DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application by the Second Defendant pursuant to Uniform Civil Procedure Rule 171 that the claim and statement of claim be struck out.

2. [2]
   The basis of this application is that the proceedings have been impermissibly commenced as the Plaintiff was under an incapacity as a prisoner at the time of a mandatory settlement conference held under the provisions of the Motor Accident Insurance Act 1994 (Q) (“MAIA”).

Background

3. [3]
   The Plaintiff, who was born on 30 March 1985, was injured in a collision which occurred on 9 August 2009 between Yeppoon and Emu Park on the Capricorn Coast.

4. [4]
   The Plaintiff issued proceedings for damages concerning this accident on 9 October 2012. On 21 November 2012 the defendant filed a notice of intention to defend and defence alleging contributory negligence on the basis that the Plaintiff was aware that the First Defendant (the driver) was intoxicated.

5. [5]
   On 14 March 2013 an amended defence was filed. In the amended defence (aside from issues of contribution) the Second Defendant alleged that as the Plaintiff had been sentenced to a term of four and a half years imprisonment on 12 October 2010, actions taken under the MAIA and the proceedings were a nullity and were liable to be struck out under rule 171.

6. [6]
   The affidavit of Paul Birkett discloses that a notice of accident claim form was sent to the insurer on 30 September 2009.  By correspondence on 12 October 2009 the second Defendant confirmed the notice was compliant.

7. [7]
   The solicitors for the Plaintiff advised the Second Defendant by letter on 10 February 2012 that the Plaintiff had been sent to jail and was due to be released on 12 April 2012.

8. [8]
   By letter dated 26 July 2012 the Second Defendant agreed to extend the limitation period until 31 October 2012.

9. [9]
   On 14 August 2012 a copy of the Plaintiff’s criminal history was provided to the Second Defendant by the Plaintiff’s solicitors. This indeed does show that on 12 October 2010 the Plaintiff was convicted of grievous bodily harm; assault occasioning bodily harm whilst in company and was sentenced to an effective term of four and a half years imprisonment with a parole eligibility date fixed as at 12 April 2012.

10. [10]
    A compulsory conference was held on 13 September 2012 by telephone hook-up but this failed to resolve the matter.  Mandatory final offers were exchanged.

11. [11]
    The Plaintiff then commenced proceedings in the court by claim and statement of claim filed 9 October 2012.

12. [12]
    After this time the Second Defendant’s solicitors sought further clarification of the criminal history from corrective services and it was realised that the Plaintiff’s sentence period exceeded three years.

13. [13]
    As a result of this and as result of the Public Trustee not having been notified by the claimant the amended defence was filed.

14. [14]
    Sean Houston a solicitor from Rees R Sydney Jones solicitors acting for the plaintiff deposes that on 4 June 2013 the official solicitor for the Public Trustee indicated that the Public Trustee had granted consent to the Plaintiff commencing proceedings for personal injuries compensation as a result of injuries sustained on 9 August 2009. The consent is attached to the affidavit.

Submissions of the parties

15. [15]
    The Applicant second defendant submits that despite the recently obtained consent of the Public Trustee the proceedings are a nullity because the Plaintiff was not capable of engaging in the mandatory compulsory conference or in making the mandatory final offer.

16. [16]
    The Applicant submits that by reason of the Plaintiff’s incapacity Part 7 of the Public Trustee Act 1978 (Q) (“PTA”) applied.

17. [17]
    Section 90 PTA provides that Part 7 applies to a prisoner who is undergoing sentence for a term of 3 years or upwards.

18. [18]
    There was no dispute between the parties that the Plaintiff is undergoing a sentence in excess of 3 years.

19. [19]
    Section 90 PTA provides:

“90 Application of this part

This part shall apply to—

1. (a)
   any prisoner who, after conviction of any indictable offence or offences, is undergoing a sentence of imprisonment for life or for a term of 3 years or upwards or for such term as, together with any other sentence or sentences imposed upon the prisoner, has rendered the prisoner liable to imprisonment for a period of 3 years or upwards; or …”

20. [20]
    In my view the words “liable to imprisonment” cover the situation where the prisoner has been released on parole.

21. [21]
    My view is strengthened by the provisions of other relevant legislation.

22. [22]
    The Plaintiff would have been sentenced under the Penalties and Sentences Act 1992 (Q) (“PSA”).

23. [23]
    The term “sentence” is in section 4 of the PSA defined as:

“Sentence means any penalty or imprisonment ordered to be paid or served, or any other order made, by a court after an offender is convicted, whether or not a conviction is recorded.”

24. [24]
    “Term of imprisonment” is defined as:

“Term of imprisonment means the duration of imprisonment imposed for a single offence and includes—the imprisonment an offender is serving, or is liable to serve-

1. (i)
   for default in payment of a single fine; or

1. (ii,)
   for failing to comply with a single order of a court; and

2. (b)
   for an offender on whom a finite sentence has been imposed, any extension under section 174B(6) of the offender’s finite term.” (my underlining).

25. [25]
    I also note schedule 4 to the Corrective Services Act 2006 (Q) provides:

“Prisoner –

means a person who is in the chief executive’s custody, including a person who is released on parole.”

26. [26]
    To my mind the term undergoing a sentence of imprisonment includes the entire term of the imprisonment including any period on parole as he is liable to serve the remaining period. Obviously enough there are usually onerous conditions of parole with which the prisoner must comply.

27. [27]
    By analogy in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 the Full Court of the Federal Court considered whether a sentence of 12 months with release after 3 months was such that the offender had been “… sentenced to imprisonment for one year or longer.” It was held by the majority that the sentence referred to the sentence imposed and not the term actually served.

28. [28]
    Section 91 PTA provides that:

“Public Trustee to manage a property of certain prisoners

Except as provided in this part the Public Trustee shall, without further or other order of authority, be the manager of the estate of every prisoner to whom this part applies.”

Importantly s 94 PTA provides:

“Powers of the Public Trustee

3. (1)
   When the Public Trustee is manager of the estate of a prisoner under this part the Public Trustee shall have full power to deal with any property of the prisoner and to acquire any property for or on behalf of the prisoner and generally may do all such things in relation to property, on behalf of and in the name of the prisoner, as the prisoner could do if the prisoner were not a prisoner; and in particular –

6. (f)
   The Public Trustee may, in the Public Trustee’s corporate name or in the name of the prisoner, institute any proceedings of a property nature or for the recovery of any debt or damage which the prisoner might have instituted but for the provisions of this part, and in like manner defend any proceedings instituted against the prisoner and, in either case, may enter into such compromise or arrangement as the Public Trustee thinks fit.”

Further s 95 PTA provides:

“Restrictions on property dealings or proceedings

3. (1)
   During the time when the Public Trustee is manager of the prisoner’s estate under this part, a prisoner shall be incapable, except with the consent in writing of the Public Trustee -

1. (a)
   of alienating or charging any property or of making any contract; and

2. (b)
   of bringing or defending any action of a property nature or for the recovery of any debt or damage.

3. (2)
   If the court becomes aware that an action has been brought or defended in contravention of sub-section (1)(b), the prisoner can take no further steps in the action without the written consent of the Public Trustee, in the approved form  filed in the court.

3. (3)
   The consent of the Public Trustee is then taken to have been given when the action was brought or defended.”

29. [29]
    The Applicant second defendant argues that the Plaintiff was incapable of taking part in the mandatory settlement conference or of making an offer. It is argued that such activity is within the meaning of “making a contract” is s 95 (1)(a) PTA. It is submitted that the action should be struck out as a nullity.

30. [30]
    On the other hand the Respondent says that no contract was entered into by the Plaintiff and therefore s 95 PTA did not apply to attendance at the compulsory conference or with respect to the making of the mandatory final offer. In those circumstances the pre-action procedures were regular and as consent has been obtained by the Public Trustee with respect to the issuing of proceedings, the matter may proceed.

Discussion

31. [31]
    Originally s 95 PTA did not contain a provision like s 95(3) PTA.

32. [32]
    Section 95(3) was inserted into the Act in response to the Court of Appeal decision of Tyler v Krause [2003] 1 Qd R 453.

33. [33]
    There is no dispute that the court proceedings themselves may well be regularised by the operation of s 95(3) PTA.

34. [34]
    The real issue is whether s 95 PTA is wide enough to include the pre-action procedures under MAIA.

35. [35]
    The ambit of s 95 PTA was examined in Kashani-Malaki v Di Carlo [2012] QSC 139 and on appeal [2012] QCA 320.

36. [36]
    In that case the Plaintiff had issued proceedings against the Defendant on 6 August 2009. On 19 August 2009 he was sentenced to a term of imprisonment.

37. [37]
    There was no statutory prohibition on the commencement of proceedings. Indeed in the present case there was no prohibition on the Plaintiff from issuing the Notice of claim which arguably instituted proceedings within the meaning of that term in s 94(1)(f) PTA (see s 6 PTA).

38. [38]
    Daubney J held that s 95 PTA should be strictly construed and that “bringing” in s 95(1)(b) PTA related to instituting proceedings and not the maintaining of proceedings. (see [16], [21] and [22] where he said:

“Accordingly, on a proper construction of s 95(1)(b), there is no restriction on the capacity of the plaintiff to continue to maintain these proceedings which were brought (i.e. instituted) before he was sentenced to imprisonment.”

In obiter at [30] his Honour held:

“Of course it is possible, and indeed probable, that events may arise in the course of maintaining the litigation which would trigger the application of s 95(1)(a), and counsel for the Public Trustee freely conceded that the Public Trustee’s consent would be required at any such juncture.  So for example:

1. (a)
   If the prisoner terminated the pre-existing retainer of his or her solicitors and wished to retain a new solicitor, this would involve the making of a contract for which the written consent of the Public Trustee would be required;

2. (b)
   If the prisoner wished to settle the proceedings on terms which involved a payment of money by him or her, this would involve an alienation of property for which the written consent of the Public Trustee would be required.”

39. [39]
    The appeal was dismissed by the Court of Appeal in Di Carlo v Kashani-Malaki & Anor [2012] QCA 320.  It was noted by Muir JA at [1] that the Appellant also argued alternatively that:

“If the prisoner does not require the Public Trustee’s consent to continue such proceedings, the conduct of the proceedings is nevertheless in the hands of the Public Trustee as manager of the prisoner’s estate and the consent or concurrence of the Public Trustee is required for any act or step in the prosecution of the litigation.”

The argument was developed that “as the manager of the litigation the Public Trustee must consent or concur on the conduct of the litigation” (see [8]).

40. [40]
    Muir JA rejected the Appellant’s argument. He held at [12] that the principal obstacle in the way of the Appellant’s argument lay in the language of s 95 PTA. He held:

“This tends to erode the force of the appellant’s argument that, subject to express exceptions, the Public Trustee’s management powers were intended to be all encompassing.”

41. [41]
    He held at [24]:

“There is nothing startling or even impracticable in the construction favoured by the primary judgment supported by the Public Trustee.  It may be expensive in both and time and money for the Public Trustee to come to grips with legal proceedings in which a prisoner is engaged when s 91 takes effect.  There are other considerations.  There may be a need for compliance with the court orders, the progress of a trial may be disrupted or a forensic advantage lost if the management of an existing proceeding automatically vested in the Public Trustee …

[26] Another relevant consideration is the ‘general principle that a statute will not be construed to take away a common law right unless the legislative intent to do so clearly emerges, whether by express words or by necessary implication.’”

So in the result Muir JA rejected the Appellant’s alternative argument.

42. [42]
    Section 95(1)(a) PTA prohibits the prisoner from making any contract. A contract of course consists of offer and acceptance and consideration.

43. [43]
    Division 5A of MAIA deals with the compulsory conference. Section 51B(10) MAIA provides that each party must actively participate in an attempt to settle the claim.

44. [44]
    Section 51C (1) MAIA provides that if the claim is not settled at the conference then each party must exchange mandatory final offers which must remain open for 14 days. The insurer may make an offer of Nil (s 51C(6) MAIA).

45. [45]
    In this particular case the evidence is that the settlement conference was unsuccessful and mandatory final offers were exchanged but clearly not accepted.

46. [46]
    In those circumstances there was no concluded contract within the term contained in s 95(1)(a) PTA.

47. [47]
    Attendance at a compulsory conference was clearly not a contract.

48. [48]
    To my mind the making of a mandatory final offer was not making a contract.

49. [49]
    In those circumstances on a strict reading of s 95 PTA no contract was made.

50. [50]
    Counsel for the Applicant conceded that pre-trial steps pursuant to the MAIA were not the bringing of an action within the meaning of s 95(1)(b) PTA.

51. [51]
    That concession is correct.

52. [52]
    The term “bringing” an action is synonymous with instituting a proceeding (see Kashani-Malaki v Di Carlo [2012] QSC 139 at [16]) and also (Di Carlo v Kashani-Malaki & Anor [2012] QCA 320 at [13]).

53. [53]
    The compulsory conference and the offer did not institute the bringing of an action here.

54. [54]
    To my mind s 95 PTA does not prohibit any act undertaken by the Plaintiff in the conduct of pre-court proceedings including the making of a mandatory final offer.

55. [55]
    Of course the position may well have been different if the offer was accepted.

56. [56]
    I also accept (by analogy) that it is relevant that Daubney J in Kashani-Malaki v Di Carlo [2012] QSC 139 held that there was no bar on a prisoner continuing to be represented by legal advisers retained pursuant to a retainer entered into before the proceedings were instituted. 

57. [57]
    I note that instructions were given and received by Rees R Sydney Jones prior to the relevant conviction and the Respondent could and indeed did continue to give instructions to his solicitors leading to the mandatory final offer made on 13 September 2012.

58. [58]
    In the circumstances I find that on a proper construction of s 95 PTA the Plaintiff was not prevented from taking part in the settlement conference or in making a mandatory final offer by reason of incapacity.

59. [59]
    In those circumstances I dismiss the application.