McDonald v Holy Spirit Care Services Ltd
[2011] QDC 78
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- Unreported Judgment
- McDonald v Holy Spirit Care Services Ltd[2011] QDC 78
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McDonald v Holy Spirit Care Services Ltd[2011] QDC 78
McDonald v Holy Spirit Care Services Ltd[2011] QDC 78
DISTRICT COURT OF QUEENSLAND
CITATION: | McDonald v Holy Spirit Care Services Ltd & Anor [2011] QDC 78 |
PARTIES: | COLIN PATRICK JOHN McDONALD (Applicant) v HOLY SPIRIT CARE SERVICES LTD (First respondent) CATHOLIC CHURCH INSURANCES LTD (Second respondent) |
FILE NO/S: | 75 of 2011 |
DIVISION: | Trial |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court, Cairns |
DELIVERED ON: | 24 May 2011 |
DELIVERED AT: | Cairns |
HEARING DATE: | 18 May 2011 |
JUDGE: | Everson DCJ |
ORDER: |
|
CATCHWORDS: | LIMITATION OF ACTIONS – EXPIRY OF LIMITATION PERIOD – EXTENSION OF LIMITATION PERIOD PURSUANT TO S 59 OF THE PERSONAL INJURIES PROCEEDINGS ACT 2002 (QLD) – DISCRETION TO EXTEND – RELEVANT CONSIDERATIONS Personal Injuries Proceedings Act 2002 (Qld), s 59, s 59(2)(b), s 36, s 42 Motor Accident Insurance Act 1994 (Qld), s 57 Limitation of Actions Act 1974 (Qld) Morrison-Gardiner v Car Choice Pty Ltd [2004] QCA 480, cited Spencer v Nominal Defendant [2008] 2 Qd R 64, considered |
COUNSEL: | Mr Glen for the applicant Mr Atkinson for the respondents |
SOLICITORS: | Murray & Lyons Solicitors for the applicant Minter Ellison for the respondents |
Introduction
- [1]This is an application pursuant to s 59(2)(b) of the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”). It seeks an order that the applicant be given leave to start a proceeding in a court, even though the period of limitation has ended.
- [2]Although the applicant sought leave to start a proceeding against both respondents it was ultimately only pursued in respect of the first respondent.
The Background
- [3]The applicant alleges that on 25 January 2008 he slipped and fell on property under the care and control of the first respondent at 6 Brown Street, Westcourt in Cairns, sustaining personal injuries. PIPA prescribes numerous steps which need to be taken before a proceeding is commenced and all of these mandatory requirements including the provision of a complying part 1 notice of claim to the first respondent have been complied with. A factual investigation report has been commissioned and obtained by the solicitors acting on behalf of the first respondent. The applicant has been examined by two orthopaedic surgeons, a neurosurgeon and a psychiatrist and they have each provided reports.
- [4]Pursuant to s 36 of PIPA there must be a compulsory conference of the parties before a proceeding based on a claim is started in a court. The applicant’s solicitor was aware that the three year limitation period was approaching and a compulsory conference had still not been held. On 28 October 2010 he wrote to the solicitors for the first respondent in the following terms:-
“As you will be aware, the limitation of actions period is due to expire on 25 January 2011 so if your client:-
- (i)wishes to engage in any written negotiations;
- (ii)attend a compulsory conference;
- (iii)requires additional medical or other evidence;
we would be pleased to receive a response within the next seven (7) days.”
- [5]Ultimately by letter dated 2 December 2010, the first respondent’s solicitors replied in the following terms:-
“Our client is prepared to agree to extend your client’s limitation period until 21 April 2011.
We invite you now to nominate days for a compulsory conference in February or March which are suitable to you and your counsel.”
- [6]The compulsory conference was held on 24 March 2011 but the parties were unable to resolve the applicant’s claim. Mandatory final offers were exchanged and counsel was instructed to draw a claim and statement claim.
- [7]Regrettably, due to an oversight on the part of the applicant’s solicitor, a proceeding was not commenced prior to 21 April 2011. Ordinarily, pursuant to s 42 of PIPA a proceeding in a court based on a claim should be started within 60 days after the conclusion of the compulsory conference and the applicant’s solicitor failed to appreciate that the agreed extension of the limitation period did not make provision for the usual 60 day time period within which to commence a proceeding.
- [8]This application was filed on 9 May 2011.
- [9]In the circumstances it cannot be said that either the applicant or his solicitor was dilatory in prosecuting the claim against the first respondent or in bringing this application.
The Issues
- [10]Section 59 of PIPA is in the following terms:-
“(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)Also, if a proceeding is started under subsection (2) without the claimant having complied with part 1, the proceeding is stayed until the claimant complies with the part or the proceeding otherwise ends.
(4)If a period of limitation is extended under the Limitation of Actions Act 1974, part 3, this section applies to the period of limitation as extended under that part.”
- [11]The application is opposed on two bases. Firstly, it is submitted that s 59 does not need to be invoked because of the need to comply with PIPA and it is inappropriate to grant relief pursuant to s 59 in the circumstances. All the mandatory steps had been complied with upon the holding of the compulsory conference and the exchange of mandatory final offers such that the applicant had 14 days prior to the expiration of the extended limitation period within which he was free to commence a proceeding in a court. It is therefore submitted that it was not the procedural requirements of PIPA which prevented the applicant’s solicitor issuing a proceeding. Secondly, it is submitted that the agreement between the parties to extend the limitation period to 21 April 2011 was such that the parties implicitly agreed that this was the extent of any extension and s 59 should not be invoked in order to interfere with the contractual arrangement of the parties.
- [12]Section 59 of PIPA and the equivalent section of the Motor Accident Insurance Act 1994 (“MAIA”), s 57 have been the subject of considerable judicial comment. In Morrison-Gardiner v Car Choice Pty Ltd[1] McMurdo P observed –
“Section 57 of the Act does not, in my view, entirely supersede the operation of the Limitation of Actions Act 1974 (Qld). The latter deals with extensions of the limitation period when a claimant becomes aware of a new material fact near to or after the expiration of the limitation period. Section 57 of the Act allows a judge to give leave to a claimant to start a proceeding in a court after the expiry of the limitation period when the claimant has given a complying notice of claim within the limitation period in circumstances where, but for the Act, the claimant could be expected to have commenced the proceeding in a court within the limitation period.”[2]
- [13]Subsequently, Williams JA stated:-
“The provisions of s 57(1) and (2) are no more than a recognition of the fact that a claimant has to comply with a complex of pre-trial requirements ….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….Amongst other considerations the court would have regard to the explanation for the delay, the length of the delay, possible prejudice to the defendant, and the general interest of the court in having such proceedings prosecuted expeditiously.”[3]
- [14]In Spencer v Nominal Defendant[4] Keane JA sought to explain the inter-relationship between s 57(2)(b) of the MAIA and the Limitation of Actions Act 1974. He stated that s 52(2)(b): -
“was created to ameliorate the position for claimants who experienced 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.”[5]
The fact scenario presented to the court is set out in the following terms:-
“On 14 July 2006, a consent order was made which dispensed with a compulsory conference and the exchange of final written offers of settlement. The order also provided for an action for damages to be started by the applicant in respect of the claim no later than 14 July 2006, with that action, if started, to be stayed until the holding of a compulsory conference and the exchange of final offers of settlement.”[6]
- [15]Keane JA, with whom the other members of the Court of Appeal concurred, concluded that the application “did not arise because of the need to comply with the Act. The relevant requirements of the Act had been dispensed with by agreement of the respondent and the consent order made pursuant to that agreement.”[7] He also found that “the making of the order sought by the applicant would defeat the respondent’s rights under the consent order of 14 July 2006”[8] which “operates both as a contract and an order of the court”[9].
- [16]Turning to the facts before me, I am satisfied that the failure to commence the proceeding within the limitation period arose as a consequence of the need to complete the mandatory requirements of PIPA including the holding of a compulsory conference. Unlike the situation appertaining in Spencer the applicable mandatory requirements were not excused. Indeed, both the need to seek an extension of the limitation period and the truncation of the amount of time within the extended period open to the applicant to commence a proceeding arose out of the need to complete the mandatory requirements. The respondent candidly concedes that it will suffer no prejudice if leave is granted pursuant to s 59 other than the loss of the limitation of actions defence. In seeking to extend the limitation period in the manner he did, at no time did the applicant agree not to bring an application pursuant to s 59 of PIPA. Indeed, the applicant was not obliged to do anything at all. The question of breaching an agreement by enlarging the limitation period therefore does not arise on the facts before me.
Conclusion
- [17]It is true that a number of principles have been identified as being relevant to the exercise of the court’s discretion in circumstances such as these,[10] however, the discretion which exists pursuant to s 59(2)(b) of PIPA is not subject to any express statutory qualification, although it is to be exercised with regard to its statutory purpose.[11] The following relevant considerations warrant the exercise of discretion in favour of the applicant of the facts before me:-
- The diligent prosecution of his claim by the applicant;
- The prompt bringing of this application after the applicant’s solicitor realised his oversight;
- The absence of prejudice to the respondent; and
- The interests of justice in enabling the claim to proceed where considerable resources have been expended in prosecuting it in accordance with the mandatory requirements of PIPA.
- [18]Turning to the question of costs, whilst the applicant has been successful, the need for the application only arose as a consequence of an oversight on the part of the applicant’s solicitor. In all of the circumstances I accept the submission of the applicant that the appropriate order is that there be no order as to costs.
Order
- [19]I therefore order:-
- That the time for the applicant to commence a proceeding in a court against the first respondent be extended to 31 May 2011.
- That there be no order as to costs.