Seiler v Nan[2000] QCA 362

SUPREME COURT OF QUEENSLAND

1. MCPHERSON JA: I agree that this appeal should be dismissed for the reasons given by Thomas JA and Moynihan SJA.

2. THOMAS JA and MOYNIHAN SJA: The plaintiff sued the defendants for personal injuries.  The defendants pleaded that the plaintiff’s action was barred by the operation of s 11 of the Limitation of Actions Act 1974.  The plaintiff’s reply set up that the defendants were estopped from relying on that plea. 

3. This is an appeal from a determination of the limitations point as a separate issue which involved striking out the relevant paragraph of the defence and the dismissing of the plaintiff’s application for judgment on the basis that the point afforded a defence to the action.

4. The plea arose in the following circumstances. On 27 March 1995, the plaintiff was inspecting a forklift on the defendants’ premises with a view to purchasing it. The second defendant started the machine up and commenced to drive it forward. The forklift swung out and struck the plaintiff and the machine ran over his foot.

5. The plaintiff retained solicitors to pursue his claim for damages as did the defendants’ insurer. The solicitors embarked on an exchange of correspondence with a view to reaching a consensual resolution. For reasons which it is unnecessary to explore, this became a somewhat protracted process.

6. The plaintiff’s solicitors wrote to the defendants’ on 11 February 1998. They noted that the exploration of the limitations period was “fast approaching” and “in view of the costs of instituting proceedings” invited the defendants to waive their rights to rely on the Limitation of Actions Act 1974 if the action was not commenced in time.  The defendants’ solicitors responded by a letter of 25 February stating that their client was prepared to waive its rights until 30 June 1998.  The letter went on that their client “will review that waiver (with a view to extending it if necessary) at the beginning of June 1998, if necessary”. 

7. After a further exchange of correspondence designed to facilitate the defendants’ investigation, the plaintiff’s solicitors wrote again on 23 June 1998. That letter referred to the extension to 30 June as being to further negotiations and asked whether the defendants wished the plaintiff “to institute proceedings or to extend the limitation period”. The defendants’ solicitors replied by letter of 26 June 1998 extending the waiver to 30 September 1998 and concluding that their client will “review that waiver in September, if necessary”.

8. By 6 August 1998, the plaintiff’s solicitors sought a copy of a report which they had become aware the defendants had obtained in the course of their investigations and stating that unless the report was received within 14 days they had no option but to institute proceedings. The defendants’ solicitors replied on 19 August stating that there was no agreement to release a copy of the report and concluding:

“we are presently obtaining instructions from our client in relation to this matter and will advise you in due course”.

9. By letter of 25 November 1998, the plaintiff’s solicitors rejected an offer made by the defendants in a letter of 3 November and made a counter offer. An action was subsequently commenced.

10. The defendants’ solicitors agreed in evidence that his letter of 19 August was saying:

“we’re not going to give you the report but I still think we can resolve it and I’ll get back to you”.

11. The trial judge concluded that the defendants’ solicitors had impliedly represented they would take instructions about an offer of settlement and that it was unnecessary for the plaintiff to commence proceedings until informed of those instructions. The appellant contends that that conclusion was not reasonably open.

12. It is noteworthy that the defendants’ solicitors letters of 25 February and 26 June are in terms of the defendants reviewing the waiver rather than imposing an obligation on the plaintiff’s solicitors to seek an extension. That is hardly surprising where the outcome of the liability aspect appeared to be a foregone conclusion and the purpose of the waiver was to permit the defendants to investigate the quantum case in circumstances where both solicitors thought the action was settleable.

13. It was submitted for the defendants that the trial judge confused the correspondence in that it dealt with two separate issues, the waiver of the right to rely on the Limitation of Actions Act 1974 on the one hand and provision of a copy of the expert’s report on the other.  That, however, is to ignore that the only purpose of the waiver was the entirely commendable one of allowing the defendants to explore the plaintiff’s claim with a view to settlement.  Moreover, if it was not already clear from the terms of the letter of 19 August, with its reference to “this matter”, that it was referring to the plaintiff’s claim as distinct from the release of the report; the defendants’ solicitors agreed in evidence that the former construction reflected his intention. 

14. It has not been demonstrated the trial judge erred in construing the correspondence as founding an estoppel.

15. The appeal should be dismissed and the defendants should pay the plaintiff’s costs of it to be assessed on the standard basis.