Morley v Central Queensland Institute of TAFE
[2006] QDC 121
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- Morley v Central Queensland Institute of TAFE[2006] QDC 121
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Morley v Central Queensland Institute of TAFE[2006] QDC 121
Morley v Central Queensland Institute of TAFE[2006] QDC 121
DISTRICT COURT | No D22 of 2006 |
CIVIL JURISDICTION
JUDGE BRITTON SC
TIMOTHY SPENCER MORLEY | Applicant |
and
CENTRAL QUEENSLAND INSTITUTE OF TAFE | Respondent |
ROCKHAMPTON
..DATE 10/05/2006
JUDGMENT
HIS HONOUR: This is an application by Timothy Spencer Morley (“the applicant”) for leave to commence proceedings for damages for personal injury arising out of an incident that occurred on the 6th of August 2002.
The applicant claims to have suffered personal injury while a student in a welding course at the Central Queensland Institute of TAFE at Emerald. The application is brought pursuant to section 59 of the Personal Injuries Proceedings Act 2003 (“PIPA”).
There was no appearance on behalf of the respondent. There was no affidavit of service of the application and supporting material but the applicant's solicitor, Elizabeth Anne Lorimer gave oral evidence of having forwarded the documents to Crown Law and of her conversation with an officer of Crown Law.
The applicant was born on the 27th of March 1984 and he was thus 18 years of age when injured on the 6th of August 2002 so that the limitation period expired on the 6th of August 2005. Section 59 of PIPA provides,
“(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
- (a)six months after the complying Part 1 notice is given or leave to start the proceeding is granted; or
- (b)a longer period allowed by the Court.”
A notice of claim pursuant to PIPA was given on behalf of the applicant on 11 September 2002. By letter dated 2 June 2003, Crown Law, on behalf of the respondent, advised the applicant's solicitors that the notice of claim was a complying notice of claim.
Clearly, the applicant should have started his proceeding within the limitation period. That is, on or before 6 August 2005. However, pursuant to section 59(2)(b) of PIPA, he may start it within a longer period allowed by the Court.
The material shows that following the notification by Crown Law that the notice of claim was complying, there was a deal of correspondence between Crown Law and the applicant's solicitors. There were offers of settlement and counter-offers. There were investigations by the applicant as to the availability of cosmetic surgery.
By letter dated 6 August 2003, Crown Law advised that liability was admitted. During 2005, the applicant's solicitor had a number of personal difficulties to which she deposed in her affidavit. She concedes that the file may not have had as much attention as it should during that year, due to her having travelled to New Zealand on eight occasions and having had 57 days out of the office between March and December due to her parents'ill health and her father's death in December 2005.
There were also some difficulties in the solicitors obtaining instructions from the applicant due in part to his having been involved in a motor vehicle accident in August 2005 in which his car was written off but he was not physically injured.
The applicant, in his affidavit, acknowledged having received correspondence from his solicitors in May, June, August, October and November 2005 and that he did not respond directly to that correspondence, leaving it in his mother's hands as he was living in various places at the time.
The applicant swore that prior to the expiration of the limitation period he had not been made aware of the need to preserve his rights before the expiry date.
The applicant's solicitor also deposed that she envisaged that the matter would settle because liability had been admitted and the quantum of damages was within a range where costs would have militated against proceeding to Court.
She swore that with the admission of liability she assumed that the respondent was committed to damages, irrespective of the statutory limits on filing a claim.
Referring to what I said earlier in relation to the oral evidence of the applicant's solicitor concerning service of the documents on Crown Law, I am satisfied that the application and supporting material were served on Crown Law and further, that the respondent does not wish to be heard in relation to the application.
It has been held that section 59 (2) (b) of PIPA confers a general discretion to extend the necessary time for a claimant who is within section 59 (1) but who is not assisted by section 59 (2) (a) to bring a proceeding in Court after the expiration of the limitation period (Haley and Anor v. Roma Town Council; McDonald v. Romijay Pty Ltd & Ors [2005] QCA 3).
The discretion is an unfettered one but is required to be exercised judicially. In exercising that discretion, a Court would be cognisant of the objects of the Act and of the general considerations apposite to any extension of a limitation period as discussed in Brisbane South Regional Health Authority v. Taylor (1996) [ 186 CLR 541] (Hayley & Anor v. Roma Town Council; McDonald v. Romijay Pty Ltd (Supra) per McMurdo P at [11]).
One of the important matters to be considered in relation to the exercise of the discretion is delay in making the application. The proceedings should have been commenced no later than the 6th of August 2005.
The present application was not filed until the 10th of April 2006 - a delay of eight months. However, there is no evidence of prejudice to the respondent due to this delay. The respondent advised that the applicant's notice of claim was a complying one by letter of the 2nd of June 2003.
Further, the respondent admitted liability for the applicant's injuries by letter dated 6th of August 2003. The respondent has not seen it necessary to appear on the hearing of the application and, in fact, informed the applicant's solicitor that it did not intend to appear (oral evidence of Elizabeth Anne Lorimer).
The non-compliance with the limitation period has been explained by the applicant's solicitor and it appears that the failure to commence proceedings was due largely to her explained absences from her office.
There does not seem to have been any significant delay which can be sheeted home to the applicant personally.
In all of the circumstances, I am satisfied that the applicant should be allowed to commence proceedings, notwithstanding that the limitation period has expired and I propose to order that the applicant be allowed a period of 14 days from today within which to start his proceeding.
I make an order in terms of the draft initialled by me and placed with the papers.