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Mulpha Hotel Pty Ltd v Goff

 

[2011] QCA 204

Reported at [2012] 1 Qd R 226

SUPREME COURT OF QUEENSLAND

PARTIES:

FILE NO/S:

Court of Appeal

PROCEEDINGS:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

DELIVERED ON:

23 August 2011

DELIVERED AT:

Brisbane 

HEARING DATE:

18 April 2011

JUDGES:

Margaret McMurdo P and Margaret Wilson AJA and Peter Lyons J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.The applicant be granted leave to appeal against orders 2, 3 and 4 made in the District Court on 29 October 2010;

2.The appeal be dismissed;

3.The applicant pay the respondent’s costs of and incidental to the application and appeal.

CATCHWORDS:

LIMITATION OF ACTIONS – LIMITATION OF PARTICULAR ACTIONS – CONTRIBUTION BETWEEN TORTFEASORS – PREJUDICE FROM DELAY – whether the District Court Judge erred in failing to consider or adequately consider the general prejudice suffered by the applicant as a result of the delay in proceedings being commenced against it –whether the District Court Judge erred in failing to consider or sufficiently consider the prejudice suffered by the applicant due to a potential loss of claim for contribution

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – PRINCIPLES UPON WHICH DISCRETION EXERCISED – where the respondent was granted leave to commence proceedings against the applicant outside the limitation period – where same solicitor acting both for defendant sued within limitation period, and for party against whom extension was sought – whether the District Court Judge erred in finding that a ‘cooperative attitude’ between the parties contributed to delays in the proceeding

Limitation of Actions Act 1974 (Qld), s 40

Personal Injuries Proceedings Act 2002 (Qld), s 59

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, considered

Morrison-Gardiner v Car Choice Pty Ltd [2005] 1 Qd R 378; [2004] QCA 480, cited

Workers’ Compensation Board of Queensland v Seltsam Pty Ltd [1999] 2 Qd R 679; [1998] QCA 410, applied

COUNSEL:

G A Thompson SC, with P K Feeney, for the applicant

M Grant-Taylor SC, with M T O’Sullivan, for the respondent

SOLICITORS:

Cantwell Lawyers for the applicant

K M Splatt & Associates for the respondent

[1]  MARGARET McMURDO P:  The application for leave to appeal should be granted but the appeal dismissed with costs.  I agree with Peter Lyons J's reasons and proposed orders.

[2]  MARGARET WILSON AJA:  I agree with the orders proposed by Peter Lyons J and with his Honour’s reasons for judgment.

[3]  PETER LYONS J:  Ms Goff (the respondent) has claimed damages for personal injuries against the Permanent Trustee Australia Limited (PTAL) in District Court proceedings.  On 29 October 2010 a District Court Judge made an order pursuant to s 59(2)(b) of the Personal Injuries Proceedings Act 2002 (PIPA), granting the respondent leave to commence proceedings against Mulpha Hotel Pty Ltd trading as Hayman Island Resort (the applicant); and adding the applicant as a party to the District Court proceedings.  The applicant seeks leave to appeal against these orders.[1]

Background

[4] The respondent resided in the United Kingdom in 2001, and continues to do so.  In November of 2001 she was visiting the Whitsunday Islands on vacation.  Her claim arises out of a collision which occurred between two boats in the Whitsunday Passage on 18 November 2001.  She was a passenger on the vessel “Pride of Airlie”, apparently then owned by Everest Holdings No 2 Pty Ltd and operated by an entity referred to as Koala Resort Management, which entity then conducted the South Molle Island Resort.

[5] The other vessel involved in the collision was the “Sun Paradise”.  In some of the material before the Court, its owner is described as “BT Trust trading as Permanent Trustee Australia Ltd” which appears to be a reference to PTAL.  There is material indicating that the Sun Paradise was at the time of the collision operated by an entity referred to as “Hayman Island Resort”.

[6] The material before the Court rather strongly indicates that the Sun Paradise was, at the time of the collision, owned by PTAL.  The material includes a sublease from PTAL to BT Hotel Limited (as the applicant was apparently at that time named), dated 25 May 1998.  This document granted the applicant a sublease of real property, though definitions in the document had the effect that some of its provisions extended to other property used in the operation of the tourist resort.  The affidavit to which the sublease is exhibited deposes to the fact that the property the subject of the sublease included the Sun Paradise.  It may be noted that the sublease required the applicant to insure PTAL’s property referred to in the sublease, in the names of both the applicant and PTAL.

[7] By 26 November 2002, a Brisbane solicitor, Mr Robert Downey, had been retained to act on behalf of the respondent in respect of her claim for damages for personal injuries.  It is clear, from later correspondence, that the respondent had retained solicitors in the United Kingdom, who gave instructions to Mr Downey.  The submissions in these proceedings make it necessary to consider in some detail the subsequent conduct and communications of various parties and their representatives.

[8] On 26 November 2002 Mr Downey wrote a letter addressed to “Principal Hotel Limited” advising of his instructions and enclosing a notice of claim (also referred to as Form 1) under the PIPA.  It is accepted in these proceedings that the notice of claim complied with the requirements of that Act, for a claim against the applicant.  The notice of claim attributed responsibility for the collision to the captain of the Sun Paradise, who, it was said, had been arrested and charged with criminal offences related to the collision.  The letter was sent to Principal Hotel Limited on the basis that it was the owner of the Sun Paradise.  Principal Hotel Limited is a former name of the applicant.  Other former names of the applicant are BT Hotel Limited, and BT Tourism Limited.

[9] The initial response to the letter and notice of claim came by way of a letter dated 3 December 2002 on the letterhead of “HAYMAN GREAT BARRIER REEF”, acknowledging receipt of the claim, and advising that Aon Corporate Risk Services would be “handling your claim on our behalf”.

[10]  On 20 December 2002, another firm of solicitors, Murrell Stephenson, sent a facsimile transmission to Mr Downey advising that they acted for “Hayman Island Resort” which had “onforwarded to us your letter addressed to Principal Hotel Limited” enclosing the notice of claim.  The letter advised that the owner of Sun Paradise was “BT Trust trading as Permanent Trustee Australia Ltd”; the Sun Paradise was operated by “Hayman Island Resort”; the Pride of Airlie was owned by Everest Holdings No 2 Pty Ltd; and the Pride of Airlie was operated by “Koala Resort Management the operators of the South Molle Island Resort” and advising of the names of the captain of the Sun Paradise, and the person in control of the Pride of Airlie.  The letter stated that the masters of both vessels had been charged with offences as a result of the collision, that a Board of Inquiry (BOI) had been convened to conduct an inquiry in relation to the collision, and that the BOI had not yet delivered its report.  The letter included a copy of the submissions of Counsel assisting the BOI; and advised that pursuant to s 12 of the PIPA, Murrell Stephenson considered that “each of the above persons” was a proper respondent to the claim.  The letter concluded with a requirement for the provision of all documents and information relevant to the claim, to enable Murrell Stephenson to see to the performance of obligations under s 20 of the PIPA (which required a respondent to attempt to resolve a claim).

[11]  Although the inquiry was conducted over five days in August 2002, the BOI did not complete its report (BOI Report) until 9 October 2003.  The BOI Report was tabled in Parliament on 13 November 2003, and a copy was sent to Mr Downey under cover of a letter dated 18 November 2003.

[12]  The BOI Report identified the owner of the Sun Paradise as “BT Trust, trading as Permanent Trustee Australia Ltd”; and stated that the Sun Paradise was “operated by the Hayman Island Resort”.  It identified the owner of the Pride of Airlie as Everest Holdings No 2 Pty Ltd and stated that it was “operated by Koala Resort Management, operators of the South Molle Island Resort.”  The prime cause of the collision was said to be the failure of the Sun Paradise to give way to the Pride of Airlie; though a secondary cause was the failure of the Pride of Airlie to take action to avoid the collision.  It is clear that the BOI Report attributed blame to the operator of each of the two vessels.

[13]  On 6 October 2004 Mr Downey sent a facsimile transmission to a firm of solicitors then known as TressCox.  The facsimile transmission commenced with a statement that he had been informed by Suncorp Metway Insurance Limited (Suncorp) that TressCox then acted for it in respect of the respondent’s claim.  The transmission enclosed a copy of the facsimile from Murrell Stephenson of 20 December 2002, previously referred to, together with a letter from the respondent’s employer in the United Kingdom, dated 13 September 2004, dealing with her employment from August 2002; and a medical report from Mr Richard Rawlins, an orthopaedic and trauma surgeon in the United Kingdom, describing the respondent’s injuries and symptoms and recommending that a further report be obtained in approximately a year’s time.  The letter noted that the limitation period would expire in the near future, and asked whether a compulsory conference might be held, or whether, by the consent of the parties, the respondent might be granted leave to start proceedings.

[14]  TressCox responded to Mr Downey on the same day.  The letter had the reference “Hayman Island Pty Ltd ats Joyce” (Joyce being the respondent’s surname at that time).  The letter confirmed that TressCox had instructions to act on behalf of Suncorp in relation to the matter; and stated, “[t]he former solicitors Murrell Stevenson (sic) are in receivership and our client does not have their file.”  The letter then sought copies of relevant documents “exchanged as part of the Personal Injuries Proceedings Act 2002 process”.  The proceedings in this Court have been conducted on the basis that no entity named Hayman Island Pty Ltd existed at any relevant time.  The reference to Hayman Island Pty Ltd in this letter is erroneous.

[15]  On 7 October 2004 Mr Downey responded, providing a copy of the notice of claim, a copy of the BOI Report and the submissions of Counsel assisting the BOI, a witness statement from Richard Goff, Mr Downey’s letter to Principal Hotel Limited of 26 November 2002, the letter from Hayman Great Barrier Reef to Mr Downey of 3 December 2002, the facsimile transmission of Murrell Stephenson of 20 December 2002, and a subsequent facsimile from Mr Downey to Murrell Stephenson of 14 January 2003.

[16]  TressCox wrote to Mr Downey again on 15 October 2004, the letter having the same reference as TressCox’s letter of 6 October 2004.  The letter stated that both masters of the vessels involved in the collision had pleaded guilty to charges, and continued:

“We note that the only respondent named in the form 1 is Principal Hotel Limited.  It is not the owner of either vessel and in this regard we refer to the facsimile transmission from Murrell Stephenson to you on 20 December 2002.  However, we do not have a copy of the amended notice of claim.  Would you please advise whether the notice of claim has been amended and served.”

[17]  The letter also requested a list of documents from the respondent, together with copies of additional hospital and medical reports referred to by Mr Rawlins.  The letter concluded “[a]s regards the limitation period for your client’s proceedings, please forward us a draft consent order for our client to consider.”

[18]  Mr Downey replied on 21 October 2004, advising that an amended notice of claim had not been served, and enclosing some further documents.  In addition, his letter enclosed a draft consent order.  The parties identified in the draft order were the respondent, and Hayman Island Pty Ltd, consistent with the reference on TressCox’s correspondence.  The effect of the draft order was that the respondent would have leave to start proceedings against Hayman Island Pty Ltd under s 43 of the PIPA.

[19]  On 21 October 2004, Mr Downey sent to TressCox the respondent’s list of documents.  By facsimile transmission of 22 October 2004, he advised that medical reports had been supplied by his principals from the United Kingdom, which would be forwarded under separate cover; and inquired as to “your client’s attitude to the draft Consent Order” previously submitted.  By facsimile transmission of 2 November 2004, Mr Downey again inquired of TressCox “as to your client’s instructions in respect to the draft Consent Orders”.

[20]  On 4 November 2004, TressCox replied, the reference to the letter again being “Hayman Island Pty Ltd ats Joyce”.  The letter included the following:

“Your draft order indicates that you only seek leave to commence proceedings against our client which we think is inappropriate given the Magistrates Court record of convictions against both skippers and the Marine Board of Queensland findings.”

[21]  This letter no longer contained any suggestion that the respondent erred in not proceeding against the owner of the Sun Paradise; but rather suggested, that as against “our client”, the proposed proceedings were appropriate.

[22]  On 5 November 2004 Mr Downey forwarded a report on the respondent’s condition from Dr N Campbell, a psychiatrist who practises in London.  He diagnosed her as suffering from a specific phobia (in relation to being on boats or ships); post-traumatic symptoms; and depressive symptoms.  He considered that her phobia was likely to improve with treatment.

[23]  On 12 November 2004, Mr Downey discussed the claim with Counsel, who recommended that Mr Downey ascertain the identity of the owner of the Sun Paradise.  On the same day, Mr Downey telephoned Mr Gasteen, a solicitor of TressCox, who informed him that Hayman Island Pty Ltd was the owner of the Sun Paradise.  Subsequently on that day, Mr Downey again telephoned Mr Gasteen, stating that Hayman Island Pty Ltd was not registered (apparently as the owner of the Sun Paradise).  Mr Gasteen stated that he would look at the vessel’s registration, and ascertain who the owner was, and advise Mr Downey on the following Monday.

[24]  On 15 November 2004, Mr Gasteen telephoned Mr Downey, advising that Hayman Island Pty Ltd was the registered owner of the Sun Paradise; but that he was checking further with the Department of Transport, and would contact Mr Downey again.  He also confirmed that he was “acting on behalf of the insurer of the motor vessel”.

[25]  Later that day, Mr Gasteen informed Mr Downey that the owner of the motor vessel was PTAL, and referred to the reference to this in the BOI Report.

[26]  Later again on 15 November 2004, Mr Gasteen telephoned Mr Downey, stating that he had signed the consent order which had been forwarded to him.  Mr Gasteen said that he had not “joined any other parties as Defendants”, but would do so; and that he considered that “there was a fifty/fifty percent responsibility” for the injuries to the respondent between his client and other parties.

[27]  On 16 November 2004, Mr Gasteen again telephoned Mr Downey.  He stated that he did not know who the owner of the Sun Paradise was.  There was then discussion about the letter from Murrell Stephenson of 20 December 2004, which had stated that PTAL was the owner of that vessel.

[28]  On 16 November 2004, Mr Downey sent by email transmission a letter to Mr Gasteen.  The reference on the letter was “ANGELA GEORGINA GOFF (FORMERLY KNOWN AS JOYCE) AND HAYMAN ISLAND PTY LTD AND PERMANENT TRUSTEE AUSTRALIA LIMITED”.  The letter commenced, “[w]e refer to the above matter and to our recent telephone conversation and as agreed attach …” a copy of an originating application and a copy of a consent order.  The letter requested execution of the order.

[29]  Mr Gasteen replied by facsimile transmission on the same day.  The reference on his letter was “Permanent Trustee Australia Limited ats Goff”.  The letter enclosed a duly signed consent order, together with a notice of address for service.

[30]  The respondent commenced proceedings against PTAL by filing a claim and statement of claim in the District Court on 17 November 2004.  In the proceedings at first instance it was accepted by the applicant that this was done “pursuant to section 43 of PIPA”, the explanation no doubt being that an order permitting this was made by consent on about 16 November 2004, consistent with the correspondence between the solicitors.

[31]  Subsequently, on a date which is not identified, a Schedule of Loss and Damage bearing a facsimile transmission date of 24 December 2004 was served on behalf of the respondent, service being effected apparently on TressCox.

[32]  By letter dated 15 November 2005 KM Splatt & Associates (Splatt) advised TressCox that they had replaced Robert Downey Lawyers as the respondent’s solicitor.  The letter enclosed a List of Documents.  TressCox’s reply requested copies of a number of these documents.

[33]  On 17 November 2005, TressCox wrote to Splatt advising of their intention to add the owners of the Pride of Airlie as contributors, and asking whether Splatt would agree, under s 16(2) of the PIPA.  On 28 November 2005 Splatt advised that there was no objection “to joining the owners of the ‘Pride of Airlie’ as contributors to this claim”, and advising that any future application to add the owner as a respondent to the claim would be supported.

[34]  On 3 February 2006 Splatt sent to TressCox a copy of a report of Dr Strangward, a surgeon with expertise in general and orthopaedic surgery, who had examined the respondent in Melbourne.  He considered that either a CT scan or an MRI or both was required to determine whether there was any underlying abnormality, and to assess what further treatment was required.  He considered that the respondent’s condition had not stabilised and indeed had recently worsened.  He could not express a view as to whether there was any permanent disability; and considered that any requirement for surgery and other treatment would depend on X-ray results.

[35]  On 3 February 2006 TressCox wrote to Splatt advising that the owner of the Pride of Airlie was Koala Resort Management Pty Ltd, and asking for confirmation of Splatt’s agreement to this company being “added as a contributor.”  On 8 February 2006, Splatt confirmed that there was no objection to this course, and on 13 February 2006 TressCox sent to Splatt a copy of the contribution notice.  That was a claim by PTAL for an indemnity or contribution from Koala Resort Management Pty Ltd in respect of the respondent’s claim.  On 20 April 2006 TressCox sent to Splatt a copy of the response to the contribution notice.

[36]  In the meantime, on 6 March 2006, Splatt advised that they were attempting to obtain the X-rays referred to in Dr Strangward’s report from their principals in the United Kingdom.

[37]  It would seem that Dr Strangward’s report of 6 January 2006 resulted in the obtaining of an MRI from Kingston MRI dated 25 July 2007.  In response to a letter from Splatt of 28 September 2007, Dr Strangward provided a further report dated 30 September 2007, stating that the MRI report confirmed a disc problem for the respondent, and that her prognosis remained problematical.  Dr Strangward’s report was provided to TressCox, who on 12 October 2007 requested a copy of Splatt’s letter of instructions to Dr Strangward, and a copy of the MRI report from Kingston MRI.  The letter also requested a signed list of documents, previously requested on 13 February 2006.  On 2 November 2007 Splatt provided a copy of the letter of instructions to Dr Strangward, together with the report from Kingston MRI.

[38]  An affidavit of Mr Rendell, a solicitor employed by Splatt, deposed that there were extensive communications between his firm and the principals in the United Kingdom, for the purposes of preparing and finalising a schedule of loss of damage, and relating to “other various privileged matters”, in 2008 and 2009.  On 22 September 2009, Splatt wrote to TressCox, proposing a compulsory conference; and on 9 October 2009 Splatt sent to TressCox a draft schedule of loss and damage, on a “without prejudice” basis.  On 15 October 2009, TressCox replied, acknowledging receipt of the draft schedule of loss and damage, and asking whether a copy had been “provided to the contributors to the claim”.  On 16 October 2009, Splatt wrote to TressCox, advising that a copy had been provided to the solicitors representing the contributor.

[39]  On 20 October 2009, TressCox again wrote to Splatt, requesting a Part 2 notice of claim, the letter of instruction to Dr Strangward, and taxation statements for the respondent.  The reference to a Part 2 notice of claim reflected amendments to the PIPA introduced since the notice of claim had originally been served.  The letter also suggested that an updated opinion be obtained from Dr Strangward.  A subsequent letter of 22 October 2009 advised that until the documents previously requested had been provided, “our client will not be in a position to nominate dates for the compulsory conference.”

[40]  On 9 February 2010, Cantwell Lawyers (Cantwell) wrote to Splatt.  The reference on the letter was “Hayman Island Resort ats Angela Georgina Goff (Joyce)”.  The letter advised that Cantwell had assumed “conduct of this file on behalf of the Respondent” from TressCox.  The letter inquired whether the respondent in the present proceedings “intends to join the owner of Pride of Airlie as a Respondent to the claim.”  The letter also stated that a number of documents had not been disclosed “in particular relevant financial records”, and requested a number of particulars relating to quantum, to be provided by way of statutory declaration, within one month.  The particulars were sought to enable the matter to proceed to a compulsory conference, pursuant to s 22 of the PIPA.  On 14 May 2010, Splatt wrote advising they were seeking instructions from their principals in the United Kingdom.  On 22 July 2010, Splatt sent to Cantwell a statutory declaration from the respondent, responding to the request for particulars.  On 19 August 2010, Splatt wrote to Cantwell, again proposing a compulsory conference.

[41]  On 2 September 2010 Cantwell wrote to Splatt.  The letter stated that Cantwell now had instructions to act on behalf of PTAL.  The letter referred to the claim and statement of claim which had been filed on 17 November 2004.  It is not clear from the material when a copy of these documents came into possession of legal representatives of either the applicant or PTAL.  It should be noted that the statement of claim alleged that PTAL “owned or operated” the Sun Paradise; and that the person in command of it “was an employee of, or a servant or agent of” PTAL or alternatively was commanding the Sun Paradise “for the purposes of” PTAL, and that PTAL was vicariously liable for any negligence on his part.  The statement of claim referred to the time of day, but not the date, of the collision.

[42]  Cantwell’s letter of 2 September 2010 referred to the allegations in the statement of claim, and stated that PTAL did not have “any role whatsoever in the operation, management or day to day conduct or supervision in relation to the vessel the Sun Paradise.”  It enclosed a draft notice of intention to defend and defence.  Generally, this consisted of non admissions, and in respect to the allegation of the collision, simply stated that no date was specified.  However, the draft defence denied that PTAL had been the operator of the Sun Paradise.

[43]  The letter also gave notice of an intention to apply to strike out the claim and statement of claim, or alternatively to seek summary judgment.  It also made reference to the fact that Robert Downey Lawyers were the solicitors on the record for the respondent.

[44]  Not surprisingly, Cantwell’s letter of 2 September 2010 prompted a response on 3 September 2010, to the effect that Splatt would seek instructions.  A further response was sent on 8 September 2010.  This letter asked for a copy of the contract between PTAL and the applicant, and any other documentation relevant to the operation of the Sun Paradise.

[45]  Cantwell replied by facsimile transmission of 9 September 2010.  Amongst other things, the reply denied any obligation to disclose arrangements between PTAL and the operator of the Sun Paradise.

[46]  By a letter mistakenly dated 8 September 2010, but obviously prepared after 9 September 2010 Splatt (amongst other things) advised that instructions were being sought from their English principals, and that Cantwell’s correspondence had been forwarded to Robert Downey Lawyers.  It asked that no application be brought without further notice.  On 16 September 2010, Cantwell served an application to strike out the claim and statement of claim.  That apparently provoked an application made on behalf of the respondent for the orders which have led to the present application for leave.

[47]  On the hearing of the application, Counsel then acting for the applicant sought leave to file and read an affidavit of Vicky Leary, a solicitor employed by Cantwell, in which she deposed that on 1 February 2010 Cantwell received instructions to act on behalf of the applicant; and on 2 September 2010, Cantwell received instructions from PTAL to act for it in relation to the proceedings.  She also deposed that “as at the relevant date” the applicant and PTAL were not insured pursuant to the same policy of insurance, “nor so far as I am aware with the same insurer.”  In response to the application for leave to file and read this affidavit, Counsel then acting for the respondent referred to the paragraph in Ms Leary’s affidavit relating to insurance, and stated that he did not object, “because, as I understand it from my learned friend, they’re not saying that the same insurer is not involved.  That is, they’re not saying the same insurer does not indemnify the parties.  So, in essence, it may be the same insurer.”  Counsel then acting for the applicant did not challenge the accuracy of this statement.  The proceedings both at first instance and in this Court have been conducted on the basis that the leave sought by the applicant to file and read Ms Leary’s affidavit had been granted.

Reasons at first instance

[48]  The learned primary Judge referred to the fact that PTAL was the owner, but not the operator, of the Sun Paradise, when the collision occurred.  He noted that both PTAL and the applicant were represented by the same Counsel and the same firm of solicitors.  He observed that the solicitors formerly involved had some difficulty in identifying who might be responsible for the operation of the vessel.  At one stage it was thought that Hayman Island Resort Pty Ltd was the operator, but it turned out that this was not a registered company.  He referred to the fact that the notice of claim was directed to the applicant.  His Honour found that a “cooperative attitude” prevailed between the respondent and her lawyers, and PTAL and the applicant and their lawyers, the parties accepting that matters were proceeding at a leisurely pace but in an appropriate way for the purposes of the PIPA and this proceeding.  His Honour then noted that Cantwell, when acting for the applicant, had requested further and better particulars with a view to proceeding to a compulsory conference pursuant to s 22 of the PIPA.  He considered that the fact that the respondent’s solicitors were engaged by principals from the United Kingdom would have contributed to delay; and that the delay did not seem to have been a matter of concern until “the last month or so”.  He referred to a submission made on behalf of the applicant that the operator of the Pride of Airlie now had immunity in respect of the respondent’s claim, although he noted that the applicant had the opportunity to send a contribution notice under the PIPA to those representing the Pride of Airlie.  In that event, Counsel for the respondent accepted that to the extent that the operator of the Pride of Airlie was responsible for the respondent’s damages, the damages could be discounted accordingly.

[49]  His Honour noted that there was no assertion of other prejudice, such as might result from the disappearance of a potential witness.  He also noted that the difficulties with the respondent’s medical condition seemed to have resulted in an acceptance of “long delay” by the applicant and PTAL.  He then granted the orders sought by the respondent.

Contentions on this application

[50]  Although this is an application for leave to appeal from the decision of the District Court Judge, the parties agreed at the hearing that the Court should hear their full arguments in the proposed appeal.

[51]  The submissions for the applicant drew attention to authorities based on a provision which is analogous to s 59(2)(b) of the PIPA, namely, s 57(2)(b) of the Motor Accident Insurance Act 1994 (MAIA).[2]Those authorities identify the relevance of a claimant’s attempts to comply with the relevant statutory requirements.  It was submitted that an applicant for relief under s 59(2)(b) of the PIPA must demonstrate “conscientious efforts to comply” with the requirements of that Act, in sufficient time to enable proceedings to be commenced within the ordinary limitation period.[3]  It was then submitted that the respondent’s failure to commence proceedings against the applicant within the limitation period “had little or nothing to do with the requirements of PIPA”; and in particular no inquiry had been made to identify the entity which was described as “Hayman Island Resort” in the facsimile transmission from Murrell Stephenson of 20 December 2002.  It was also submitted that the District Court Judge had been influenced by the submission that the respondent’s recovery would be discounted, said apparently to be based on Part 2 of the Civil Liability Act 2003, that Act not applying to a claim for damages for personal injury.

[52]  It was submitted that the District Court Judge had erred in finding there had been “a cooperative attitude” between the parties and an acceptance by them that matters were proceeding in an appropriate way, there being no evidence of the attitude of the parties, and the applicant and PTAL not being related.

[53]  It was also submitted that the applicant had suffered demonstrable prejudice by reason of the delay in commencing proceedings against it, in that if such proceedings were now commenced, the limitation period in which the applicant could claim contribution from those associated with the operation of the Pride of Airlie had expired on 18 November 2008.  In addition, reliance was placed on the general prejudice which accrues from delay, reference being made to the statement of McHugh J in Brisbane South Regional Health Authority v Taylor (Taylor).[4]

[54]  For the respondent, it was submitted that much of the time that had passed was explained by the uncertainty about the respondent’s condition as a result of her injuries.  It was submitted that the time within which the applicant, if it became a defendant in the action, could commence proceedings against those associated with the operation of the Pride of Airlie had not expired, reliance being placed on s 40(1)(b) of the Limitation of Actions Act 1974 (the Limitation Act).

[55]  Reference was also made to the respondent’s evidence that she had remained in regular contact with the solicitors in the United Kingdom; that she always cooperated with requests for information; and that otherwise she sought to advance her case.  It was also noted that Mr Gasteen of TressCox had stated to Mr Downey that in his opinion, “there was a 50/50 percent responsibility” for the respondent’s injuries, as between its client, and other parties (presumably those associated with the operation of the Pride of Airlie).

PIPA proceedings and the commencement of an action

[56]  The parties did not express agreement about the version of the PIPA to which it is relevant to refer to identify the steps which the respondent was required to take, before she could commence proceedings.  These have changed over time.  However, it is convenient to note those requirements, initially by reference to the version of the PIPA in force when steps were first taken on behalf of the respondent in respect of her claim.[5]

[57]  At that time, s 9 of the PIPA required a claimant, before starting a proceeding in the Court, to give written notice of the claim to the person against whom the proceeding was proposed to be started.  The information to be included in the notice was that required by a regulation.  The required information was relatively extensive,[6] and included details of how the incident happened, and the identity of any witnesses; as well as the name and other details relating to the person or persons responsible, in the claimant’s opinion, for causing the incident.

[58]  Section 10 of the PIPA then required the person to whom the notice of claim was given, to respond in writing, stating whether that person was a proper respondent to the claim.[7]  Provision was then made for a respondent who had received a notice of claim to add someone else as a contributor.[8]  Section 20 required the respondent to take reasonable steps to obtain information about the incident; to state whether liability was admitted or denied; to provide a fair and reasonable estimate of damages the claimant would be entitled to in the proceeding; and to make a written offer (or counter offer) of settlement.  Section 22 imposed an obligation on a claimant to provide further information, and in some cases to verify the information by affidavit, if required to do so by the respondent to the claim.  There were further provisions relating to the obtaining and exchange of further information.

[59]  Section 36 then required the holding of a conference between the parties (compulsory conference), before a proceeding was started in a court.  Subsequent sections made provision for the conduct of the compulsory conference, and for the exchange of mandatory final offers if the claim were not settled at the compulsory conference.  Section 42 provided that a claim should be started within 60 days after the conclusion of the compulsory conference, or within a further period agreed by the parties, or fixed by the Court.  Provision was also made for the time for commencing proceedings if the parties or the Court dispensed with the holding of a compulsory conference.

[60]  By late 2009, the PIPA had been amended to require the giving of a notice of claim in stages, referred to as Part 1 and Part 2 of the notice of claim; but otherwise there has been no suggestion of any material change in the steps to be taken under that Act.

[61]  In view of the history of this matter, it is relevant to refer to s 43 of the PIPA, under which the Court may give leave to a claimant to start a proceeding notwithstanding non-compliance with the requirements which have been summarised, if there is an urgent need to do so.  However that section provides that, if leave is given, the proceedings started by leave are stayed until the claimant complies with the relevant requirements of the PIPA.

[62]  Against that background, it is necessary to note the provisions of s 59, as follow:

59 Alteration of period of limitation

(1)If a complying notice of claim is given before the end of the period of limitation applying to the claim, the claimant may start a proceeding in a court based on the claim even though the period of limitation has ended.

(2)However, the proceeding may be started after the end of the period of limitation only if it is started within—

(a)6 months after the notice is given or leave to start the proceeding is granted; or

(b)a longer period allowed by the court.

(3)Also, if a proceeding is started under subsection (2) without the claimant having complied with part 1, the proceeding is stayed until the claimant complies with the part or the proceeding otherwise ends.

(4)If a period of limitation is extended under the Limitation of Actions Act 1974, part 3, this section applies to the period of limitation as extended under that part.”

Unravelling the parties

[63]  In view of the submissions made on behalf of the applicant, it is necessary to identify the roles played by various parties in relation to the conduct of the claim, and the court proceedings commenced in 2004.

[64]  At an early stage, Mr Downey dealt with both Murrell Stephenson and TressCox.  It is reasonable to infer that Murrell Stephenson and TressCox then acted for the applicant, and its insurer in relation to the respondent’s claim, that is, Suncorp.  The inference can be drawn in particular from Mr Downey’s letter to the applicant of 26 November 2002; the response of 3 December 2002; the facsimile transmission from Murrell Stephenson to Mr Downey of 20 December 2002; Mr Downey’s facsimile transmission to TressCox of 6 October 2004; and TressCox’s facsimile transmission to Mr Downey of that date.

[65]  It is also reasonable to infer, from the history of communication which has previously been summarised, that the firms of solicitors with whom the respondent’s solicitors communicated thereafter were retained by Suncorp to resist the respondent’s claim.  Mr Gasteen, of TressCox, said so much to Mr Downey on 15 November 2004.  There has been no suggestion that more than one file has been maintained in respect of the opposition to the respondent’s claim at any time.  Moreover, no evidence was led to suggest that the solicitors with the conduct of this file did not represent Suncorp.

[66]  From about November 2004, TressCox purported to act for PTAL. On 16 November 2004, Mr Gasteen of TressCox signed the consent orders relating to the commencement of proceedings against PTAL.  The only capacity in which Mr Gasteen could have signed those orders was as the solicitor for PTAL.  Subsequently, Mr Gasteen took steps which resulted in the giving of a contribution notice on behalf of PTAL to Koala Resort Management Pty Ltd.  Indeed, the evidence supports an inference that from about November 2004, at least until February 2010, the solicitors retained by Suncorp represented PTAL.  There has been no suggestion that, until February 2010, those solicitors ceased to represent PTAL; and, indeed, no evidence has been put forward to establish that TressCox acted without PTAL’s authority.

[67]  Moreover, it is reasonable to infer that at all times, the solicitors retained by Suncorp also represented the applicant.  This is patent from the communications between the solicitors up to November 2004.  Although thereafter TressCox represented PTAL, there was no suggestion that it ceased to represent the applicant as well.  Indeed, the contrary is made plain by Cantwell’s letter of 9 February 2010 (referring to the taking over of the “conduct of this file on behalf of the Respondent” (to the notice of claim under the PIPA)); and the affidavit of Ms Leary deposing to the fact that on 1 February 2010 Cantwell received instructions to act on behalf of the applicant.

Compliance with the PIPA requirements and commencement of proceedings

[68]  It has been accepted that the respondent complied with the PIPA requirement to send a notice of claim to the applicant.  She did this on 26 November 2002, which might not be regarded as a long time after the accident, particularly bearing in mind that the respondent resided in the United Kingdom

[69]  It cannot be said that, in the next two years, the matter was pursued with any expedition, though part of the explanation may lie with the time taken for the publication of the BOI Report; and with the fact that Murrell Stephenson were placed in receivership.  On the material before the Court, it appears that in this period the applicant had not complied with its obligations under the PIPA, a necessary precursor to the holding of a compulsory conference and the commencement of proceedings.  It may therefore be doubted whether the respondent’s failure to commence proceedings against the applicant within the three year limitation period is a consequence of the respondent’s failure to make a conscientious effort to comply with the requirements of the PIPA in that period.

[70]  The communications between the parties show that in the latter part of 2004, the respondent’s solicitor took steps to commence proceedings against the entity liable in respect of the involvement of the Sun Paradise in the collision.  That resulted in the commencement of proceedings against PTAL, and not the applicant.  However, the solicitors representing the applicant, and its insurer Suncorp, played a significant role in this.  In October 2004, those solicitors drew attention to the fact that no notice of claim had been served on the owner of the Sun Paradise, in a letter which also referred to the commencement of proceedings on behalf of the respondent, and to the limitation period for the commencement of proceedings (the end of which was then fast approaching).  On 4 November 2004, those solicitors protested about the fact that the respondent did not intend to commence proceedings against anyone associated with the Pride of Airlie.  In the same telephone conversation in which Mr Gasteen stated he had signed the consent order for leave to commence proceedings under s 43 of the PIPA, he expressed the view that “his client” was responsible as to fifty per cent for the respondent’s injuries.

[71]  It may be observed that careful attention to the facsimile transmission from Murrell Stephenson would have revealed what now appears to be the correct position, namely, that the applicant was the operator, and PTAL the owner, of the Sun Paradise.  However that facsimile transmission also asserted that PTAL was a proper respondent to the claim.  It did not suggest that there was no relevant relationship between the applicant and PTAL.  The BOI Report provided no more reliable information.

[72]  At the time when proceedings were commenced against PTAL, those represented by TressCox were in a position to know the true relationship between the applicant and PTAL.  The respondent had no direct knowledge of that relationship; and limited means of acquiring such knowledge.  The conduct of the solicitors representing Suncorp and the applicant played a very significant role in the commencement of proceedings against PTAL, rather than the applicant.  They represented that PTAL, as owner of the Sun Paradise, was an appropriate entity to sue; that they acted for the insurer of the vessel; and that their client was responsible as to fifty per cent for the collision.  It is almost inconceivable that, had the solicitors, in October and November 2004, suggested that PTAL had no responsibility for the operation of the Sun Paradise, the proceedings would have been commenced against it, and not the applicant.

[73]  The subsequent conduct of the matter has been set out earlier in these reasons.  The position taken by the solicitors representing Suncorp and the applicant did not change until September 2010.  It was only then that those solicitors stated that PTAL had no role in the operation of the Sun Paradise.  There has been no suggestion that, between November 2004 and September 2010, the respondent came to know of this fact.  Shortly after September 2010, the respondent made the application which resulted in the order of the District Court, the subject of challenge in these proceedings.  The principal reason for the commencement of proceedings against PTAL, and for the consequent failure to commence proceedings against the applicant at some earlier time, is the conduct of the solicitors representing the applicant and its insurer.

[74]  It follows that the District Court Judge was correct to find that “a cooperative attitude” between parties, including the solicitors for the applicant, was responsible for delays which occurred until September 2010; and that the applicant’s solicitors accepted that, after the initial notice, the matter proceeded at a leisurely pace, in an appropriate way for the purposes of the PIPA and of the respondent’s action.

[75]  It could fairly be said that the history of the matter reveals that the actions taken on behalf of the respondent, considered as a whole, fell well short of conduct which could be characterised as a “conscientious effort to comply” with the requirements of the PIPA.  The reason for the failure to commence proceedings against the applicant within three years of the collision, however, appears to be that until September 2010, the respondent (or perhaps more accurately, her legal advisers) had reasonably concluded that she had commenced proceedings against the entity responsible for the operation of the Sun Paradise.  As was recognised by Chesterman J (as his Honour then was) in Morrison-Gardiner v Car Choice Pty Ltd,[9] each case must be decided on its individual merits.  In the present case, the respondent has demonstrated good reason for the favourable exercise of discretion conferred by s 59(2)(d) of the PIPA.

Prejudice associated with potential loss of claim for contribution

[76]  It should first be noted that the solicitors acting for the applicant in December 2002 were aware, and asserted, that those associated with the operation of the Pride of Airlie were proper respondents to the claim.  The solicitors who replaced them late in 2004 were provided by the respondent’s solicitor with a copy of the BOI report, which attributed some responsibility for the collision to the operation of the Pride of Airlie.  Those solicitors took steps under the PIPA, with the cooperation of the respondent’s solicitors, to claim contribution from a party they identified as the owner of the Pride of Airlie, though their contribution notice, by implication, asserted that that party was responsible for the conduct of the vessel’s crew.

[77]  What accounts principally for any loss which the applicant may have suffered of the opportunity to commence proceedings against those associated with the operation of the Pride of Airlie is the conduct of the solicitors representing it and its insurer, between November 2004 and September 2010.  That may itself be sufficient reason to justify the extension of the limitation period, notwithstanding the prejudice resulting from the loss of this opportunity.  It is however necessary to consider whether the applicant (or its insurer) has suffered such prejudice.

[78]  The respondent’s submission that the applicant has not suffered such prejudice depends upon s 40 of the Limitation Act, which includes the following:

40 Contribution between tortfeasors

(1)An action for contribution under the Law Reform Act 1995, section 6(c) shall not be brought after the expiration of the first of the following periods to expire—

(a)a period of limitation of 2 years running from the date on which the right of action for contribution first accrues to the plaintiff or to a person through whom the plaintiff claims;

(b)a period of limitation of 4 years running from the date of the expiration of the period of limitation for the principal action.

(2)For the purposes of subsection (1)(a), the date on which a right of action for contribution first accrues is—

(a)if the plaintiff in the action for contribution or a person through whom the plaintiff claims is liable in respect of the damage for which contribution is claimed by judgment in a civil action or by arbitral award—the date on which the judgment is given or the award made whether or not in the case of a judgment the judgment is afterwards varied as to quantum of damages; or

(b)if, in a case to which paragraph (a) does not apply, the plaintiff in the action for contribution or a person through whom the plaintiff claims makes an agreement with a person having a right of action for the damage for which the right of action for contribution arises, which agreement fixes, as between the parties to the agreement, the amount of the liability in respect of that damage of the plaintiff in the action for contribution or a person through whom the plaintiff claims—the date on which the agreement is made.

(3)In subsection (1)(b)—

the period of limitation for the principal action means the period of limitation prescribed by this Act or by any other enactment (including an enactment repealed by this Act) for the action for the liability in respect of which contribution is sought.

[79]  The respondent submitted that the effect of s 40(3) is that the period of four years referred to in s 40(1)(b) commences on the expiry of the period allowed by a court under s 59(2) of the PIPA.  The respondent’s submissions relied on the decision of this Court in Workers’ Compensation Board of Queensland v Seltsam Pty Ltd (Seltsam).[10] The submissions also relied on the decision of Master Harper of the Supreme Court of the Australian Capital Territory, in AT v Lyons.[11]Reliance was also placed on the heading to s 59, and the explanatory note to the Bill which became the PIPA.  With reference to the corresponding clause in the Bill, the note states, “[t]he clause extends the limitation period prescribed by the Limitation of Actions Act 1974”.

[80]  In reply, the applicant submitted that s 59 does not extend the period of limitation, but permits the commencement of a proceeding despite the expiry of that period.  Reference was also made to a concession made in the District Court that it was not now possible for the applicant to seek contribution or indemnity from those associated with the operation of the Pride of Airlie.  However, it was not suggested that this concession prevented the respondent taking a different position on the present application, and the matter was fully argued.

[81]  The critical question is whether “the period of limitation for the principal action” referred to in s 40(1)(b) of the Limitation Act, as defined in s 40(3), includes the period within which the principal action might be commenced, by virtue of an order made under s 59(2)(b) of the PIPA.  The definition in s 40(3) of the Limitation Act refers to “the period of limitation prescribed by this Act or by any other enactment” for the commencement of the principal action.

[82]  In Seltsam, it was held that the use of the word “prescribe” in conjunction with a reference to legislation, found in s 40(3) of the Limitation Act, included the period within which an action might be brought as a result of an order of the Court made under s 31(2) of the Limitation Act.[12]  Section 31(2) provides that the Court “may order that the period of limitation for the action be extended”.  It can be seen therefore that the language of s 31(2) is consistent with the variation of a limitation period.

[83]  In reaching its conclusion, the Court was in part influenced by the fact that a decision made under s 31(2) will identify “with a degree of precision”, when the limitation period will expire.  The same may be said of an order made under s 59(2)(b) of the PIPA.  The Court rejected submissions that differences between s 40 of the Limitation Act, and its New South Wales counterpart, demonstrated an intention by Parliament to limit the expression “the period of limitation for the principal action” to a period specified in a statute.  However, in reaching that conclusion, the Court referred to a passage from the report of the Law Reform Commission on the Bill which introduced s 40 into the Limitation Act, as follows:[13]

“We agree with the New South Wales Commission (p 116 of their Report) that an independent limitation period should be fixed and we have adopted their recommendation of a limitation period expiring four years after the expiration of the limitation period for the liability for which the cause of action for contribution arises.  This period, as the New South Wales Commission suggests, should give the person claiming contribution ample time to make his enquiries and to commence proceedings even if there are appeals or new trials or both, in the action against him.

From the point of view of the person against whom contribution is claimed, the possible period of ten years which may run before any claim against him is statute barred (although a long one) is, in our opinion, not unduly so in all the circumstances.”

[84]  The plain intention of s 40 of the Limitation Act, therefore, is to provide a defendant in an action with a substantial period after the action against that person has commenced, within which to claim contribution.  The cause of action on which such a claim is based does not accrue, for the purpose of the limitation period found in s 40(1)(a) of the Limitation Act, until either there is a judgment against the person who then claims contribution, or that person makes an agreement with another person fixing the amount of the liability of the person seeking to claim contribution.[14]  The position formulated in the Limitation Act is similar to the view otherwise reached in respect of the accrual of a cause of action for contribution.[15]

[85]  If the applicant’s submissions were accepted, it would mean that in a case such as the present case, the limitation period for its claim against another tortfeasor would expire before its cause of action had accrued.  That can hardly have been the intention of the legislature in adopting s 40 of the Limitation Act.

[86]  The language found in s 59 of the PIPA does not require acceptance of the applicant’s submissions.  The applicant’s submissions point to the use of the expression “the period of limitation” in s 59, in a way that clearly applies to a period specified in the Limitation Act, or an extension of that period under the provisions of that Act; and to the absence of the use of that expression in connection with a period resulting from the application of s 59(2).  However, that does not mean that the latter period is not a “period of limitation for the principal action” for the purposes of s 40 of the Limitation Act.  Such a period is plainly a period which limits when a person might bring an action against another who might then seek contribution from yet another person.  The heading to s 59 supports this characterisation of the period resulting from the application of s 59(2).

[87]  These considerations lead to the conclusion that, where under a statute the Court allows a person to commence an action after the expiry of the period of limitation determined by reference to the Limitation Act, the limitation period for a claim for contribution is determined by reference to the longer period allowed by the Court.  Accordingly, the applicant has not demonstrated relevant prejudice by reference to a potential claim against those associated with the operation of the Pride of Airlie.

Prejudice and delay

[88]  The District Court Judge held that there was no evidence of what was referred to by McHugh J in Taylor as actual prejudice.  That finding has not been challenged.  It reflected an express concession at first instance.

[89]  In this case, there is good reason not to attribute significant weight to the general prejudice said inevitably to occur simply from the passage of time.  The Master and a member of the crew of the Sun Paradise gave evidence before the BOI.  In the nature of things, it is likely that those associated with the operation of the Sun Paradise investigated in detail, the circumstances of the collision, in preparation for the BOI’s hearing.  Senior Counsel for the applicant appeared to accept that this was likely; and there is no evidence to suggest otherwise.

[90]  Beyond that, the applicant has been on notice since late in 2002 of the respondent’s intention to make a claim against it.  Solicitors representing it, and its insurer, have over the subsequent years had the conduct of the investigation and consideration of the respondent’s claim.  Those solicitors have, at the very least, acquiesced in the delays which have occurred, and have contributed materially to the fact that the respondent did not earlier commence proceedings against the applicant.  In those circumstances, considerations of prejudice of this kind would not have warranted the refusal of the respondent’s application under s 59(2) of the PIPA.  Moreover the applicant’s solicitors appear to have been by November 2004 in a position to assess the degree of the applicant’s responsibility for the collision.

Conclusion

[91]  The District Court Judge recorded the submission made on behalf of the respondent that damages would be reduced under the Civil Liability Act 2003 by virtue of the contribution to the collision of the conduct of those associated with the Pride of Airlie.  It is not entirely clear that his Honour relied on this submission in reaching his decision.  It would have been an error to do so.  However the matters which have been discussed in these reasons demonstrate that his Honour was correct to make the orders which the applicant seeks to challenge.

[92]  While the applicant’s arguments raise some matters which have required serious consideration, the applicant’s appeal should not succeed.  I would therefore make the following orders:

 

(a)The applicant be granted leave to appeal against orders 2, 3 and 4 made in the District Court on 29 October 2010;

(b)The appeal be dismissed;

(c)The applicant pay the respondent’s costs of and incidental to the application and appeal.

Footnotes

[1] It is common ground that leave is required pursuant to s 118 of the District Court of Queensland Act 1967.

[2] For example, Morrison-Gardiner v Car Choice Pty Ltd [2005] 1 Qd R 378.

[3] By reference to Morrison-Gardiner v Car Choice Pty Ltd [2005] 1 Qd R 378, 402; and to Winters v Doyle [2006] 2 Qd R 285, 292-293. Reliance was also placed on Spencer v Nominal Defendant [2008] 2 Qd R 64.

[4] (1996) 186 CLR 541, 551-552.

[5] Reprint 1, in force on 29 August 2002.

[6] See s 3 of the Personal Injuries Proceedings Regulation 2002 (Reprint 1).

[7] See s 10 and s 12 of the PIPA.

[8] See s 16 and s 17 of the PIPA.

[9] [2005] 1 Qd R 378, 402.

[10] [1999] 2 Qd R 679.

[11] (2005) 196 FLR 194.

[12] Workers’ Compensation Board of Queensland v Seltsam Pty Ltd [1999] 2 Qd R 679, 687 [29].

[13] See ibid at [23].

[14] See s 40(2) of the Limitation Act.

[15] See Bitumen and Oil Refineries (Australia) Ltd v Commissioner for Government Transport (1955) 92 CLR 200 at 211-212, where the critical fact was said to be the ascertainment of liability; see also Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213 at 221.

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Editorial Notes

  • Published Case Name:

    Mulpha Hotel Pty Ltd v Goff

  • Shortened Case Name:

    Mulpha Hotel Pty Ltd v Goff

  • Reported Citation:

    [2012] 1 Qd R 226

  • MNC:

    [2011] QCA 204

  • Court:

    QCA

  • Judge(s):

    McMurdo P, M Wilson AJA, P Lyons J

  • Date:

    23 Aug 2011

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2010] QDC 43829 Oct 2010Plaintiff applied pursuant to s 59(2)(b) of the Personal Injuries Proceedings Act 2002 for leave to commence proceedings against Defendant and an order adding the Defendant as a party to the proceeding; application granted: Robin DCJ
Appeal Determined (QCA)[2011] QCA 204 [2012] 1 Qd R 22623 Aug 2011Defendant applied for leave to appeal against orders made in [2010] QDC 438; full arguments of proposed appeal heard; application for leave to appeal granted and appeal dismissed: M McMurdo P, M Wilson AJA and P Lyons J

Appeal Status

Appeal Determined (QCA)
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