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Venz v Caboolture Shire Council[2009] QDC 102

Venz v Caboolture Shire Council[2009] QDC 102

DISTRICT COURT OF QUEENSLAND

CITATION:

Venz v Caboolture Shire Council [2009] QDC 102

PARTIES:

ROBERT VENZ

(Applicant)

v

CABOOLTURE SHIRE COUNCIL

(Respondent)

FILE NO/S:

No. 2102/07

No. 3404/08

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

23 January 2009

DELIVERED AT:

Brisbane

HEARING DATE:

16 January 2009

JUDGE:

Searles DCJ

ORDER:

I order:

  1. In action 2102/07, the order made by the Registrar on 13 August 2007 be corrected by adding the words, “with such proceedings to be filed on or before 14 August 2007” at the end of numbered paragraph 1.
  1. In action 3404/07, the Applicant’s application is dismissed.
  1. The Applicant to pay the costs of the Respondent on both applications on a standard basis to be agreed or failing agreement to be assessed.

CATCHWORDS:

Personal Injuries Proceedings Act 2002 ss 43, 5; UCPR rr.388, 666[2].

COUNSEL:

R. Green – Applicant

A. Harding – Respondent

SOLICITORS:

Qld Law Group – Applicant

HBM Lawyers – Respondent

  1. [1]
    The above Applicant made application for leave to initiate proceedings pursuant to s 43 of the Personal Injuries Proceedings Act 2002 (the Act) or in the alternative pursuant to s 59(2)(b) of the Act against the Respondent for damages for personal injuries sustained on 14 August 2004 with such proceedings to be filed on or before 30 June 2008.
  1. [2]
    On the same day I heard an application by the above Respondent in District Court matter 2102 of 2007 involving the same parties and the same claim. It sought to have an order made by the Registrar on 13 August 2007 corrected by adding the words “with such proceedings to be filed on or before 14 August 2007” at the end of numbered paragraph 1.
  1. [3]
    The Applicant alleges he sustained an injury on 14 August 2004 at 17 Coobart Court Morayfield when he fell into an unsigned and unfenced drain culvert on the property as he walked between his car and the house. On 24 December 2004 he gave a Part 1 Notice of Claim pursuant to the Act. Subsequently the Respondent denied liability and sought one hundred percent contribution from the owners of the property where the accident occurred[1].
  1. [4]
    With the three year limitation period expiration date looming on 14 August 2007 agreement was reached with the Respondent that the Applicant be granted leave to initiate proceedings with such proceedings to be filed on or before 14 August 2007.
  1. [5]
    UCPR 666 allows the Registrar to make an order if the parties consent in writing and if the Registrar considers the order appropriate. Under r 666(2) the consent of each party must be filed in the registry. Under cover of a letter dated 26 July 2007 the Applicant’s solicitor sent a draft consent to the Respondent’s solicitors for their signing, they having already signed it on behalf of the Applicant. Importantly paragraph 1 of the order in the consent did not contain the abovementioned words requiring filing by 14 August 2007.
  1. [6]
    The Respondent’s solicitors advised of that omission and a further consent document was then sent by the Applicant’s solicitors with those words added to the end of paragraph 1. The Respondent’s solicitors then signed that consent, dated it 3 August 2007 and returned it the Applicant’s solicitors who in turn also signed it adding the date 5 August 2007.[2]  That was the parties’ consent sent to the Registrar to found the making of the Consent Order.
  1. [7]
    Through an oversight in the Applicant’s solicitors’ office the draft order prepared for submission to the Registrar with the signed consents did not contain the words “with such proceedings to be filed on or before 14 August 2007”. In purported reliance upon the consents the Registrar made an order on 13 August 2007 which was not in accordance with the correct consents filed in the court.[3]  The order was in these terms:
  1. The Applicant be granted leave to initiate proceedings, pursuant to s 43 of the Personal Injuries Proceedings Act 2002, against the Respondent for damages for personal injuries sustained on 14 August 2004.
  1. The proceedings be commenced in the District Court at Brisbane.
  1. That the proceedings be stayed until the parties comply with Chapter 2 Part 1 of the Personal Injuries Proceedings Act 2002.
  1. Each party have liberty to apply by giving three (3) business days notice in writing of (sic) the other parties.
  1. There be no order as to costs.
  1. [8]
    To my mind this is squarely a situation contemplated by r388 which provides:-

“388 Mistakes in orders or certificates

 (1) This rule applies if:

  1. (a)
    there is a clerical mistake in an order or certificate of the court or an error in a record of an order or a certificate of the court;
  1. (b)
    the mistake or error resulted from an accidental slip or omission.
  1. (2)
    The court, on application by a party or on its own initiative, may at any time correct the mistake or error.
  1. (3)
    The other rules in this part do not apply to a correction made under this rule.”
  1. [9]
    The clerical mistake was the oversight on the part of the Registrar in making the order other than in terms of the consents of the parties. I propose an amendment to that order to reflect the true agreement reached between the parties.
  1. [10]
    Notwithstanding the incorrectness of the Registrar’s order in failing to limit the time for filing of the claimant’s Statement of Claim to 14 August 2007, the Applicant’s solicitors took steps to file those documents on 9 August 2007, within the 14 August deadline. That leads me to the next irregularity.
  1. [11]
    The Applicant’s solicitor, Mr Pearcy deposed to the Claim and Statement of Claim dated 9 August 2007 being sent to the court for filing on that day[4] and served by post on the Respondent’s solicitors under cover of a letter dated 9 August 2007.[5]  The documents were received by the Respondent’s solicitors[6]  The Respondent’s solicitor Ms Mergard[7] deposed to receiving a phone call from a male person in the Applicant solicitor’s office, who she thought was Mr Pearcy, on 9 August 2007, the day the documents were sent by Mr Pearcy to the court but obviously before they were sent. In that conversation, Mr Pearcy said the Claim and Statement of Claim were to be filed that day. The Claim and Statement of Claim enclosed in that letter by way of service must obviously be the documents exhibits 9 and 10 to Mr Pearcy’s affidavit. The Claim exhibit 9 returned by the court but has a stamped date 9 August 2007 as the filing date and a signature with a line through it on the line where the Registrar would usually sign the document. It contains no court seal. The Statement of Claim likewise contains no court seal or any other evidence that it was filed. According to the evidence of Ms Mergard[8] an electronic search under the Applicant’s surname and a physical search of the court file failed to reveal any evidence that the Claim and Statement of Claim had been filed.
  1. [12]
    Mr Pearcy deposed to receiving the Claim and Statement of Claim from the court after filing but, because of his inexperience, not noticing the court seal was missing. He said that he has since spoken to the registry and been unable to discern a reason as to why the Claim and Statement of Claim were not stamped with a court seal.[9]  It was not until 18 June 2008 that he was alerted by the Respondent’s solicitors to the irregularity in the Registrar’s order and five days later on 23 June 2008 he promptly issued a fresh Claim and Statement of Claim which is District Court action BD 1685 of 2008. As far as I can see they are in identical terms to the 9 August 2007 proceedings save for the deletion of sub-paragraph 7(h) in the earlier Statement of Claim alleging post traumatic stress disorder with traffic phobia features.
  1. [13]
    UCPR r8 provides that a proceeding starts when the originating process is issued by the court. Issued is defined in the dictionary to UCPR as:

“Issued, for a document filed in the court, means the appropriate officer of the court has stamped the seal of the court on it.”

  1. [14]
    As neither of the Claim or Statement of Claim said to be filed on 9 August 2007 contained the court seal they were never issued. Hence the proceedings were never started. Mr Green for the Applicant, correctly in my view, conceded the Claim and Statement of Claim of 9 August 2007 had never been issued. The present application then proceeded on that basis.
  1. [15]
    Before moving on I wish to say something about the evidence surrounding the attempted issue of the proceedings of 9 August 2007. These comments do not go to whether or not the proceedings were validly issued because I have found they were not. Rather they go to the issue of whether or not I should approach the exercise of my discretion on the basis that the Applicant’s solicitors simply overlooked filing the proceedings before 14 August 2007 or made an attempt to file them on 9 August 2007 as is the Applicant’s case. The issue is an important one and one which I think has been inadequately addressed by the Applicant. At one point in the proceedings I suggested the matter perhaps should be adjourned to allow the Applicant to put further evidence before the court but Mr Green for the Applicant said that he did not think any adjournment would improve the Applicant’s evidentiary position. Nevertheless I identify for the record the matters which, if addressed, may have better assisted me in the consideration of this issue. They are:
  1. (a)
    Mr Pearcy swore that the Claim and Statement of Claim were “sent” to the court on 9 August 2007, returned by the court on that day and sent by letter of the same day to the Respondent’s solicitors. An inference open is that the documents sent and returned on the same day were not sent by post but rather were taken to the court by someone either from the Applicant’s solicitors’ office or perhaps a filing agent who may have been able to assist in explaining the circumstances surrounding the purported filing. That issue was not addressed;
  1. (b)
    The material shows that the Applicant’s solicitors sent a copy of the 9 August Claim and Statement of Claim to the Respondent’s solicitors on that day by way of service. The document deposed to by Mr Pearcy as having been sent are exhibits 9 and 10 to his affidavit. The documents received by Ms Mergard for the Respondent are part of exhibit 13 to her affidavit. But the Claim document in each of those exhibits is not the same document. In the document said to have been sent by the Applicant words “District Court of Queensland” with the word “District in hand writing” appear at the top of the Claim but those words are missing from the Claim received by Ms Mergard.
  1. (c)
    Subsequent to sending those documents, he was asked by Ms Mergard in a telephone conversation of 2 June 2008 to provide evidence that a Claim and Statement of Claim had been filed. In response to that phone call Mr Pearcy by facsimile dated 2 June 2008 sent a copy of the Claim and Statement of Claim which he said had been filed on 9 August 2007.[10]  However when one turns to the Claim document enclosed in that facsimile it is again a different document from both of the Claim documents above referred to. It is closest to that document deposed to by Mr Pearcy to have been sent by him because it contains the words “District Court of Queensland” at the top of the document absent from the Claim received by the Respondent’s solicitors. But there is an additional feature to this 2 June 2008 forwarded document and that is a fee payment stamp in the left hand column on the first page purporting to evidence a payment of a fee of $458.30. No evidence of the payment of that fee or addressing the difference in the two documents was put before the court.
  1. (d)
    There is a further irregularity relating to the signature on the line next to the word Registrar. In both the Claim sent by the Applicant’s solicitors on 9 August and received by the Respondent’s solicitors the signature on the line next to the word Registrar are identically positioned. Yet in the Claim sent on 2 June 2008 the signature is position differently in that it is closer to the word Registrar than the signature on the earlier document.
  1. (e)
    Mr Pearcy in his affidavit, paragraph 29 deposes:

“I have since spoken to the Registry but have been able to discern a reason as to why the Claim and Statement of Claim were not stamped.”

That is singularly unhelpful. It does not identify to whom Mr Pearcy spoke at the Registry, what enquiries were made of that person or what responses were received. I would have thought it important to seek evidence of the payment of the filing fee and of the identification of the person in the Registry said to have signed the Claim to seek to identify and verify the signature.

  1. [16]
    In the result, but not without some reservations, I am, on balance, prepared to find that the Applicant’s solicitors did attempt to file the Claim and Statement of Claim on 9 August 2007. I am inclined to that finding because of the telephone conversation on the day of filing when Mr Pearcy telephoned Ms Mergard to say that documents were to be filed. That is evidence that the Applicant’s solicitors were intending that day to file the document. Having made that finding I emphasise that the matters I have raised by way of reservation go only to that issue. Having found that an attempt was made to file the documents, they are not matters I have taken into account further in the exercise of my discretion. They go simply to the issue of whether the failure to file the documents resulted from an oversight or whether there was an attempt made by the Applicant’s solicitors to file them. I have found the latter is the case.
  1. [17]
    Given the failure of the Applicant to issue proceedings by 14 August 2007, the Applicant required the leave sought in this application to regularise the proceedings in action BD 1685 of 2008 issued on 23 June 2008 after the problem with the 9 August 2007 proceedings was brought to the Applicant’s solicitors’ attention. Without leave the proceeding would be statute barred.
  1. [18]
    Mr Green for the Applicant relied on both ss 43 and 59 of the Act. Section 43 relevantly provides:

“43 Need for Urgent Proceeding

  1. (1)
    The court, on application by a claimant, may give leave to the claimant to start a proceeding in the court for damages based on a liability for personal injury despite non-compliance with this part if the court is satisfied there is an urgent need to start the proceeding.
  1. (2)
    …
  1. (3)
    …
  1. (4)
    …
  1. (5)
    …”
  1. [19]
    Section 59 provides:

“59 Alteration of Period of Limitation

  1. (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.
  1. (2)
    However the proceeding may be started after the end of the period of limitation only if it is started within:
  1. (a)
    Six months after the complying part 1 notice is given or leave to start the proceedings is granted; or
  1. (b)
    A longer period allowed by the court.
  1. (3)
    …
  1. (4)
    …
  1. [20]
    Mr Harding for the Respondent submitted that s 43 did not assist the Respondent because there was no urgent need to commence proceedings and I agree with him. The proceedings have been commenced on 23 June 2008 subsequent to the limitation period. There is no question here of commencing proceedings to avoid the expiration of the limitation period. Rather we are concerned with an order granting leave which will regularise those proceedings which have been commenced subsequent to the expiration of the limitation period. That is not to say that there may not be other circumstances of urgency apart from the imminent expiration of a limitation period. I consider that the appropriate section to be addressed is s 59.
  1. [21]
    The approach to the exercise of the discretion here under consideration has been the subject of consideration in the context of s 57(2)(b) of the Motor Accident Insurance Act 1994 which, relevantly is similar to s 59 of the Act. The discretion is unfetted.[11]  The Applicant submitted that there were six relevant considerations to the exercise of my discretion[12]:
  1. (a)
    Compliance with the requirements of the Act prior to the expiration of the limitation period;
  1. (b)
    Whether the prospect of a fair trial of the Claim has been diminished and whether such leave is necessary to give rise to a fair trial on the merits;
  1. (c)
    The respective roles of the claimant and legal representative regarding the basis for the need for such leave;
  1. (d)
    Whether or not, and if so the nature of, any explanation regarding the need for leave;
  1. (e)
    The relationship between the basis of the delay and the obligations to comply with the Act; and
  1. (f)
    The manner in which, the objects of the Act are served by the discretion.
  1. [22]
    The Respondent did not argue that there had been any unreasonable delay or unexplained on the part of the Applicant and it is obvious that the situation has arisen without fault on the part of the Applicant personally. The Applicant’s solicitor moved promptly to address the issue once it became clear that there was a problem with the Consent Order and the subsequent purported issue of the proceedings on 9 August 2007. Mr Pearcy became aware of the problem on 18 June 2008 and issued fresh proceedings on 23 June 2008 between then and the filing of this application on 7 January 2009 there was correspondence between the solicitors in which the Applicant’s solicitors sought to have the Respondent waive its reliance on the limitation point. On 25 August 2008 it was made clear to the Respondent that it would not waive that point. The Applicant’s solicitors then set about locating a Ms Leddy an author who had worked on the file in the Applicant’s solicitors’ office in 2007 and took instructions from her. Mr Pearcy deposes to not being sure which of he or Ms Leddy carried out particular work on the file.[13]  It was not until 30 October 2008 that Ms Leddy was able to attend the Applicant’s solicitors’ office.[14]
  1. [23]
    The Respondent’s position is quite a simple one, that is, that it will suffer prejudice if leave is granted because it will mean that the action which is presently statute barred would not be so barred. It relies upon Spencer v Nominal Defendant[15] which is not dissimilar to this case. In that case a similar Consent Order was made providing for the action for damages to be commenced by a set date and for the dispensing of other steps which, but for the order, would have been necessary before proceedings were able to be commenced. In the result the Applicant failed to commence the proceedings on the due date of 14 July 2006 and commenced them on 5 October 2006 some three months out of time.
  1. [24]
    An application similar to this was then made under s 57(2)(b) of the Motor Accident Insurance Act 1994.
  1. [25]
    The existence of the Consent Order resulted in the court focusing on that aspect and it is helpful to set out a passage of Keane JA of whom the Chief Justice and Mullins J agreed[16]:

“In this case, there appears to be no suggestion by the Respondent that the prospects of a fair trial have been diminished by the delay which has occurred. Nevertheless, quite apart from the consideration that the Respondent would be prejudiced by the making of an order of the kind sought by the Applicant in the making of the order would deprive the Respondent of a complete defence to the Applicant’s Claim, the making of an order sought by the Applicant would defeat the Respondent’s rights under the Consent Order of 14 July 2006. In this regard, the Respondent agreed to facilitate the commencement of the action by dispensing with requirements of the Act on the basis that the Claim was to be started no later than 14 July 2006. A Consent Order operates both as a contract and an order of the court (Harvey v Philips 1956 95 CLR 235 at 243-4; Rockett v Proprietors “The Sands” UP82 (2002) 2 Qd R 307; (2001) QCA 99 at [18]). Whether the contract embodied in a Consent Order can be set aside depends on “the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it.” See also General Credits Ltd v Ebsworth (1986) 2 Qd R 162 at 165. No such ground is said to exist in this case. To accede to the application under s 57(2)(b) of the Act would be to deprive the Respondent of the benefit of the contract which underlay the Consent Order of 14 July 2006 where there is no other basis for setting aside that bargain. It is unnecessary to decide whether s 57(2)(b) authorises such a course. Even if the power conferred on the court by s 57(2)(b) extends to the destruction of contractual rights, it is a power which should be exercised only for the most compelling reasons because of the prejudice which it will inflict on the other party.”

  1. [26]
    Mr Green for the Applicant conceded that there was no ground to render the contract underlying the Consent Order void or voidable or to entitle the Applicant to equitable relief against it. He submitted, without any authority, that s 59 empowered the court to grant the leave sought by the Applicant notwithstanding absence of any basis in contract or equity as mentioned.
  1. [27]
    Turning now to the matters submitted by the Applicant as being relevant to the exercise of my discretion, this is a situation where the Applicant requires the leave so as to complete the steps Chapter 2 Part 1 of the Act prior to issue of proceedings. That was also the situation prior to the Consent Order which was made to address that issue. As to whether the prospects of a fair trial have been diminished by the passage of time, there is no evidence before me of that and the Respondent did not so contend. As to the role of the Applicant and his solicitors I have already said there was no personal fault on the part of the Applicant and the present situation results from the oversight by his solicitors. The explanation for the need for leave is quite clear on the material.
  1. [28]
    The Applicant referred to the objects of the Act and the main purpose is to be found in s 4 which is to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury. That main purpose is to be achieved under s 4(.2).
  1. [29]
    Notwithstanding that there was no attack on the Applicant’s conduct of the action or upon the time taken to respond to address the issue giving rise to this application and the fact that the Applicant himself is not personally responsible for the dilemma he now finds himself in, in all the circumstances including, importantly, the prejudice the granting of leave would cause to the Respondent, I am not persuaded that leave should be granted. Assuming, without deciding, that the power under s 59 empowers this court to destroy contractual rights, which the granting of leave would involve, no compelling reasons have been put before me to justify that course with the consequential prejudice to the Respondent. As in Spencer v Nominal Defendant, there is no other basis for setting aside contract underlying the consent order.
  1. [30]
    I order:
  1. In action 2102/07, the order made by the Registrar on 13 August 2007 be corrected by adding the words, “with such proceedings to be filed on or before 14 August 2007” at the end of numbered paragraph 1.
  1. In action 3404/07, the Applicant’s application is dismissed.
  1. The Applicant to pay the costs of the Respondent on both applications on a standard basis to be agreed or failing agreement to be assessed.

Footnotes

[1]Affidavit E L Mergard, paras 4-6.

[2]Affidavit, L J Pearcy, Exhibit LP5.

[3]Affidavit L J Pearcy, Exhibit 8.

[4]Affidavit L J Pearcy, para 24.

[5]Affidavit L J Pearcy, para 31.

[6]Affidavit E L Mergard, para 18; Exhibit 13.

[7]Affidavit E L Mergard, 14 January 2008, para 17, Exhibit 12.

[8]Affidavit, para 20.

[9]His affidavit, paras 27 to 29.

[10]Affidavit E Mergard, para 24, Exhibit 17.

[11]See Spencer v Nominal Defendant (2007) QCA 254; Ward v Wiltshire Australia Pty Ltd (2008) QCA 93.

[12]Written Submissions, para 6.

[13]Affidavit L Pearcy, para 34.

[14]Affidavit L Pearcy, para 30.

[15][2007] QCA 254.

[16][2007] QCA 254, para 13.

Close

Editorial Notes

  • Published Case Name:

    Robert Venz v Caboolture Shire Council

  • Shortened Case Name:

    Venz v Caboolture Shire Council

  • MNC:

    [2009] QDC 102

  • Court:

    QDC

  • Judge(s):

    Searles DCJ

  • Date:

    23 Jan 2009

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
General Credits Ltd v Ebsworth [1986] 2 Qd R 162
1 citation
Jump To
Cite 1 - [1986] 2 Qd R 162
Harvey v Phillips (1956) 95 CLR 235
1 citation
Jump To
Cite 1 - (1956) 95 CLR 235
Rockett v Proprietors "The Sands" UP82 (2002) 2 Qd R 307
1 citation
Jump To
Cite 1 - (2002) 2 Qd R 307
Rockett v The Proprietors of “The Sands” BUP 82[2002] 1 Qd R 307; [2001] QCA 99
1 citation
Jump To
Cite 1 - [2001] QCA 99
Spencer v Nominal Defendant[2008] 2 Qd R 64; [2007] QCA 254
4 citations
Jump To
Cite 1 - [2007] QCA 254
Cite 2 - [2007] QCA 254
Cite 3 - [2007] QCA 254
Cite 4 - [2007] QCA 254
Ward v Wiltshire Australia Pty Ltd [2008] QCA 93
1 citation
Jump To
Cite 1 - [2008] QCA 93

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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