Patterson v The Baptist Union of Queensland
[2006] QDC 166
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- Unreported Judgment
- Patterson v The Baptist Union of Queensland[2006] QDC 166
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Patterson v The Baptist Union of Queensland[2006] QDC 166
Patterson v The Baptist Union of Queensland[2006] QDC 166
DISTRICT COURT OF QUEENSLAND
CITATION: | Patterson v The Baptist Union of Queensland & Anor [2006] QDC 166 |
PARTIES: | KAY ANNETTE PATTERSON (Plaintiff) V THE BAPTIST UNION OF QUEENSLAND (First Defendant) & TIM HANNA (as representative of himself and all members of the Gateway Baptist Church as at 30 October 1999) (Second Defendant) |
FILE NO/S: | D4391 of 2003 |
DIVISION: | Civil |
PROCEEDING: | Originating Application |
ORIGINATING COURT: | District Court |
DELIVERED ON: | 19 June 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5 April 2005 |
JUDGE: | Tutt DCJ |
ORDER: |
|
CATCHWORDS: | Application to strike out claim and statement of claim or alternatively that judgment be entered for the defendants – where plaintiff granted leave to proceed with claim pursuant to s 18(1)(c)(ii) of Personal Injury Proceedings Act 2002 – where Court of Appeal decision set District Court order aside – whether s 77DA has retrospective effect to reverse the Court of Appeal decision – whether complying notice of claim. Acts Interpretation Act 1954 s 14B. Justice and Other Legislation Amendment Act 2004. Justice and Other Legislation Amendment Bill 2004 Personal Injury Proceedings Act 2002 ss 18, 20, 77A, 77D and 77DA. Uniform Civil Procedure Rules 1999 rr 171 and 293. Macintosh v Lobel (1993) 30 NSWLR 441. Maxwell v Murphy (1957) 96 CLR 261. Patterson v Baptist Union of Queensland & Anor [2004] QCA 146. Production Spray Painting & Panel Beating Pty Ltd v Newnham (No 2) (1991) 27 NSWLR 659. Re Macks; ex parte Saint (2000) 204 CLR 158. The Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220. |
COUNSEL: | Mr K F Holyoake for the plaintiff. Mr K N Wilson SC for the defendant. |
SOLICITORS: | Sciaccas Lawyers for the plaintiff. HBM Lawyers for the defendant. |
Introduction
- [1]This is an application by the first and second defendants (“the defendants”) seeking a primary order under Uniform Civil Procedure Rules 1999 (“UCPR”) rr 171 or 293 respectively that the plaintiff’s (“the plaintiff”) claim and statement of claim be struck out or judgment be entered for the defendants against the plaintiff for the whole of the plaintiff’s claim.
- [2]The proceeding between the parties has a lengthy history and has been the subject of applications before this court and on appeal.
- [3]A summary of the background in this proceeding is that the plaintiff claims that she was injured when she tripped on an unmarked step in the Gateway Baptist Church at Wishart on 30 October 1999. The three year limitation period in which to bring her claim expired on 30 October 2002, but no proceedings had been issued by that date. As at June 2002, the plaintiff’s solicitors were aware of the impending expiration of limitation period but failed to issue proceedings. The Personal Injury Proceedings Act 2002 (“PIPA”) commenced operation on 18 June 2002. By an amendment on 29 August 2002 whereby ss 77A and D became part of PIPA, the plaintiff was required to obtain leave of the court to proceed because of the expiration of the limitation period.
- [4]Orders were made by this court on 28 November 2003 to the following effect:
- (a)Pursuant to s 18(1)(c)(ii) of PIPA the plaintiff was authorised to proceed further with her claim in respect of matters set out in the notice of claim dated 27 November 2002.
- (b)Leave was granted pursuant to s 77D(2)(b) of PIPA for the plaintiff to start a proceeding in respect of matters set out in the notice of claim.
- [5]The notice of claim was served on 22 May 2003 but the defendants replied pursuant to s 12 and set out the grounds relied upon to say that the notice was a non-complying notice. The effect of the order relating to s 18(1)(c)(ii) was that once the court allows a claimant to proceed with the claim despite non-compliance, a respondent to the claim is taken to have been given a complying notice of claim[1]. This proceeding was commenced on 16 December 2003.
- [6]The decision of the learned District Court judge was set aside by the Court of Appeal on 7 May 2004[2]. Both of the issues in paragraph [4] above were dealt with in that decision. Apart from the issues under s 77D(2), both Williams JA and White J expressed the view that the Court of Appeal was justified “in concluding that there had been a wrong exercise of discretion if the matter properly called for an exercise of discretion under the sections referred to”[3]. The legislature then amended PIPA to add s 77DA[4]. Sections 77A and D of PIPA provide as follows:
“77A Special provision for personal injuries arising out of incidents happening before 18 June 2002
- (1)This section applies to a personal injury arising out of an incident happening before 18 June 2002 and in relation to which a period of limitation has not ended.
- (2)For the purposes of section 9(3)(a), the day the incident giving rise to the personal injury happened is taken to be 1 August 2002.
- (3)For the purposes of section 9(3)(b), a claimant is taken not to have consulted a lawyer earlier than the day 3 months after the day the Personal Injuries Proceedings Amendment Act 2002 receives assent.
- (4)To remove any doubt, it is declared that this Act, other than sections 58 and 77, does not apply in relation to the personal injury if, during the period starting on 18 June 2002 and ending at the end of 30 June 2002, a person started a proceeding in a court for damages based on a liability for the personal injury.
- (5)Subsections (2) and (3) are subject to section 19.”
“77D Alteration of limitation period for personal injury arising out of an incident happening before 18 June 2002
- (1)This section applies in relation to a personal injury arising out of an incident happening before 18 June 2002 if—
- (a)the period of limitation for a proceeding based on a claim for the personal injury ends during the period starting 18 June 2002 and ending at the end of 18 December 2003; and
- (b)a proceeding based on the claim has not been started in a court, including in a court outside Queensland or Australia.
- (2)If the period of limitation has ended, the claimant may start a proceeding in a court based on the claim—
- (a)if a complying notice of claim is given before 18 June 2003—before or on 18 June 2003; or
- (b)at a later time, not more than 6 months after the complying notice of claim is given and not later than the end of 18 December 2003, with the court’s leave.
- (3)If a proceeding is started under subsection (2) without the claimant having complied with chapter 2, part 1, the proceeding is stayed until the claimant complies with the part or the proceeding otherwise ends.
- (4)This section does not limit section 43.”
- [7]Section 77DA of PIPA provides as follows:
“77DA Validity of s 77D proceedings
- (1)This section applies to a proceeding for a personal injury in relation to which section 77D applies.
- (2)It is declared that the proceeding was validly started, and is taken to have always been validly started, under section 77D(2) if—
- (a)for a proceeding started on or before 18 June 2003—a complying notice of claim was given before the proceedings were started; or
- (b)for a proceeding started after 18 June 2003 but not later than the end of 18 December 2003—
- (i)a complying notice of claim was given within 6 months before the proceeding was started; and
- (ii)the court’s leave under that provision was given before the proceeding was started.
- (3)To remove any doubt, it is further declared that—
- (a)section 77D(2)(a) or (b) does not require 6 months to have elapsed between the giving of the complying notice of claim and the start of the proceeding; and
- (b)for the purposes of section 77D(2)(b)—
- (i)the complying notice of claim may have been given before, on or after 18 June 2003; and
- (ii)a court had power to grant leave under that provision if a complying notice of claim was given at any time within 6 months before the proceeding was started.
- (4)Subsections (2) and (3) apply to a proceeding despite any decision of a court to the contrary in relation to the proceeding.”
Issues on the Application
- [8]As stated in [1] above the defendants seek to terminate the plaintiff’s action. It is conceded by the plaintiff’s counsel, the “real issue is what is the correct construction (sic) of the retrospective (sic) validating section 77DA (sic) because ultimately the issue is what did the legislature mean when they enacted the sections specifically directed at Patterson’s case”[5].
Defendants’ Submissions
- [9]The defendants argument is essentially that for s 77DA(2) of PIPA to operate the plaintiff must show that both:
“(i) a complying notice of claim was given within 6 months before the proceeding was started; and
- (ii)the court’s leave was given under s 77D(2) before the proceeding was started.”[6]
- [10]The argument continued: “By reasons of the decision of the Court of Appeal, the plaintiff must be treated as not having obtained an order under either s 18(1)(c)(ii) or s 77D(2)(b) PIPA”.[7] This did not mean that the orders never had any legal effect but relying on the dictum of Gleeson CJ in Re Macks; ex parte Saint (2000) 204 CLR 158 at 177 the decision of a superior court is valid unless and until it is set aside. Once it is set aside the decision is treated as not having been made.
- [11]The defendants further contend that as the Court of Appeal decision means that no order was ever validly made pursuant to s 18(1)(c)(ii) or s 77D(2)(b) of PIPA. Section 77DA(1) cannot be satisfied “…because this is not ‘a proceeding to which s 77D applies’, because there has never been a complying notice of claim”[8].
Plaintiff’s Submissions
- [12]Counsel for the plaintiff expressed the view that the decision of the Court of Appeal in the present case was “that any Court, superior or inferior, lacked power to grant the order because the discretion did not exist unless a compliant notice had been given before 18 June 2003”[9]. He went on to say that the construction of s 77D decided by the Court of Appeal was legislatively reversed by s 77DA.
- [13]It was submitted that the orders of the learned District Court judge were carried into effect once the proceedings issued on 16 December 2003. Therefore, as those orders (“the orders”) duly disposed of that originating process, they were “brought to completion before its reversal” and so were “not avoided”[10]. The written submissions then continue “it must be kept firmly in mind that the issue is one of statutory interpretation, not whether, in fact, the orders had been wholly annulled.[11]
- [14]Once the latter argument is accepted, the need to understand the effect of the new provisions becomes paramount. In this respect the plaintiff makes the following points:
- (a)That legislature intended upon the proper construction of s 77DA of PIPA that the orders made and carried into effect under s 77D were validated retrospectively despite the interpretation placed on s 77D by the Court of Appeal in its decision and this construction is supported by the qualification to the rule in The Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 (“Cavanough”)[12].
- (b)In the alternative, the plaintiff relies upon s 77DA(4) and the Explanatory Notes to the legislation to support further its contention that it was the legislative intention to reverse the Court of Appeal’s decision in Patterson by its amendment of 3 December 2004.
Explanatory Notes to Justice and Other Legislation Amendment Bill 2004
- [15]Section 14B of the Acts Interpretation Act 1954 provides that to assist in the interpretation of a provision of an act, consideration may be given to “extrinsic” material not forming part of that act. Section 14B(3)(e) includes explanatory notes or memoranda relating to legislative bills as “extrinsic” material.
- [16]The following passage from the Explanatory Notes to the Justice and Other Legislation Amendment Bill 2004 therefore becomes relevant to the interpretation of s 77DA:
“If the complying notice was either not provided prior to close of business on 18 June 2003, or provided, but no proceedings were started under subsection (2)(a), the party was then required under subsection (2)(b) to seek the leave of the court to commence proceedings. Application for leave to commence proceedings had to be sought within 6 months after giving the complying notice of claim. Commencement of proceedings had to occur by the close of business on 18 December 2003. This allowed a court, on or before 18 December 2003, and to grant leave under section 77D(2)(b) or to make an order under section 18 deeming the notice compliant and then granting leave under section 77D(2)(b). The provision made no requirement that a complying notice of claim be given before 18 June 2003.
…
In Patterson v The Baptist Union of Queensland, the Queensland Court of Appeal placed an interpretation upon section 77D that was not in accordance with the legislative intention of section 77D. Clause 87 inserts an amendment that declares the application of section 77D to be, and as always having been, as stated above.”[13]
Retrospective Effect of s 77DA
- [17]Legislation will not apply retrospectively unless Parliament’s intention for it to so apply “appears with reasonable certainty”[14]. It is clear that the legislature did not intend to deprive the court of the discretionary power under s 18(1)(c)(ii) of PIPA. Sections 77DA(2) and (3) make no mention of overriding the discretionary provisions of s 18(1)(c)(ii). In fact, s 77DA(3)(b)(ii) speaks of s 77D(2) and of a court having “power to grant leave under that provision if a complying notice of claim was given…”.
- [18]The last word on the discretion under s 18(1)(c)(ii) and which is binding, must be taken to have come from the Court of Appeal[15]. The majority held that had it been necessary to decide whether there had been a proper exercise of discretion authorising the plaintiff to proceed with her claim despite non-compliance, there were insufficient grounds to justify an order under the said section[16]. Therefore if s 18(1)(c)(ii) is not available, s 20(2)(b) does not apply to deem the notice to be a complying one. Without a complying notice, s 77D(2)(b) is not available to the plaintiff. Therefore s 77DA(1) has not been complied with and the balance of the amendment does not apply.
- [19]Section 77DA(4) does not assist the plaintiff. It purports to make the previous subsections applicable even though the Court of Appeal may have decided to the contrary in relation to those provisions of s 77DA(2) and (3) and moreover, s 77D(2)(a) or (b). The provisions of s 77DA do not attempt to overturn the decision of the Court of Appeal on what is the threshold question, namely, were the provisions of s 18(1)(c)(ii) satisfied in order to allow the court to grant leave. Absent an order pursuant to s 18(1)(c)(ii) there was no complying notice of claim. The Explanatory Notes and the words in s 77DA(3)(b)(ii) envisage such a requirement, viz a complying notice of claim.
- [20]It follows therefore that s 77DA applies only to those cases where there is a complying notice given or declaration made by the court pursuant to s 18(1)(c)(ii) of PIPA to enable a plaintiff to have the notice deemed a complying notice pursuant to the provisions of s 20(2)(b) of PIPA.
Orders
- [21]In the circumstances I make the following orders:
- The plaintiff’s claim is struck out.
- The plaintiff to pay the defendants’ costs of and incidental to this application to be agreed or assessed on the standard basis under the District Court scale.
Footnotes
[1] See s 20(2)(b) of PIPA.
[2] See Patterson v Baptist Union of Queensland & Anor [2004] QCA 146.
[3] Ibid, see paragraphs [54] and [61].
[4] See Justice and Other Legislation Amendment Act 2004 which came into effect on 3 December 2004.
[5] Transcript page 9 lines 54-58.
[6] See paragraph 7 of the defendants’ written submissions.
[7] Ibid, at paragraph 8. See also Macintosh v Lobel (1993) 30 NSWLR 441 at 459-60 Kirby P (as he then was) and Production Spray Painting & Panel Beating Pty Ltd v Newnham (No 2) (1991) 27 NSWLR 659 per Handley JA at 661.
[8] See paragraph 15 of the defendants’ written submissions.
[9] Plaintiff’s written submissions page 10.
[10] Ibid, at page 11.
[11] Ibid.
[12] Ibid, at page 12.
[13] See page 19 of the Explanatory Notes tabled on 9 November 2004.
[14] See the comments of Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 at 267.
[15] See Cavanough (supra) at 225; Macintosh v Lobel (supra) at 459 per Kirby P (as he then was) with whom Cripps AJA agreed at 477; Re Macks (supra) at 177.
[16] See Patterson (supra) per Williams JA at paragraph [54] and per White J at [61].