Williamson-Gleich v Telstra Corporation Limited
[2004] QDC 280
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- Williamson-Gleich v Telstra Corporation Limited[2004] QDC 280
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Williamson-Gleich v Telstra Corporation Limited[2004] QDC 280
Williamson-Gleich v Telstra Corporation Limited[2004] QDC 280
DISTRICT COURT OF QUEENSLAND |
CITATION: Williamson-Gleich v Telstra Corporation Ltd [2004] QDC 280
PARTIES:
DEBORAH JANE WILLIAMSON-GLEICH | Applicant |
v
TELSTRA CORPORATION LIMITED | Respondent |
FILE NO/S: BD2788/2004
DIVISION:
PROCEEDING: Originating application
ORIGINATING COURT: District Court, Brisbane
DELIVERED ON: 18 August 2004
DELIVERED AT: Brisbane
HEARING DATE: 18 August 2004
JUDGE: McGill DCJ
ORDER: Order as per amended draft.
CATCHWORDS:
NEGLIGENCE - Personal Injuries - pre-litigation procedures - whether limitation period should be extended.
Personal Injuries Proceedings Act 2002 s 59(2).
Morrison-Gardiner v Car Choice Pty Ltd [2004] QSC 124 - followed.
Re Tonks [1999] 2 Qd R 671 - applied.
Thomas v Trans-Pacific Industries Pty Ltd [2003] 1 Qd R 328 - applied.
COUNSEL: | R B Dickson for the applicant S T Farrell for the respondent. |
SOLICITORS: |
DISTRICT COURT | No BD2788 of 2004 |
CIVIL JURISDICTION
JUDGE McGILL SC
DEBORAH JANE WILLIAMSON-GLEICH | Plaintiff |
and
TELSTRA CORPORATION LIMITED | Defendant |
BRISBANE
..DATE 18/08/2004
ORDER
HIS HONOUR: This is an application seeking an extension of the period of six months under section 59(2) of the Personal Injuries Proceedings Act 2002.
The application is one which was made after the expiration of the limitation period and more than six months after a notice complying that the claim was given.
However, for the reasons provided in Morrison-Gardiner v. Car Choice Pty Ltd (2004) QSC 124 and Crane v. Crocker (2004) QDC 151, in my opinion it is still open to the applicant to apply. The respondent has submitted that those decisions should not be followed but I am not persuaded to depart from them.
The circumstances of the matter were that the plaintiff claims to have been injured as a result of the negligence of the respondent in June 2001. There was a letter of demand sent on the 6th of February 2002 and a couple of more letters which provided further details prior to the time when the Personal Injuries Proceedings Act was introduced in 2002, and later made retrospective so that it did apply to this injury.
There was some delay in realising that there was a necessity to give a notice of claim, but one was given in April 2003 after some additional information was provided. It was accepted that as from a date in June 2003 there had been compliance with the requirements of the Act. Liability was denied on behalf of the respondent on the 10th of December 2003. The next step required by the Act is a compulsory conference, but no compulsory conference has ever been held.
The respondent did, in January 2004, write a letter chasing up the applicant's solicitors and offering to hold a compulsory conference or something of that nature on the 23rd of January, but that offer was not taken up.
The solicitor handling the matter on behalf of the applicant had obtained some information from the applicant in October 2003 and then had arranged for the applicant to be examined by a medical practitioner in November 2003, and there was correspondence in October in relation to that. That medical practitioner provided a report dated the 26th of November 2003 and a copy of that was provided by the applicant's solicitors to the respondent's solicitors two days later.
Following the denial of liability the applicant's solicitors wrote to the applicant informing her that that had occurred and that there had been an offer of nil dollars. The applicant's solicitors then continued, noting that there was an obligation to prepare an offer to settle in relation to the claim, which was presumably identified as arising under the Personal Injuries Proceedings Act, although that was not said in terms in the letter.
The solicitors were said to be currently in the process of drafting the same but it does not seem that an offer was ever formulated and certainly no offer was ever made. There was a reply providing some additional information in December 2003.
In response to the letter of 19 January 2004 the plaintiff's solicitor wrote on 28 January 2004 forwarding a further copy of the report from the medical practitioner, apparently overlooking the fact that one had already been provided, and referring to some further instructions from the client. A that stage, however, there was nothing actively done by that solicitor to obtain further instructions. There was a response “looking forward to hearing an offer of settlement” from the respondent's solicitors of 3 February 2004.
Shortly after that, on 23 February 2004, there was an e-mail from the applicant to her solicitor inquiring as to what was going to be the next step and pointing out that he had not heard from the solicitor since December, 12th of December. She continued, “Would you please contact me at your earliest convenience?” However, there was no further contact from the applicant's solicitor until after the limitation period had expired.
A letter was drafted, a fairly lengthy letter was drafted on the 8th of March 2004 which adverted to the limitation period and also raised other issues, providing some advice and seeking further instructions, but that letter was never sent. The solicitor handling the matter, who was an associate with the firm, was unable to provide any explanation as to why that letter was not sent prior to the expiration of the limitation period.
There was a further letter from the respondent's solicitors dated the 20th of April 2004 soliciting an offer of settlement and suggesting a compulsory conference in June 2004. That letter did not prompt any action from the applicant's solicitors. They really did nothing else until after the limitation period expired.
In the following month, in early July 2004, it had become apparent that that had occurred. The matter was reported to one of the partners. There was some correspondence and then this application was made reasonably promptly on the 5th of August 2004.
The extension, the effective extension of the limitation period is only about a couple of months, so there has not been any great delay but, of course, there ought to have been a compulsory conference and an exchange of offers of settlement under the Act before proceedings were commenced and that ought to have occurred prior to the expiration of the limitation period. So there has been perhaps some additional delay to allow for those steps to be taken.
The matters said to be relevant consideration to the exercise of the discretion were referred to in the judgment of her Honour in Morrison-Gardiner. It is relevant to consider that an explanation has been given for the delay and whether there has been any prejudice to the respondent.
Her Honour also said that delay resulting from a solicitor's negligence is not to be ascribed to the plaintiff and referred to two authorities. One of them, Purvis v. Nominal Defendant (2003) QCA 555 is in the immediate sense deciding a slightly different point, in that the question is whether a statutory requirement to give a reasonable explanation or provide a reasonable excuse means an excuse from the point of view of the solicitor as well as the client.
But the other authority re Tonks (1999) 2 QDR 671 is authority for the proposition that in a related situation the fault of the solicitor is not to be ascribed to the client, and it seems to me that much the same approach, again in a related situation, may be derived from the decision of the Court of Appeal in Thomas v. Trans Pacific Industries Pty Ltd (2002) QCA 160.
The position therefore does seem to be that it is necessary to focus more on any personal default on the part of the applicant. There is no doubt that the principal problem here lay with the solicitors. The matter had been placed in the hands of the solicitors well before the expiration of the limitation period. There had been plenty of correspondence with the respondent and notice of claim was given and so on, and the matter was being left in their hands to arrange.
It was really only in the early part of 2004 that a failure first emerged on the part of the solicitors to carry the matter forward in a reasonable fashion. There had been some delay prior to that date but things were being done and some progress was being made, but from January 2004 the progress just stopped.
There was an attempt to chase up the solicitor in February 2004 by the applicant but nothing further was done after that. It was submitted on behalf of the respondent that that indicted some personal default on the part of the applicant. However, on the other hand, the solicitors had been taking steps to progress the matter up to that time, and at least there was some attempt by the applicant personally to chase them up in February 2004. This is not a case where the solicitors were having difficulty getting instructions or obtaining information from the applicant or where, in other respects, there was some specific failure on the part of the applicant personally.
The position was simply that the applicant did not pursue the solicitors as rigorously as she ought to have but that is, I think, not a very serious failure on her part. In other respects, it was certainly the solicitor's fault and, on the approach adopted in these matters in the Supreme Court, that seems to be a factor which is not to be attributed adversely to the applicant. Rather, it can be seen as providing an explanation for the failure to bring proceedings in a timely way.
It may well be in this case that because the focus in late 2003 and, in so far as there was any focus, early 2004, was on preparing an offer of settlement, this being seen as required under the Act, there was some distraction from the fundamental requirement to commence proceedings in a timely way. So it may well have been the case that the proceedings would have been commenced within the limitation period had the Act never been passed.
There is no prejudice to the respondent as a result of the extension sought except in so far as it will mean that the limitation defence will not be available. The respondent had ample notice of the claim even before notice of claim was required to be given under the Act and there has been plenty of opportunity for the respondent to consider its position and to prepare to respond to the claim so that this is not a case where there is some delay in the pre-litigation procedures and the commencement of the action which will prejudice the respondent.
It was really the respondent's position that there had been some personal default on the part of the applicant. To some extent that is true but it is not, I think, very serious and it is fair to say that the great bulk of default lay in a serious default on the part of the solicitors.
The other submission was largely that a point had to be reached where the solicitor's default was serious enough that the application should fail notwithstanding that.
There are cases in other areas such as Tyler for example which suggests that in some situations a party will not necessarily escape from all consequences of the solicitor's default, but the authorities to which I have referred which are closer to this particular area do seem to be stronger in indicating that default on the part of the solicitor is just not to be attributed to the client. If that is the approach in this area then it seems to me that in this case it is appropriate to grant the extension sought.
The question is whether the extension should be to a particular date or whether it should be to a date which is fixed by reference to the holding of a compulsory conference which was the approach adopted in Morrison-Gardiner.
...
HIS HONOUR: I think that a situation had arisen where the indulgence of the Court was needed. The application was made necessary really by the failure of the solicitors to which I have referred earlier. The question of whether the resistance to the application was unreasonable I think depends in part on the fact that it does not appear that full details of the explanation for the delay were given to the respondent prior to the application being made, or indeed really even in the material originally advanced in support of the application. It was really only when there was further evidence put before the Court today that there was a proper understanding of what had occurred and how the responsibility for it could be distributed between the applicant and the applicant's solicitor. So I think really it was reasonable for the respondent to resist the application right up until today, so in all the circumstances the applicant should pay the respondent's costs of the application, and I will amend the draft order to say that but otherwise make an order in terms of the draft.
...
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