Haskins v Gold City Council[2003] QDC 551

DISTRICT COURT OF QUEENSLAND

1. [1]
   By s 6 of the Personal Injuries Proceedings Act 2002 (PIPA), the Act applies in relation to all personal injury arising out of an incident whether happening before, on or after 18 June 2002. The Act, other than s 58 (which precludes jury trials), does not apply to personal injury in relation to which a proceeding was started before that date. Had the applicant started a proceeding in respect of personal injury she says she suffered in a fall on the footpath outside the Miami Newsagency on the Gold Coast at about 7 am on 31 December 1999 by 18 June 2002, she would not have come within the regime of the PIPA. At that date, the common three year limitation period still had a little over six months to run.

2. [2]
   Section 4 identifies the main purpose of the PIPA as to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury, a purpose to be achieved by, among other things:

1. (a)
   providing a procedure for the speedy resolution of claims for damages for personal injury to which the Act applies; and

2. (b)
   promoting settlement of claims at an early stage wherever possible;

3. (c)
   ensuring the person may not start a proceeding in a court based on a claim without being fully prepared for resolution of the claim by settlement or trial; and also (among other things) minimising the costs of claims.

3. [3]
   Various provisions of the PIPA prevent a would-be plaintiff from starting a proceeding in a court based on a claim until certain things have been done. Thus, s 9 requires that a written notice of claim in the approved form must be given to the person against whom the proceeding is proposed to be started – following which the recipient of such a notice is required to respond, as required in s 10, s 11 and s 12. Section 18 specifically enacts that a claimant’s failure to give a complying notice of claim prevents the claimant from proceeding further unless certain indulgences are obtained from the “respondent” or the court. Surrounding sections impose obligations on those who have become involved to act cooperatively, for example by exchanging information and documents, with a view to resolving the matter. Section 35 permits applications to be made to the court to have orders made insisting on compliance. Section 36 is another specific prohibition on the starting of a proceeding in a court based on a claim. there is a pre-condition of a “compulsory conference” of the parties being held. The court, or the parties by agreement, may dispense with this requirement. A further difficulty in the would-be plaintiff’s way is the requirement for “mandatory final offers” to be made under s 39. Section 42, rather than inhibiting the commencement of a proceeding, fixes time limits from certain happenings, within which proceedings must be started. By sub-s (5), if the claimant fails to start the proceeding within a time limit fixed under sub-s (4)(b). the claim is barred, it being expressly declared by the following sub-section that it has effect despite the Limitation of Actions Act 1974.

4. [4]
   The interrelations of the limitations legislation and the PIPA are productive of various kinds of difficulties. The most common one arises from compliance with the PIPA and, in particular, allowing the statutory periods within which those involved may take steps, which can mean the limitation period expires before a proceeding may be instituted. Section 43 (Need for urgent proceeding) has been regarded as justifying orders by the court to permit a claimant to start a proceeding notwithstanding that ordinary pre-litigation procedures have not been gone through, subject to a stay under sub-s (3) to permit PIPA requirements to be carried out. Section 59 is:

“59 Alteration of period of limitation

(1) If a complying part 1 notice of claim is given before the end of the period of limitation applying to the claim, the claimant may start a proceeding in a court based on the claim even though the period of limitation has ended.

(2) However, the proceeding may be started after the end of the period of limitation only if it is started within—

1. (a)
   6 months after the complying part 1 notice is given or leave to start the proceeding is granted; or

2. (b)
   a longer period allowed by the court.

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

(4) If a period of limitation is extended under the Limitation of Actions Act 1974, part 3, this section applies to the period of limitation as extended under that part.”

5. [5]
   When the PIPA was made retrospective, special transitional provisions were inserted, in particular s 77D, dealing with certain limitations issues:

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

3. (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—

1. (a)
   if a complying notice of claim is given before 18 June 2003 -before or on 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. (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.

3. (4)
   This section does not limit section 43.”

(The above is an electronic version of the section, apparently superseding the latest available. reprint of PIPA. It shows the addition to subsection (2)(a) of “- before or on 18 June 2003”, so that the interpretation acknowledged in para. [9] below is now express. The application was argued by reference to s 77D as originally enacted.)

6. [6]
   Ms Haskins’ application seeks leave to start a proceeding pursuant to s 59(2)(b). However, she relies as well on ss 18, 20, 43 and 77D. The incident in which she suffered injuries happened about 7.00 am on 31 December 1999 on the footpath outside the Newsagency. The court is given to understand that she fell on the broken end of a pipe designed to discharge water from the premises on to the roadway. In the circumstances there is room for argument as to whether, if any party bears liability, it is the first respondent Council, or the second respondent company, taken to represent the Miami Newsagency.

7. [7]
   So far as the Newsagency (a convenient way to refer to the second respondent) is concerned, after the applicant consulted solicitors on 14 May 2002, they sent a notice of claim under s 9 of the PIPA to the Newsagency on 14 November 2002, attracting a response 30 days later. On 14 February 2003, the Newsagency “waived compliance”. This “waiver” of “further compliance with the requirements of PIPA or its Regulations” was accompanied by a strong assertion that the Council was the only proper respondent.

8. [8]
   As regards the Council, which had been asked as long ago as 7 June 2002 by the applicant’s solicitors to provide copies of its file relating to the Newsagency property under the Freedom of Information Act, the first step taken on behalf of the applicant under PIPA was the giving of a notice of claim on 14 February 2003, perhaps inspired by the Newsagency’s solicitors’ communication of that date. The true date may well be 17 February 2003, as the material contains a letter to the Council of that date purporting to enclose, among other things, “Form 1”, which is a form of s 9 notice of claim. The Council’s solicitors sent a letter dated 28 March 2003, date stamped 31 March, 2003, apparently to indicate a receipt, advising that “the respondent is satisfied that the notice is a complying Notice of Claim.” (This followed an earlier intimation by letter of 18 March 2003, pursuant to s 10(1)(c) of the PIPA, that the Council considered it was not a proper respondent, and some intervening pressure from the applicant’s solicitors directed towards a change of stance.)

9. [9]
   I agree with Mr Howe, for the Council, that s 59 cannot avail the applicant against his client. Sub-section (1) does not apply because the (admittedly) complying notice of claim was not given before the end of the period of limitation. I agree that sub-s (2) does not apply to give the court a general discretion to extend the limitation period, because “the proceeding” referred to is the one referred to insub-s(1) based on a complying notice of claim given within the limitation period. Even if the court did possess a general discretion of the kind denied, I can see no sufficient basis to justify exercising it in these circumstances. It may well be otherwise if the PIPA has had some part to play in the applicant’s encountering limitations problems. That is not the case in respect of the Council. The limitation period had expired before anything was done about pursuing PIPA pre-litigation steps against it. Turning to s 77D, sub-s (1) applies, so that the section falls to be considered. Its operative part is sub-s (2). On a first reading, sub-para (a) applies because the (admittedly) complying notice of claim was given before 18 June 2003. However, decisions in the Supreme Court and in this court establish that, in para (a), a comma is taken to appear after “given”, so that “before 18 June 2003” does not identify the deadline for the purposes of a useful notice of claim being given, but, rather, the deadline for starting a proceeding. As to sub-para (b), while 18 December 2003 is yet to arrive, the applicant falls foul of the requirement that a proceeding be started “not more than 6 months after the complying notice of claim is given”, that six month period having expired late in September 2003. In the circumstances, it is not open to the court to give leave under s 77D(2).

10. [10]
    The applicant’s position against the second respondent (which was represented by Mr Liddy) is no stronger. So far as s 59 is concerned, she is in the position of having a complying notice of claim given before the end of the period of limitation, so that sub-s (1) permits her to start a proceeding based on the claim even though the period of limitation has ended. Sub-section (2) establishes the time limit which must be complied with, namely six months after the giving of the complying notice of claim. Although it may be a fiction that the notice of claim given to the Newsagency was compliant, it should be taken as being compliant from 14 February 2003, so that the six months allowed expired in mid August 2003. There remains the possibility of the court giving leave to start the proceeding under s 59(2)(a). There is no such leave under any past order, but it may be open, as against the Newsagency, for the court to give leave now, in which event the applicant would have six months from now to start her proceeding. I can see no reason why the court ought to grant such an indulgence, let alone allow a longer period as envisaged by sub-para (b).

11. [11]
    It is true that both respondents gave s 20 (Liability) responses during August 2003 and that contacts (involving both respondents regarding disclosure of documents and the possibility of mediation) happened through until October. The apparently co-operative attitude shown by the respondents came to an end on 15 October 2003 when the solicitors of both of them wrote letters asserting the claim was statute barred and that the court no longer had any ability to allow further time. It is unsurprising that until shortly before 15 October both respondents should have continued in the role of compliant respondents under the PIPA, given that the expectation would have been that the applicant’s solicitors would ensure that time limits were met, or, before it was too late, made the subject of ameliorating orders from the court. On what appears, the respondents are not in a situation of having lulled the applicant’s solicitors into any false sense of security.

12. [12]
    If the court had jurisdiction to extend times in the exercise of a relevant discretion, I would not be inclined to do so. Mr Horvath, for the applicant, asked, in the circumstances thus arrived at, that the court authorise the applicant to issue fresh notices now and declare them compliant, alternatively declare that the previously sent notices are compliant as from now. The consequence would be that the applicant has a further time within which to start a proceeding. Reliance is placed on s 18(1)(c)(ii) and s 20(2)(b). Section 18(1) is:

“(1) A claimant’s failure to give a complying notice of claim prevents the claimant from proceeding further with the claim unless–

1. (a)
   the respondent to whom notice of a claim was purportedly given—

1. (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

2. (ii)
   is presumed to be satisfied the notice has been given as required; or

2. (b)
   the respondent has waived compliance with the requirement; or

3. (c)
   the court, on application by the claimant –

1. (i)
   declares that the claimant has remedied the non-compliance; or

2. (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.”

13. [13]
    Proceeding as if the applicant has failed to give a complying notice of claim flies in the face of the basis on which all parties have treated the matter since February-March this year. I have been prepared to make such an order before, where the limitation period had not expired, in Nicol v Caboolture Shire Council (2003) QDC 033, in which I noted the statements by the Minister introducing the legislation which confirmed the wide discretion given to the court to do what was just in an application under s 18 (or s 43). That decision is the subject of an appeal yet to be determined. For the moment, I would assume the approach I took in Nicol is correct. It does not, in my opinion, justify indulging the applicant on this occasion. The expiry of the limitation period, in the particular circumstances, makes a very great difference.

14. [14]
    Section 20(2) is:

“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 non-compliance, or authorises the claimant to proceed further with the claim despite the non-compliance.”

The considerations are the same. I do not think it appropriate to grant the applicant relief on that basis.

15. [15]
    Essentially the s 77D considerations in respect of the Newsagency are the same as those as against the Council. Subsection (1) makes it applicable, but the applicant failed to start her proceeding by 18 June 2003 and thereby lost her chance to rely on subsection (2)(a). As to 2(b), the window of opportunity it offered to seek the Council’s leave to start a proceeding closed six months after 14 February 2003. If the window were still open, I would not be prepared to grant this applicant the indulgence of leave.

16. [16]
    Mr Horvath’s last submission is that, if s 77D is unavailable, s 43 may be used. Section 77D expressly does not limit s 43. Section 43 provides:

“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.

3. (4)
   Despite subsection (3), the proceeding is not stayed if –

(a)the court is satisfied that –

1. (i)
   the claimant is suffering from a terminal condition; and

2. (ii)
   the trial of the proceeding should be expedited; and

2. (b)
   the court orders the proceeding be given priority in the allocation of a trial date and certifies it for speedy trial.

(5)If, under subsection (4), the proceeding is not stayed, the following provisions do not apply in relation to the personal injury –

(a)this part, other than this section;

(b)sections 48, 49, 56 and 59;

(c)chapter 4.”

17. [17]
    Mr Horvath submits there is no reason why s 43 cannot be used after the primary limitation period runs out. That is a difficult contention to maintain, in my view. Reading the PIPA as a whole, I think it is clear that careful consideration has been given by the Legislature to its impact on the Limitation of Actions Act 1974 and to the impact that Act on PIPA. The preceding section contains specific reference to the Limitations Act. There are other contexts, recently, in which other provisions bearing upon the Limitation of Actions Act have caused some controversy in their application, such as s 81(3) of the Supreme Court of Queensland Act 1991, considered in Draney v Barry (2002) 1 Qd R 145. I am quite unpersuaded that the jurisdiction given to the court by s 43 extends to changing a limitation period; if it did, the present circumstances would not justify the court’s effectively setting the relevant limitation period aside..

18. [18]
    The application must be dismissed. The parties will be given the opportunity to make submissions regarding other orders that might be appropriate.