant had concerns, based on the respondent’s post-claim conduct, of misuse of the information.  The letter also asserted that medical reports had been attached to the notice of claim when it was sent and said that if they had not been received, further copies would be sent. 

[6] The limitation period for commencing proceedings for personal injuries arising from the incident has expired.  Authority to make the application, provided a complying claim was made within the limitation period, can be found in Haley v Roma Town Council; McDonald v Romijay Pty Ltd [2005] QCA 3 and Kash v SM & TJ Cedergren Builders (2004) 1 Qd R 643. 

[7] Section 59(1) permits a claimant to start a proceeding based on the claim, even though the period of limitation has ended, provided a complying part 1 of a notice of claim has been given before the end of the period of limitation.  Section 59(2) provides that the proceeding may be started after the period of limitation only if it is started within six months after the complying part 1 notice is given or leave to start the proceeding is granted or if a longer period is allowed by the court.  Section 59(2)(b) provides an independent basis for the court to extend the limitation period. Provided a complying part 1 of a notice of claim is given, the claimant has a longer period than there would otherwise be to  commence proceedings.

[8] The application was not made until about six months after the last agreed “extension” to the limitation period expired on 23 February 2005.  Prior to that date, the applicant’s present solicitors had received instructions to act in lieu of his previous solicitors.  On 26 November 2004 they had requested the file from the previous solicitors.  After correspondence about the latter’s costs being safeguarded, the previous solicitors sent the file to the present solicitors on 25 February 2005.

[9] On 1 April 2005 the respondent’s then solicitors wrote to the applicant’s present solicitors asking for confirmation they were acting for the applicant and asking for a response to a doctor’s report disclosed on 2 February 2005.  On 6 April 2005, the applicant’s present solicitors addressed the medical and other issues and then on 12 April 2005 adverted to the expiry of the agreed extension to the limitation period, requesting a further extension to 1 August 2005.  An application under s 59 was foreshadowed in the event that the extension was not agreed to.  The requested extension was raised again on 22 April 2005. 

[10] On 26 April 2005 the respondent’s then solicitors advised that they no longer acted for him.  On 29 April 2005 the respondent’s present solicitors wrote, inter alia, that an extension of time was not consented to and that the application under s 59 would be resisted.  On 27 May 2005 further medical reports were sent to the respondent’s present solicitor with advice that the s 59 application would soon be served.  For reasons that are not explained, it was not filed until almost three months later.  The six month delay therefore comprises a few days when the applicant’s solicitors had not yet received the file from the present solicitors, a period of about six weeks before the issue of the expiry of the limitation period was raised by the applicant’s present solicitors and about another fortnight before it was made clear that the s 59 application would be necessary.  There was some activity by the applicant’s present solicitors in the next month but effectively there was an essentially unexplained four month delay in bringing the application.  Unfortunately, neither the solicitor’s affidavit nor the applicant’s own affidavit shed any light on the reason for this.  As against this, the respondent’s present solicitor should not have been surprised that the foreshadowed application was eventually brought. 

[11] One of the matters raised in the applicant’s submissions is the effect of s 13.  In a chronology provided, three dates were proposed as possible deemed compliance dates on the basis that, when additional information had been provided by the claimant and the respondent did not respond in a timely way challenging compliance, the conclusive presumption of compliance arose.  Section 13, with the amendments made in 2003 italicised, is as follows:

13Consequences for respondent of failure to respond to part 1 of a notice of a claim

 

If a claimant gives part 1 of a notice of a claim under this division or purportedly under this division to a person against whom a proceeding is proposed to be started, and the person does not respond to it under section 10 or 12 within the prescribed period under the section, the person is conclusively presumed to be satisfied it is a complying part 1 notice of claim.”

[12] When s 12 alone was referred to, the reference to the “prescribed period under the section” dovetailed with the definition of “prescribed period” in s 12(4) which provides the meaning of the term for s 12.  Read in its original form, the natural meaning of the section was that it referred to a failure by the respondent to give any response at all within the prescribed period under s 12.  The reference to s 10, added by amendment, may have been intended to address a potential difficulty since only one of the options available to a person responding to a notice of claim required action, at least in the first instance, under s 12. The amendment itself, added as an  amendment of the Bill in the Committee stages, has led to less clarity.  It may be that, in the process of amending s 13 by adding the reference to s 10, it was overlooked that the phrase “within the prescribed period” does not appear in s 10, although the phrase “period prescribed” is used in s 10. Retention of the reference to “the section” is also inelegant. However, the intent seems to be that failure to respond at all, within the time prescribed, to initial delivery of part 1 of a notice of claim triggers the presumption in s 13.

[13] It will be seen from the dates relied on that it was not argued that the consequence of failure to give a notice under s 12(3), once the specified period in the notice under s 12(2)(c) of one month had elapsed, was that the respondent was conclusively presumed to be satisfied that the notice was a complying part 1 of a notice of claim.  The only prior discussion of that point that research has revealed is in Sultan v New Asian Shipping Co Ltd [2003] QSC 231 (Fryberg J), heard before s 13 was amended in 2003, where it was ultimately unnecessary to decide the point. If it is correct that the triggering event of s 13 is failure to respond to the delivery of the notice of claim, the failure to give a subsequent notice in s 12(3) would not lead to the presumption arising. Cases, of which there are several, which make the point that failure to respond at all to delivery of part 1 of a notice of claim enlivens the presumption are of no assistance on the point.

[14] If the scheme, on the other hand, is intended to settle the ambit of alleged non-compliance promptly, and it is an element of doing so that a respondent is required to give the s 12(3) notice on pain of being presumed conclusively to be satisfied that the notice of claim was compliant, irrespective of whether the claimant has communicated to the respondent how he has addressed the alleged non-compliance in the time specified in the notice under s 12(2)(c) or not, it may be doubted that s 13, in its present form, achieves that result. As has been noted, the focus of argument was not on that issue.

[15] The discussion above is also inconsistent with the proposition inherent in the identification of three possible dates upon which the presumption in s 13 may have operated, namely that there may be sequential occasions, as the interaction between the parties progresses, for it to do so. 

[16] The first date proposed, 18 January 2002, arises from events referred to in paragraphs [2] to [4] above.  The submission was that the application of s 12(3)(a) to the facts was that, because, having received the out-of-time response by the claimant to the allegations of non-compliance, the respondent did not give notice under s 12(3) within one month, he had not responded within the prescribed period in accordance with s 13.  That argument equates the notion of giving part 1 of a notice of claim to a person to giving subsequent information in defence of the adequacy of the claim, or in justification of certain action taken to make the claim compliant.  In my view that is not what s 13 contemplates.

[17] The second date relied on was 2 August 2003.  The applicant’s then solicitors requested, inter alia, a response under s 12 having regard to earlier correspondence, which included the response by them on 18 December 2002 to the allegations of non-compliance.  A letter from the applicant’s then solicitors enclosing outstanding medical reports, and one from the respondent’s then solicitor disputing compliance because of the failure to disclose them crossed in the mail.  Then on 2 July 2003 the applicant’s then solicitors disclosed further documents, including the tax returns that had originally been withheld because of the undertaking requested on 18 December 2002.  Failure to give notice under section 12(3) by 2 August 2003 was relied on as bringing the presumption into effect.  For the reasons given above I do not accept that the presumption operates.

[18] The third possible date relied on was 21 February 2004.  An authority required by s 9(2)(b) had never been provided previously by the applicant.  There were two specific requests for it, resulting in its delivery to the respondent’s then solicitors on 21 January 2004.  Since no further compliance issues were raised by 21 February 2004, it was submitted that the presumption of the compliance had come into operation then.  For the same reasons given previously the presumption did not in my view arise. 

[19] There is no evidence that the respondent stated that he was satisfied that part 1 of the notice had been given as required or the claimant had taken reasonable action to remedy non-compliance.  It was not argued that the respondent had waived compliance.  For reasons given previously the presumption did not apply.  No relief had been given by the court by way of a declaration that the claimant had remedied non-compliance or authorisation to proceed further despite non-compliance. 

[20] The evidence does not establish that a complying part 1 of a notice of claim had been given before the end of the limitation period, whether statutory or agreed.  Regrettably, a pre-condition for application of s 59 has not been established and the application must therefore fail.

[21] I should add that, had there been jurisdiction to extend the period for starting the action, I would have given weight to the fact that, notwithstanding that neither party had pursued the matter with any urgency, it was being progressed and had reached a stage where a compulsory conference had been held.  The respondent made several submissions why the discretion under s 59(2)(b) to extend the period should not be exercised if it had been held that there was jurisdiction to make an order.  They included that there was no explanation on oath of aspects of non-compliance with the mandatory requirements of PIPA.  It was also pointed out that the respondent had done nothing that might be construed as waiver of his rights or a basis for estoppel.  The respondent’s counsel also pointed to the absence of any express explanation as to why a further extension of the limitation period was not sought prior to effluxion of the second agreed extension.  It is, however, observed that at that time, the present solicitors were still not in possession of the file from the previous solicitors for the reason referred to in paragraph [8].

[22] It was also submitted that there was no adequate explanation of the delay between the effluxion of the agreed extension of the limitation period on 23 February 2005 and the bringing of the application.  It was pointed out that the reason for the delay was not explained and for that reason the court could not assess whether it was unreasonable.  As against that it had been foreshadowed on 12 April 2005 that such an application would be brought.  No particular prejudice could have arisen from the subsequent delay in bringing the application.  With regard to the submission that there was irretrievable prejudice to the respondent in that he was denied his legitimate reliance on expiration of the limitation period after he had reasonably acted by twice agreeing to extensions, I treat that as a factor to be considered but not a decisive one particularly having regard to the stage the process had reached.

[23] On balance, had there been a basis for making an order under s 59, I would have exercised my discretion in the applicant’s favour.  It remains to note it was also submitted that no reason was advanced by the applicant why he had not sought compensation in the Magistrates Court upon conviction of the respondent for common assault.  The submission that implies that that course may have provided a remedy approximating what would have been sought in the action is ingenious but unlikely to be correct in practice. 

[24] The orders are the following:

1. The application is dismissed.

2. The applicant pay the respondent’s costs of and incidental to the application to be assessed. 

 

 

Close

Editorial Notes

  • Published Case Name:

    Dunn v Lawrence

  • Shortened Case Name:

    Dunn v Lawrence

  • Reported Citation:

    [2006] 1 Qd R 405

  • MNC:

    [2005] QSC 291

  • Court:

    QSC

  • Judge(s):

    Mackenzie J

  • Date:

    18 Oct 2005

Litigation History

Event Citation or File Date Notes
Primary Judgment [2006] 1 Qd R 405 18 Oct 2005 -

Appeal Status

No Status