Nicol v Caboolture Shire Council
[2003] QDC 33
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Nicol v Caboolture Shire Council[2003] QDC 33
- Add to List
Nicol v Caboolture Shire Council[2003] QDC 33
Nicol v Caboolture Shire Council[2003] QDC 33
DISTRICT COURT OF QUEENSLAND
CITATION: | Nicol v. Caboolture Shire Council [2003] QDC 033 |
PARTIES: | PEGGY ROSE NICOL v. CABOOLTURE SHIRE COUNCIL |
FILE NO/S: | D1113/03 |
DIVISION: | Applications |
PROCEEDING: | Originating Application |
ORIGINATING COURT: | District Court Brisbane |
DELIVERED ON: | 16 April 2003 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 15 April 2003 |
JUDGE: | Robin QC DCJ |
ORDER: | Leave to start a proceeding in the District Court pursuant to s. 43 of the Personal Injuries Proceedings Act 2002. |
CATCHWORDS: | Personal Injuries Proceedings Act 2002, s 9, s 18, s 43 – Notice of Claim given after expiration of period allowed by the Act – respondent failed to acknowledge compliance due to lack of “reasonable excuse” provided to it by the applicant – application invoked ss 18 & 43 – Court held there are cases where interests of justice and urgency prevail to allow proceeding to begin – Court held both sections applicable but made order under s 43. |
COUNSEL: | P. de Plater for the Applicant W. Campbell for the Respondent |
SOLICITORS: | Cooke & Hutchinson for Applicant HBM for the Respondent |
- [1]According to a draft statement of claim prepared on her behalf, the applicant (and would-be plaintiff), a lady born in 1946, broke her right elbow and suffered other injuries when she “tripped and fell on a protruding tree root and/or uneven paving” on a pathway on Bribie Island on or about 17 April 2000. She instructed her solicitors on 8 January 2002. They sent a letter before action to the respondent Caboolture Shire Council on 15 February 2002. The Queensland Local Government Mutual Liability Pool (“LGM”) responded, advising it was acting. Nothing further happened until August. The applicant’s solicitors, still awaiting a response from LGM, then wrote indicating the applicant would proceed with her proposed claim, if advice of the outcome of LGM’s investigations was not forthcoming. The response this time, by letter of 12 August 2002, was that the respondent wished the applicant to comply with relevant provisions of the Personal Injuries Proceedings Act 2002 (“the Act”). Basic to those requirements, as set out in s. 9(1), is that:
“Before starting a proceeding in a court based on a claim, a claimant must give written notice of the claim, in the approved form …”.
This step was not taken until very recently, namely on 20 March 2003. The relevant document became Exhibit 1.
- [2]Until 29 August 2002, the applicant would have been entitled to bring a claim in the appropriate court within the general limitation period (where personal injury is concerned) of three years. That remained the situation notwithstanding the Act’s coming into force on 18 June 2002, because the Act applied only in respect of injuries sustained in accidents occurring in the future. However, on 29 August 2002, the Act was given retrospective effect. It is common ground at the Bar table that the period within which the s. 9 Notice of Claim had to be given expired on 29 December 2002. Subsection (5) has something to say about this situation:
“(5) If the notice is not given within the period prescribed under subsection (3), the obligation to give the notice continues and reasonable excuse for the delay must be given in the notice or by separate notice to the person against whom the proceeding is proposed to be started”.
- [3]Following sections of the Act impose obligations on the recipient of such a notice. Sections 10 and 11 are concerned with whether or not the recipient is a proper respondent to the foreshadowed claim. Section 12 requires that person (now called the “respondent”) to state a position as to whether the Notice of Claim is accepted as compliant with the Act. In this matter, the respondent made a small number of requests for further information, attracting some response. However, the applicant has been unsuccessful in extracting any acknowledgement of compliance from the Council’s side. The reason given is that no “reasonable excuse for the delay” within s. 9(5) has been given. Analogous provisions in the Motor Vehicles Insurance Act 1994 were considered in Piper v. Nominal Defendant (2003) QSC 39, in which a strict attitude was taken to what amounted to a reasonable excuse for delay. What is put up here is that the applicant and her solicitors had to carry out
“….investigations into the issue of quantum, namely, inter alia, obtaining a medico-legal report regarding the nature and extent of the applicant’s injuries, gathering particulars of medical expenses from the Health Insurance Commission, and the applicant’s private health fund, obtaining medical records from treating medical practitioners, the Redcliffe Hospital, etc. The applicant was not in a position to furnish a Notice of Claim which was fully compliant until such time as all relevant information and documentation was to hand.”
- [4]In Piper, it was said at [19] that:
“Whether an excuse is a reasonable one is to be judged objectively in all the circumstances”.
It is problematic whether the applicant here has satisfied the requirement. There is a paucity of evidence on the issue. No particular difficulties in marshalling the various reports, particulars and records have been mentioned.
- [5]The applicant’s problem is that the Act prevents her instituting a claim in this court for the moment and that, unless she institutes one in a day or so, her claim will be defeated by the general Statute of Limitations. Her application invoked in the alternative s. 18 and s. 43 of the Act. Those provide:
“18.Claimant’s failure to give notice of a claim
(1)A claimant’s failure to give a complying notice of claim prevents the claimant from proceeding further with the claim unless –
- (a)the respondent to whom notice of a claim was purportedly given –
- (i)has stated that the respondent is satisfied the notice has been given as required or the claimant has taken reasonable action to remedy the non-compliance; or
- (ii)is presumed to be satisfied the notice has been given as required; or
- (b)The respondent was waived compliance with the requirement; or
- (c)the court, on application by the claimant –
- (i)declares that the claimant has remedied the non-compliance; or
- (ii)authorises the claimant to proceed further with the claim despite the non-compliance.
- (2)An order of the court under subsection (1)(c) may be made on conditions the court considers necessary or appropriate to minimise prejudice to a respondent from the claimant’s failure to comply with the requirement.
43.Need for urgent proceeding
- (1)The court, on application by a claimant, may give leave to the claimant to start a proceeding in the court for damages based on a liability for personal injury despite non-compliance with this part if the court is satisfied there is an urgent need to start the proceeding.
- (2)The order giving leave to start the proceeding may be made on conditions the court considers necessary or appropriate having regard to the particular circumstances of the case.
- (3)However, if leave is given, the proceeding started by leave is stayed until the claimant complies with this part or the proceeding is discontinued or otherwise ends. …”
- [6]In the end, Mr. de Plater, for the applicant, said he preferred that the court act under s. 43, notwithstanding that the substantial filing fees involved in issuing a claim might prove unnecessary in the long run if the procedures established in the Act for resolving claims which follow a determination that there was a compliant Notice of Claim prove fruitful. I understood Mr. de Plater’s preference to be based on the desirability of avoiding determination here as to what might or might not be a reasonable excuse. I am not sure that s. 18(1)(c)(ii) requires the court to consider such an issue. A better reason for preferring s. 43 may be that, at such a sensitive time, from a limitations standpoint, it is preferable to have the claim established in the court.
- [7]So far as concerns conditions upon which the court may grant relief, as contemplated in s. 18(2) and s. 43(2), one imagines that minimising prejudice to a respondent would always be relevant, although specifically mentioned only in the former provision. It is not suggested there is any question of prejudice to the Council here. In Lamb v. State of Queensland (2003) QDC 003, D260/03, 31 January 2003, his Honour Judge McGill SC said, apropos s. 43, that “a common example of an urgent need to start a proceeding would be that generated by the imminent expiration of the limitation period”. In that matter, on the eve of hearing of an application similar to the present, the respondent advised that the applicant’s Notice of Claim was compliant with the Act. His Honour said that:
“It follows that either there is a complying Notice of Claim, or there is taken to be a complying Notice of Claim under s.20(2). In those circumstances it follows from s.77D that, in relation to the proposed action against the first respondent, the applicant can commence proceedings 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 …”
- [8]His Honour was satisfied that the applicant had until 18 December 2003 to provide the second respondent with a better Notice of Claim. Accordingly, no relief needed to be granted.
- [9]The present applicant requires the assistance of the court, if she is to be able to prosecute her claim.
- [10]The argument of Mr. Campbell, for the Council, was that s. 9(5) is controlling, to the extent that the applicant must show a “reasonable excuse for the delay” and that this cannot be done, or has not been done, so far as the evidence shows. He acknowledged that the Act differs from the legislation considered in Piper in containing both s. 18(1)(c) and s. 43(1). My reading of the Act is that, except that a declaration under s. 18(1)(c)(i) would depend on a sufficient factual basis, these provisions give the court an unfettered discretion to permit either commencement of proceedings in the court (s. 43) or the taking of pre-litigation steps in accordance with the Act (s. 18) notwithstanding that Chapter 2 Part 1 procedures have not been fully complied with.
- [11]I thought it prudent to consult the explanatory notes accompanying the underlying Bill, and the second reading speech of the Attorney-General and Minister for Justice. The former contains the following:
“Clause 18 provides that a claimant who fails to give notice of a claim as required by this division is not able to proceed further with the claim unless the respondent is satisfied the relevant material has been provided or the claimant’s non-compliance has been remedied or the respondent waives compliance. The court can also give authority to proceed or declare that the claimant has remedied non-compliance or impose any conditions it considers necessary or appropriate to minimise prejudice to a respondent from the claimant’s failure.
..
Clause 43 enables urgent proceedings to be commenced before the court. Even though there has been non–compliance with this part, the court may give leave to a claimant to start the proceeding. The court may give leave on conditions that the court considers appropriate or necessary having regard to the particular circumstances of the case. However, a proceeding started by leave is stayed until the claimant complies with the part or the proceeding is dismissed.”
- [12]As far as Clause 18 is concerned, it is presented as establishing an independent “authority to proceed” through approaching the court. The court’s ability to give leave to a claimant to start a proceeding in Clause 43 seems to me, at least so far as the Act is concerned, to be presented as completely general.
- [13]The second reading speech seems even more compelling in this regard. It contains the following:
“Notwithstanding these statutory arrangements, a court may order that a claimant be allowed to begin a proceeding despite non-compliance with some of the procedural requirements of the Act. In other words, a court can remedy any time limit problems where the interests of justice and urgency demand.”
- [14]On reflection, it is hardly surprising that the legislature, in introducing further radical new constraints upon personal injury claims, thought it appropriate to entrust the courts with a wide discretion to ensure that, in appropriate cases, the Act would not shut out claimants who ought to have their day in court.
- [15]Here, the Council has known of the claim, and had the ability to investigate it since early February 2002. Essentially, apart from being late, the Notice of Claim under the Act which it has received is compliant; it asserts no prejudice. I see no injustice in permitting the applicant to proceed – which she now must continue to do in accordance with the regime of the Act. The court will order, pursuant to s. 43 of the Personal Injuries Proceedings Act 2002 (as amended), that the applicant have leave to start a proceeding in the court claiming damages for personal injuries in respect of the incident occurring on 17 April 2000, the subject of her Notice of Claim of 20 March 2003, despite her not having complied with Chapter 2 Part 1 of the Act.
- [16]As the applicant is obtaining an indulgence, I think the respondent’s costs ought to be its costs in any proceeding so instituted in any event.
- [17]Should this applicant require a corresponding indulgence under s. 18, I record the court’s satisfaction that this is a proper case for authorisation under subsection (1)(c)(ii), and that no need presently appears for conditions to be imposed. I can see no point in resort to subparagraph (c)(i), which might require further evidence of “reasonable excuse” for delay to be provided.