Yarwood v State of Queensland
[2017] QDC 305
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- Unreported Judgment
- Yarwood v State of Queensland[2017] QDC 305
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Yarwood v State of Queensland[2017] QDC 305
Yarwood v State of Queensland[2017] QDC 305
DISTRICT COURT OF QUEENSLAND
CITATION: | Yarwood v State of Queensland [2017] QDC 305 |
PARTIES: | MICHAEL DERMOTT YARWOOD (Applicant) v STATE OF QUEENSLAND (Respondent) |
FILE NO/S: | 2086/15 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 15 December 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 17 July 2017 and 21 November 2017 |
JUDGE: | Devereaux SC DCJ |
ORDER: |
|
CATCHWORDS: | TORTS – STATUTES, REGULATIONS, ETC – APPLICABILITY AND EFFECT IN ACTIONS FOR NEGLIGENCE – where the plaintiff seeks a declaration concerning the Part 1 notice of claim or alternatively, leave pursuant to section 59(2)(a) Personal Injuries Proceedings Act 2002 (Qld) to start a proceeding against the defendant – where the defendant seeks the proceedings be dismissed pursuant to s 22 of the Civil Proceedings Act 2011 – where the plaintiff alleges injuries suffered by him during his time in jail due to the negligence of the State of Queensland – where a complying Form 1 notice of claim was served on the defendant – where the Statement of Claim pleads acts and omissions not in the Part 1 notice of claim – where the defendant pleads that the plaintiff has failed to comply with the Personal Injuries Proceedings Act 2002 (Qld) pre-court procedures and that the claim is statute barred under s 11 of the Limitations of Actions Act 1974 – where there are periods of delay – whether a declaration can be made – whether there is a complying notice of claim to support a grant of leave under s 59(2)(a) Personal Injuries Proceedings Act 2002 (Qld) – whether the proceeding should be dismissed Civil Proceedings Act 2011 s 10, s 22 District Court of Queensland Act 1967 (Qld) s 68, s 69 Limitation of Actions Act 1974 (Qld) s 11, s 31 Personal Injuries Proceedings Act 2002 (Qld) s 4, s 9, s 18, s 42, s 43, s 59 Personal Injuries Proceedings Regulation 2014 (Qld) s 9, Part 2 Uniform Civil Procedure Rules (Qld) r 389 Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2013] 2 Qd R 202 Baioumy v Wendt [2017] QDC 55 Cousins v Mt Isa Mines Ltd (2006) QCA 261 Haley & Anor v Roma Town Council; McDonald v Romijay P/L & Ors [2005] QCA 003 Holmes v Adnought Sheet Metal Fabrications Pty Ltd [2004] 1 Qd R 378 Horinack v Suncorp Metway Insurance Ltd [2001] 2 Qd R 266 Paterson v Leigh & Anor [2008] QSC 277 Patterson v Baptist Union of Qld & Anor [2004] QCA 146 Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178 Ure v Robertson [2017] QCA 020 |
COUNSEL: | Mr M. X. Kehoe for the Applicant Mr P. D. Rashleigh for the Respondent |
SOLICITORS: | DJ Hinton Lawyers for the Appellant Crown Law for the Respondent |
- [1]Both sides of this proceeding have brought applications. The plaintiff Mr Yarwood’s application is designed to allow for the proceeding to continue. The defendant State of Queensland’s application is designed to end it.
- [2]The plaintiff’s application is for:
- A declaration that the Part 1 Notice of Claim issued by the Plaintiff to the Defendant pursuant to section 9 of the Personal Injuries Proceedings Act 2002 on 13 June 2013 relates to a claim by the Plaintiff for damages for personal injuries suffered over a period of time from 9 March 2011 to 13 December 2011.
- Alternatively that the Plaintiff have leave pursuant to section 59(2)(a) PIPA to start a proceeding against the Defendant in respect of personal injuries suffered by the Plaintiff over a period of time from 9 March 2011 to 13 December 2011, and that such proceedings be stayed until the parties have complied with Part 1 of Chapter 2 PIPA.
- [3]The defendant applies for an order that the proceeding be dismissed pursuant to s 22 of the Civil Proceedings Act 2011.
- [4]For the reasons which follow,
I am not satisfied it is open to make the declaration sought;
In any case, the declaration sought or such declaration as may be made would not retrospectively make the notice of claim a complying notice of claim in support of the claim as pleaded. There is, therefore, a threshold problem with the plaintiff’s second application;
I would not exercise the discretion to grant leave under s. 59 of the Personal Injuries Proceedings Act;
The plaintiff’s applications are dismissed and the defendant’s application allowed.
- [5]It is necessary to set out the nature and chronology of the proceeding before processing the applications.
- [6]The plaintiff was born on 2 February 1972. He was admitted as a solicitor in 1996. On 4 March 2011, he was sentenced to 4½ years’ imprisonment for “fraud related offences”. On 9 March 2011, the plaintiff was received into the Brisbane Correctional Centre at Wacol. On appeal, the sentence was reduced with a release date of 13 December 2011.
- [7]The plaintiff says he suffered injuries while in jail due to the negligence of the State of Queensland.
- [8]The plaintiff served a Form 1 notice of claim on the Crown Solicitor on 2 February 2012, within three months of his release from prison.
- [9]On 13 February 2012, the Crown Solicitor gave notice it considered the State of Queensland a proper respondent and raised non-compliance issues with respect to the Notice.
- [10]There was no progress in the claim between then and May 2013, when the plaintiff contacted Crown Law. Following a series of correspondence, on 18 June 2013, the Crown Solicitor advised the Notice was compliant. There followed regular correspondence and on 16 December 2013, the Crown solicitor wrote to the plaintiff denying liability, rejecting his offer of settlement and offering “$Nil”. The parties took part in a compulsory conference on 6 February 2014 and exchanged mandatory offers.
- [11]The claim was filed on 3 June 2014. A Defence was filed on 9 July 2014 and a Reply on 6 August 2014. The plaintiff served a list of documents on 6 August 2014.
The pleaded cases
- [12]The Statement of Claim includes the following alleged acts and omissions of the defendant:
The defendant conducted a mental health assessment of the plaintiff and so was informed of disorders the plaintiff suffered. On 28 March 2011, the defendant interviewed the plaintiff who told the interviewer the plaintiff’s family was at the Gold Coast. On 30 March 2011, the defendant told the plaintiff he was classified as a low security prisoner. Despite this and despite the plaintiff telling the defendant, in writing on 31 March 2011, of threats he perceived, the defendant placed the plaintiff at the maximum security Woodford Correctional Centre on 4 April 2011. The plaintiff was placed in Residential Block 9A with violent prisoners. He felt threatened and intimidated because of conduct of other prisoners particularised in the pleading. On 11 April, 2011, the plaintiff told Sentence Management staff he was suffering severe depression caused by the stress of his situation.
On 23 April 2011, the plaintiff was told, apparently by guards, that there was an imminent threat to his well-being because he was seen as too friendly with the guards.
On 11 May 2011, the plaintiff was assaulted by one of the prisoners in residential block 9A. The particulars of the assault include that the plaintiff was punched to the ground, his spectacles damaged, his jaw dislocated and his bottom lip split. He was then placed in solitary confinement for two weeks. His attacker (H) and another prisoner (T) were also placed in solitary confinement and would yell threats against the plaintiff and his family.
Prison officers encouraged the plaintiff to make a complaint against the two prisoners.
The defendant transferred the plaintiff to the Numinbah Correctional Centre on 25 May 2011. In transit, the plaintiff was in a holding cell at the Brisbane Correctional Centre with a known associate of T who threatened the plaintiff - to the effect that, but for the security cameras, he had orders from T to kill the plaintiff. The prisoner also told the plaintiff he was marked. The plaintiff did not tell prison officers of this experience for fear of being subjected to “increased threat of physical harm”.[1]
The plaintiff arrived at Numinbah on 26 May 2011. There, he was subjected to continued threats, harassment and intimidation by other prisoners which is particularised in the pleading.
On 6 July 2011, the plaintiff was told by another prisoner of an apparently credible threat to his life. He sought protection from prison officers. He was told to seek a protection order, did so and was transferred to Wolston Correctional Centre on 7 July 2011.
At Wolston, the plaintiff’s health deteriorated – he lost weight and was extremely anxious and depressed. He pleads no particular incidents or acts of the defendant but alleges he received “no meaningful, competent or adequate mental health care”. He was released on 13 December 2011, when his sentence appeal was allowed.
The plaintiff claims to have suffered debilitating psychiatric conditions as a consequence of his experiences in custody. It is pleaded that the defendant breached a duty to adopt measures to reduce the risk of harm.
- [13]It is not necessary to set out, in detail, the defence. Relevantly, the defendant pleaded that several allegations in the statement of claim were not raised in the pre-court procedures under the Personal Injuries Proceedings Act. These included the allegations of threats and intimidation within block 9A; the alleged warning by guards; the plaintiff’s claimed experiences while in solitary confinement and the plaintiff’s claimed experience in the holding cell at Brisbane Correctional Centre on 25 May 2011.
- [14]The defendant admits the plaintiff wrote on 31 March 2011 raising concerns he would be harmed but denies the plaintiff indicated he would be at risk at Woodford and pleads that the plaintiff was housed in a low security residential facility at Woodford.
- [15]The defendant denies the claim that the plaintiff received no proper care after his transfer to Wolston and pleads the plaintiff was subject to regular psychiatric reviews and treatment which included medication and therapy.
- [16]Ultimately, the defendant pleads:
- that except for the alleged assault on 11 May 2011, the plaintiff has failed to comply with the pre-court procedures under the Personal Injuries Proceedings Act;
- that the part of the claim “which relates to issues other than the alleged assault on 11 May 2011 is liable to be struck out” and
- that any cause of action that arises more than three years before 3 June 2014 is statute barred under s 11 of the Limitation of Actions Act 1974.
The Notice of Claim
- [17]Section B of the Form, headed The Incident, details an incident at about 8 am on 11 May 2011 at the Woodford Correctional Centre in the unit described as Residential – Q9A. Item 9, which asks for a brief description of the incident, was answered in an annexure. Item 14 named a prisoner as a witness and another prisoner as the person who caused the incident. Item 20 in section C, which asks what injuries were sustained, was blank but under item 21 the plaintiff disclosed that he was taken to the Caboolture Hospital on 11 May 2011.
- [18]In the Part 1 Section B annexure, the plaintiff included a diagram of the compound and considerable detail of the 11 May 2011 incident, including that he was placed in solitary confinement upon his return from hospital. The annexure also contains the assertions that the plaintiff:
- on 13 May 2011, made a statement of complaint against the offending prisoner on the recommendation and encouragement of prison intelligence officers.
- was moved to Brisbane Correctional Centre on 25 May 2011 and Numinbah Correctional Centre on 26 May 2011;
- was moved into protective custody on 6 July 2011;
- was transferred to Wolston Correctional Centre on 7 July 2011 and housed in maximum security.
- [19]The plaintiff answered Item 11, “What was the injured person’s part in the incident?” in the annexure referring only to the incident of 11 May 2011.
- [20]The plaintiff answered Item 18, “Detail the reason why the injured person believes that the person caused the incident” in the annexure. He referred to the Corrective Services Act 2006; material the plaintiff said should have put the defendant on notice at the time of his reception that he suffered a mental illness; a letter he wrote on 30 March 2011 putting the defendant on notice of his fears should he be transferred to Woodford and duties he says the defendant breached.
- [21]As the defendant has pleaded, the plaintiff did not mention in the notice of claim the warning by prison guards pleaded in the statement of claim. He does, however, assert that he was given a specific warning by guards on 7 May 2011 and claims generally that the Chief Executive knew or ought to have known of threats to his safety.
- [22]The defendant correctly argues that the plaintiff particularises no act or omission of the defendant after 7 July 2011. He does, however, claim to have suffered, “since the assault and provision to prison authorities of a statement” continued bullying, harassment, threats and assaults.[2]
- [23]In Section C of the annexure, the plaintiff listed the following injuries:
- dislocated jaw;
- Split lip and gum;
- Severe distress and anxiety – distress at the time of the assault and stress and anxiety from the continued threat of violence “in retribution and/or retaliation”
- Post-traumatic stress disorder – from the assault and “elevated whilst accommodated in the prison system”;
- Nervous shock – from the incident and “at all times the claimant has a heightened sufferance to mental health issues”;
- Heightened acrophobia;
- Increased burden on mental health “sufferance” – these included depressive episodes and nightmares;
- Extreme paranoia – while in the prison system;
- Insomnia;
- Loss of enjoyment of life.
- [24]The relevant omissions from the notice of claim were the threat made in the Brisbane holding cell (25 May 2011), the threats made in solitary confinement (which immediately followed the attack of 11 May 2011) and, perhaps, particulars of the failure to provide care at Wolston.
The plaintiff’s application for a declaration
- [25]I was not referred to any legislation or rule which grants power to the District Court to make the declaration sought. When I inquired, counsel for the plaintiff submitted without opposition that there was inherent power and referred to Haley & Anor v Roma Town Council; McDonald v Romijay P/L & Ors [2005] QCA 3. The decision is not authority for the exercise of inherent power by the District Court or any court. The issue in that case was whether a court had power under s 59 of the Personal Injuries Proceedings Act to grant leave to start a proceeding even though the limitation period had expired.
- [26]I was referred to no other authority or provision which empowered the court to make the declaration sought. Particularly, I was not referred to s. 18 of the Personal Injuries Proceedings Act and, I was told at the re-opening of the hearing, the plaintiff expressly does not rely on it. I will, nonetheless, return to that provision below.
- [27]The plaintiff finds himself seeking the declaration because the defendant has pleaded that the allegedly offending part of the statement of claim “is liable to be struck out” but the defendant has not brought that application.
- [28]Section 9 of the Personal Injuries Proceedings Act requires a claimant to give notice of the claim. What that requires is elucidated by s. 9(2) and Part 2 of the Personal Injuries Proceedings Regulation 2014 (‘the Regulation’). Relevantly, s. 3(3) of the Regulation sets out the list of required particulars about the incident alleged to have caused the personal injury to which the claim relates. It follows that when a claim is for damages for injuries caused by an accumulation of events or circumstances, the claimant is required to give particulars of each.
- [29]The circumstances the plaintiff allegedly found himself in while in solitary confinement on 11 May 2011 and in the Brisbane holding cell on 25 May 2011 – which I have noted are not set out in the notice of claim – might have been the result of the defendant’s negligence and contributed to the plaintiff’s ultimate psychiatric injury. It is difficult, almost impossible, to assess the prospects of a claim based in part on those alleged circumstances. The defendant has not claimed particular prejudice because of the absence of the detail in the notice of claim, namely, who was also in the cell or unit at the time and what they said to the plaintiff. But counsel for the defendant, in the written outline, submits, with respect to the May 2011 incident, that “while the defendant cannot point to any particular prejudice there is the issue of the effluxion of time and the waning of memory.”
- [30]It is not apparent that the omission, if indeed there is an omission, to give notice of a claim that the plaintiff did not receive any proper care while housed at Wolston, causes any particular prejudice. The defendant has been able to plead to that allegation with particulars obviously based on records that one may expect are available for trial.
- [31]The essence of the pleaded claim is that the plaintiff suffered physical and psychiatric injuries as a result of the defendant’s negligence. That is also plain from the Section C Annexure to the notice of claim.
- [32]It seems to me that a proper analysis of the situation the plaintiff finds himself in is that he served a complying notice of claim; the statement of claim refers to more allegedly causative incidents than the notice of claim; the defendant has pleaded that, to the extent of the difference, the claim is liable to be struck out but has not so applied. Pending a defendant’s application to strike out parts of the statement of claim which might refer to incidents not set out in the notice of claim, there is arguably no impediment to the proceeding.
- [33]To the extent that the pleaded claim includes and relies on incidents not set out in the notice of claim, the notice may be said not to comply with s. 9 of the Personal Injuries Proceedings Act and the Regulation. On this analysis, s. 18 of the Act would be engaged. Section 18 relevantly provides:
- (1)A claimant’s failure to give a complying part 1 notice of claim prevents the claimant from proceeding further with the claim unless—
- (a)…
- (b)…
- (c)the court, on application by the claimant—
- (i)declares that the claimant has remedied the noncompliance; or
- (ii)authorises the claimant to proceed further with the claim despite the noncompliance.
(2) …
- [34]I re-opened the hearing of the applications to canvass, among other things, whether the power to make a declaration under s. 18(1)(c)(i) was the source of the parties’ confident assertion that the court had power to make the declaration sought in the application. But s. 18(1)(c)(i) is not engaged because I am not asked to declare that the plaintiff has remedied a noncompliance. The relevant power would be to authorise the claim to proceed despite the noncompliance under s. 18(1)(c)(ii).
- [35]In Cousins v Mt Isa Mines Ltd (2006) QCA 261 at [34], Jones J said exercise of the discretion conferred by s 18(1)(c)(ii) –
“.. requires a consideration of factors of varying relevance and insight but with a consciousness that not to allow the application will deny a claimant access to the court to litigate his or her cause of action in a court. In my view, such access would be denied only in circumstances of severest prejudice.”
- [36]In the same case, McMurdo P, at [3-8], referred to the main purpose of the Personal Injuries Proceedings Act in s 4 and, like Jones J, noted that the refusal of an application under s 18(1)(c)(ii) would deny a claimant the opportunity to litigate the claim. The learned President also said an applicant should demonstrate a good reason for the non-compliance, the issue in that case being delay; and that a court would be unlikely to authorise the continued proceeding of a claim that had negligible prospects, although that issue could rarely be determined at such an early stage.[3]
- [37]In the present case, the plaintiff gave notice of a claim by way of a complying notice of claim but the notice did not include all of the assertions in the statement of claim. There is likely to be some degree of prejudice to the defendant in having to deal with the allegations of threats made in the solitary confinement unit and the Brisbane holding cell as ‘new’ allegations made after the compulsory conference but these allegations were brought to the defendant’s attention, at the latest, when the statement of claim was served in June 2014. And, as I have said, the nature of the claim, as being for damages for primarily psychiatric injury arising out of the plaintiff’s experiences in the defendant’s custody with a focus on a physical assault of 11 May 2011, has been clear since the service of the notice of claim on 2 February 2012.
- [38]For these reasons, an application for an order under s 18(1)(c)(ii) made in early 2014 before the filing of the claim would have been promising.
- [39]Can authority to proceed be granted when the proceeding has been commenced? In Holmes v Adnought Sheet Metal Fabrications Pty Ltd [2004]1 Qd R 378, Dutney J said:
“Section 18 seems to me to operate only in futuro. It does not address steps taken prior to its being called in aid. The court may only excuse nunc pro tunc a failure to satisfy a procedural requirement.”[4]
- [40]That proceeding was commenced within the limitation period but without satisfying the required pre-suit steps. The claimant had not sought leave under s. 18 or s. 43 of the Personal Injuries Proceedings Act. Justice Dutney considered the proceeding to be void, leaving the court deprived of jurisdiction.[5]
- [41]Later decisions suggest a proceeding commenced without first completing the pre-court requirements is not a nullity and is susceptible to procedural remedies such as that provided in s. 18(1)(c). It is sufficient to refer to the survey of relevant authorities in the reasons of Morzone QC DCJ in Baioumy v Wendt [2017] QDC 55.
- [42]The plaintiff’s problem is not so much that the claim has already been commenced but that it was commenced out of time, at least insofar as the plaintiff relies on incidents before June 2011. Section 18(1)(c) cannot allow a claimant to avoid the limitation period.[6] To extend the limitation period, the plaintiff must apply under s. 59 of the Personal Injuries Proceedings Act. The pre-condition for the exercise of discretion under that provision is that a complying Part 1 notice of claim be given before the end of the limitation period. An order authorizing the continuation of a proceeding under s. 18(1)(c)(ii) does not remedy non-compliance, even at the time of the order. It is authority to proceed despite non-compliance.
- [43]In the result it is not open to make an order under s. 18(1)(c) of the Personal Injuries Proceedings Act and there is no other basis for making the declaration sought in the first application.
- [44]What might be open is simply to declare what I have already said, that there being no defendant’s application to strike out parts of the statement of claim which might refer to incidents not set out in the notice of claim, there is no impediment to the proceeding on that basis. Subject to the claim being otherwise competent, such declaration may be made, in my opinion, because there is a proceeding before the court which is within jurisdiction[7], and the declaration affects the rights of the parties[8], namely whether the proceeding may continue.
- [45]Because of the conclusion I reach on the remaining applications it is not necessary to decide whether such a declaration should be made.
The other applications
- [46]Upon clarification by counsel for the plaintiff at the re-opened hearing, I now understand the order sought in his s. 59 application is to validate the proceeding started in June 2013, not to start a new claim based on the second notice of claim. That is, the s. 59 application is not made in the alternative but in addition to the first application.
- [47]The plaintiff filed no written outline in support of the application brought under the Limitation of Actions Act and counsel expressly abandoned it.[9]
- [48]The defendant’s application is brought under s. 22 of the Civil Proceedings Act. And, although there is no application by the plaintiff under Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) r 389, both parties made submissions based on that rule.
- [49]Section 59 of the Personal Injuries Proceedings Act - Alteration of period of limitation - relevantly provides:
- (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.
- [50]Justice McMeekin, in Paterson v Leigh & Anor [2008] QSC 277 at [8], compiled a well-used list of factors relevant factors (in that case under s. 57 of the Motor Accident Insurance Act 1994):
- (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;
- (h)Depriving a defendant of the complete defence afforded by the statutory time bar is an important matter;
- (i)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;
- (j)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.
- [51]Section 22 of the Civil Proceedings Act 2011 - Dismissal of proceedings for want of prosecution - provides:
- (1)This section applies to the District Court and Magistrates Courts.
Note—
The Supreme Court has inherent power to dismiss proceedings for want of prosecution.
- (2)If 2 years have passed since the last step was taken in a proceeding, the court may dismiss the proceeding.
- [52]UCPR r 389 provides:
Continuation of proceeding after delay
- (1)If no step has been taken in a proceeding for 1 year from the time the last step was taken, a party who wants to proceed must, before taking any step in the proceeding, give a month’s notice to every other party of the party’s intention to proceed.
- (2)If no step has been taken in a proceeding for 2 years from the time the last step was taken, a new step may not be taken without the order of the court, which may be made either with or without notice.
- (3)For this rule, an application in which no order has been made is not taken to be a step.
- [53]With respect to an application under r 389, Atkinson J set out some relevant factors in Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178 at [2]:
- (1)how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;
- (2)how long ago the litigation was commenced or causes of action were added;
- (3)what prospects the plaintiff has of success in the action;
- (4)whether or not there has been disobedience of Court orders or directions;
- (5)whether or not the litigation has been characterised by periods of delay;
- (6)whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;
- (7)whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff’s impecuniosity;
- (8)whether the litigation between the parties would be concluded by the striking out of the plaintiff’s claim;
- (9)how far the litigation has progressed;
- (10)whether or not the delay has been caused by the plaintiff’s lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers;
- (11)whether there is a satisfactory explanation for the delay; and
- (12)whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.
Two significant periods of delay occurred up to the filing of the statement of claim
- [54]As I have already recorded, on 13 February 2012, the Crown Solicitor gave notice it considered the State of Queensland a proper respondent and raised non-compliance issues with respect to the Notice.
- [55]There was no progress in the claim between then and May 2013, when the plaintiff contacted Crown Law. According to a letter from the Crown Solicitor to the plaintiff dated 7 November 2013, Crown Law wrote to the plaintiff at the address provided by the plaintiff on 21 February 2012 but the letter was returned on 21 March 2012. In the meantime, on 8 March 2012, Crown Law sent the 13 February letter to the plaintiff at an address provided. Crown Law wrote again on 8 April 2012 inquiring as to the plaintiff’s intentions. On 20 April 2012, Crown Law received confirmation that the plaintiff had received the letter dated 8 March 2012. Crown Law did not hear from the plaintiff until 10 May 2013.
- [56]The plaintiff’s material does not address his inaction during this period.
- [57]Following a series of correspondence, on 18 June 2013, the Crown Solicitor advised the Notice was compliant. There followed regular correspondence and on 16 December 2013, the Crown solicitor wrote to the plaintiff denying liability, rejecting his offer of settlement and offering “$Nil”. The parties took part in a compulsory conference on 6 February 2014 and exchanged mandatory offers.
- [58]
- [59]Generally, the plaintiff claims to have been under a disability because of his psychiatric and psychological symptoms. His material includes the report of Dr Barling, Forensic and Clinical Psychologist, dated 28 January 2014, in which the psychologist records the plaintiff’s diagnosis of major depression and post-traumatic stress disorder. Otherwise, the plaintiff’s material provides no explanation for the delay between the conference and the commencement of the proceeding. The claimed disability is not a persuasive explanation, given the correspondence and steps taken during 2013 and 2014.
Delay to making of the application under s. 59 – when was the last effectual step?
- [60]The plaintiff engaged Mr Hinton, solicitor, in August 2014.
- [61]On 7 August 2014, the Crown Solicitor wrote to the plaintiff telling him he would need to supply a notice of claim for each incident.
- [62]On 15 August 2014 the Crown Solicitor wrote, among other things, that while the State was of the view that any claim based on the assault of 11 May 2011 was statute barred, it was agreeable to the proceedings being stayed to allow the plaintiff to comply with the Personal Injuries Proceedings Act for the other incidents that are still within the limitation period. The letter continued:
“Once you have provided the notice of claim for each incident, my client will investigate each claim and proceed through the PIPA process. Once the PIPA process is completed you can recommence your proceedings with respect to claims within Limitation of Actions Act.”
- [63]Mr Hinton wrote to the Crown Solicitor on 18 August 2014 to inform of his involvement. After considering the plaintiff’s materials and advising him Mr Hinton sent a new notice of claim to the Crown Solicitor on 27 October 2014. The Crown Solicitor advised on 10 November 2014 that it was the proper respondent to the notice but raised several compliance issues, one being the limitation period.
- [64]The issues now being agitated on these applications were before the parties in 2014. There had been some progress in the claim although it had been commenced on shaky if not fractured ground. The plaintiff had made disclosure and the Crown Solicitor had written about how the claim might proceed. Had the plaintiff brought the present applications in late 2014 a more persuasive argument for the exercise of discretion could have been made. Instead, the third period of significant delay followed.
- [65]Mr Hinton deposes to the proceeding progressing “quite slowly” in 2015 and 2016 for reasons which included the plaintiff’s difficulty locating documents in support of his claim for economic loss and his (Mr Hinton’s) partnership woes. Finally, he engaged Counsel in May 2016. The first correspondence since the Crown’s advice in November 2014 was a letter from Hinton Sargent to the Crown Solicitor, dated 22 June 2016, giving notice of intention to proceed (while not conceding no step had been taken in the previous 12 months) and proposing mediation.
- [66]Crown Law responded on 1 August 2016 expressing the view that, with respect to a claim based on the events of 11 May 2011, the plaintiff needed to apply to extend the period of limitation under s. 59 and, with respect to the “over period of time claim” from March to December 2011, there was no complying notice of claim and so applications were required under s. 43 of the Personal Injuries Proceeding Act 2002 and s. 31 of the Limitation of Actions Act 1974.
- [67]Mr Hinton deposes to having given Crown Law notice, in December 2016, of the plaintiff’s intention to bring the present application. The application was filed on 21 June 2017. In the meantime, Mr Hinton wrote to Crown Law by email sending a list of documents on 29 May 2017, to which Crown Law responded that the plaintiff had thereby taken a step after more than two years of inaction without leave.
- [68]In my opinion, the last effectual step taken in the proceeding was the delivery of a list of documents on 6 August 2014.[12]
- [69]The correspondence of late 2014, while containing advice from the Crown Solicitor that might have been helpful, was not a step in the proceeding.
- [70]The service of a second notice of claim, which has not been accepted as complying and which forms no part of the materials in these applications, could not, in my respectful opinion, be a step.
- [71]The letter of 22 June 2016 was not a step. It contained information: that the solicitor was “in the process of arranging” a psychiatric appointment so that a report might be prepared; that the solicitor was “seeking our client’s instructions to obtain an economic loss report”; that after obtaining the above the claim should be ready to proceed and suggesting mediation.
- [72]Despite giving notice in that letter of intention to proceed, the next movement was the letter of 29 May 2017, sent two years and 9 months after the last effectual step, without leave.
- [73]The application was filed two months short of three years since the last effectual step.
Conclusions
- [74]There is a threshold obstacle to the grant of leave under s. 59. Usually, the giving of a notice of claim before the expiry of the limitation period and other compliance by the plaintiff would promote the grant of leave under s. 59. In the present case, however, the notice accepted to be compliant does not support the whole of the plaintiff’s case. That is, as I have put it, there is no complying notice in support of the case as pleaded in the statement of claim. The posited declaration, at paragraph 44 above, is not a declaration that a notice of claim was valid. In the result, the statutory threshold requirement is not made out, and it is not open to grant leave to commence the proceeding commenced by the statement of claim.
- [75]In any case, I am not satisfied the plaintiff has shown good reason why the admittedly unfettered discretion provided for in s. 59 ought to be exercised in his favour. Several considerable periods of delay undermine the application. It cannot be said that the delays were occasioned by a ‘conscientious effort to comply’ with the Act, nor that the main reason for the delays was an “impasse between the parties” about the notice of claim, as submitted by the plaintiff. That dispute was relevant but does not explain much of the delay. The accumulated delays create possible prejudice to the defendant, even given the relatively faint way that was argued. It is not difficult to see some risk of unfairness to the defendant, which would be called upon at trial – more than seven years after the alleged events occurred - to meet allegations of statements and conduct of prison officers said to support findings of negligence. To grant leave to proceed would deprive the defendant of the complete defence afforded by the statutory time bar. Little was said or submitted during the hearing of the application as to the plaintiff’s prospects of success in the claim. It is especially difficult, in the circumstances, to reach any view in that regard. 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.
- [76]These considerations tend against the plaintiff’s application. To the extent that these matters are relevant to the defendant’s application they support it. As to other matters referred to in Custom Credit:[13] it is already 6 years since the events alleged in the statement of claim occurred; there has not been disobedience of court orders or directions; the delays have been almost wholly attributable to the plaintiff; it is not submitted that impecuniosity has been responsible for the pace of the litigation; the litigation between the parties would be concluded by the striking out of the plaintiff’s claim; the litigation has progressed, in that there have been pleadings and disclosure, indeed the parties have conferred unsuccessfully, but the I expect the pleadings would, should the claim proceed, require significant amendment and there was no evidence of progress in the evidence collecting ideas expressed by the plaintiff’s solicitor in June 2016; where there has been delay caused by the plaintiff’s lawyers being dilatory, the delays may more readily be sheeted home to the plaintiff, himself a legally trained person; I have found there is not, overall, a satisfactory explanation for the delay; and I have referred to the risk of prejudice to the defendant leading to an inability to ensure a fair trial.
- [77]The interests of justice do not require an exercise of discretion in favour of this proceeding – either to give leave to commence it after the purported commencement or to allow it to proceed after so much delay in circumstances where the plaintiff does not even formally seek leave to take another step.
- [78]The plaintiff’s application is refused. The proceeding is dismissed.
Footnotes
[1]Statement of Claim paragraph 33.
[2]Annexure 1 Item 18 paragraph 17.
[3]President McMurdo referred to similar considerations in Patterson v Baptist Union of Qld & Anor [2004] QCA 146.
[4][2004] 1 Qd R 378 at 383.
[5]Ibid.
[6]Horinack v Suncorp Insurance Ltd [2001] 2 Qd R 266.
[7]District Court of Queensland Act 1967 s. 68.
[8]Civil Proceedings Act 2011 s. 10; District Court of Queensland Act 1967 s. 69.
[9]Transcript 1-13.30.
[10]Personal Injuries Proceedings Act 2002 (Qld) s. 42.
[11]Limitation of Actions Act 1974 (Qld) s. 11.
[12] Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2013] 2 Qd R 202; Ure v Robertson [2017] QCA 020.
[13]Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178.
- [63]