Parfitt v Pacific Coal Pty Limited
[2003] QDC 414
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- Unreported Judgment
- Parfitt v Pacific Coal Pty Limited[2003] QDC 414
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Parfitt v Pacific Coal Pty Limited[2003] QDC 414
Parfitt v Pacific Coal Pty Limited[2003] QDC 414
[2003] QDC 414
DISTRICT COURT
CIVIL JURISDICTION
JUDGE BOYCE QC
No BD3501 of 2003
JOEL ANDREW PARFITT | Applicant |
and | |
PACIFIC COAL PTY LIMITED (ACN 010 542 140) | Respondent |
No BD3500 of 2003
JOEL ANDREW PARFITT | Applicant |
and | |
HASTINGS DEERING (AUSTRALIA) LTD (ACN 054 094 647) | Respondent |
BRISBANE
DATE 22/10/2003
ORDER
HIS HONOUR: These are two applications under the Personal Injuries Proceedings Act 2002. I propose to give reasons for judgment ex tempore. I reserve the right to revise these reasons for judgment in due course. I deal first with the matter of Parfitt against Pacific Coal Pty Ltd.
The applicant suffered personal injuries in a workplace accident that occurred on the 19th of April 2000. The result is that the limitation period would expire in the ordinary course of events on the 19th of April 2003. At the time, the applicant was employed by Mackay Regional Apprentice Employment and it was his belief that he suffered injury whilst working for Blair Athol Coal Pty Limited as host employer. And on the 27th of November 2001, the applicant instructed his solicitors to act on his behalf in an action for damages for personal injury.
On the 17th of June 2002, the applicant's solicitors commenced an action against Blair Athol Coal Pty Ltd seeking to recover such damages. Those proceedings were served on the 28th of November 2002. On the 28th of October 2002, the solicitors for the applicant gave a notice of claim for damages to the applicant's employer, Mackay Regional Apprentice Employment, and to Workcover Queensland. Solicitors acting on behalf of Workcover Queensland advised that the notice of claim for damages was compliant on 26th November 2002.
On the 20th of February 2003, solicitors acting on behalf of Pacific Coal Pty Ltd advised the solicitors for the applicant that its client rather than Blair Athol Coal Pty Ltd was the host employer for the applicant at the time of his accident. At that stage, the Personal Injuries Proceedings Act 2002 was in force. The solicitors for Pacific Coal Pty Ltd suggested the appropriate procedure was for the applicant to give notice of claim to Pacific Coal Pty Ltd in accordance with the provisions of section 9 of that Act.
As a result, the solicitors for the applicant gave a notice of claim under the Act to Pacific Coal Pty Ltd on the 1st April 2003. On the 10th of April 2003, solicitors for Pacific Coal Pty Ltd requested the provision of further material to facilitate the progress of the claim by the applicant. That material was provided by solicitors for the applicant on the 10th of July 2003, although the notice of claim had not been declared compliant. By letter of the 4th of June 2003 the solicitors for the applicant wrote to the solicitors for Pacific Coal Pty Ltd, stating that as they had not heard within the time prescribed by the Act, the notice of claim was deemed to be compliant. In my opinion, that assertion was incorrect.
Section 12 of the Act covers the response by a respondent to Part I of a notice of claim and Section 12(2) states that:
"The respondent must within the prescribed period give the claimant written notice:
- (a)stating whether the respondent is satisfied that Part I of the notice is a complying Part I notice of claim; and
- (b)if the respondent is not satisfied identifying the non-compliance and stating whether the respondent waives compliance with the requirements."
Section 13 provides that:
"If a claimant gives Part I of a notice of claim under this division or purportedly under this division to a person against whom a proceeding is proposed to be started and the person does not respond to it under Section 10 or 12 within the prescribed period under the section, the person is conclusively presumed to be satisfied it is a complying Part I notice of claim."
The submission made on behalf of Pacific Coal Pty Ltd is that the notice was deemed compliant on 1 April 2003. I do not accept that that is correct. The solicitors for Pacific Coal Pty Ltd by a letter dated 10 April 2003 to the solicitors for the applicant said:
"We refer to the notice of claim pursuant to the Personal Injuries Proceedings Act 2002 served on our client recently. We are seeking our client's instructions with respect to compliance and will revert to you in that respect shortly."
The letter then goes on to ask for further information of the applicant. In my opinion, the letter should be deemed to indicate that the respondent was not satisfied with the Part I notice of claim and was identifying non-compliance. The letter, it seems to me, does not have to set out the exact terminology of Section 12. A letter in response pursuant to Section 12 should not be construed as though the letter were a deed although solicitors should pay careful attention to the requirements of Section 12.
In the circumstances, I am of the view that the notice is not deemed to be compliant on 1 April 2003. There is, however, a more fundamental problem in the matter and that is whether the Act applies at all to the current litigation. Section 6(3)(a) of the Act provides:
This Act does not apply to personal injury in relation to which a proceeding was started in a Court including in a Court outside Queensland or Australia before 18 June 2002.
I consider the Act does not apply in relation to the personal injury suffered by the plaintiff which is the subject of the existing proceeding both in Pacific Coal Pty Ltd and in Hastings Deering (Australia) Ltd. I consider that when the legislature was deliberately providing that this Act had a retrospective operation, some provision had to be made to accommodate the fact that that was inconsistent with the position of existing proceedings because existing proceedings almost certainly would not have complied with the requirements of the Act. The legislature has chosen to do that in relation to existing proceedings but not by reference to the existing proceedings but by reference to a particular injury.
The Act is not made inapplicable to the proceeding but made inapplicable to the injury provided there is an injury in relation to which a proceeding was started in a Court before 18 June 2002.
Now, that is what has happened in the present case: that, as I have indicated, on 17 June 2002 the solicitors for the applicant commenced an action against Blair Athol Coal Pty Limited seeking to recover damages on behalf of the applicant. It is suggested that in effect the plaintiff in ignorance of the true position may have started the action against the wrong defendant. That is not uncommon in work injuries where there may be much difficulty in identifying the employer at the date of the accident.
There is, however, a proceeding started in a Court before 18 June 2002 in relation to the particular injury for which the applicant is claiming damages. In my opinion, the Act does not apply to this injury. One must observe that various sections of this Act are badly drafted and will continue for quite some time to cause considerable problems for Judges who have to ascertain what the legislation means in a particular situation. But I am of the opinion in the matter of Pacific Coal Pty Ltd that the submission made by the respondent is correct, and that is that the Act does not apply in relation to the personal injury for which the plaintiff seeks to recover damages.
Accordingly, I am of the view that the application must be dismissed as against Pacific Coal Pty Ltd. I should say before leaving that matter that I have been greatly assisted by the observations of his Honour, Judge McGill, in the case of Inglis v. Connell (2003) QDC 029, judgment delivered on 4 April 2003, and I have followed the view taken by his Honour in that decision.
I had in fact reached the same conclusion myself in an earlier unreported judgment in Legnoverde v. Lenard's Kenmore (No 2635 of 2002), judgment delivered on 7th March 2003.
I turn now to the application against Hastings Deering (Australia) Ltd. For the reasons that I have already given in the application against Pacific Coal Pty Ltd I am of the opinion that the Act does not apply and that I must dismiss the application brought against Hastings Deering (Australia) Ltd.
I should, however, make some other observations in case I am held to be incorrect in the view that I have taken that the Act does not apply. The solicitors for Hastings Deering submit that in the situation that has arisen the applicant would in any event have to establish a reasonable excuse.
There is a letter from the solicitors for the applicant dated the 17th of October 2003 which sets out the reasons for the late delivery of the notice of claim on behalf of the applicant and these matters are said to be a reasonable excuse for delay pursuant to section 9 subsection 5 of the Act.
The letter sets out the following matters. On the 27th of November 2001 the solicitors for the applicant received instructions from the applicant to act in relation to the workplace incident on the 19th of April 2000.
On the 28th of October 2002 solicitors for the applicant served a notice of claim upon WorkCover Queensland and MRAEL in accordance with section 280 of the WorkCover Queensland Act 1996.
On the 17th of June 2002 solicitors for the applicant instituted proceedings against Blair Athol Coal Pty Ltd seeking damages in respect of the incident on the basis that that company was the host employer of the applicant.
On the 20th of February 2003 solicitors for Blair Athol Coal Pty Ltd advised that their client was not the entity responsible and advised that Pacific Coal Pty Ltd was the correct entity. On the 1st of April 2003 solicitors for the applicant served a notice of claim form 1 pursuant to the Personal Injuries Proceedings Act 2002 upon Pacific Coal Pty Ltd.
On the 10th of April 2003 the solicitors for Pacific Coal advised that the applicant was under the direct supervision of an employee of Hastings Deering Australia Ltd when the incident occurred. As a result of that advice the solicitors for the applicant on the 22nd of April 2003 served a notice of claim form 1 upon Hastings Deering (Australia) Ltd. That notice was served very promptly and, in fact, within 10 days of receiving advice from the solicitors acting on behalf of Pacific Coal Pty Ltd.
As I have already observed it is quite common in workplace incidents for there to be difficulty in ascertaining who was employing the injured person at the time of the particular incident. If the Act applied then the Court is given a discretion when considering whether there is a reasonable excuse for failure to give notice in time.
The matter has been considered in three decisions that I will refer to. I refer first to the decision of Cuthbert v. Adams 2003 QSC 320, an unreported decision of Mr Justice McMurdo delivered on the 22nd of September 2003.
His Honour was dealing with a situation arising under section 18 of the Act where the Court on application by the claimant may authorise the claimant to proceed further with the claim despite non-compliance. His Honour referred to the decision of the Court of Appeal in relation to the Motor Accident Insurance Act 1994 in Thomas v. Trans Pacific Industries Pty Ltd (2003) 1 Queensland Reports 328.
In that case the Court of Appeal referred inter alia to the relevant factors as including the extent of the delay, any prejudice to the respondent and the prejudice to the applicant by being permanently shut out of the proceeding having regard to the strength or otherwise of the applicant's case.
His Honour noted in that particular case that there was no particular prejudice asserted by the respondent.
His Honour considered in that case that the delay was satisfactorily explained although his Honour observed that it is not a pre-condition to the exercise of the powers that the delay be satisfactorily explained; it is but one factor to be weighed in the exercise of the Court's discretion.
Accordingly, his Honour in that case concluded that the applicant should be given the orders he sought, both under section 18(1)(c)(xi) as well as pursuant to section 77D of the Act.
The matter was also considered by his Honour Judge Robin in Nicol v. Caboolture Shire Council (2003) QDC 033, an unreported judgment delivered on the 15th of April 2003. In that particular case his Honour observed that:
"On reflection it is hardly surprising that the legislature in introducing further radical new restraints 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. 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 (the Council) asserts no prejudice. I see no injustice in permitting the applicant to proceed."
The matter was also considered by his Honour Judge Wilson at the District Court in Stanton v. DMK Forest Products Pty Ltd (2003) QDC, an unreported judgment on the 16th of May 2003. His Honour observed that, in considering whether an applicant has acted reasonably in the context of the Limitation of Actions Act 1974, where a person is seeking an extension of time to bring proceedings, the question is whether the person seeking an extension of time had taken reasonable steps to ascertain a "material" fact under section 30(d).
His Honour noted that in considering whether an applicant had acted reasonably in the context of that legislation the Courts have held that placing the matter in the hands of apparently competent solicitors with adequate instructions ordinarily amounts to the taking of reasonable steps provided the applicant exercise his or her best endeavours to ensure the solicitors did not delay in the prosecution of the action. His Honour then observed:
"On its face P.I.P.A. is to be construed so that the excuse should exculpate not only the applicant but also an agent, including a solicitor, retained to act on the applicant's behalf.
The contrary involves a logical inconsistency: an applicant who engages an incompetent or negligent solicitor might legitimately be excused more delay than one whose legal representative complied with the legislation - thwarting the obvious purpose of P.I.P.A."
His Honour considered that the meaning of the term "reasonable excuse" would vary and depend not only on the circumstances of the individual case but also on the purpose of the provision in which it was contained. His Honour then observed, "The question which then arises is whether the residual discretion vested in the Court under section 18(1)(c)(xi) to allow the claimant to proceed with his claim notwithstanding non compliance should be exercised in his favour. The jurisdiction is to be exercised in a way which acknowledges the claimant is seeking an indulgence and has an obligation to demonstrate to the Court why he should be allowed to proceed with his claim; whilst not forgetting that as Connolly J. said in Dempsey v. Dorber (1990) 1 Queensland Reports 418 at 422:
"These jurisdictions are not exercised on a punitive or even on a cautionary basis. The essential question is whether there is good reason for making these orders."
His Honour referred to observations by McMurdo P in Thomas v. Trans Pacific Industries Pty Ltd (2003) 1 Qd.R 328. That case dealt with somewhat similar requirements for notices under the Motor Accident Insurance Act 1994 (Section 37). The President observed in that case that explanation for delay is a relevant factor but it is only one factor for the Court's consideration in exercising its discretion to give leave to bring the proceeding under section 39(5) of the Act. McMurdo P further observed that to refuse the application was to forever shut the applicant out of his cause of action against the respondent.
It seems to me on the material before me that a reasonable excuse has been shown by the applicant for the discretion being exercised in his favour to give him leave to proceed if the Act does apply. Apart from late notification of the claim it does not seem to me that the respondent can point to any prejudice in the matter.
For the reasons given by Davies JA in Thomas v. Trans Pacific Industries Pty Ltd I do not think it is necessary in an application of this kind for the applicant to show that he has a prima facie case. In all the circumstances, if the Act applies, I consider that the claimant should be authorised to proceed further with his claim despite non-compliance.
So, if I were satisfied that the Act applied, I would make the following orders:
- (1)Pursuant to section 77D of the Personal Injuries Proceedings Act 2002 the applicant has leave to start a proceeding in this Court in respect of the matters set out in his notice of claim by 18 December 2003; and
- (2)further pursuant to section 18(1)(c)(ii) of the Personal Injuries Proceedings Act 2002 the applicant is authorised to proceed further with the claim despite non-compliance with section 9.
However, for the reasons that I have already given I have reached the conclusion in both matters - that is, the Pacific Coal Pty Ltd matter and the Hastings Deering matter - that the Act does not apply. In the circumstances, it is not appropriate that I should make any order in either matter. Accordingly, in each case I dismiss the application.
...
HIS HONOUR: In the case of Pacific Coal Pty Ltd there will be no order as to costs. In the case of Hastings Deering I will order the applicant to pay the respondent's costs of the application to be assessed.
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