Cookson v Tangalooma Pty Ltd[2003] QDC 488

CIVIL JURISDICTION

JUDGE McGILL SC

and

and

BRISBANE

..DATE 13/11/2003

JUDGMENT

HIS HONOUR: This is an application which raises issues about compliance with the requirements of Personal Injuries Proceedings Act 2002. The applicant alleges that she suffered injury on the 12th of January 2000 while visiting premises which were occupied by the first respondent or the second respondent and that his was caused by negligence of one or other of the respondents, or possibly both of them.

There had been a letter of demand sent and some correspondence exchanged prior to the commencement of the Personal Injuries Proceedings Act but at least following the amendments to make the requirements for notice of claims retrospective it was recognised that it was necessary for the applicant to give a notice of claim under the Act and a document in purported compliance with the requirements to give a notice of claim was given in January 2003, actually just before the limitation period expired.

However, that notice of claim was not a complying notice of claim, as is now common ground, and it follows that the applicant is not assisted by section 59 of the Act.

However, on the face of it the applicant's position is covered by section 77D which was one of the transitional provisions associated with the amendment which made the requirement to give the notice of claim retrospective.

The applicant's personal injury arose out of an incident happening before 18 June 2002. The period of limitation ended during the period between that date and 18 December 2003 and no proceeding based on the claim has been started in a Court. So all the requirements of subsection (1) of that section are satisfied.

It follows that the applicant was entitled to start a proceeding notwithstanding the expiration of the limitation period without the defendant being entitled to raise a defence under the statute of limitations if the complying notice of claim was given before 18 June 2003 without leave, or not more than six months after the complying notice of claim was given and not later than the end of 18 December 2003 with the Court's leave, and I have explained how that subsection works in its original form in Lamb v State of Queensland (2003) QDC 003.

The section has subsequently been amended, although some other parts of the legislation still apply in their unamended form but the amendment to the section does not change the substance of my interpretation of it.

The operation of section 77D therefore depends particularly on the date on which a complying notice of claim was given.

The respondents' solicitors asserted in January 2003 that the notice of claim was not compliant in various respects and some additional material in a statutory declaration was provided on 19 March 2003.

The respondents did not immediately indicate that that material did amount to reasonable action to remedy the non-compliance, although ultimately a letter was sent on 18 June 2003 and received by the applicant's solicitors the next day advising that the respondents were satisfied that the applicant had taken reasonable action to remedy the non-compliance.

That letter had been foreshadowed in a telephone conversation on 13 May 2003. According to the applicant's solicitor on that occasion he received a telephone call from the solicitors for the respondents in which the solicitor indicated that she had received instructions from her client and would be sending a letter deeming the plaintiffs' notice of claim compliant. That letter was then sent on the 18th of June.

The issue between the parties on this application is when the notice of claim became a complying notice of claim, most relevantly for the purposes of section 77D. The respondents' submission was that the notice of claim became a complying notice of claim once material had been received by the respondents which remedied the non-compliance, that is on the 19th of March 2003, and that therefore for the purposes of the Act, the applicant gave a complying notice of claim on 19 March 2003. The applicant being more than six months beyond that date, it was no longer possible for the Court to give leave under section 77D(2) (b) and the applicant simply had no remedy available under the Act.

The applicant, on the other hand, submitted that the complying notice of claim relevantly was given either when there was notice, oral notice, given on the 13th of May, or when there was written notice given, i.e. received, on the 19th of June.

It is fundamental to the respondents' submission that a notice of claim which is originally not a complying notice of claim becomes a complying notice of claim once the non-compliance has been remedied. However it seems to me that the scheme of the Act is that a notice which is not a complying notice of claim is not to be treated as a complying notice of claim for the purposes of the Act merely because the non-compliance is remedied.

In effect, the Act assumes that once there has been non-compliance it is not possible to go back and remedy that failure to comply with the Act, at least by fixing up the original notice.

On the other hand, the Act expressly provides in section 20 subsection 2 that if a notice of claim is not a complying notice of claim the respondent is taken to have been given a complying notice of claim when:

That, it seems to me, fits in with the provisions of section 18 subsection 1, which provides that a failure to give a complying notice of claim prevents the claimant from proceeding further with the claim unless the respondent 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 is presumed to be satisfied the notice has been given as required, or the respondent has waived compliance with the requirement, or the Court has made some order which fits in with the order contemplated in section 20(2)(b).

In effect, then, subsection 18(1) provides the mechanism by which non-compliance can be remedied for the purposes of the Act, and subsection 20(2) fixes the time when non-compliance is taken to have been remedied. The effect of section 18(1) seems to be that merely fixing up a deficiency in a notice of claim is not sufficient to permit a claimant to proceed further with the claim.

In those circumstances merely supplying the deficiencies in the original notice of claim by the statutory declaration on the 19th of March 2003 was not enough to satisfy the requirements of section 18(1), and did not mean that there was deemed to be, or taken to be, a complying notice of claim on that date.

It seems to me that the clear terms of section 22(a) operated so that the respondent is taken to have been given a complying notice of claim when the respondent gave the claimant notice that the respondent was satisfied the claimant had taken reasonable action to remedy the non-compliance. That, I think, in the circumstances of this case occurred on the 19th of June 2003.

I have been concerned about whether the notice required in section 22A is written notice, or whether oral notice would be sufficient. Ordinarily when one speaks of notice it is assumed that written notice is required, but there are a number of other provisions in this Act which talk about notice where the statute specifically requires the notice to be in writing, and the inference ordinarily drawn from that is that the failure to require expressly in section 22 (a) that the notice be in writing was deliberate, and was an indication that written notice was not required.

One might be tempted to attribute the omission in the alternative to bad drafting, but to return to the wording of section 18(1)(a)(i) that speaks of the respondent having stated something rather than giving notice of something, and that expression is one which could fairly readily be interpreted as including an oral statement as well as a written statement.

So, if section 18(1) fits in with section 20(2) then that also suggests that oral notice is sufficient to activate section 20(2)(a) and that raises the question then of whether the conversation that occurred on the 13th of May amounted to oral notice.

I have already quoted the only relevant evidence I have on that point and although I hope that this does not amount to splitting hairs it seems to me that strictly speaking what was given on that occasion was not notice that the respondent was satisfied that the applicant had taken reasonable action to remedy the non-compliance, but rather notice that there was going to be a response for the purposes of section 20(2)(a).

It may well be that if the respondent's solicitor on that occasion had simply said that the respondent was satisfied that the claimant has taken reasonable action to remedy the non-compliance, or words to that effect, that that would be effective but all that she actually said was that she would be sending a letter to produce that effect under section 20(2)(a).

But it may be that when the letter was sent it did not actually have that effect, or it contained conditions which had to be complied with first, or something else, and I do not think that that is an unequivocal and clear giving of notice which had the effect of triggering section 20(2)(a). It follows that notice was only properly given, or effectively given, when the written notice was received on the 19th of June and, therefore, under section 20(2) the applicant is taken to have given the respondents a complying notice of claim on that date.

It follows that the applicant can, with leave, commence proceedings until the earlier of six months after that date or the 18th of December 2003, but it will be the 18th of December 2003 which is the relevant date. Provided that I give leave and those proceedings are commenced within that time the respondents will not have a defence under the Limitation of Actions Act. Counsel for the respondents frankly and properly conceded that he could not point to any reason why leave should not be given, and conceded that there would be no prejudice offered by the respondent.

It does seem that there was some delay on the part of the respondent's solicitors in responding to the statutory declaration after it was received on the 19th of March. If there had been a prompt response then the action could have been commenced under Section 77D(2)(a) without leave.

I think, in all the circumstances, it is appropriate to give leave to the applicant and it follows that an action can now be commenced by the applicant at any time up and till 18 December.

In terms of the form of order, therefore, I think the only order necessary is leave to the applicant to start a proceeding for damages for liability for personal injury alleged to have been caused by the respondents or either of them and the subject of the notice of claim forwarded by the applicant's solicitors on 9 January 2003.

I should add that it would not be appropriate to make any order under Section 43, which would not help the applicant anyway because the limitation period, apart from any extension under Section 77D, has long since expired.

With regard to the other relief sought, that the application be treated as an action commenced by a claim and that the proceeding be treated as a continuation of this action, I am concerned that that would, in effect, involve validating a proceeding which has already been commenced as being the proceeding which I am only now giving leave to commence.

Although I can see the practical sense in treating the application, which has already been filed, as a claim for the purpose of inserting that claim, I am concerned that it might ultimately be determined elsewhere that that procedure cannot be validly followed, and if that occurs then if the plaintiff has followed it the plaintiff will be in trouble because, no doubt, by the time that decision comes out it will be too late to do anything else.

So, I think to be on the safe side I will not encourage that course of action it will mean that there will be some extra paper work and another filing fee to be paid, but I think that will be a safer course for the applicant to follow. So the only other issue arises in relation to costs.

Just before I deal with costs, I should I suppose really modify the reasons I have given previously in relation to the question of whether written notice was required under section 20 subsection (2)(a).

Since I dictated those reasons I have looked further at section 12 subsection (2) and subsection (3), both of which require written notice to be given, and commonly the notice referred to in section 20(2)(a) would be a notice required to be given by section 12(2) or 12(3). In addition the reference in section 18(1) to the respondent having stated something fits in with the requirement in section 12(2) and (3) in, I think, three places referring to the written notice stating something.

So I think perhaps I may have been too hasty in concluding that oral notice would be sufficient to satisfy 20(2) (a). I think after considering the terms of section 12 and how that fits in, or how the provisions of that section fit in with the provisions of section 20(2), that in fact written notice is required.

That does not alter the outcome because the written notice was in the letter received on the 19th of June which is the communication which I treated as amounting to giving notice anyway.

With regard to the question of costs the matter has been somewhat complicated by the fact that there have been to some extent failings on both sides in relation to this, and in addition this is new and fairly complicated legislation which has already been amended more than once, and it is understandable that people will have difficulty getting on top of it.

It does seem that to some extent the problems arose because of some delays on the part of the respondents' solicitors in responding to the statutory declaration of the 19th of March. There was not a proper response to that for three months and if there had been a more prompt response no application to the Court would have been necessary, and there is no particular excuse for the failure to respond more quickly than that.

However, once the 18th of June had passed the applicant was in a position where the applicant had to come to Court in order to obtain leave.

I think on the whole I am not prepared simply to resolve this case on the basis of the outcome of the application or some sort of detailed analysis of various failings on one side or the other.

I think that perhaps the most satisfactory order is one which is commonly made in applications of this nature which are resolved by consent between the parties, and that is simply to order that the costs of this application be treated as in effect additional costs in relation to the principal action, so that if the plaintiff is ultimately successful in showing that she was entitled to compensation for her injuries that she will get the costs of this application as well, and if she is not then she will have to pay the costs of this application as well.

So I will order that the costs of the application be treated as part of the costs in the proceeding to be commenced.

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