DISTRICT COURT OF QUEENSLAND

1. [1]
   On 16 February 2005 E McL applied to this Court for leave to commence proceedings pursuant to s 43 of the Personal Injuries Proceedings Act 2002 (PIPA) in respect of personal injuries she alleges she suffered from 1988 to 1994.

2. [2]
   The applicant alleges that her uncle P McL sexually assaulted her on numerous occasions from 1988 until 1994. She alleges that as a consequence she has suffered psychological injuries. She was born on 20 February 1984, so the assaults allegedly occurred from when she was 4 until she was 10. The limitation period for commencing proceedings expired on 20 February 2005, hence the need for an urgent application.

3. [3]
   On 17 February 2005, his Honour Judge Dodds granted the application in the absence of Mr McL, as the court was informed that he had not been served. He made orders in the following terms:

“1. Subject to paragraph 4, the Applicant is granted leave to commence proceedings against the Respondent for damages for personal injuries sustained in a series of incidents of sexual assault occurring over a period of time between 1988 and 1994 inclusive, pursuant to second 43 of the Personal Injuries Proceedings Act 2002(Queensland) (as amended).

2. The proceedings be stayed pending compliance with the requirements of the Personal Injuries Proceedings Act 2002(Queensland) (as amended).

3. That the prescribed time for service of this application be abridged pursuant to Rule 7 of the Uniform Civil Procedure Rules 1999.

4. The Respondent have liberty to apply within 10 days of being served with this order.

5. The Applicant be granted leave to rely upon the Affidavits of E R McL and PETA TWOMEY, sworn 16 February 2005 and PETA TWOMEY sworn 17 February 2005, pursuant to Rule 28(2) of the Uniform Civil Procedure Rules 1999.

6. The costs of and incidental to this application be reserved.”

4. [4]
   Mr McL applies to this Court for orders that the order of 17 February 2005 be set aside and the application of Miss McL be dismissed.

5. [5]
   His application seeks to rely on the principles developed at common law relating to applications to extend the limitation period pursuant to s 31(2) of the Limitations of Actions 1974 (Qld).  Mr Myers, his counsel, does not advance any authority to support his argument that these principles inform the discretion given to a court pursuant to s 43(1) of the PIPA.

6. [6]
   Rather he seeks to rely on these principles by way of analogy.

7. [7]
   He referred in his oral submissions in particular to Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, a case dealing specifically with the discretion to extend time given to a court pursuant to s 31.  He referred to the short judgment of Dawson J (at 544) where his Honour observed:

“The section confers a discretion upon a court to extend time and that discretion should only be exercised in favour of an applicant where, in all the circumstances, justice is best served by doing so.  The onus of satisfying the court that the discretion should be exercised in favour of an applicant lies on the applicant.  To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant.”

8. [8]
   In his written outline he referred to an extract from the judgment of McHugh J (with whom Dawson J agreed) where his Honour said (at 551):

“The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods.  For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims.  The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates” (R v Lawrence [1982] AC 510).  Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed.  But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties.  Prejudice may exist without the parties or anybody else realising that it exists.  As the United States Supreme Court pointed out in Barker v Wingo (1972) 407 US 415 “what has been forgotten can rarely be shown”.  So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now “knowing” that it ever existed.  Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose.  A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued.  The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.”

9. [9]
   Mr Myers’ argument then proceeds with a submission that as the delay in this case is “so gross”, it must lead to “manifest prejudice and manifest injustice” against his client, if the order made by this court is not disturbed. As an aside, it does appear from Mr McL’s affidavit sworn on 25 May 2005 and filed by leave at the hearing that, despite the undoubted delay he is still able, even at this very early stage, to advance facts which are relevant to the issue of opportunity.

10. [10]
    At the start of the hearing, I observed that it would be a significant step to, in effect, prevent a person from proceeding with a claim, in circumstances in which that person alleges compensable injury as a child, and applies to the Court, pursuant to the Act governing these proceedings for leave prior to the expiration of any limitation period.

11. [11]
    There is no doubt that the court has an unfettered discretion to allow commencement of proceedings in situations of urgency, primarily when expiry of the limitation period is imminent: Gillam v State of Queensland & Ors [2003] QCA 566, Kash v SM & TJ Cedergren Buildings & Ors [2003] QSC 426.  It is also now well established that in an application for leave to commence proceedings despite non-compliance with statutory regimes because of imminent expiry of the limitation period, the applicant need not show even a prima facie case, but rather must point to matters which, if proved, have some prospect of establishing liability in an action against the respondent, and that the proposed cause of action is not futile: Thomas v Transpacific Industries Pty Ltd [2003] 1 Qd R 328 (in relation to the Motor Accident Insurance Act 1994) and specifically in relation to the PIPA: Sarina v Thursday Afternoon Pty Ltd [2003] QDC (per Judge Alan Wilson SC – 16 May 2003).

12. [12]
    Mr Myers’ argument cannot succeed when one examines, firstly, the statutory regime provided for in PIPA, and the way in which the courts have construed and applied the provisions of that Act. In Gillam, Jerrard JA (with whom Dutney and Philippides JJ agreed) expressly rejected a submission that in considering a leave application pursuant to s 43(1), it was necessary for the court to consider whether or not a reasonable excuse for delay existed.  Dutney J went further when he said (at 38):

“The submission that the absence of an explanation for the delay in serving the s 9 notice of claim renders the leave futile ignores s 18(1)(c)(ii) of the PIPA.  It is premature on the application for leave under s 43 to pre-empt a subsequent application under s 18(1)(c)(ii) to excuse non-compliance with the requirement to provide a reasonable explanation for delay.”

13. [13]
    The same observation applies here. The final nail in the coffin that now contains Mr Myers’ argument comes from the PIPA itself. Section 59 specifically allows for extensions of the limitation period in certain cases involving an applicant/plaintiff who has given a complying notice of claim under to Act. If the parliament had intended to constrain or fetter the discretion under s 43(1) in the way in which Mr Myers suggests it would have said so. In my opinion, it is not surprising that there is no authority to support the argument he makes. Perhaps as an unconscious acknowledgment of the weakness of his main argument he tried to draw comfort from an observation made by Jerrard JA in Gillam at 25:

“It would ordinarily be inappropriate to exercise the s 43 discretion by refusing leave to commence proceedings just before the expiration of the limitation period against that party only recently identified under the PIPA processes as potentially liable.”

14. [14]
    Mr Myers submitted that, in effect, therefore the converse was also correct i.e. that ordinarily it would be appropriate to refuse leave just before the expiration of a limitation period against a party who had for many years been identified as potentially liable. Expressed this way, it is obviously a proposition that has no substance. The application is dismissed with costs.