Musumeci v Robina Shopping Village
[2005] QDC 22
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- Unreported Judgment
- Musumeci v Robina Shopping Village[2005] QDC 22
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Musumeci v Robina Shopping Village[2005] QDC 22
Musumeci v Robina Shopping Village[2005] QDC 22
[2005] QDC 022 | |
DISTRICT COURT | |
CIVIL JURISDICTION | |
JUDGE ROBIN QC | |
No D692 of 2004 | |
ALBA CLARA MUSUMECI | Applicant |
and | |
ROBINA SHOPPING VILLAGE CTS 18262 | Respondent |
SOUTHPORT | |
DATE 07/02/2005 | |
ORDER |
CATCHWORDS: | Personal Injuries Proceedings Act 2002 (PIPA) S 9, S 36, S 40, S 43, S 59 - would-be plaintiff who had complied with PIPA but not fully (on account of lack of cooperation by the putative defendant which said there was no point in a compulsory conference and that any mandatory final offer would be "nil"), filed a claim and statement of claim on eve of expiry of limitation period, then applied for leave under PIPA and orders compelling the respondent to comply so that matters might advance - whether the claim was a nullity considered - applicant permitted to proceed on it by filing a new verified statement of claim - stay thereafter under PIPA complied with. |
HIS HONOUR: This is an application by Ms Musumeci, who is already the plaintiff in a claim filed on the 5th of November 2004 on the eve of the expiration of the three year limitation period which would apply in respect of a tripping accident she asserts she had at the defendant/respondent's shopping centre on the 7th of November 2001.
Within the claim, she filed on 17th of December 2004 an application seeking leave to proceed and/or alternative relief by way of extending the statute of limitations. The application also seeks an order for attendance of the parties at a compulsory conference and a further order for mandatory offers to be exchanged. Although the application does not refer to it, it was brought with the Personal Injuries Proceedings Act 2002 in mind, with a view to regularising the applicant's situation under it.
The status of her claim and statement of claim is obscure given that at the time of filing, the pre-litigation proceedings required by the Act had not been complied with. There is argument about the extent to which that proposition is true and also where the blame might lie. For some time, it has been conclusively established that proceedings to which the Motor Accident Insurance Act 1994 as amended in 2000 applies started without compliance with pre-litigation proceedings mandated by the legislation are nullities.
The approach appears to have been taken that proceedings commenced prematurely from the point of view of the PIPA are in the same case. The parties today are inclined to take that same approach without going into the correctness of it as happened, for example, in Kash v. S M and T J Cedergren Builders [2003] QSC 426. See paragraph [2] of the reasons for judgment.
Mr Grenacs, for the applicant, however, is hopeful of avoiding the necessity for Ms Musumeci to pay further filing fees. In other words, he wants to make use of the claim and statement of claim filed. His case is somewhat coy about the section of the PIPA which is relied on. It may be section 43; it may be section 59, neither of which applies particularly neatly.
I agree with Mr Taylor, who appears for the respondent, that the material in support of the application falls short of what might be expected. In particular, as he points out, there is no evidence before the Court to describe the alleged accident and how it happened and how the defendant might be held to blame. The statement of claim is uninformative in these respects too. In theory the whole exercise may be a "try on" on the part of plaintiff embarked on in the hope of gaining some settlement, even though no accident ever happened in reality, let alone one for which the respondent is to blame.
Although Mr Grenacs invited the Court to rely on a chronology prepared in his outline of argument, the bare bones of that left the Court wondering very much about events that really happened. In the course of the hearing, there was tendered as Exhibit 1 a copy of the form 1 notice of claim which Ms Musumeci gave under the PIPA on or about the 14th of August 2002. Mr Taylor, for the respondent, concedes that his camp has had that for some time.
It provides information of the kind whose absence is noted above. It also includes a clear plan showing in diagrammatic form where things happened. The application relies on a solicitor's affidavit which exhibits correspondence without enclosures. That correspondence includes a letter transmitting 14 photographs which the Court hasn't seen except to the extent that a glimpse of them in Mr Grenacs' possession at the bar table was enjoyed by me.
The response appears to indicate that the recipient of the photographs was able to identify the tile or paver which is blamed for the accident. It is not one of those cases where, years after an incident, a putative defendant is told about it. None the less, I think Mr Taylor's client is entitled to feel some dissatisfaction that it was some months before the centre management were advised this occurred by a solicitor's letter of the 6th of March 2002. Given that the applicant allegedly suffered fractures, it is fairly unsatisfactory, from the point of view of the safety of other users of the shopping centre, that an earlier report was not made. That said, the respondent, or those representing its interest, have had plenty of time to consider the matter and plenty of time to carry out the pre-litigation requirements which the PIPA imposes on them. They do not present any claim of prejudice.
For a time, the insurer, to which the initial report was sent by the shopping centre manager, handled the matter. (Solicitors became involved only much later.) In particular, by a letter of the 8th of November 2002, the insurer took the line that claims by pedestrians based on uneven pathways were close to untenable, claiming support from a number of reported decisions and a new one which had apparently only just been publicised in the Sydney Morning Herald.
Their attitude has been to be quite dismissive of Ms Musumeci's claim on that basis. In substance, the firm of solicitors who came into the matter about April 2003 have followed the same approach. The plaintiff and her solicitors have been told that there is no point in the holding of a compulsory conference. They have also been told in a letter from the solicitors of 24th of April 2003 that "the Body Corporate makes an offer of $nil." A change of personnel in the firm may be part of the explanation for a lengthy of period of time elapsing without the matter advancing.
As the limitation period was about to expire, faced with an inability to achieve the cooperation of opposed parties which PIPA requires, Ms Musumeci's lawyers made the decision to get the proceeding filed in Court on the eve of the expiration of the three years. It is not clear to me that the proceeding is a nullity. Dealing with the provisions of the PIPA which potentially make it so; there is no problem arising from section 9 which the claimant complied with by giving the notice, a copy of which is Exhibit 1.
Section 36 is oddly drafted in that, unlike section 9, it does not expressly impose an obligation on "the claimant" to participate in a conference. It simply says there must be one "before starting a proceeding in a Court based on a claim." The parties, by section 36(4), may dispense with the compulsory conference. The respondent had given every appearance of doing just that, but now that an intimation has been given by the Court that the would be plaintiff will be allowed to proceed, the respondent is attracted to the idea of there being a conference, as the plaintiff herself continues to be. That is only sensible. It may lead to an early and inexpensive resolution of the matter. The parties join in asking the Court, given its general approach in favour of the applicant, to give directions for a compulsory conference.
The next pre-litigation requirement, which by section 39 is tacked on to the compulsory conference, is the making of mandatory final offers under section 40. Subsection (4) provides that "a mandatory final offer must remain open for 14 days and a proceeding in a Court based on a claim must not be started while the offer remains open." Reading that literally, the filing of the claim was not precluded, since there had been no offer made.
There is a dispensing power in the Court under subsection (9), but no ability in the parties expressly acknowledged in the PIPA to by-pass the mandatory final offer stage. It is unfortunate that the plaintiff appears not to have made one, given her inability to get the respondent to a compulsory conference.
The PIPA provisions are not expressed in the same language as the Motor Accident Insurance Act provisions. In the special circumstances of this case, I am far from sure that the claim and statement of claim are a nullity or beyond saving. The plaintiff has not been seeking to avoid compliance with the PIPA pre-litigation procedures and indeed, the point of the application is to ensure that they are carried out. The philosophy set out in N5 of the UCPR requires the Court to participate in the exercise of trying to get the issues defined and resolved in a convenient and inexpensive way and in those circumstances, the following will be the orders.
(1)I order that the applicant, Alba Clara Musumeci, have leave to start a proceeding against Robina Shopping Village CTS 18282 in respect of an accident occurring at its premises on 7th of November 2001 on condition that she file a new statement of claim, verified by her own affidavit, which includes the substance of the allegations in items 14 and 15 of her form 1 notice of claim under the Personal Injuries Proceedings Act 2002 dated 14th August 2002.
(2)The proceeding may advance pursuant to the claim filed herein on the 5th of November 2004 and the new statement of claim referred to above but shall be stayed to permit the parties to attend to the following, which the Court directs.
(a)Holding of the compulsory conference referred to in the Act within 60 days of today; and
(b)The making of mandatory final offers under section 40 of the Act within 14 days of the conference and their remaining open for acceptance for a further 14 days before the proceeding advances further.
When I talked about filing of the statement of claim, it should read "file and serve on the respondent." Can the solicitors accept service?
MR TAYLOR: Yes.
MR GRENACS: Yes.
HIS HONOUR: Serve, I will say, "on the respondent's solicitors."
...
HIS HONOUR: Costs excluding the plaintiff's costs of complying with order 1 above are the party's costs in the cause.