DISTRICT COURT OF QUEENSLAND

1. [1]
   The Personal Injuries Proceedings Act 2002 (Qld) (“the Act”) provides in s 43(1) that the court may give leave to a claimant to start a proceeding in the court for damages if the court is satisfied there is an urgent need to start the proceeding.  Commonly that urgency will arise because of the imminent expiration of a limitation period.^[1]  But is it the case that, if the court gives leave under s 43, the urgency goes away?  The argument advanced on behalf of the third and fourth defendants suggests that, at least in some circumstances, the answer to that question is “yes”.

Background

2. [2]
   As at 1 April 2006, the plaintiff resided with his wife (the second defendant), their young child and the plaintiff’s father-in-law (the first defendant). The plaintiff was born in Egypt on 31 August 1960. He migrated to Australia approximately 22 years ago. The first defendant is an elderly man from Lebanon who does not speak English.

3. [3]
   On 1 April 2006 the first defendant stabbed the plaintiff. The plaintiff was taken by ambulance to hospital and spent four days in intensive care followed by a number of days in a general ward. He made a formal complaint to police once discharged and, some days later, made a formal statement to police.

4. [4]
   For reasons not known, police closed the plaintiff’s file in February 2007 without charges being laid. The plaintiff returned to Egypt to live with his family on 22 November 2006. In November 2008 he returned to Australia and attempted to follow up with police the progress of his complaint. He also sought further medical attention because of injuries sustained in the assault to his wrist.

5. [5]
   On 1 November 2010 the plaintiff engaged the third and fourth defendants (hereinafter referred to as “the solicitors”) to pursue a claim for damages against the first defendant.

6. [6]
   On 10 December 2010 Dr Barling, psychologist, assessed the plaintiff. On 14 February 2011 the plaintiff read Dr Barling’s report at which time he first became aware he was diagnosed as suffering psychiatric injury related to the assault. The plaintiff instructed the solicitors to proceed with a claim for damages for personal injuries in approximately June 2011^[2].

7. [7]
   On 2 August 2011 the first defendant was convicted of one count of unlawfully wounding the plaintiff. The first defendant was sentenced to 2 years imprisonment wholly suspended.

8. [8]
   Under the Limitation of Actions Act 1974 (Qld) (“LAA”) the limitation period in respect of the Plaintiff’s claim expired on 1 April 2009. However, because the date the plaintiff first became aware he had suffered psychiatric injury was 14 February 2011, he instructed the solicitors to commence proceedings.

9. [9]
   On 30 August 2011 the solicitors filed an application for an order under s 43 of the Act granting leave to start an action for damages against the First Defendant^[3].

10. [10]
    On 26 September 2011, this court determined the application. The application was opposed and the first defendant’s solicitors were present. The court granted leave to proceed pursuant to s 43(2) of the Act. The court imposed conditions including:

1. (a)
   An application for extension of time be brought by the plaintiff within 6 weeks of the grant of this order;

2. (b)
   The applicant is to comply with Chapter 2 Part 1 of PIPA by serving a Part 1 Notice of Claim for damages on the defendant within one month from the date of an order for an extension of time being granted^[4].

11. [11]
    On 31 October 2011 the solicitors filed an application on behalf of the plaintiff under s 31 of the LAA seeking an extension of the primary limitation period^[5]. On 8 March 2012, after a number of adjournments, the application was heard by another judge of this court. He granted the application and ordered the period of limitation be extended under s 31 of the LAA to 16 February 2012^[6].

12. [12]
    On 15 March 2012 the solicitors posted a Part 1 Notice addressed to the first defendant by registered post. A copy of this correspondence was provided to the first defendant’s solicitors on 15 March 2012.

13. [13]
    The letter was not collected from the Post Office by the first defendant. The letter was marked “returned to sender” and returned to the solicitors on 22 May 2012.

14. [14]
    In the meantime, on 19 March 2012 the solicitors filed a Claim and Statement of Claim in the District Court on behalf of the plaintiff, claiming damages for personal injury suffered by the plaintiff, caused by the first defendant. The Claim and Statement of Claim were filed after the date to which the limitation period was extended on 8 March 2012.

15. [15]
    On 25 May 2012 the solicitors hand delivered correspondence to the first defendant’s solicitors and at that time received advice the solicitors no longer had instructions to act or to accept service on behalf of the first defendant.

16. [16]
    The solicitors instructed a process server to attempt personal service on the first defendant on 13 June 2012. The process server finally served the Part 1 Notice and other documents on the first defendant on 25 June 2012, which was outside the period of 1 month after the extension of the limitation period by order of 8 March 2012. The notice should have been served before 8 April 2012. The Part 1 Notice was therefore not served in compliance with condition (b) of the court’s order of 26 September 2011.

17. [17]
    On a date after the claim was served, the first defendant transferred the title in his residence to his daughter. The solicitors joined her as second defendant on the basis the transfer was made to defeat the plaintiff’s claim.

18. [18]
    On 1 August 2013 the first and second defendants filed a notice of intention to defend and defence. The defence alleged the plaintiff’s action is statute barred because the plaintiff filed the claim for these proceedings on 18 March 2012, after the extended limitation period (ending 16 February 2012) had expired.

19. [19]
    The plaintiff retained new solicitors who filed a further amended claim and statement of claim on the plaintiff’s behalf on 4 October 2013. The further amended claim includes a claim for damages against the solicitors for professional negligence or breach of contract, alleging in essence that they failed to commence proceedings within the extended limitation period.

20. [20]
    On 22 November 2013, the plaintiff filed the current application for preliminary determination of a question of law, namely whether the plaintiff’s action is statute barred. The first and second defendants then, on 10 January 2014, filed an application for summary judgment against the plaintiff to be determined, depending on the outcome of the plaintiff’s application. The solicitors have also filed an application on 26 February 2014 seeking to be relieved of the consequences of non-compliance with paragraph 2(b) of this court’s order of 26 September 2011 under r 905(2) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”).

21. [21]
    The issues for consideration arising out of these three applications can be summarized as follows:

• Should the court enlarge the period for compliance with paragraph 2(b) of the court’s order made on 26 September 2012 so that it expires on and including 25 June 2012 (the date of service of the Part 1 Notice)? Alternatively should the court pursuant to r 905(2) of the UCPR order the applicant be relieved of the consequences of non-compliance with the condition that the Part 1 Notice be served within one month of an order (made on 8 March 2012) to extend the limitation period?
• Should this court grant the plaintiff’s application to determine a question separate to trial pursuant to r 483 of the UCPR, as to whether the plaintiff’s cause of action was statute barred on or by 19 March 2012 by reason of the expiry of the limitation period applying to the action?
• Is the plaintiff’s cause of action statute barred by reason of the expiry of the limitation period applying to the action?
• If the answer is yes, should summary judgment be entered against the solicitors in favour of the plaintiff?
• Should summary judgment be entered against the plaintiff in favour of the first and second defendants?

Analysis

22. [22]
    Sections 43 and 59 of the Act operate in different ways, but they both seek to address essentially the same problem. Prior to the enactment of legislation requiring pre-court procedures before a proceeding was commenced to recover damages for personal injury, it was open to a potential plaintiff who consulted a solicitor shortly before the limitation period expired to commence a proceeding quickly in order to prevent time from running out, sometimes even before the matter had been properly investigated, and the usual material in the way of medical reports had been assembled. When the Motor Accident Insurance Act 1994 (Qld) (“MAIA”) was enacted in 1994, the possibility of doing this in cases within that Act disappeared, because of the imposition of the pre-litigation procedures before an action for damages for personal injury arising out of a motor vehicle accident could be brought in a court^[7]. 

23. [23]
    Completion of these procedures necessarily took time. If the notice of claim required under that Act was given in a timely way, ordinarily there would be no difficulty in completing the pre-court procedures so that, if it were still necessary to commence a proceeding, that could occur before the limitation period ran out. The legislature however recognised the possibility that such a thing might not occur, and attempted to address this difficulty by s 57 of the MAIA.  In its original form, this section provided that, so long as a notice of claim was given under Division 3 of the MAIA or an application for leave to bring a proceeding was made under Division 3 of the MAIA^[8] before the end of the limitation period applying to the claim, the claimant might bring a proceeding based on the claim after the period of limitation, though there was a new limit imposed by s 57(2) of the MAIA for the claim to be brought. 

24. [24]
    In its original form, this section was of limited use, since s 57(2) of the MAIA required the proceeding to be brought within six months after the day on which the notice of claim was given (or leave was granted) whereas s 39(5)(a)(i) of the MAIA prohibited a proceeding from being brought until at least six months had elapsed since the notice of claim had been given.^[9]  Section 57 of the MAIA has subsequently been amended so as to mitigate, though not entirely to remove, this anomaly.  Section 57 of the MAIA provides the only hope of relief in the situation referred to earlier, where the claim arises out of a motor vehicle accident and there is a problem presented by the imminent expiration of the limitation period.^[10]  In practice this is commonly dealt with by an application under s 57(2)(b) of the MAIA, or by the insurer agreeing to a conditional waiver of the limitation period.  There was (and is) no equivalent in the MAIA to s 43 of the Act. 

25. [25]
    By the time the Act was passed in 2002 the difficulties with s 57 of the MAIA were well recognised.  Accordingly s 43 was included in the Act, however s 59 of the Act was also included, which was in essence a simplified version of the then current form of s 57 of the MAIA.  The fact that these two sections to some extent sought to address the same problem in different ways does not seem to have been recognised by the legislature. There is now some recognition of the interaction of the two provisions, in that s 43(5) of the Act^[11] provides expressly that s 59 of the Act does not apply in circumstances where the claimant is suffering from a terminal condition, the trial of the proceeding to be commenced should be expedited and the court orders that the proceeding be given priority and certified it for speedy trial in satisfaction of s 59(4) of the Act.  Presumably therefore otherwise s 59 of the Act applies even if an order is made under s 43 of the Act, although it is difficult to see how circumstances could arise when it would apply. 

26. [26]
    In circumstances where s 59(1) of the Act operates so as to permit the claimant to start a proceeding even though the period of limitation has ended, there would be no imminent expiration of the period of limitation to demonstrate the existence of an urgent need to start the proceeding, so as to justify an order under s 43 of the Act.  It may be however that the imminent expiration of the period specified in s 59(2) of the Act will demonstrate the existence of an urgent need to start the proceeding so as to permit an order under s 43 despite non-compliance with the balance of Part 1.  This need not be considered further, as it was not suggested by any party that that was the situation here.

27. [27]
    There is a difficulty with the terms of s 59(2) of the Act. Section 57(1) of the MAIA applies if one of two things has been done before the end of the period of limitation applying to the claim: notice of the claim is given under Division 3, or an application for leave to bring a proceeding based on a motor vehicle accident claim is made under Division 3.  Section 57(2)(a) of the MAIA deals with each of the situations separately, by providing a six month extension from when the notice of claim was given in the first case, or from when leave to bring the proceeding was granted in the second case. 

28. [28]
    In the case of s 59(1) of the Act however, there is no reference to the second situation, and the subsection applies only if a complying Part 1 notice of claim is given before the end of the period of limitation applying to the claim.  Nevertheless, s 59(2)(a) of the Act, in essence, followed the wording of s 57(2)(a). This has given rise to the anomalous situation that the six month period in subsection (2)(a) can run potentially from two different events, one of which is irrelevant to s 59(1). Possibly the explanation is that s 59(2) was copied from s 57(2) but without considering the difference between s 59(1) and s 57(1). In any case courts cannot disregard the terms of s 59(2) as enacted.  Effect must be given to the words, even if that effect appears to be a little odd. 

29. [29]
    The one thing that is clear about s 43 of the Act is that it does not itself affect the operation of the limitation period.^[12]  It is also clear that the existence of an urgent need can arise even though the limitation period has already expired, if a situation arises where there is a potential application for extension of the period of limitation under Part 3 of the LAA, and, if that application is made and is successful, because of the particular factual situation confronting the claimant, an extension will be given (or may be given) only to a date which itself is close enough to generate an urgent need to start the proceeding in order to prevent such an extension from becoming futile.^[13]

30. [30]
    In the circumstances that arose here, the proceeding has in fact been commenced, in at least purported reliance on an order which has been made under s 43 of the Act, and the first question which arises is whether the limitation period had expired.  So far as the LAA is concerned, it clearly has.  Under Part 3 of the LAA, the limitation period was extended to 16 February 2012, and the proceeding was commenced after that date.  The plaintiff cannot rely on s 43 of the Act to extend the limitation period, because it does not have that effect.  The only question then is whether s 59 of the Act has that effect.  It can only have that effect if the present situation falls within s 59(1) of the Act.  That depends on whether a complying Part 1 notice of claim was given before the end of the period of limitation applying to the claim.  No such notice of claim was given prior to the expiration of the period of limitation fixed by s 11 of the LAA.  Indeed, even a Part 1 notice of claim which did not comply was not given within that period.  Subsection s 59(4) of the Act however permits the section to apply if the period of limitation is extended under Part 3 of the LAA, and that occurred, so the section applies to the period of limitation as extended under that Part.  Accordingly the question becomes whether a complying Part 1 notice of claim was given before the end of the extended period of limitation, that is to say, before 16 February 2012. 

31. [31]
    Again that question has only one answer: no. The Part 1 notice of claim was not given until 25 June 2012. Indeed it was only on 15 March 2012 that an attempt was first made to give the notice.  I accept that a notice which is initially not a complying Part 1 notice of claim may become complying subsequently, either as a result of the notice being deemed to be compliant under s 13 of the Act^[14], or as a result of the respondent’s giving a notice under s 20(2) of the Act, though in the latter case it only becomes compliant on the giving of that notice.^[15]  It may well be also that a court order under s 18(1)(c)(i) of the Act declaring that the claimant has remedied non-compliance made after the expiration of the extended period of limitation in respect of a notice given before the expiration of that period of limitation is effective to satisfy s 59(1) of the Act, at least if the effect of the order of the court is to declare that the non-compliance was remedied before such expiration.  In the present case however, none of those things have occurred or could occur.  The position is simply that there was no Part 1 notice of claim, complying or otherwise, given before the end of the extended period of limitation.  Accordingly s 59(1) of the Act has not been satisfied and the plaintiff was not authorised to start a proceeding although the period of limitation had ended.

32. [32]
    The argument on behalf of the solicitors, seeking to show that the plaintiff’s claim against the first defendant is not barred by the LAA, depends on the proposition that in some way s 59(2) of the Act can operate independently of s 59(1) of the Act.  It is clear however from the terms of the section that it does not do so.  Section 59(1) of the Act on its face overrides the LAA, but s 59(2) of the Act provides a substitute limit, in effect a substitute period of limitation, either by reference to the formula in paragraph s 59(2)(a) of the Act or the longer period allowed by the court under s 59(2)(b).  The fact that the subsection commences with the word “however”, that it refers to “the proceeding” rather than “a proceeding”, and that it includes the word “only” makes it clear that this section operates only as a limitation on the operation of s 59(1) of the Act.  The effect of the two subsections read together is correctly summarised in the heading of the section, that the period of limitation is altered rather than being abandoned.  But it will not be of assistance to a plaintiff to show that a proceeding was commenced within a period identified in s 59(2), or a period which may be allowed by the court under s 59(2)(b) of the Act, if the case does not also come within s 59(1) of the Act.

Submissions for the solicitors

33. [33]
    The argument for the solicitors focussed on the fact that the proceeding was commenced within six months of the grant under s 43 of the Act of leave to commence a proceeding, on 26 September 2011, and hence fell within the terms of s 59(2)(a) of the Act.  That gives rise to the question of whether an order under s 43 of the Act can be a grant of leave to start the proceeding for the purposes of s 59(2)(a) of the Act, and whether s 59(2)(a) of the Act permits the proceeding to be started after the end of the period of limitation in a case which does not fall within s 59(1) of the Act.  As to the first point, however the wording of s 59(2)(a) came about, the latter part, which was described in submissions as the second limb of paragraph (a) cannot be disregarded. The legislature has included it and it takes effect according to its terms.  On the face of it, an order under s 43 of the Act is one giving leave to start a proceeding, and therefore it meets the description in that second limb of s 59(2)(a). 

34. [34]
    It is odd if an order under s 43 of the Act has that result, because it produces the result referred to earlier: in a case where s 43(2) of the Act applies, once an order is made granting leave to start a proceeding on the ground that there is an urgent need to do so, the urgency goes away, or at least is postponed for six months.  This allowance for claimants does not apply in a case within s 43(4) of the Act, possibly because in such a situation the claimants (and their lawyers) are actually expected to get moving, and should not be taking six months to get around to filing the claim.  Nevertheless, it does seem an odd situation if the practical effect of this interpretation is that a dilatory claimant who has the benefit of s 59(2) of the Act can get something like two consecutive extensions of six months, one by giving a complying notice of claim before the end of the limitation period, and then, when that six month period is about to expire, by obtaining under s 43 of the Act leave to commence a proceeding on the ground that that has now become urgent, whereupon there will be a second six month extension.  This seems odd but not so odd as to justify reading the section differently.

35. [35]
    The real difficulty however is that it is a large step to treat the second limb of s 59(2)(a) of the Act as applying for example only to an order under s 18(1)(c)(ii), or under s 20(2)(b) (second limb) or perhaps an order under s 36(5) (concluding words) or under s 42(1)(b)(ii) or (2)(b)(ii) or (3) or (4)(b) of the Act.  I am not aware of any authority to the effect that an order under s 43 of the Act is not to be characterised as a grant of leave to start a proceeding for the purpose of a s 59(2)(a); none was referred to by counsel for the plaintiff.  In the circumstances it seems to me that there is no sufficient reason to justify reading down those words so as to exclude a grant of leave under s 43 of the Act, and accordingly I would interpret them as including such a grant, except in the case covered by s 43(5)(b) of the Act.

36. [36]
    That brings me to the second part of the submission on behalf of the solicitors, whether s 59(2)(a) of the Act operates independently of s 59(1) of the Act.  No authority was cited in support of this proposition by counsel for the solicitors; indeed there were a number of statements quoted in his outline of submissions which are clearly to the contrary.  In Haley v Roma Town Council [2005] 1 Qd R 478 McMurdo P said at [28]:

“The ordinary meaning of the words of s 59(2)(a) is that claimants within s 59(1) of the Act… may bring proceedings in court as a right within six months of the notice being given or leave being granted.”^[16]

The crucial words here are “within s 59(1) of the Act”; there is no suggestion from her Honour that a claimant not within that subsection had a right to bring a proceeding within six months of leave being granted. 

37. [37]
    Significantly her Honour went on to say at [31]:

“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.”

Yet if the argument for the solicitors is correct, the effect of an order under s 43 of the Act is to allow a claimant to start a proceeding after the end of the limitation period provided it is started within six months of leave to start the proceeding being granted.  It is no doubt fair to say that the arguments of the solicitors would not have been specifically considered by her Honour, and her Honour was not in this passage consciously deciding to reject them, but this is an authoritative exposition of the operation of the Act in a way which is inconsistent with the submissions made on behalf of the solicitors.  Something to the same effect was said by Jerrard JA in GU v TO [2005] QCA 480 at [58]:

“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 Limitations of Actions Act 1974 ….”

38. [38]
    His Honour also said at [59] that “an order under s 43 does not extend the limitation period”.  McGill DCJ applied that approach in Van de Velde v State of Queensland [2010] QDC 19, holding 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 that when the limitation period would expire … .”^[17]

39. [39]
    In Kash v SM & TJ Cedergren Builders [2004] 1 Qd R at 643 McMurdo J at [15] said:

“The evident intent of s 59 is to permit, in some cases, an extension of the period of limitation because the defendant has had the benefit of a complying notice of claim within the limitation period.  It would appear from s 59(2) that the court in an appropriate case could extend the period of the limitation to a date more than six months after the complying notice was given.” [emphasis added]

40. [40]
    The interpretation contended for by the solicitors would not assist that purpose. In Dunn v Lawrence [2005] QSC 291 the application failed specifically on the ground that a complying Part 1 notice of claim had not been given before the end of the limitation period^[18], following Haley (supra) and Kash (supra).  In Tiver v Sunshine Coast Regional Council [2009] QDC 106 it was held that s 59(2) of the Act gives the court a general discretion to extend the necessary time for a claimant who is within s 59(1) of the Act, but not s 59(2)(a) of the Act, referring to Haley (supra).  This case was concerned specifically with s 59(2)(b) of the Act, but it could hardly be said that that part of subsection (2) is subject to subsection (1), but the other part is not. 

41. [41]
    Indeed, acceptance of the argument for the solicitors would involve drawing a distinction between the two limbs of s 59(2)(a) of the Act. The first limb speaks of a period of six months after “the complying Part 1 notice is given”, which is clearly a reference to the notice referred to in s 59(1) of the Act.  It could hardly be said that giving a complying Part 1 notice at any time produced the result that the proceeding could be started within six months after that notice was given; if that is what s 59(2)(a) of the Act means, the limitation in s 59(1) of the Act, that the Part 1 notice be given before the end of the limitation period, effectively disappears.  In circumstances where s 59(2)(b) of the Act, and the first limb of s 59(2)(a) of the Act, are both clearly applicable only where s 59(1) applies, it would be an odd interpretation of the subsection indeed to conclude that the second limb of paragraph (a) is independent of that limitation.

42. [42]
    It was submitted that the introductory word “however” relevantly meant “nevertheless, yet, or in spite of that”. What it means is that s 59(2) of the act operates as a proviso to s 59(1) of the Act. That is reinforced by the use of the definite article for “the proceeding”, and by the use of the word “only”. I consider there is no way that s 59(2) of the Act can sensibly be read other than as applying only in circumstances where s 59(1) applies.

43. [43]
    It was submitted that s 59(3) of the Act demonstrated that a proceeding could be commenced under s 59(2) of the Act without the claimant having complied with Part 1^[19], the giving of a complying Part 1 notice of claim was one of the requirements of Part 1, and therefore the existence of s 59(3) of the Act demonstrated that it must be possible to start a proceeding under s 59(2) of the Act without having given a Part 1 notice of claim.  There are difficulties however with that argument.  The first is that Part 1 (of chapter 2) of the Act contains a good deal more than the requirement to give a Part 1 notice of claim under s 9 of the Act; the Part includes everything from s 9 up to s 43 of the Act.^[20]  It is therefore quite possible to have given a complying Part 1 notice of claim but not to have complied with Part 1, that is, all of Part 1. 

44. [44]
    Failure to give a complying Part 1 notice of claim prima facie prevents a proceeding being commenced in a court, under s 18(1) of the Act, but it is not the only provision in Part 1 of Chapter 2 which has that effect. Section 36(1) of the Act also requires a conference of the parties before starting a proceeding in a court based on a claim, and s 42 of the Act then provides for a proceeding in a court to be started after the conclusion of a compulsory conference, or, if there is none, within certain other periods.  Section 43(1) of the Act, in permitting a court to give leave to start a proceeding notwithstanding non-compliance with this part (i.e. Part 1), can operate so long as non-compliance with any part of Part 1 of Chapter 2 prevents a claimant commencing a proceeding in a court.  The provision requiring the proceeding to be stayed in s 59(3) of the Act is consistent with the provision requiring the proceeding to be stayed in s 43(3) of the Act.

45. [45]
    Subsection (3) was not in s 59 of the Act when it was originally enacted. Section 59(3) of the Act was inserted by s 9 of the Personal Injuries Proceedings Amendment Act 2002 (Qld), at the same time as the amendments which made the Act retrospective, and inserted subsections (4) and (5) in s 43 of the act.  That this provision is consistent with the requirement that there must be a complying notice of claim within the limitation period before s 59(2) of the Act operates is shown by the reasoning in Hollingsworth v Beresford [2003] QDC 415.  In that case McGill DCJ said at p 3:

“The effect of subsection 59(3) is that, provided there is a complying notice of claim, a proceeding which falls within s 59(1) and (2) can be started within the time specified without having otherwise complied with Part 1, although the proceeding is stayed until the complainant complies with the balance of Part 1, or the proceeding otherwise ends.”

46. [46]
    In those circumstances I do not consider that the terms of s 59(3) of the Act provide any support for the argument for the solicitors.  Finally, I note that the leading text book in this area, A Jones, “Pre-Court Personal Injuries Procedure in Queensland” (2^nd ed 2010) at p 331 says:

“As is evident from the terms of s 59(1), the operation of s 59 is triggered by delivery of a complying notice of claim within the limitation period.”

The author went on to acknowledge that a notice which was originally non‑compliant may become compliant subsequently and that that will satisfy the requirements of the section.  What is said there is also inconsistent with the solicitors’ argument, which I reject.

Order of 29 January 2013

47. [47]
    There is one further matter I should address. On 29 January 2013 another judge made an order dispensing with the holding of a compulsory conference and further compliance with the pre-court procedures under Part 1 of chapter 2. There was also an order that the stay of proceedings imposed by the order of 26 September 2011 be lifted, and an order:

“That any proceedings by the applicant in this court for damages arising out of the events described in the Notice of Claim be commenced no later than the 19^th March 2012.”

48. [48]
    The basis of that part of the order is unclear. It might have been imposed as a condition of the orders dispensing with the compulsory conference and the exchange of mandatory final offers, though it is a curious condition to impose in circumstances where the condition had already been complied with. It is expressed not as a grant of leave to commence a proceeding, but as a limitation on the right to commence a proceeding, which assumes that such a right otherwise exists.^[21]  It could not be an exercise of power under s 43 of the Act, because that power had already been exercised and a condition had been imposed as to the time within which the proceeding was to be commenced, and there was no basis on which another judge could reopen the exercise of discretion as to the conditions to be imposed pursuant to s 43(2) of the Act on such grant of leave.

49. [49]
    Even apart from the fact that s 59(1) of the Act had not been satisfied, the order could not have been made under s 59(2) of the Act because the proceeding had already been commenced within six months after leave to start the proceeding had been granted, so there was no occasion to allow a longer period under s 59(2)(b) of the Act, and no power to fix a shorter period.  The six month period expired seven days after the date specified in the relevant paragraph of the order of 29 January 2013.  It is difficult to see any basis on which this part of his Honour’s order could have been validly made, or could have any effect.

50. [50]
    It is however unnecessary for me to decide anything about its validity, since the only relevant issue is whether it could in some way have the effect of extending the limitation period. It could not extend the limitation period under the provisions of the LAA because that power had already been exercised on 8 March 2012, and, assuming that consecutive applications for an extension under that Act can be made, the order did not purport to extend the limitation period.  It cannot be an order under s 59 of the Act which in some way purports to extend the limitation period, because s 59(1) of the Act had not been complied with, for the reasons I have just explained.  There is therefore no reason arising from the terms of this order not to decide the validity of the limitation defence as a preliminary question.

51. [51]
    It is therefore clear that the plaintiff’s claim against the first defendant is statute barred, and that that defendant has a good defence under the LAA.  That question can be conveniently determined as a preliminary question, and, determined in favour of the first defendant.  It leads to the conclusion that the proceeding as against him should now be dismissed under r 485 of the UCPR, as should the proceedings against the second defendant, since the only relief claimed against her is consequent on the liability of the first defendant.

Failure to comply with the condition of the order

52. [52]
    There is however a further reason why the proceeding should be dismissed, or perhaps struck out, in that as it stands it has been commenced in breach of s 18(1) of the Act.  This is the prohibition which the plaintiff sought to overcome by making an application under s 43 of the Act.  An order was made under that section but it was made subject to conditions.  The first of those conditions was complied with when the application under s 31 of the Act was filed on 31 October 2011, within six weeks of the order under s 43 of the Act.  The second condition however was not complied with.  The extension of time was granted on 8 March 2012, and the Part 1 notice of claim was not served within one month of that date.

53. [53]
    Where an order is made subject to conditions, the party with the benefit of the order can obtain, or continue to have, the benefit of the order only if the conditions are complied with.^[22]  Once the second condition was not complied with, the plaintiff lost the benefit of the order under s 43 of the Act, and hence permission to commence the proceeding, and it follows that the proceeding came to be one commenced in breach of s 18 of the Act.

54. [54]
    It was submitted for the solicitors that the court may, under the r 7 of the UCPR, extend the time fixed by that condition to the day on which the Part 1 notice of claim was in fact served on the first defendant.  In support of this application, the solicitors argued that the appropriate inference was that the first defendant was avoiding service of the notice of claim, and that but for this having occurred effective service would have occurred soon after 15 March 2012 when an attempt was made to send the Part 1 notice to the first defendant by registered post.^[23]  Indeed, it was suggested that if the notice had been sent to the first defendant by ordinary post the operation of the applicable statutory provisions would have effected service^[24], and it was only because of the use of registered post that the first defendant was able to avoid such service by refraining from collecting the registered letter.  In circumstances where it was the choice of the solicitors to attempt service by registered post this is scarcely a meritorious argument. It seems to me that where the argument is advanced only on behalf of the solicitors who failed to comply with the relevant provisions of the legislation, and in circumstances where they are now being sued for negligence, it would not be appropriate for the court to exercise such a power. Neither of the parties to the proceeding in which the order under s 43 of the Act was made is seeking such an order. 

55. [55]
    I accept for present purposes that an order may be made under r 7 of the UCPR at the instance of someone affected in a practical sense by the order even if not a party to the proceeding in which the order was made, so that the application does not fail because of want of standing, but I do not consider that it is a good reason to make such an order that by doing so I would assist the former solicitors for the plaintiff to escape from any liability that they may have for their failure properly to conduct the proceeding on behalf of the plaintiff.  I would be even more reluctant to make such an order if it had the effect of depriving the first defendant of a defence under the LAA which he otherwise has, but in circumstances where I consider that he has a good defence anyway this consideration does not really arise.  If however I were wrong about that, and the effect of an extension of time r 7 of the UCPR would be to deprive the first defendant of the limitation defence, I would certainly not exercise that power in that way against his interest.  The position is the same if the matter is approached under r 905(2) of the UCPR.^[25]

Conclusion

56. [56]
    In the circumstances therefore on the plaintiff’s application I order that the question of whether the plaintiff’s claim against the first defendant is barred by the LAA be determined separately from the other questions arising in the action and in advance of the trial, and therefore now determine, and decide that it is so barred.  Accordingly the plaintiff’s claim against the first and second defendants is dismissed.  The first and second defendants’ application in substance sought the same order, though a different path.  It is unnecessary given the fact that the plaintiff had already applied for the determination of that question on a more appropriate basis, but in view of the order made on the plaintiff’s application it is not necessary to do anything with the first and second defendant’s application except to dismiss it.  The plaintiff should pay the first and second defendants’ costs of the action, not including the costs of the first and second defendants’ application.  The application by the third and fourth defendants is dismissed.  I order the third and fourth defendants to pay the plaintiff’s costs of that application.