Tiver v Sunshine Coast Regional Council
[2009] QDC 106
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- Unreported Judgment
- Tiver v Sunshine Coast Regional Council[2009] QDC 106
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Tiver v Sunshine Coast Regional Council[2009] QDC 106
Tiver v Sunshine Coast Regional Council[2009] QDC 106
DISTRICT COURT OF QUEENSLAND
CITATION: | Tiver v Sunshine Coast Regional Council [2009] QDC 106 |
PARTIES: | Tiver (Applicant) v Sunshine Coast Regional Council (Respondent) |
FILE NO/S: | BD 2659 of 2008 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 6 May 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 December 2008 with further written submissions received on 8, 9 and 10 December 2008 |
JUDGE: | Rackemann DCJ |
ORDER: | 1. That the parties comply with the provisions of s 37 of the Personal Injuries Proceedings Act 2002 (Qld) by 4.00pm on Friday, 3 July 2009.2. The parties participate in a compulsory conference held in accordance with Chapter 2, Part 1, Division 4 of the Personal Injuries Proceedings Act2002 (Qld) on or before Friday, 17 July 2009.3. If the applicant’s claim is not settled at the compulsory conference, and the applicant wishes to start a court proceeding based on the claim, such proceeding is commenced within 60 days after the conclusion of the compulsory conference.4. The applicant pay the respondent’s costs of and incidental to the application to be assessed on a standard basis. |
CATCHWORDS: | LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – PERSONAL INJURY CASES – where the applicant seeks an extension of time under s 59(2)(b) of the Personal Injuries Proceedings Act 2002 (Qld) to commence a personal injuries action – where the application made outside the limitation period – whether negligence of solicitor was cause of the delay – whether applicant’s own conduct was reasonably excusable Motor Accident Insurance Act 1994 (Qld), s 57 Personal Injuries Proceedings Act 2002 (Qld), s 4, s 9, s 59 Cases considered: Haley & Anor v Roma Town Council; McDonald v Romijay P/L & Ors [2005] 1 Qd R 478; [2005] QCA 3 Lee v Omni Leisure Operations Pty Ltd [2008] VSC 272 Paterson v Leigh & Anor [2008] QSC 227 Perdis v Nominal Defendant [2004] 2 Qd R 64; (2004) 39 MVR 548; [2003] QCA 555 |
COUNSEL: | Mr J Miles, for the Applicant Mr A Harding, for the Respondent |
SOLICITORS: | Parker Simmonds for the Applicant HBM Lawyers for the Respondent |
- [1]By this proceeding, the applicant seeks orders, under s 59(2)(b) of the Personal Injuries and Proceedings Act 2002 (Qld), which would allow a longer period to start proceedings for damages for personal injury consequent upon a trip and fall incident said to have occurred on 15 July 2005. A notice of claim was served on the respondent on 14 March 2007[1].
- [2]Section 59(1) and (2) provides:
“59 Alteration of period of limitation
- (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) 6 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.”
- [3]Subject to subsection (2), s 59(1) empowers a claimant who has, before the end of the period of limitation, given a complying notice of claim, to start a proceeding based on that claim, after the limitation period has elapsed. Subsection (2) gives the court a general discretion to extend the necessary time for a claimant, who is with s 59(1), but not s 59(2)(a)[2]. That general discretion is to be exercised judicially, having regard to the objects of the Act[3].
- [4]Matters of relevance in the exercise of the discretion were helpfully summarised by McKeekin J in Paterson v Leigh & Anor [2008] QSC 227 where, in relation to the corresponding provision of the Motor Accident Insurance Act 1994 (Qld), his Honour said at para 8:
“The principles that seem to be to emerge from these cases are:
- (a)The discretion to be exercised in respect of an application pursuant to s 57(2)(b) of the Act is unfettered;
- (b)The onus lies on the applicant to show good reason why the discretion ought to be exercised in his or her favour;
- (c)Where an applicant is able to show that the delay which has occurred was occasioned by a ‘conscientious effort to comply’ with the Act then that would normally be good reason for the favourable exercise of the discretion but is not a ‘dominating consideration’. Conversely, claimants who ignore the obligations imposed on them by the Act or who make no conscientious effort to comply with them may have difficulty obtaining a favourable exercise of the discretion;
- (d)Where an applicant is not able to show that the delay was occasioned by ‘a conscientious effort to comply’ with the Act that is not fatal to the application;
- (e)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;
- (f)The length of any delay is important and possible prejudice to the defendant is relevant;
- (g)Depriving a defendant of the complete defence afforded by the statutory time bar is an important matter;
- (h)The interests of justice are of course the overriding consideration and in that regard the question of whether a fair trial of the proceedings is unlikely is an important consideration;
- (i)The giving of a notice of claim before the expiry of the limitation period and compliance by a claimant with the provisions of the Act that it provide any information sought by the insurer are both relevant factors.”
- [5]The failure to commence proceedings promptly is explained, in this case, by a failure of the applicant’s solicitors, rather than by any lack of reasonable conscientiousness on the part of the applicant herself.
- [6]The applicant engaged an apparently competent firm of solicitors on 20 February 2007[4] and, not unreasonably, thereafter entrusted the firm with the conduct of the matter and with ensuring that necessary steps were taken. The applicant did not herself, have any knowledge or understanding of how to conduct a claim[5].
- [7]The conduct of the matter went awry within the offices of the applicant’s solicitors for a period leading up to the expiration of the limitation period. On 7 March 2008 a law clerk had the conduct of the file, for the purposes of arranging a compulsory conference. She made a call on that day, to postpone the conference and thereafter was absent from work until 23 May 2008. It appears that, in the meantime, the file was not actioned until 22 May 2008, when a solicitor retrieved it for the purposes of arranging a medico legal assessment by an orthopaedic surgeon[6]. At that time the solicitor overlooked the approaching limitation period and the file was not listed for its next ‘bring-up’ until the very day that the limitation period expired. On that day a law clerk in the employ of the applicant’s solicitors unsuccessfully sought the respondent’s consent to proceedings being commenced at a later date[7].
- [8]The failure to commence proceedings within time was due to relevant inaction on the solicitor’s part, in the immediately preceding period. It was not due to any failure or refusal of the applicant to give appropriate instructions or otherwise do anything requested of her, by her solicitors, for the purposes of commencing proceedings within time.
- [9]That the applicant, in sufficient time, entrusted the matter to a solicitor, who was reasonably believed to be competent to do whatever was necessary, provides an adequate explanation in the circumstances[8].
- [10]The engagement of a solicitor will not always be sufficient. An applicant who, having engaged a solicitor, fails to give prompt and proper instructions, or who fails to react to something which would cause a reasonable person to make further inquiry, or to take other steps, may well have difficulty in showing conscientiousness and in obtaining a favourable exercise of discretion[9]. That is not however, the case here. The applicant deposes[10], and I accept, that:
- she readily provided information and material when requested;
- her solicitors had otherwise kept her regularly informed regarding the progress of her matter; and
- she was unaware of the impact of the expiration of the limitation period.
There is nothing which would necessarily have put the applicant upon further inquiry or caused her to confront her professional advisors, in the period leading up to the expiration of the limitation period[11].
- [11]It was submitted, on behalf of the respondent, that the circumstances otherwise pointed to a lack of a conscientiousness. It was pointed out, for example, that:
- the applicant delayed in consulting a solicitor;
- the notice of claim was late;
- a compulsory conference, arranged for 11 March 2008, was cancelled by the applicant’s solicitors, and not reconvened prior to the expiration of the limitation period;
- a medico legal assessment was not organised as promptly as it could have been; and
- there was some delay in the filing and serving of the subject application.
- [12]The applicant reported her fall to the Council immediately after it is alleged to have occurred[12], but a notice of claim was not served until on or about 14 March 2007. That was because the applicant did not consult a solicitor until 20 February 2007. Once she saw her solicitor, she was provided with the relevant form and promptly completed and returned it[13], so that it could be served. The delay in first consulting a solicitor was, in turn, not the result of any disregard for the statutory requirements (the detail of which would not then have been known to her), but because she waited to see whether her injuries would resolve. It was her doctor’s advice, in early 2007, that she would require ongoing treatment, which prompted her to consult a solicitor[14]. Those circumstances were explained in a statutory declaration, which was forwarded to the respondent’s insurers under cover of a letter of 11 May 2007[15]. This elicited a response which advised that the notice of claim was compliant and that the non-compliance arising from the late delivery of the notice of claim would be waived[16].
- [13]Counsel for the applicant point out that correspondence regularly passed between the parties from March 2007 to March 2008. The applicant through her solicitors, delivered and disclosed relevant documents. The respondent, having undertaken its own investigations, made an offer to settle. That offer was promptly rejected and a compulsory conference was requested. Further correspondence then ensued. Ultimately a conference was set for 10 am on 11 March 2008, with agreement that the certificate of readiness be dispensed with.
- [14]The conference had to be cancelled, because of the unavailability of the applicant, but that was not due to tardiness or indifference on her part. Rather, her solicitors had agreed to the conference date and time before getting instructions that she would be available. They wrote to her, but she was interstate at the time. They then telephoned her on her mobile phone, albeit not until 7 March 2008. It was only then that she became aware of the proposed date and time for the conference and told the solicitors that she was not returning until that morning. She could have attended a conference that afternoon, but attempts to re-arrange the time for the conference foundered due to difficulties with counsel’s availability[17].
- [15]The postponement of the conference had more to do with the solicitors agreeing to a date and time for the conference before confirming their client’s availability than any dilatory conduct by the applicant personally. The inaction by the solicitors between the cancellation of the conference and the expiration of the limitation period has already been discussed.
- [16]Arrangements for a medico legal assessment could presumably have been made earlier and there was some delay in the filing (on 29 September 2008) and serving (21 November 2008) of this application, however there is no suggestion that this delay was caused by the applicant herself and it does not appear to have caused any significant prejudice to the respondent.
- [17]I am not persuaded that the above matters, or any other aspect of the conduct of the matter, demonstrate a lack of conscientiousness by the applicant.
- [18]I am mindful that insurers should be able to arrange their affairs without claims being outstanding against them for long periods. Granting the relief sought would deprive the respondent of the complete defence afforded by the statutory time bar. The delay in the institution of proceedings has not however, otherwise resulted in significant prejudice in responding to the claim and, has not jeopardised the prospects of a fair trial.
- [19]On balance, I am satisfied that a favourable exercise of discretion is in the interests of justice, is consistent with the purpose of s 59 and would not undermine the main purpose of the legislation, as provided for in s 4.
- [20]The respondent seeks its costs. The applicant submits that the appropriate order is that the costs of this proceeding be costs in the cause of the forthcoming proceeding for damages. Counsel for the applicant submitted that the respondent ought to have consented to the relief sought, given the applicants ‘excellent prospects of success’. As counsel for the respondent pointed out, however, those prospects were far from clear on the material which was filed and served in advance of the hearing.
- [21]It was the affidavit of Kirsty Lee Carter, sworn on the morning of the return date, and filed by leave that day, which deposed to the failure to commence proceeding prior to the limitation period having occurred due to the breakdown of systems within the office of the applicant’s solicitors. It was not until after the initial hearing of this application that an affidavit from the applicant herself was forthcoming, which confirmed that the fault lay at the feet of her solicitors, rather than any lack of conscientiousness on her part.
- [22]By this application, the applicant seeks an indulgence of the court. In the circumstances, the respondent should have its costs of and incidental to the application.
Footnotes
[1]Affidavit of Kirsty Lee Carter filed 28 November 2008, para 4.
[2]See Haley & Anor v Roma Town Council; McDonald v Romijay P/L & Ors [2005] 1 Qd R 478 at 491.
[3]See Lee v Omni Leisure Operations Pty Ltd [2008] VSC 272 at [11].
[4]Affidavit of Kirsty Lee Carter filed 28 November 2008, para 3.
[5]Affidavit of Sandra Jane Tiver, paras 5 and 9.
[6]Affidavit of Kirsty Lee Carter filed by leave para 7.
[7]Affidavit of Kirsty Lee Carter filed by leave para 7.
[8]Perdis v Nominal Defendant [2003] QCA 555.
[9]Perdis v Nominal Defendant [2003] QCA 555 per Davis JA at [26].
[10]Affidavit of Sandra Jayne Tiver, para 7.
[11]Compare Lee v Omni Leisure Operations Pty Ltd [2008] VSC 272.
[12]Affidavit of Sandra Jane Tiver, para 3.
[13]Affidavit of Sandra Jane Tiver, para 4.
[14]Affidavit of Sandra Jane Tiver, para 3.
[15]Affidavit of Kirsty Lee Carter filed 28 November 2008, para 10, Ex KLC7.
[16]Affidavit of Kirsty Lee Carter filed 28 November 2008, para 14, Ex KLC 11.
[17]Affidavit of Kirsty Lee Carter filed 28 November 2008, para 30.