DISTRICT  COURT OF QUEENSLAND

1. [1]
   The plaintiff seeks to recover damages for personal injuries. He says that he injured his ankle on 15 October 1999 while stepping on a puddle of water outside a florist shop at the Logan Hyperdome. The first defendants were the florists at the time. The second defendants were the owners of the shopping centre.

2. [2]
   He now wishes to join a third defendant, Prestige Property Services Pty Ltd. It was the cleaner at the time of his injury.

3. [3]
   Mr Foster faces two obstacles. His counsel asked leave to join Prestige Property Services as a defendant, notwithstanding that the three year limitation period for such a proceedings has expired. Secondly, he asks for the Court’s leave to proceed, notwithstanding his failure to comply with the requirements of the Personal Injuries Proceedings Act. 

4. [4]
   At the time of his injury Mr Foster was a 23 year old man who worked in the security industry. He says that his injury did not resolve. His leg was in plaster for six weeks. He lost that time from work. His problems continued, on and off. In May 2002 he decided to see a solicitor. He contacted his present solicitors to inquire about pursuing a claim. He believed he had three years to do that. He believed that the water he slipped in came from the florist shop, which was close to where the accident occurred. His solicitors made some investigations, but they were not detailed. His solicitor had difficulty in completing the required notice of claim, as Mr Foster did not attend on at least three occasions because of transport problems and work call ups. He had not lodged tax returns, and had few financial records. Some of his employers had gone out of business.

5. [5]
   The three year limitation period expired on 15 October 2002. To protect Mr Foster, his solicitors applied for an order under s. 43 of PIPA, so that court proceedings could be commenced despite non-compliance with its requirements. An order was made by Senior Judge Skoien on 11 October 2002 granting Mr Foster leave to start proceedings against the first and second defendants.

6. [6]
   A notice of claim was served on the existing defendants on 9 October 2002, but it was not complete. Eventually, Mr Foster saw his solicitor on 24 September 2003 with sufficient instructions to enable a notice of claim to be completed and signed.

7. [7]
   In early 2003 the solicitors for the second defendants sent out contribution notices, according to s. 16 of PIPA. Apparently there was some confusion about the name of the cleaning company – it was either Tempo Services Limited or Prestige Property Services Pty Ltd, care of Tempo Services Limited. A contribution notice was sent to Tempo Services in February 2003. Then, in mid May 2003, Mr Foster’s solicitors saw the contribution notice addressed to Prestige Property Services. After that, in mid August 2003, they saw a small collection of reports dealing with the incident, created close to the time that it happened, by staff of Prestige Property Services.

8. [8]
   On 25 September 2003, notices of claim were sent by Mr Foster’s solicitors both to the existing defendants and to Prestige Property Services.

9. [9]
   In a letter of 8 October 2003 the claims managers for Prestige Property Services wrote and requested a written explanation as to a reasonable excuse for the delay in serving the notice of claim upon their client. They noted that their client was first notified of the claim on 31 January 2003 by the solicitors for the occupier of the shopping centre. They noted that they had been in communication with those solicitors since that time.

10. [10]
    Mr Foster’s solicitor believed that the statutory time limit to make a claim against Prestige Property Services expired on 18 December 2003, because of s 77D of PIPA. He attempted to reach some agreement with the representatives of Prestige Property Services, about the commencement of proceedings, but could not do so. The present application was filed on 21 November 2003. It asked for the joinder of Prestige Property Services as a defendant, and any necessary orders under PIPA. The application was heard on 5 December 2003.

11. [11]
    It was submitted by counsel for Prestige Property Services that nothing could be done about the present application, because the action was stayed according to s. 43(3) of PIPA. The action was stayed under that provision, because the proceedings were started by the leave of this court on 7 October 2002.

12. [12]
    However, it is not easy to see why the stay of the action should prevent a plaintiff from applying to join another defendant. No decisions supporting that submission were mentioned. The continuing non-compliance, and the stay, is no obstacle to the present application to add another defendant.

13. [13]
    Here, it is conceded that it would be necessary or desirable to have Prestige Property Services before the court, so that all matters between the parties can be dealt with on the one occasion. Otherwise, the application is opposed. It was said that there is no satisfactory explanation of the failure to join the cleaners before the end of the three year period. No attempt had been made to ascertain the identity of those cleaners, and to investigate whether there would be any liability attaching to them. It was not reasonable to wait and then discover the role of the cleaner set out in the contribution notice of May 2003. There is also the consideration, it was submitted, that there was no evidence that a breach of duty of care would be successfully proved against the cleaners. There was said to be the potential for them to be prejudiced because of the delay. No particular fact is sworn to, or mentioned in submissions, as to why that might actually be so. There is no suggestion that those who investigated the incident at the time are not available to give evidence.

14. [14]
    The application for joinder is made under r. 69 of the Uniform Civil Procedure Rules.  It provides that:

“(1)  The court may at any stage of a proceeding order that –

1. (a)
   …

2. (b)
   Any of the following persons be included as a party –

1. (i)
   A person whose presence before the court is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in the proceedings;

2. (ii)
   A person whose presence before the court will be desirable, just and convenient, to enable the court to adjudicate effectually and completely on all matters in dispute connected with the proceeding.

3. (2)
   However, the court must not include or substitute a party after the end of the limitation period unless one of the following applies –

…

7. (g)
   for whatever reason the court considers it just to include or substitute the party after the end of the limitation period.”

15. [15]
    The only requirement with regard to the exercise of the court’s discretion is that any inclusion of a party after the end of the limitation period must be just. The rule contemplates that there will be a reason, or reasons, identified in the material, that makes it just to deprive a defendant of a good limitation defence. Only rarely will the joinder of a party in such circumstances not work prejudice to the defendant. While there is a wide general discretion in the court, it can only be exercised where the reason, which makes the destruction of the defence just, can be clearly identified and seen to be sufficient. An explanation for the failure to join the party within time will always be relevant though lack of such an explanation is not a pre-condition to the power (see Bates & Ors v. Queensland Newspapers Pty Ltd & Anor [2002] QSC 083). 

16. [16]
    The notices of contribution given by the existing defendants said contradictory things – that the notice given to them was complying with the PIPA requirements, and that it was also non-complying. The reasons are not set out. However, it seems to have been accepted at the hearing that the first notice of claim was indeed non-complying.

17. [17]
    The transitional provisions of PIPA 2002 ss. 77A to 77E applied to this claim. That is because the incident happened before 18 June 2002, and the period of limitation had not ended before that date. Section 9(3)(a) requires a notice of claim to be given within nine months after the day of the incident giving rise to the personal injury claim. The transitional provisions deem the day of the incident, in this case, to have been 1 August 2002. See s 77A(2). Therefore, such a notice had to be given by 1 May 2003. That did not happen.

18. [18]
    Where a claimant consults a lawyer, the requirement is that the notice of claim must be given within one month after the day of the first consultation. According to the transitional provisions, the claimant is taken not to have consulted a lawyer earlier than the day three months after the day the 2002 amendment to PIPA received consent. That was given on 29 August 2002. So, such a notice had to be given by 29 December 2002 – one month after the deemed date of consultation. (In fact, the first consultation was in May 2002).

19. [19]
    A claimant may not at first identify a defendant, or there may be identification but no proposal to proceed against that person. Section 9 appears to say that notice must always be given within 9 months, though a later notice may be accepted if there is a reasonable excuse for the delay. If a lawyer is consulted, the one month period will not commence until there is both identification and a proposal to start proceedings against that person.

In any case, the earlier date is to be the date when the notice has to be given – s.9(3).

Here, Prestige Property Services was identified by the solicitors in mid May 2003.  Another month would take the period to mid June 2003.  The 9 month period is deemed to have ended on 1 May 2003.  There is not much difference between them.  In any case, the notice of 25 September to Prestige Property Services was out of time. 

20. [20]
    Section 77D is significant. These were its provisions:

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

1. (1)
   …
2. (2)
   If the period of limitation has ended, the claimant may start a proceeding in the court based on the claim –

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

2. (b)
   at a later time, not more than six months after the complying notice of claim is given and not later than the end of 18 December 2003, with the court’s leave. 

1. (3)
   If a proceeding is started under sub-section (2) without
2. (4)
   This section does not limit s 43.”

21. [21]
    It is necessary to note the meaning of the expression “complying notice of claim”. It means a notice of claim given under s 9 that is given as required under Chapter 2 Part 1 Division 1. Those provisions require it to be given in a timely way, or with a reasonable excuse for any lateness.

22. [22]
    In this case, no attempt was made to give an excuse for lateness of the notice. Rather, the plaintiff’s application relies upon the matters now presented to this court, to provide a reasonable excuse for the failure to give a notice within time. But close attention has to be paid to the conditions imposed on a claim which is out of time, before the question of reasonable excuse is reached.

23. [23]
    PIPA has separate provisions dealing with the expiry of the limitation period, as happened in this case. They are found in ss. 59 and 77D. A careful analysis of the differences between them was carried out by Justice McMurdo in Kash v SM & TJ Cedergren Builders & Ors [2003] QSC 426.  Section 59 can be used to extend time, at any time after the notice is given, but the notice must be a complying notice.

Section 77D has a cut-off time, being 18 December 2003.  There is a similar condition that a complying notice has been given.

The notice of September was not complying.  Neither ss. 59 or 77D can assist Mr Foster.  Reliance was also placed on ss. 9 and 18, to excuse the non-compliance, and allow Mr Foster to proceed.

24. [24]
    Section 9(5) says:

“If the Notice is not given within the period prescribed under subsection (3) the obligation to give the Notice continues and a 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.”

25. [25]
    Section 18 of PIPA permits the court to authorise the claim and to proceed further with the claim despite such non-compliance. The order may be made on conditions the court considers necessary or appropriate to minimise prejudice to a respondent from the complainant’s failure to comply with the requirements. It is s. 18 that could be used to authorise Mr Foster to proceed further.

26. [26]
    Whether the excuse is a reasonable one is to be judged objectively, considering the circumstances. Those circumstances include the claimant’s personal characteristics such as age, intelligence, and education, the nature of the injuries sustained, and the role played by any legal advisor. The delay for which reasonable excuse must be provided is the period from the date of the accident to the dates on which the notice and the excuse is provided. A claimant must provide a reasonable explanation why notice was not given within the initial statutory period, and then a reasonable explanation for the delay thereafter. (See Piper v Nominal Defendant [2003] QCA 557).

27. [27]
    Here, it is not admitted that the second notice of claim was compliant. Any failure seems to relate only to delay.

28. [28]
    The court will also take into account the extent of the delay, the prejudice to the applicant by being shut out of the proceedings, and the apparent strength of the applicant’s claim. Here, there has been substantial delay, but it is submitted for the applicant that he and his solicitors did not know of the involvement of the cleaner at all until they received the contribution notice and the disclosed documents from the second defendants. That information had been provided by mid August 2003.

29. [29]
    It should also be noted that PIPA provides for machinery for a claimant to add another respondent. Section 14 and Regulation 7 of PIPA provide that a further respondent may be added within one month after a claimant receives a copy of the contribution notice. In this case, that time expired on 13 June 2003. The notice was not given until 25 September 2003.

30. [30]
    The existing contribution notices given by the second defendants to Prestige Property Services assert that the cleaner had a duty to carry out spot cleaning of the common area. It is apparent that such an obligation arose from the cleaner’s contract. That document has been discovered, and it contains clause 16 which provides that, in the case of liability for injury to third persons:

“The contractor shall be liable for and shall indemnity the proprietor, the manager, … against any liability, loss, claim or proceeding whatsoever arising under any legislation or at common law in respect of personal injury or death of any person whomsoever arising out of a cause by the execution of the works provided always that the same was due to the negligence, act, omission or default of the contractor …”.

31. [31]
    It is not possible to judge the plaintiff’s prospects of success in the action. The material in the hands of Prestige Property Services suggests that the incident did not happen as the plaintiff says it did. However that question cannot be resolved here.

32. [32]
    The facts here show that there was a long delay of about 2½ years before Mr Foster consulted his solicitor. He had lost about six months off work after the accident, so his injury must have appeared to him to have been of some seriousness. His solicitor then found difficulty in obtaining instructions from him. Some appointments were not kept. No effort was made to investigate the potential role of cleaners, even though it is notorious that the proprietors of shopping centres often employ cleaners for the common areas and may often find themselves as defendants in legal proceedings.

33. [33]
    There is no evidence put forward to suggest that the cleaners were responsible for this puddle on the floor (if it existed) and any fall by the plaintiff.

34. [34]
    It was suggested that the addition of the cleaner as a defendant would be a simple matter as it is already, in effect, a third party to the proceedings. That is too simple an approach. At the moment, the cleaner is liable to indemnify the second defendants against any liability they may have to the plaintiff. If the cleaner is joined as a defendant in its own right, it will be exposed to a finding of personal liability against it, because of its own conduct. That is a significant prejudice.

35. [35]
    The plaintiff has already sought the intervention of the court, which resulted in the order of 11 October 2002. That allowed the present proceedings to be started. This is the second application seeking the leave of the Court. The position now is different. There is prejudice to the cleaner and considerable delay on the part of the plaintiff.

36. [36]
    For completion, these reasons record the application for joinder under the Uniform Civil Procedure Rules. However, it seems that s. 77D of PIPA (and possibly s. 59) is intended to prescribe the only way in which time could have been extended. It is not possible to outflank such provisions by an appeal to UCPR r. 69. If that view is wrong, then it is my opinion that no different result would be reached under r. 69. Joinder would not be a just result, for the reasons set out above.

37. [37]
    The application is dismissed.