Willey v Lush Hair Salon[2003] QDC 444

DISTRICT COURT OF QUEENSLAND

1. [1]
   Before the court is an originating application in the following terms:

“This Application is brought pursuant to the Personal Injuries Proceedings Act 2002 (PIPA).

To the Respondent: TAKE NOTICE that the Applicant is applying to the Court for the following orders:-

1. A declaration that the Claimant has given a Notice of Claim under s. 9 of PIPA as required; or

2. A declaration that the Claimant has remedied non-compliance with s. 9 of PIPA.

3. The Claimant has authority to proceed further with the claim despite non-compliance with PIPA.

4. The Applicant has leave pursuing to s. 77D (2) (b) of PIPA to commence a proceeding in the District Court of Queensland by 18 December 2003.

5. That this Application be treated as an action commenced by claim and the said proceedings to be treated as a continuation of this action.

6. The Applicant’s costs of and incidental to this Application to be assessed on a standard basis as her costs in the Claim.”

2. [2]
   The heading apart, it is in identical terms with one returnable on the same day, Nicole Earthrowl v State of Queensland BD 3663/03, which was defended. Many of the considerations are similar, so that the court’s reasons in Earthrowl, in considerable measure, may be referred to, without repeating them, here. Mr Kelly was counsel for the applicants in both matters.

3. [3]
   The respondent did not appear when called. According to affidavits of the applicant’s solicitor, Mr Simmonds, service was effected by posting to the respondent three times: once to the registered business address of the registered business name, once to a post office box, once to the address which appeared to be the residence of one Christophe Bertomeu, the person carrying on the business according to a “business names” search.

4. [4]
   The applicant, according to another affidavit of Mr Simmonds, alleges that she sustained injury as a result of an incident that occurred “at the Lush Hair Salon located at shop 62707 Broadbeach Arcade, Main Place, Broadbeach” on 29 March 2000. She claims to have sustained injury including clumps of hair breaking off or pulling out at the roots in a misadventure with “hair extensions” . She consulted Mr Simmonds’ firm on about 30 May 2000. A letter was sent out a week later referring to “an incident at Lush Hair Salon” on the date mentioned, with no further details, requesting advice of the public liability insurer. It appears there was enclosed a notice under s 75AJ of the Trade Practices Act 1974 reporting a desire to institute a liability action and ignorance of the identity of the manufacturer of Mono Fibre hair extensions, rendering it appropriate that the addressee identify the manufacturer within 30 days. A handwritten note from Lush Hair Salon (not on letterhead) identified a manufacturer. The material before the court also contains a letter to Mr Simmonds dated 7 August 2000, apparently from a distributor of the relevant product, asserting that “the product’s performance depends on the skill and the application of the hairdresser.”

5. [5]
   Thereafter, the matter went to sleep. It might have been thought that the applicant had until 29 March 2003, the end of the ordinary limitation period, to commence a proceeding for damages. Her situation was complicated by the coming into force of the PIPA. It commenced on 20 June 2002, and has been amended on 29 August 2002, with retrospective effect. It seems that it was not until after the expiry of the limitation period that anything was done, either to commence a proceeding in the ordinary way (which had now been precluded by the PIPA) or by way of complying with the pre-litigation procedures required by PIPA. A section 9 notice of claim completed by the applicant was sent to the respondent under cover of a letter of 20 May 2003. That was sent to Lush Hair Salon, Shop 6, Pacific Plaza, Main Place, Broadbeach. Mr Simmonds deposes that the Form 1 was subsequently returned to his office, and that on 13 June 2003, having conducted a business name search, he sent out the same (or a similar) Form 1 to Mr Bertomeu at his address, as revealed by the search: “This document was returned.” It seems that the statutory notice of claim was never given, notwithstanding the attempts made to give it. At the hearing I expressed some misgivings that Mr Simmonds, whose own business address would appear to be very close to the supposed business address of Lush Hair Salon, if it has one at all, did not resort to old fashioned means of attempting contact by sending someone to the premises.

6. [6]
   Whether the applicant was or was not aware of the PIPA, the way in which her claim has been pursued does not engender any sympathy for her situation, from the point of view of the court granting some indulgence. Effectively, nothing was done within the traditional limitation period. The only justification given, in Mr Kelly’s written submission, is that “the respondent had delayed in the provision of material to her solicitors whilst she waited to see if her hair and scalp would recover from the treatment.” There is no evidence before the court to this effect, even from Mr Simmonds, let alone from the applicant. It is difficult to accept that waiting as long as happened was made necessary or reasonable by the injury complained of. The applicant’s notice of claim under s 9(3) ought to have been given by the earlier of 1 May 2003 (combining (a) and s 77A(2)) and 29 December 2002 (combining (b) and s 77A (3) on the fiction established by the latter that the applicant consulted a lawyer on 29 November 2002, rather than in May 2000, as was the fact).

7. [7]
   Mr Kelly submits that, if the court determines that there has been compliance or that the applicant is able to proceed despite non-compliance (presumably under s 18(c)) then, having regard to s 20(2), which is:

(2) If a notice of a claim is not a complying notice of claim, a respondent is taken to have been given a complying notice of claim when –

1. (a)
   the respondent gives the claimant notice that the respondent waives compliance with the requirement that has not been complied with or is satisfied the claimant has taken reasonable action to remedy the non-compliance; or

2. (b)
   the court makes a declaration that the claimant is taken to have remedied the noncompliance, or authorises the claimant to proceed further with the claim despite the noncompliance.”

the applicant is deemed to have given a complying notice of claim and s 77D(2) operates. Cuthbert v Adams (2003) QSC 320 was relied upon. There, no limitation problem existed. Although the relevant incidents all opened before the end of 1997, the limitation period did not expire until three years after the applicant’s 18^th birthday which was celebrated on 21 September 2000.

8. [8]
   Quoting the written submission, “the applicant submits that a compliant notice of claim for the proceedings which she wishes to bring was given before 18 June 2003, namely on 13 June 2003 … the matters to be considered were said in Cuthbert to include ‘prejudice to the applicant by being permanently shut out of the proceedings’ ”. My view is that the expiration of the limitation period before the application to the court is made is a powerful factor adverse to the applicant which Cuthbert did not confront. As Mr Kelly pointed out, the order in Cuthbert was made on 22 September 2003, after the limitation period had expired, but after a hearing on 19 September 2003. My view is that whether an applicant gets to the court within the limitation period or not is an important factor assisting an applicant who is in time, embarrassing one who is not. Section 77D is:

“77D Alteration of limitation period for personal injury arising out of an incident happening before 18 June 2002

(1) This section applies in relation to a personal injury arising out of an incident happening before 18 June 2002 if—

1. (a)
   the period of limitation for a proceeding based on a claim for the personal injury ends during the period starting 18 June 2002 and ending at the end of 18 December 2003; and

2. (b)
   a proceeding based on the claim has not been started in a court, including in a court outside Queensland or Australia

(2) If the period of limitation has ended, the 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 6 months after the complying notice of claim is given and not later than the end of 18 December 2003, with the court’s leave.

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

(4) This section does not limit section 43²⁵.”

9. [9]
   The submission of Mr Kelly quoted above overlooks that in Cuthbert at [5] the view of Judge McGill SC in Lamb v State of Queensland [2003] QDC 003 that s 77D(2)(a) should be read is if there were a comma between “given”  and “before 18 June 2003” was again taken. According to this view, it is not enough that a complying notice of claim is given before 18 June 2003, the proceeding in the court must be started before that date.

10. [10]
    In present circumstances, I am not prepared to declare anything has happened, which has not been shown to have happened, for the purpose of establishing a date such that the applicant will have the opportunity, with the court’s leave, to start a proceeding within six months of that date – and, of course, subject to the cut-off date of 18 December 2003.

11. [11]
    In my opinion, the court ought to be sympathetic to claimants who encounter limitations problems because of the PIPA, especially those who would be in a position to commence a proceeding, except that the PIPA requires them to engage in pre-litigation steps in accordance with a timetable which drags matters out beyond the expiration of the limitation period. That is not the applicant’s situation at all. Her position is that, ignoring the PIPA entirely, she is too late to start a proceeding. The argument that, fortuitously, under s 77D(2)(a), the applicant may be able to get more time has been determined in the cases cited above. There is no good reason for me to decide differently in this application.

12. [12]
    The application must be dismissed.