Zinns v Luca Paccioli Pty Ltd
[2007] QDC 267
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- Unreported Judgment
- Zinns v Luca Paccioli Pty Ltd[2007] QDC 267
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Zinns v Luca Paccioli Pty Ltd[2007] QDC 267
Zinns v Luca Paccioli Pty Ltd[2007] QDC 267
DISTRICT COURT OF QUEENSLAND
CITATION: | Zinns v Luca Paccioli Pty Ltd (now known as Plantation Rise Pty Ltd) & Anor [2007] QDC 267 |
PARTIES: | ALISA MARIA ZINNS Applicant v LUCA PACCIOLI PTY LTD ACN 097 709 405 (now known as PLANTATION RISE PTY LTD) First Respondent and PALMGROVE HOLDINGS PTY LTD ACN 010 870 925 (proposed to be known as CARRUTHERS CONTRACTING) Second Respondent |
FILE NO: | 238/2007 |
DIVISION: | Civil |
PROCEEDING: | Application for leave to commence proceedings under section 59(2)(b) of the Personal Injuries Proceedings Act 2002 |
ORIGINATING COURT: | District Court |
DELIVERED ON: | 9 November 2007 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 2 November 2007 |
JUDGE: | K.S. Dodds, DCJ |
ORDER: | The application is refused. Order the applicant pay the respondents’ costs of and incidental to the application. |
CATCHWORDS: | LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – Where applicant sought leave to commence proceedings for damages for personal injuries – Where applicant dilatory in prosecuting claimPersonal Injuries Proceedings Act 2002 s 59(1) & (2)(b)Cases cited:Bazley v Nominal Defendant [2006] QDC 379Daniels v Leggatt & Anor[2005] QSC 377Haley & Anor v Roma Town Council [2005] QCA 3McColm v FKP Constructions Pty Ltd [2007] QSC 040Morrison-Gardiner v Car Choice P/L & Anor [2004] QCA 480Spencer v Nominal Defendant [2007] QCA 254Ward v Wiltshire Australia P/L & Anor [2007] QSC 144Winters v Doyle & Anor [2006] QCA 110 |
COUNSEL: | Mr A Sinclair for the applicant Mr P Lane for the first and second respondents |
SOLICITORS: | Ferguson Cannon Lawyers for the applicant Gadens Lawyers for the first and second respondents |
- [1]This is an application pursuant to section 59(2) of the Personal Injuries Proceedings Act 2002 (PIPA) filed on 25 October 2007. Leave was sought to commence a proceeding, the proceeding to be stayed until 60 days after the convening of a compulsory conference pursuant to section 36 of PIPA.
- [2]The incident the subject of any proceeding is alleged to have occurred on 28 April 2004. The three year limitation period would expire on 28 April 2007. The applicant first consulted her solicitors on 21 January 2005 and a Part 1 notice of claim pursuant to section 9 of the Act was sent to the first and second respondents on 27 January 2005. On 22 February 2005 and 17 February 2005, the first and second respondents respectively confirmed that the notice of claim was compliant. Part 2 of the notice of claim dated 10 April 2005 was served on the respondents on 13 April 2005.
- [3]On 6 April 2005 solicitors then acting for the second respondent wrote to the applicant’s solicitors seeking discovery of nominated documents. On 17 May 2005 those solicitors indicated that liability was denied. On 20 June 2005 the solicitors for the applicant provided 2002, 2003 and 2004 income tax returns and assessments and some financial documents. On 23 June 2005 the solicitors for the second respondent asked for further specified discovery and information.
- [4]On 8 December 2005 another firm of solicitors wrote to the applicant’s solicitors advising they were the solicitors on behalf of the insurer for the first respondent. On 20 April 2006 those same solicitors wrote to the applicant’s solicitors advising that another firm of solicitors, the solicitors for the second respondent would be taking carriage of the matter on behalf of the first respondent.
- [5]On 5 July 2006 the applicant’s solicitors provided the 2005 tax return.
- [6]By letter dated 28 September 2006 another firm of solicitors (the respondents’ present solicitors - Gadens) advised they were now acting for the first and second respondent and as soon as they had further instructions they would make further contact.
- [7]On 21 December 2006 Gadens wrote to the applicant’s solicitors advising that prior to a certificate of readiness being signed and proceeding to a compulsory conference a number of further steps needed to be taken:
- obtaining updated medical reports from the applicant’s treatment providers;
- commissioning an independent forensic accountant’s report;
- discovery of the applicant’s source documents.
The letter advised they had instructions to invite the applicant “at this stage” to provide a “reasonably detailed offer of settlement in relation to this claim so that attempts can be made to resolve the matter without the parties having to incur the additional expenses associated with undertaking the steps referred to in the letter---” “We ask that you revert to us with your client’s detailed offer of settlement within 21 days.”
- [8]On 17 January 2007 Gadens wrote to the applicant’s solicitors noting they had not received a response to the letter of 21 December 2006. They asked to be advised within 7 days whether it was the applicant’s intention to provide a detailed offer of settlement, failing which they would take instructions to proceed with outstanding steps under PIPA as detailed in the letter of 21 December 2006. The letter drew attention to the approaching limitation period.
- [9]On 23 January 2007 the applicant’s solicitors wrote to Gadens indicating they had been trying to obtain the applicant’s instructions. They had sought as a matter of urgency ‘a full break down so that we can make an offer to you in this matter’.
- [10]On 25 and 26 January 2007 and 8 February 2007 there was contact between the applicant’s solicitors and Gadens attempting to arrange an informal conference to see whether the matter could be settled. Nothing appears to have come of this.
- [11]On 17 April 2007 the applicant’s solicitors contacted Gadens regarding the approaching limitation period. They indicated that if no agreement could be reached regarding extending the limitation period until 28 October 2007 an application would be made to the court to issue proceedings. On 26 April 2007 an extension to 28 October 2007 was agreed to. On 1 May 2007 the applicant attended a medico legal consultation required by the respondents’ solicitors and on 7 June 2007 an offer of settlement was sent to Gadens.
- [12]On 17 July 2007 Gadens wrote to the applicant’s solicitors requesting further particulars of the offer of settlement. The letter informed that until such a time as particular evidence could be provided relating to the heads of damage, an offer could not be properly considered.
- [13]On 16 August 2007 Gadens wrote to the applicant’s solicitors noting that none of what had been requested had been received and indicating that unless the claim was withdrawn, instructions would be sought to make application to compel the applicant to comply with her statutory obligations.
- [14]On 10 September 2007 the applicant’s solicitors wrote to Gadens advising that the applicant required assistance from her secretary to compile information required, her secretary was on vacation for a few weeks and the applicant would not be able to finalise the paperwork until her return.
- [15]Nothing further apparently happened until 17 October 2007 when the applicant’s solicitors contacted Gadens by telephone enquiring about the respondents’ attitude to extending the agreement about the limitation period for a further 6 months. Gadens advised instructions would be sought when a formal request was made but thought it unlikely.
- [16]On 25 October 2007 Gadens received an email from the applicant’s solicitors advising of her intention to file the present application. It was agreed the application should be adjourned by consent to 2 November 2007 and the adjournment would not be relied upon with respect to any limitation defence.
- [17]The application was supported by an affidavit sworn by the applicant’s present solicitor. He was cross-examined. During cross-examination a letter apparently dated 2 August 2006 from the applicant’s solicitors to the applicant was introduced into evidence. It indicated that the applicant’s solicitor was frustrated with the applicant’s failure to follow advice, that he was not prepared to continue acting for her in the circumstances and that she should arrange transfer of the matter to another solicitor. That has not occurred which would seem to indicate that this letter had some beneficial effect.
- [18]What is apparent is that the applicant has been somewhat dilatory. The limitation period has expired which absent an order of this court, provides the respondents with a complete defence to any claim by the applicant.
- [19]Section 59(1) and (2) are substantially identical with section 57(1) and (2) of the Motor Accidents Insurance Act 1994. These provisions have been considered in the Court of Appeal on a number of occasions in recent times – Morrison-Gardiner v Car Choice P/L & Anor [2004] QCA 480; Winters v Doyle & Anor [2006] QCA 110; Spencer v Nominal Defendant [2007] QCA 254; Haley & Anor v Roma Town Council [2005] QCA 3 and in a number of single Judge decisions – Bazley v Nominal Defendant [2006] QDC 379 per McGill DCJ; Ward v Wiltshire Australia P/L & Anor [2007] QSC 144 per Lyons J; McColm v FKP Constructions Pty Ltd [2007] QSC 040 per White J; Daniels v Leggatt & Anor[2005] QSC 377 per White J.
- [20]What emerges from those decisions is that the onus of showing that the court should exercise its discretion to defeat a limitation defence which is available to a potential defendant is borne by an applicant and will be informed by the reasons why the limitation period has expired and proceedings not commenced.
- [21]Both Acts interpose a number of preliminary steps and obligations before proceedings can be commenced within the three year limitation period, steps and obligations which may not be able to be attended to in sufficient time within the limitation period.
- [22]In Morrison-Gardiner v Car Choice P/L & Anor [2004] QCA 480, Williams JA observed that:
“Provided a claimant is able to establish an explanation for the failure to commence the proceeding within the ordinary limitation period, and provided there is no prejudice to the defendant, there is no reason why a court ought not grant an indulgence by extending the limitation period."
In the same case Chesterman J said that the discretion:
“is clearly meant to ameliorate the plight of a claimant who is unable to comply with the requirements of the Act in time to commence proceedings and who, if justice is to be done, should be given the extension. The discretion is likely to be exercised favourably only in those cases where a claimant’s circumstances make it difficult to comply with the requirements of the Act and commence proceedings within three years or where, despite making conscientious efforts to comply with the requirements of the Act, a claimant nevertheless does not do so within three years of the accident. Any delay on the part of a claimant in complying with the Act’s requirements or in applying for an extension of time will be relevant to the exercise of the discretion. Claimants who ignore the obligations imposed on them by the Act or who make no conscientious effort to comply with them are unlikely to obtain an extension of time though, of course, each case must be decided on its individual merits.”
- [23]In Winters v Doyle & Anor [2006] QCA 110 Keane JA in giving the judgement of the court said:
“It can be seen that each member of this Court in Morrison-Gardiner v Car Choice Pty Ltd identified, as a consideration of central relevance to the proper exercise of the discretion conferred by s 57(2)(b) of the MAI Act, the relationship between the delay which has occasioned the need to seek relief from the operation of the statutory time bar and the plaintiff's attempts to comply with the requirements of the MAI Act. A plaintiff will usually be able to show good reason for the favourable exercise of the discretion conferred by s 57(2)(b) only if he or she can show that the delay which occurred was occasioned by a "conscientious effort to comply" with the MAI Act.”
- [24]In Spencer v Nominal Defendant [2007] QCA 254 Keane JA in giving the judgement for the court said:
“This Court's decision in Winters v Doyle & Anor confirmed the view in Morrison-Gardiner v Car Choice Pty Ltd & Anor that the discretion conferred by s 57(2)(b) was created to ameliorate the position for claimants who experience difficulty in complying with the technical requirements of the Act within the limitation period prescribed by the Limitation of Actions Act so that claims can be determined fairly on their merits. Section 57(2)(b) of the Act cannot be regarded as standing free of the considerations which explain its presence in the Act. These considerations serve to inform the proper exercise of the discretion. If a person who seeks the exercise of the discretion conferred by s 57(2)(b) of the Act were not required to show good reason why that should occur in terms of the exigencies of the Act, the limitations upon the grant of an extension of the limitation period contained in Pt 3 of the Limitation of Actions Act would be written out of the law in any case of a motor vehicle claim where a notice of claim was given under the Act. That is not an intention which can sensibly be attributed to the legislature.”
- [25]The matter had a promising start with the notice of claim procedures issuing reasonably promptly (on 27 January 2007) a little under nine months after the incident. Apart from discovery of taxation documents in June 2005 and July 2006 it languished after that, contributed to, no doubt by changes in solicitors acting for the respondents. By December 2006 it seems new solicitors Gadens had settled in as the solicitors for both respondents. By letter of that date Gadens raised the prospect of settlement otherwise a deal of further interlocutory work was required. However it took until June 2007 before an offer of settlement was sent to Gadens by the applicant. So far as the evidence shows, no further work had been done to support the applicant’s claimed loss.
- [26]Section 59 of PIPA meant that a proceeding based on the applicant’s claim could be started after 28 April 2007only with the leave of the court. In April 2007 the respondents, in effect, agreed to an extension to the limitation period to 28 October 2007.
- [27]From at least January 2007 if not before, there seems to have been a lack of urgency on the part of the applicant in prosecuting her claim. There is no adequate explanation why the necessary financial information to support what she was apparently claiming was not forthcoming. To the contrary it seems that her solicitors were having difficulty obtaining information from her.
- [28]When the considerations referred to in the cases above are applied to this matter it is apparent the discretion to grant leave should not be exercised to defeat the limitation defence. There is simply no evidence to adequately explain the delay prosecuting the claim.
- [29]The application is refused. I order the applicant pay the respondent’s costs of and incidental to the application.