Moore v Australian National Car Parks Pty Ltd
[2009] QDC 374
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Moore v Australian National Car Parks Pty Ltd[2009] QDC 374
- Add to List
Moore v Australian National Car Parks Pty Ltd[2009] QDC 374
Moore v Australian National Car Parks Pty Ltd[2009] QDC 374
[2009] QDC 374
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 2875 of 2009
MARION MOORE | Applicant |
and | |
AUSTRALIAN NATIONAL CAR PARKS PTY LTD | Respondent |
BRISBANE
DATE 12/11/2009
ORDER
| CATCHWORDS - | Moore v Australian National Carparks Personal Injuries Proceeding Act 2002 s 59(2)(b) |
HIS HONOUR: The Court has made an order in accordance with an initialled draft in the following terms:
"1. The applicant be granted leave pursuant to section 59(2)(b) of the Personal Injuries Proceedings Act 2002 ("the Act") to start before the end of November 2009, a proceeding in the Court, against the respondents, for damages for personal injury arising from an accident on 14 March 2006;
- Subject to any relaxation by the Court, the proceeding be stayed pending compliance with Part 1 of Chapter 2 of the Act or the proceeding is discontinued or otherwise ends;
- The applicant pay the second, third and fourth respondents' costs of the application to be assessed if not agreed. "
The applicant, the Court is told, hit her head on an overhead pipe in a shopping centre car park and fell, injuring herself.
The first respondent hasn't appeared when called outside the Court today, although service of the application on it is proved. It has, in the past, identified the relevant insurer. Whereas it operated the car park, the second and third respondents, it's understood, operated the shopping centre in partnership and are to be regarded as the occupiers. The fourth respondent was the centre manager.
The applicant had some difficulties in assembling the necessary resources to obtain legal assistance. She undertook preparation of the appropriate notice of claim in a timely way. That document was subsequently improved when the solicitors approached originally came into the matter formally. They are no longer acting for her, new solicitors having come in.
The accident having occurred on the 14th of March 2006, an effective extension of the ordinary limitation period of virtually eight months is being sought. In a proceeding under comparable provisions in section 57(2)(b) of the Motor Accident Insurance Act 1994, the relevant principles were identified in Paterson -v- Leigh [2008] QSC 277 at paragraph [8]. The relevance of the same principles for the purposes of section 59(2)(b) of the Personal Injuries Proceedings Act 2002 (PIPA) was accepted in Tiver v. Sunshine Coast Regional Council [2009] QDC 106. In the earlier case, the principles were stated in this way:
"(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."
Ms McClymont's written submissions pertinently include the following:
"14. The Personal Injuries Proceedings Act 2002 prescribes a procedural notification and settlement of claims for damages for personal injury. The procedure is as follows:
a. Notice of the claim is served within nine months of the date of the accident or within one month of consulting a solicitor (2 9);
b. The respondent is to provide a preliminary response to the notice of claim and advise whether it considers the claim complies with the Act, within one month (ss 10 and 12);
c. A Part 2 Notice of Claim is served by the applicant providing further details of the claim, two months after compliance of Part 1 is confirmed or presumed (s 9(3A);
d. The respondent is to provide a notice accepting or denying liability and making a genuine offer of settlement, within 6 months of service of the Notice of Claim (s 20);
e. The parties are to participate in a compulsory conference and exchange mandatory final offers (ss 36-39);
f. If the offers are not accepted within fourteen days the applicant may commence proceedings in a Court for damages for personal injuries (ss 40 and 42).
15. Given that the above steps had not been completed, even if she were informed of the limitation period for her action for damages, the applicant could not have commenced proceedings in court without:
a. Agreement of the respondents to dispense with the compulsory conference;
b. The leave of the Court pursuant to section 43 of the Act.
- However, due to the failure of her solicitor to advise her of the impending expiry of the limitation period, no steps were taken by the applicant to commence proceedings within the three-year limitation period."
Mr Hartley represents the three respondents who have appeared on today's application. He's here to assist the Court and taking the line that it's for the applicant to persuade the Court she ought to have the relief sought.
In my opinion, she has succeeded in that exercise. It's convenient to quote again from Ms McClymont's written submissions, paragraph 19, where relevant considerations are summarised in this way:
"19. Applying those considerations to the circumstances of this case, and as was the case in very similar decision in Tiver:
- The applicant's failure to institute proceedings in time was due to the failure of her solicitors to advise her of the relevant limitation period.
- The applicant had entrusted the conduct of her claim, in sufficient time, to a firm of apparently competent solicitors, to do whatever was necessary to protect her interests. That provides an 'adequate explanation' in the circumstances (Tiver at [9], citing Perdis v Nominal Defendant [2003] QCA 555).
- The applicant gave early notice to the respondents of her claim for damages, such that there is no prospect of prejudice to the respondents by late institution of proceedings.
- The respondents have been dilatory in their conduct of the matter, in that no response pursuant to section 20 of the Act has been provided, and the respondents have made no efforts to progress the matter.
- The applicant's solicitor has deposed to the claim having, in her opinion, reasonable prospects of success.
- The applicant has given explanations for the periods of delay attributable to her, when she was raising funds to pay her solicitors' fees, and when she had changed contact details, but otherwise, the delay in advancement of her claim was due to both inaction by her solicitors or awaiting information from the respondents' solicitors;
- This application was brought promptly upon receiving advice from her present solicitors that it was necessary. The delay in the applicant being advised to bring the application after expiry of the limitation period was caused by the applicant's former solicitors either not being aware, or not advising her, that the limitation period had passed."
...
HIS HONOUR: Consistently with Tiver, the applicant must pay the second, third and fourth respondents' costs of the application, to be assessed if not agreed.
...
HIS HONOUR: Order as per initialled draft.