Van de Velde v State of Queensland
[2010] QDC 19
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- Unreported Judgment
- Van de Velde v State of Queensland[2010] QDC 19
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Van de Velde v State of Queensland[2010] QDC 19
Van de Velde v State of Queensland[2010] QDC 19
DISTRICT COURT OF QUEENSLAND
CITATION: | Van de Velde v State of Queensland [2010] QDC 19 |
PARTIES: | TAMMY VAN DE VELDE Applicant AND STATE OF QUEENSLAND Respondent |
FILE NO/S: | OA 80/10 |
DIVISION: |
|
PROCEEDING: | Originating application |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 28 January 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 28 January 2010 |
JUDGE: | McGill DCJ |
ORDER: | Leave to the applicant to start a proceeding in the District Court for damages based on liability for personal injury despite non-compliance with Chapter 2 Part 1 of the Personal Injuries Proceedings Act Order that the applicant pay the respondent’s costs of the application to be assessed, not to be paid, if the applicant does commence a proceeding pursuant to the leave, until that proceeding has been resolved. |
CATCHWORDS: | PERSONAL INJURIES – Pre-litigation procedure – leave to commence proceedings prior to completing – no power to give leave which extends limitation period. Personal Injuries Proceedings Act 2002 s 43. Davison v State of Queensland (2006) 226 CLR 234 – considered. GU v TO [2005] QCA 480 – followed. Haley v Roma Town Council [2005] 1 QDR 478 – considered. |
COUNSEL: | C Newton for the applicant. M Callaghan for the respondent |
SOLICITORS: | WHD Lawyers for the applicant. Tresscox Lawyers for the respondent |
- [1]This is an application under s 43 of the Personal Injuries Proceedings Act 2002 (“the Act”). Relevantly, that section provides:
“(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 that there is an urgent need to start the proceeding.
- (2)The order giving leave to start the proceeding may be made on conditions the court considers necessary or appropriate having regard to the particular circumstances of the case.
- (3)However, if leave is given, the proceeding started by leave is stayed until the claimant complies with this part or the proceeding is discontinued or otherwise ends.”
- [2]In the present case, the applicant seeks an order that she be granted leave pursuant to s 43, “to commence proceedings in respect of her claim despite non-compliance with Chapter 2 Part 1 of the Act, such proceedings to be commenced within 60 days of the compulsory conference.”
- [3]The affidavit material indicates that the limitation period is shortly to expire. The matter has not reached the stage of a compulsory conference and indeed, it was clear and conceded on behalf of the applicant that there is no prospect of there being a compulsory conference prior to the expiration of the limitation period.
- [4]The claim, broadly speaking, is one which falls within s 9A of the Act. An initial notice was given by other solicitors, although there have been some steps taken by the applicant under the Health Quality and Complaints Commission Act 2006. The mechanism under that Act has not yet run its course. The applicant wants to avoid having to commence a proceeding until that mechanism has run its course, because she wants to see the outcome of that before deciding whether to pursue the action. If an action is commenced then under s 43 it is stayed, which would even prevent it being served on the respondent, although obviously the respondent will know about the commencement of the proceeding because the respondent is here. But the action will otherwise be stayed under the statute unless and until the requirements of the Act, which would ordinarily be complied with before a proceeding was commenced, are complied with.
- [5]The crucial issue, it seems to me, is whether an order can be made under s 43 in terms which permit a proceeding to be started within a specified time, that is the time specified in the order, which is outside the limitation period in circumstances where the limitation period will expire prior to that date.
- [6]It was submitted on behalf of the applicant that such an order could be made and that as long as it is made prior to the expiration of the limitation period, the effect of s 43 is that a proceeding then commenced will still be within time. It seems to me, however, that there is nothing in s 43, or as far as I am aware otherwise in the Act, which would have that effect, and that such an interpretation of s 43 is contrary to the authorities.
- [7]I have, I should say, not had a comprehensive consideration of the authorities on s 43 but because there is some element of urgency in the matter, I am proposing to decide the application on the basis of those cases I have looked at, which seem to me to be fairly comprehensive and consistent with my understanding of the general state of the authorities in relation to this section.
- [8]Section 43 on its face simply permits a court to give leave to start a proceeding notwithstanding non-compliance with the relevant part of the Act. That is to say, it overcomes the prohibition on a proceeding being commenced prior to compliance with that part of the Act contained elsewhere in the Act.
- [9]Subsection (2) permits the order to be made on conditions but ordinarily a condition is in the nature of a restriction or an additional requirement to be satisfied for the order to be made or binding on the person for whose benefit the order is to be made. It would, I think, be an unusual use of the expression to say that one of the conditions upon which an order may be made is a condition which has the effect of altering the operation of some other statute.
- [10]I would not read s 43(2) as empowering the imposition by the Court of a condition which had the effect of confining the operation of the Limitation of Actions Act, in circumstances where an order is made purporting to permit a proceeding to be commenced after the expiration of the period under that Act. That, I think, is the crucial difficulty with the order sought by the applicant. Section 43 permits a proceeding to be commenced. It enables the court to remove an obstacle which would otherwise exist to the commencement of a proceeding. Its function plainly was to mitigate any injustice which might have been caused to a claimant by the requirements otherwise imposed by the Act. That is shown by the existence of the requirement that there is an urgent need to start the proceeding. Ordinarily, that is satisfied by the imminent expiration of a limitation period or the imminent passing of a date which is or may become relevant in view of the operation of other provisions of the Limitation of Actions Act.
- [11]The logic of that section is that it puts a claimant in the same position as if the Act was not in existence. But if this Act were not in existence, the applicant would still face the same difficulty she faces. The limitation period is about to expire and she has to decide whether to commence a proceeding or not to do so. If she chooses not to do so, then there will be a limitation defence created, subject to the possibility that there may be an extension arising because of additional material facts which come to her knowledge later. But that is not a difficulty created by this Act. It is, I suppose, a difficulty created by the existence of a limitation period but there is no reason to think s 43 was intended to overcome that difficulty.
- [12]The operation of s 43 was discussed by the majority of the High Court in Davison v State of Queensland (2006) 226 CLR 234 at p 242, where their Honours said:
“The function of s 43 may be explained by borrowing some well‑known words which Dixon J used in another context – to prevent litigants being deprived of the right to submit real and genuine controversies to the determination of the courts by the due procedure appropriate for the purpose. Section 43 will no doubt operate in many circumstances outside the intersection between Chapter 2 Part 1 and the limitation period exemplified by this case, but the case does illustrate an important potential field of its operation.”
- [13]Their Honours also noted at p 243 that in that particular case the urgency arose from the fact that the expiration of the one‑year period stipulated in the tailpiece to s 31(2) of the Limitation of Actions Act was imminent.
- [14]The effect of s 43 has also been the subject of comment in the Court of Appeal in Queensland in Haley v Roma Town Council [2005] 1 QDR 478. The President at p 492 said:
“Contrary to the appellants’ contention, this interpretation of s 59 is consistent with s 43 of the Act, which empowers a court with a general discretion to give leave to a claimant to start a proceeding in court for damages despite non-compliance with Chapter 2 Part 1 where there is an urgent need. Unlike s 59, s 43 does not require a claimant to give a complying notice of claim before applying for leave, and nor does it empower the court to order the start of proceedings after the end of the limitation period. The two sections have different functions and sit harmoniously within the scheme of the Act.”
- [15]It was submitted that this was dicta which dealt with a matter which the court did not need to decide in Haley, and I accept that it is dicta but it is authoritative dicta given that it followed an analysis by the President of the scheme of the Act commencing paragraph [9] of her judgment, which included reference to s 43 in paragraph [19]. It is, I think, persuasive dicta.
- [16]It is also, it seems to me, consistent with statements made by Williams and Jerrard JJ in GU v TO [2005] QCA 480. In that case, which was another case where the urgency was said to arise in the context of that potential application under s 31 of the Limitation of Actions Act, Williams JA said at paragraph [16]:
“Section 43 of PIPA is predicated on there being an ‘urgent need’ for proceedings to be commenced although the pre-action procedures prescribed by PIPA have not been complied with. In most cases that urgency will be established by the fact that the applicable limitation period will expire before those pre-action procedures can be complied with or where, because of some consideration personal to the claimant or a witness (for example, imminent death), it is necessary in the interests of justice that the proceeding be commenced notwithstanding that the pre-action procedures have not been complied with. Where the relevant limitation period has expired and there is no basis for obtaining an extension, s 43 cannot avail the claimant. … If the problem is the imminent expiration of the limitation period, leave to start the proceeding can be granted but the proceeding can be stayed until there has been compliance with the pre-action requirements of PIPA.”
- [17]There is nothing in his Honour’s judgment which suggests that an order could be made under s 43 which would have the effect of extending the limitation period.
- [18]Jerrard JA dealt with the matter in a couple of places. At paragraph [55], he said:
“An order made under s 43 does not extend a limitation period.”
- [19]He then went on to contrast the position under s 59. At paragraph [58] his Honour said:
“An order under s 43, if made, allows a proceeding to be started which is then stayed, but that claimant must still pass the limitation hurdle in the Limitation of Actions Act 1974. If the claimant does and if that claimant has given a complying Part 1 notice of claim before the end of that extended period of limitation – as permitted by s 59(4) – then the further extension of the limitation period effected by s 59(1) would apply to that extended limitation period.”
- [20]I also note that it seems to me that part of the formal order made by the court of Appeal in that matter, a declaration that proceedings which the court gave leave to commence pursuant to ss 18, 43 and 59(2)(b) were to have effect between the parties, for the purposes of the Act, as if started no later than 7 May 2005, was an order which it was unnecessary to make if the applicant’s submissions were correct.
- [21]The significance of 7 May 2005 was that that was a date on which the 12‑month period under s 31 would expire if there were a successful application under s 31, and the urgent need was said to arise because of the imminent expiration of that date. By the time the matter got to the Court of Appeal, of course, that date had long since passed. But the Court of Appeal, for the particular reasons given by the court, held that it had power to make an order nunc pro tunc and to permit that order to have effect as if it had taken effect prior to 7 May 2005 so as to prevent a benefit to the respondent from arising because of a failure on the part of the judge at first instance to make the order which the Court of Appeal held ought to be made.
- [22]It seems to me, therefore, that it is at least arguable that the approach adopted by the Court of Appeal in GU v TO is not a matter of dicta but is part of the ratio of that decision. It is therefore binding on me.
- [23]Whether or not that is the case, I would respectfully entirely agree with the comments made, particularly by Jerrard J in that matter. It does seem to me quite clear that s 43 does not in itself permit an order to be made extending the limitation period and therefore a condition cannot be imposed which purports to permit a proceeding to be commenced on a date later than the date when the limitation period would expire, or at least such a condition would not have the effect sought by the applicant.
- [24]The practical effect, therefore, is that it seems to me that all I can do is give leave to the applicant to start a proceeding in the District Court for damages based on liability for personal injury despite non-compliance with Chapter 2 Part 1 of the Personal Injuries Proceedings Act. That proceeding, if commenced, will be stayed by subsection (3) of the section. In the circumstances, it does not seem to me that any other condition is necessary or appropriate having regard to the particular circumstances of the case. I suppose the applicant can apply to the Registrar for relief from payment of the ordinary fees.
- [25]I order that the applicant pay the respondent’s costs of the application to be assessed, not to be paid, if the applicant does commence a proceeding pursuant to the leave, until that proceeding has been resolved.