Lamb v State of Queensland[2003] QDC 3

[2003] QDC 003

DISTRICT COURT

CIVIL JURISDICTION

JUDGE MCGILL SC

No D260 of 2003

and

NICHOLAS TINGSecond Respondent

BRISBANE

DATE 31/01/2003

ORDER

HIS HONOUR: This is an application under section 43 of the Personal Injuries Proceedings Act 2002 ("the Act"). By that section the Court has jurisdiction to give leave to start a proceeding in this Court notwithstanding non-compliance with part 1 of chapter 2 of that Act, "if the Court is satisfied there is an urgent need to start the proceeding".

A common example of an urgent need to start a proceeding would be that generated by the imminent expiration of the limitation period. In the present case the plaintiff is seeking to sue in respect of personal injuries alleged to have been suffered by her negligently during a surgical procedure on 1 February 2000, and for negligent misdiagnosis on 10 February 2000 by the second respondent.

If the plaintiff has a cause of action in respect of the former the limitation period will run out tomorrow, and in respect of the latter the limitation period will run out in a few days time, subject to any extension of the limitation period effected by the Act or, I suppose, under some other Act.

The Act originally did not apply to an injury suffered as long ago as 2000, but it was amended by the amended Act last year in respect of which certain transitional provisions were inserted to the Act. One of these extended the time for giving a notice of claim otherwise required by the Act in respect of those injuries which were initially not covered by the Act but now were to be: section 77A.

A notice of claim was sent to the first respondent on 18 December 2002 and to the second respondent two days earlier. In addition 77D provides for the extension of the limitation period provided that there was a personal injury arising out of an incident happening before 18 June 2002, which is what the plaintiff alleges, and the period of limitation based on a claim for that injury ends during the period between 18 June 2002 and 18 December 2003, which as I have said will be the case, and if a proceeding based on the claim has not been started in the Court, which at the moment is the case. Subsection (2) then provides that, if the limitation period has ended, a claimant may start a proceeding in a Court based on the claim -

"(a)if a complying notice of claim is given before 18 June 2003; or

2. (b)
   at a later time, not more than six months after the complying notice of claim is given and not later than the end of 18 December 2003, with the Court's leave."

The obvious purpose of the section is to extend the limitation period in situations where it applies and, therefore, in my opinion, subsection 2 should be interpreted as if the words, "notwithstanding the provisions of the Limitation of Actions Act", were implied after "proceeding in a Court" in subsection 2. That is, it is intended to deprive a defendant of a defence under that Act which would otherwise arise because of the ending of the period of limitation. In practical terms, it extends the period of limitation.

The provision in subsection (a), at a quick reading, suggests that it operates if a complying notice of claim is given before 18 June 2003, but if it is read in that way it would not make sense because it would mean that, as long as the complying notice of claim had been given before that date the proceeding could be started at any time. It is unlikely that in that situation the legislature intended simply to abolish the Limitation Act.

It would also mean that there would not seem to be any situation in which paragraph (b) could apply. Paragraph (b) assumes that the claimant may start a proceeding at a later time, that is, logically later than the time limited by paragraph (a), and therefore, presumably paragraph (a) ought to contain a period limiting the time within which the claimant may start a proceeding in a Court. This is a rather tedious explanation for saying that, I think, paragraph (a) ought to have included a comma after the word "given" and it ought to be interpreted as if that comma were included. That would seem to be consistent with the apparent purpose of the provision.

It follows, therefore, that if a claim has not been started in a Court at the time the limitation period ends, the claimant may still commence a Court proceeding provided that the complying notice of claim is given before 18th June 2003 or, with the Court's leave, before 18th December 2003 or six months after the notice of claim was given, whichever is earlier.

The first respondent initially had some concern about the compliance of the notice of claim, but yesterday advised that the notice was compliant. Accordingly, in so far as the first respondent is concerned, either the notice is compliant or, if for some reason the admission was in error, the first respondent will be taken to have waived any non-compliance.

It follows that either there is a complying notice of claim, or there is taken to be complying notice of claim under section 20(2). In those circumstances it follows from section 77D that, in relation to the proposed action against the first respondent, the applicant can commence proceeding in a Court at any time before 18 June 2003 without leave, even if the limitation period is allowed to expire tomorrow without a proceeding being commenced. In those circumstances, I find that if that situation arises it will not be open to the first respondent to plead a defence under the Limitation of Actions Act.

It follows that on that basis I cannot be satisfied that there is any urgent need to start the proceeding against the first respondent, and no other urgent need was relied on on behalf of the applicant.

In relation to the second respondent, the second respondent has said that the notice of claim given on 16 December was not compliant and the applicant proposes to give a fresh notice of claim which is intended to be compliant, but that has not yet been done. However, provided that that notice is given before 18 December 2003 there would not seem to be any difficulty.

Indeed, even if a fresh notice is given which is not compliant, if further compliance is waived by the respondent or if the Court determines on application that there has been compliance, or authorises the claimant to proceed further with the claim despite non-compliance, there is in section 20(2) a deeming provision to the effect that the applicant is deemed to have given a complying notice of claim, so section 77D(2) will operate.

As long as one of those things is done a proceeding can be commenced before 18 June 2003 or with the Court's leave up to six months after the notice is given is deemed to be given, but not after 18 December 2003.

It seems to follow from subsection (3) that it is not also necessary to comply with the other requirements of chapter 2 part 1 prior to commencing a proceeding under section 77D. Subsection 3 parallels section 43(3). If the intention of the legislature was that the other requirements of part 1 of chapter 2 were to be completed between the time when the complying notice of claim was given and the proceeding was commenced in the Court, which is ordinarily what occurs, there would have been no need for section 77D to include subsection 3. It follows that all that is required is that there be a complying notice of claim or a deemed complying notice of claim given before the claimant may start a proceeding under subsection (2), and the applicant has plenty of time to do that.

I find that so long as a complying notice of claim (or a deemed complying notice of claim) is given by that time, if a proceeding is commenced within the time limited by section 77D(2) it will not be open to the second respondent to plead a defence under the Limitations of Actions Act.

Accordingly, in the case of the second respondent as well there is now no urgent need to start the proceeding, and accordingly there is no jurisdiction to make an order under section 43(1). I should say that subsection (4) of section 77(D) provides "this section does not limit section 43." I do not think that that should be interpreted as meaning that the jurisdiction under section 43 should be exercised without regard to the provisions of section 77D.

Rather, what I think it means is that the jurisdiction under section 43 may be exercised if the requirements of that section are satisfied in a situation where the urgent need arises pursuant to the operation of section 77D, or   notwithstanding the extension to the limitation period provided for in that section.

Accordingly, there is no urgent need for the applicant to start proceedings against either respondent and the application should be dismissed. I should add that it was submitted that in a situation such as this I should, in the alternative to making an order under section 43, make a declaration as to the operation of the Act in this situation.

I am not persuaded that I would have jurisdiction to make a declaration on an application under section 43, although there would be jurisdiction under section 68(1)(b)(xiii) to determine a question of construction arising under a written instrument, which would include a statute, and a declaration of the rights of the persons interested where the sum or property in respect of the declaration sought does not exceed the monetary limit.

Since what is proposed is a proceeding in this Court where the amount awarded cannot exceed the monetary limit then there would seem to be jurisdiction under that section, but it seems to me that the application before me does not invoke that jurisdiction.

In any case, it seems to me unnecessary to make a declaration because I have made findings as to the effect of the operation of the statute on the parties, and dismiss the application on the basis of those findings, and in any later proceedings between the parties that those findings would give rise to an issue estoppel.

So, in my opinion as between the parties to this application the situation is, in practical terms, the same as if I had made a declaration. There is therefore no need for a formal declaration. The application will have to be dismissed.

HIS HONOUR: I order the costs of this application be costs in any proceeding to be commenced in respect of the claim of the applicant against the respondents which has been the subject of this application.