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  • Unreported Judgment

Newson v Aust Scan Pty Ltd

 

[2010] QSC 223

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Newson v Aust Scan Pty Ltd t/a Ikea Springwood & Ors [2010] QSC 223

PARTIES:

KEITH IVAN NEWSON
(plaintiff)
v
AUST SCAN PTY LTD (ABN 84 006 270 757)
TRADING AS IKEA SPRINGWOOD
(first defendant)
SMITH BROS TRADE & TRANSPORT TERMINAL PTY LTD (ACN 003 307 319)
(second defendant)
SUNCORP METWAY INSURANCE LIMITED (ACN 075 695 966)
(third defendant)

FILE NO/S:

BS 7497/09

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

30 June 2010

DELIVERED AT:

Brisbane 

HEARING DATE:

19 May 2010

JUDGE:

Alan Wilson J

ORDER:

  1. That the first defendant’s application filed 13 May 2010 be dismissed;
  2. that paragraphs 6(c), (d) and (e), 8(b) and (c), 11(d), 13(a) and (c)(i) of the defence of the first defendant be struck out;
  3. that the first defendant deliver any amended defence within 21 days;
  4. that the first defendant pay the costs of the plaintiff, and of the second and third defendants, of and incidental to:
    1. the plaintiff’s amended application filed 11 May 2010; and
    2. the first defendant’s application filed 13 May 2010

assessed on the standard basis.

CATCHWORDS

STATUTORY CONSTRUCTION – Personal Injuries Proceedings Act 2002, s 32(2)  – DUTY TO DISCLOSE – DISCRETION TO EXCUSE NON COMPLIANCE – where Act states that party cannot rely on document that was not disclosed – where document not disclosed prior to Compulsory Conference and nearly five years after notice of claim – where applicant seeks to rely on non-disclosed document – whether the court should exercise its discretion to excuse non compliance with disclosure requirements

Personal Injuries Proceedings Act 2002, ss 22, 27, 28, 29, 32(2) and 37(3)

Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, applied

Knight v FP Special Assets Ltd (1992) 174 CLR 178, applied

Luck v Lusty EMS Pty Ltd [2008] QSC 146, considered

Miller v The Nominal Defendant [2003] QCA 558, cited

Perdis v The Nominal Defendant [2003] QCA 555, cited

Piper v The Nominal Defendant [2003] QCA 557, cited

Taylor v Stratford [2003] QSC 427, cited

Vicary v State of Queensland [2009] QSC 284, cited

COUNSEL:

C Newton for the plaintiff/applicant

D P de Jersey for the first defendant/cross-applicant

J Rolls for the second and third defendants

SOLICITORS:

Maurice Blackburn for the plaintiff

Sparkes Helmore for the first defendant

Eardley Motteram for the second and third defendant

  1. Section 4 of the Personal Injuries Proceedings Act 2002 (PIPA) announces that the legislation is intended to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injuries.  That purpose is to be achieved, s 4(2) says, by providing a procedure for the speedy resolution of claims and for promoting settlements at an early stage, wherever possible, by ensuring that court proceedings cannot be started until the claimant is ‘…fully prepared for resolution of the claim by settlement or trial’.  These ends are to be achieved by a full exchange of documents and information (ss 22, 27, 28, 29 and 37) followed by a compulsory conference (s 38) and, if the matter is not settled at the conference, an exchange of written final offers (s 39). 
  1. The obligation to make full disclosure is expressed, throughout, in imperative terms and non compliance has serious consequences. The procedure under s 37 (Exchange of material for compulsory conference) requires each party to sign a statement verifying it has disclosed everything, and a certificate of readiness, and a practitioner who without reasonable excuse signs the certificate knowing that it is false or misleading in a material particular commits an act of unprofessional conduct (s 37(3)). Section 31 goes so far as to make it an offence for a respondent to withhold information or documentary material from disclosure.
  1. The plaintiff suffered serious injuries when he was crushed between a truck and a loading dock at the first defendant’s business premises at Springwood on 15 July 2004. The parties undertook all the pre-court procedures required by PIPA during which the first defendant failed, however, to disclose a document it now seeks to rely upon. The document is said to constitute its policy ensuring a safe system of work for persons like the plaintiff. It is called ‘Goods receiving at the IKEA store – Think Safety’. The existence of the document was not revealed until the first defendant referred to it in its defence, delivered in August 2009.
  1. The plaintiff says the non-disclosure is so serious that the first defendant should not be allowed to use the document at all in these proceedings. The first defendant admits its non-disclosure, but seeks to be excused. The argument hinges around the meaning and effect of s 32 of PIPA, which provides:

32Consequence of failure to give information

(1)This section applies if a party fails to comply with a provision of division 1 or this division requiring the party to disclose a document to another party.

(2)The document can not be used by the party in a subsequent court proceeding based on the claim, or the deciding of the claim, unless the court orders otherwise.

(3)If the document comes to the other party's knowledge, the document may be used by the other party. (emphasis added)

The nature and parameters of the discretion arising under s 32(2) have not, apparently, fallen to be considered by the court before.

  1. In the course of the hearing a preliminary question arose: whether a document, upon which the first defendant might rely, actually existed at any relevant time. The only copy of the ‘Goods receiving’ document produced by the first defendant bears the date 10 December 2004, which is five months after the plaintiff’s accident. 
  1. There is, however, evidence supporting the possibility that the document did exist prior to the date it bears. IKEA Pty Limited was prosecuted as a result of the accident[1] and, in the course of that prosecution, an agreed statement of facts was produced which recorded that ‘the defendant had a system of work in place which was documented and titled ‘Goods receiving at IKEA store’. This document was not required to be viewed or signed by drivers.’  A former supervisor at IKEA has sworn that, to the best of her recollection, the document was (in her words) ‘in place at the Springwood store’ at the time of Mr Newson’s injury.
  1. It remains, of course, for the first defendant to explain the post-dating at trial but I am satisfied that the document it has produced suffices for the purpose of its application under s 32.
  1. The phrase ‘unless the court orders otherwise’ plainly gives the court a discretion to override the prohibition in the subsection.  The statutory conferral of a discretionary power is, ordinarily, to be construed liberally.  The exercise of the power is not subject to unnecessary limitations that do not appear in the words of the statutory grant[2].  As Kirby and Callinan JJ remarked in Gerlach v Clifton Bricks Pty Ltd a statutory grant of judicial discretion is not, however, absolute and must be exercised in accordance with the language by which it is conferred and to achieve the purpose for which the power has been granted[3].
  1. They said:

Judges within the integrated judicature of the Commonwealth are answerable to appeal and to judicial review. This does not mean that a discretionary power given to a judge should be narrowly confined or hemmed about with restrictions and limitations, whether called principals or ‘guidelines’ or anything else. But it does mean that there are legal controls which it is the duty of the courts to uphold when their jurisdiction is invoked for that purpose.[4]

  1. This Court has previously considered the effect of the phrase bestowing the discretion here in the context of UCPR r 905 which provides that, unless the court orders otherwise, if a person fails to satisfy a condition the court has included in an order the person loses the benefit of the order.  In Vicary v State of Queensland[5], P Lyons J observed that the discretion under r 905 arose in circumstances intended to be remedial and should, therefore, be construed liberally[6].
  1. The nature of the court’s discretion to excuse non-compliance with these parts of PIPA was considered, although in a different context, by Byrne SJA in Luck v Lusty EMS Pty Ltd [2008] QSC 146.  There, the defendant elected not to have the plaintiff submit to a medical examination during the pre-litigation PIPA phase, and its solicitors signed a certificate of readiness under s 37. The claim did not settle at the compulsory conference and the plaintiff began his action, whereupon the defendant applied for an order that he undergo a medical examination. The application was resisted on the basis that the obligation to submit to an examination under PIPA s 25 ceased once defendant’s solicitor had signed the certificate.
  1. In granting the order the defendant sought Byrne SJA said:

[15]Such an interpretation, constraining the court’s jurisdiction under UCPR 429G or to enforce s.25, would support considerations that the Act treats as important. The construction for which [the plaintiff] contends would tend to ensure that decisions made by parties about offers of settlement are informed. It would reduce a risk of prejudice through rejecting an offer that subsequently proved to be good after further evidence had changed the complexion of the case. And it would facilitate expedition of litigation, if the case had to be tried, because the issues would usually have been narrowed through the pre-trial procedures in which the investigations had been thorough and the results exchanged.

[16]But such an interpretation could also perpetuate injustices in some cases: outcomes the Parliament is unlikely to have intended.

[17] There might be an innocent but in the result mistaken certification of readiness for trial. For example, despite reasonable diligence, it might only emerge afterwards that the certificate was inaccurate. A solicitor might belatedly come to appreciate, through counsel's advice or from other sources, that a particular type of specialist practitioner’s views should have been obtained. Or a doctor who had supplied a report might not be available to testify at trial. Other examples of not improbable, unjust outcomes involved in the suggested interpretation could be envisaged.

[18]There is also a slight, contextual indication that the potentially draconian consequences that could attend the suggested interpretation were not intended by the legislature.

[19] Section 36, which deals with the compulsory conference, and s.37 are in division 4 of part 1. Nearby in the Act is s.32(2), which concerns enforcement of obligations to disclose documents. It provides that if a party fails in a duty to disclose a document ‘the document cannot be used by the party in a subsequent court proceeding based on the claim... unless the Court orders otherwise.’

  1. Responsibility for the non-disclosure here has been assumed by the first defendant’s solicitors. The partner in the law firm with carriage of the matter says that when she first prepared a list of documents to comply with the PIPA process the document was not in her client’s possession, and she was not provided with a copy until 9 October 2007.
  1. The PIPA compulsory conference did not take place until 5 June 2009. Notwithstanding the pre-conference disclosure requirements in ss 27 and 37 it was not disclosed then, or at all, until a copy was sought by the plaintiff’s lawyers after they saw the reference to it in the first defendant’s defence.
  1. Section 32 is solely directed to the obligation to disclose, and the consequences for the party who fails to comply. The exercise of the discretion to excuse non compliance will, as might be expected in most cases, involve some focus upon the conduct of the defaulting party who will carry the obligation of demonstrating, by reference to that conduct, a reason why it should be excepted from the prohibition.
  1. There have been cases involving legislation dealing with claims for damages for personal injury in which the consequences of non-compliance with provisions requiring pre-action steps, occasioned through an error (or even the negligence or incompetence) of a party’s solicitor have not been visited upon the client. A failure to give a notice in a timely fashion under s 9 of the Motor Accident Insurance Act 1994 is an instance[7].  That legislation, however, contemplates the defaulting party having the opportunity to provide ‘a reasonable excuse for the delay’ and the Court of Appeal has said that a claimant who entrusts a lawyer with carriage of the claim, and is reasonably diligent in giving the necessary instructions, should escape penalty if the lawyer does not act to comply with the legislation[8].
  1. Parliament did not similarly expand the parameters of the discretion here. It is plain that complete disclosure of all relevant documents is at the heart of the PIPA process. Deliberate withholding is an offence, and non compliance without reasonable excuse constitutes unprofessional conduct. On any view, the legislature has placed a strong emphasis upon the obligation to disclose.
  1. It is accepted, of course, that the instances of innocent non compliance suggested by Byrne SJA might prove capable of attracting the exercise of the discretion. The pertinent example his Honour advanced in paragraph [17] is the possibility that, despite reasonable diligence on the lawyer’s part, it might only emerge afterwards that the certificate of readiness was inaccurate.
  1. The difficulty for the first defendant here is that the solicitor’s affidavit does not show that the care and diligence and, in particular, the close attention to disclosure which is plainly called for by PIPA was applied to the relevant document over a period of 18 months – between 9 October 2007, and 5 June 2009. It is accepted that, as the solicitor says, the document first came into her possession after the initial round of disclosure under s 27; but s 37 reiterates the obligation in preparation for the compulsory conference. In explaining what happened at that time, she says:
  1. It is my standard practice to inquire, prior to a compulsory conference as to whether disclosure requirements have been complied with, whether disclosure is up to date, and whether an updated list of document (sic) is required, before signing a Certificate of Readiness.
  2. As no updated list was prepared, I assumed that there was nothing further to disclose. I relied upon that assumption. I signed the Certificate of Readiness.
  1. These passages do not reveal the person(s) of whom the enquiry was made, or by whom the updated list should have been prepared. Nor do they reveal any system or procedure within the solicitor’s office for ensuring compliance with the provisions which could be described as exhibiting a reasonable degree of diligence.
  1. The notice of claim under s 9 of PIPA was served on the first respondent on 14 September 2004. Almost five years passed before the existence of the document was first revealed, in the first defendant’s defence of August 2009. The plaintiff, and the second and third defendants, have not contributed in any way to the non compliance.
  1. It is said for the first defendant that the plaintiff will not suffer any prejudice if it is allowed to rely upon the document. It is probably true that, at worst, the plaintiff may be forced to reprise the PIPA processes or that, as his counsel pressed, the trial of his action would be delayed if his advisers are forced to investigate the potential effect of the document on liability and seek evidence to rebut those potential effects. The consequences of a favourable exercise of the discretion are material but, here, must be considered in the light of the importance the legislation places upon proper compliance.
  1. The only additional thing that might be said about the elements of the discretion arises from the traditional emphasis, in our system of justice, upon a trial which truly and fully enables all parties to ventilate the real issues between them. Nothing in s 32 suggests the legislature did not take that into account, and the wording of the provision indicates a deliberate choice (in the context of the strong emphasis upon full disclosure) to visit serious, even draconian, consequences upon the defaulting party. In the present case it might also be said that if this defendant is excused, the bar is in reality set quite low. Again, that is not a conclusion which sits comfortably with the simple words used in the provision.
  1. For these reasons I am persuaded the first defendant’s application should be refused. That determination makes it unnecessary to declare, as the first defendant sought, that the first defendant be restrained from relying on the document.
  1. The plaintiff also seeks orders that certain nominated paragraphs in the defence of the first defendant should be struck out. The question is whether or not those sections involve a ‘use’ of the offending document. That is certainly true of paragraphs 6(c), (d) and (e), 8(b) and (c), 11(d), 13(a) and (c)(i) and they ought be removed. The first defendant should, however, be allowed the opportunity to re-plead in accordance with this decision.
  1. As to costs, there is no reason to depart from the usual rule. The first defendant should pay the costs of the plaintiff, and the second and third defendants, of and incidental to the applications brought by it, and the plaintiff, on the standard basis.

Footnotes

[1] Under the Workplace Health and Safety Act 1995

[2]           Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 191 (per Mason CJ and Deane J) and 205 (per Gaudron J)

[3]           (2002) 209 CLR 478 at 503

[4]           Ibid, at 504

[5]           [2009] QSC 284

[6] Ibid,  at [17] citing Knight v FP Special Assets (supra) at 205

[7] Perdis v The Nominal Defendant [2003] QCA 555; Piper v The Nominal Defendant [2003] QCA 557; Miller v The Nominal Defendant [2003] QCA 558; and, Taylor v Stratford [2003] QSC 427, at [18] per Margaret Wilson J.

[8] Perdis v The Nominal Defendant (supra) at [12], [13] per Davies JA

Close

Editorial Notes

  • Published Case Name:

    Newson v Aust Scan Pty Ltd t/a Ikea Springwood & Ors

  • Shortened Case Name:

    Newson v Aust Scan Pty Ltd

  • MNC:

    [2010] QSC 223

  • Court:

    QSC

  • Judge(s):

    A Wilson J

  • Date:

    30 Jun 2010

Litigation History

No Litigation History

Appeal Status

No Status