Mears v Queensland[2017] QDC 322

DISTRICT COURT OF QUEENSLAND

1. The applicant has applied for an order, pursuant to s 36(5)(a) of the Personal Injuries Proceedings Act 2002 (“PIPA”), fixing a time and place for the compulsory conference required by s 36 of the PIPA to be held before a proceeding based on a claim can be started in a court.  The respondent opposes the making of the order.
2. For the reasons which follow, an order fixing a time and date for the compulsory conference should be made by the court.

Background

3. The applicant, Kriston John Mears, was born on 30 September 1991.  
4. On 27 July 2007, whilst a student at a school operated by the respondent, he tripped, fell and sustained injury.  The applicant’s Part 1 Notice of Claim given under s 9 of the PIPA^[1] describes the incident as having occurred when the applicant and another student were walking quickly from a physical education class, part of which had been conducted on a footpath outside the school, to the change rooms before attending an English lesson.  The applicant was required to change into his official school uniform from the clothes which he had been wearing during physical education.  He had previously been in trouble for being late to his English class. The claimant’s foot was clipped by the other student, knocking that foot into his other foot, and causing him to slip on loose garden bark on the path.  He landed on the arm which he had extended out (I infer to break his fall).  He broke the ulnar and radius of the arm and fractured two teeth.

5. The Part 1 Notice of Claim was served on 10 July 2009.
6. By correspondence dated 6 August 2009, Crown Law, acting on behalf of the respondent, responded to the Part 1 notice of claim, giving notice that the respondent considered itself the proper respondent to the claim and stating that it was satisfied that the Part 1 notice was a complying Notice of Claim.^[2]
7. On 30 September 2009 the applicant turned 18.  He ceased to be under a legal disability and the three year limitation period within which to bring an action to recover damages for personal injuries commenced.^[3]
8. Part 2 of the applicant’s Notice of Claim was given pursuant to s 9(3A) of the PIPA on or about 23 October 2009.
9. By letter dated 23 November 2009, pursuant to s 20 of the PIPA, the respondent informed the applicant that it had taken reasonable steps to inform itself of the relevant incident, and gave notice that it denied liability and did not claim contributory negligence.^[4]  The respondent also informed the applicant that it was unable to provide an estimate of the damages to which the applicant would be entitled because the applicant had not provided any details of the quantum of his claim.  It also invited the applicant to make a written offer to settle the claim, the applicant not having done so.^[5]
10. The respondent said that the only offer which it was able to make,^[6] was one of ‘$Nil’ and that it was not in a position to consider settlement of the claim because:

2. (a)
   at questions (sic) 54 of the Notice of Claim, the claimant stated that he was not in a position to make an offer to settle the claim, as further medical investigations were required.  The respondent has not yet received an offer from the claimant and does not know whether the claimant’s injuries have stabilised;
3. (b)
   when the respondent receives all medical information, and any offer to settle, from the claimant, the respondent may wish to obtain an independent medical assessment;
4. (c)
   in the circumstances it would be premature for the respondent to make an offer to settle.

11. On 29 January 2010 further information was provided by the applicant.^[7]  It advised the identity of two students who were nearby when the incident occurred.  It also informed the respondent that the applicant had arranged to attend an orthopaedic surgeon, Dr Gillett, for the purposes of providing a medical report.
12. On 31 May 2010,^[8] Crown Law confirmed that Dr Gillett’s report had been received. Advice was sought as to whether any further medical examinations were to be undertaken and, if not, it requested the applicant provide an offer to settle and a breakdown of damages claimed.
13. On 20 August 2010,^[9] Crown Law again wrote to the applicant’s solicitors noting that they were yet to be advised as to whether the applicant required any further medical examination to be undertaken and again seeking advice as to whether that was so.  If it were not the case, it was again requested that an offer of settlement and a breakdown of damages claimed be provided.  
14. The same requests were made in a further letter from Crown Law on 29 September 2010.^[10] A further request was made on 8 February 2011.^[11]  
15. On 9 September 2011^[11] the applicant’s solicitors sent to Crown Law copies of a Medicare Notice of Charge and Centrelink records which they had received.  No response to the several requests was provided.
16. On 15 March 2012, various taxation documents were provided to Crown Law by the applicant’s solicitors.  No response to the request was made.^[12]  On 17 September 2012 the applicant’s solicitors emailed a draft originating application and orders which they proposed be made.^[13]
17. On 18 September 2012, Crown Law, on behalf of the applicant, advised that the respondent was prepared to consent to the proposed orders.^[14]  Crown Law also requested, pursuant to s 22 of the PIPA, particulars of the medical services and rehabilitation services that the applicant had sought or obtained since delivery of his Part 2 Notice of Claim in October 2009, and particulars of his claim for past and future economic loss and for provision of gratuitous services.  It was stated that the respondent required verification of the information by statutory declaration, pursuant to s 22(7) of the PIPA, and within one month as required by s 22(5).
18. On 26 September 2012, following an application filed on 21 September 2012, and a request for a consent order filed on 25 September 2012, a consent order was made in the following terms:

“1.  Pursuant to s 59(2) of the Personal Injuries Proceedings Act 2002 (‘the Act’) the applicant be given leave to commence proceedings within sixty (60) days of one of the following events occurring:

1. (a)
   a conference being held pursuant to ss 36, 37 and 38 of the Act and mandatory final offers being exchanged in accordance with s 39 of the Act; or
2. (b)
   the date of agreement, if the parties dispense with the compulsory conference by agreement pursuant to s 36(4) of the Act; or
3. (c)
   an order by the court, pursuant to s 36(5)(b) of the Act, dispensing with a compulsory conference.

2. Each party to have liberty to apply by giving three business days’ notice in writing to the other party.
3. That there be no order as to the costs of and incidental to the application.”

19. On 23 October 2012, the solicitors for the applicant provided further information by way of ongoing disclosure.^[15]  No response to the requested advice or information was provided.
20. In response, on 13 November 2012, Crown Law again wrote to the applicant’s solicitors^[16] noting that the information requested on 18 September 2012 had not been provided and enquiring when they could expect to receive the applicant’s statutory declaration.^[17]
21. Another Medicare Notice of Charge was provided by way of further disclosure by the applicant’s solicitors on 22 January 2013.  No response was made to the request for information.^[18]
22. On 29 January 2013, Crown Law wrote to the applicant’s solicitors noting that a statutory declaration had not been provided and asking them to ensure that it be so within 14 days.^[19]  If it were not provided in that timeframe, an application under s 35 of the PIPA was foreshadowed.  Such an application would have enforced compliance with the request made under s 22.  An authority was provided which the respondent’s solicitors requested the applicant sign so that a copy of his records could be obtained from Defence Force Recruiting. 
23. On 6 February 2013 further taxation documents were disclosed by the applicant’s solicitors.^[20]  The matters raised in Crown Law’s letter of 29 January 2013 were not addressed.
24. The request for a statutory declaration was first responded to in an email from the applicant’s solicitors on 19 February 2013.^[21]  It said that they were trying to have the applicant sign the statutory declaration “in the next week” and that they would inform Crown Law as soon as they had organised a day so that Crown Law would know when to expect it.
25. The next correspondence from the applicant’s solicitors to Crown Law was on 23 July 2013.^[22]  It simply enclosed a further Medicare Notice of Charge.  No mention was made of the provision of the information or statutory declaration. 
26. Further disclosure of taxation documents was made by the applicant’s solicitors on 16 September 2014, again without reference to the requested information or statutory declaration.^[23]
27. On 26 May 2015, the applicant’s solicitors wrote suggesting “the compulsory conference be held on 21 August 2015”.^[24]  There had been no earlier mention of the holding of a compulsory conference by either party’s representatives.
28. On 5 June 2015, Crown Law responded stating that, at that stage, they were not in a position to agree to participate in a compulsory conference.^[25]  It was noted that a response to the correspondence of 18 September 2012 seeking provision (by statutory declaration and within one month) of the requested information remained outstanding.^[26]  It advised that the respondent would not be in a position to participate in a compulsory conference, or to progress the matter any further, until such time as the information was provided.  Additionally, it said that before participating in a compulsory conference the respondent required a Schedule of Damages to be provided.
29. On 16 June 2015, the applicant’s solicitors again provided a further Medicare Notice of Charge.^[27]  No reference was made to the earlier request for information. A response was, however, provided by them on 27 July 2015 in which the applicant’s solicitors apologised “for the delay in providing you with a response to your correspondence dated 18 September 2012”.^[28]  They went on to say:

“We have a draft settlement offer and our client’s schedule of damages, however we are unable to finalise the offer as we do not have instructions from our client. Our client has been travelling overseas for a couple of months and is not scheduled to return to Australia until 5 August 2015.

After we take instructions from our client we will provide you with our client’s settlement offer and a response to the correspondence dated 12 September 2012.”

30. Further taxation documents were disclosed on 27 July 2015.^[29]  Then, on 20 August 2015,^[30] the applicant’s solicitors wrote to Crown Law saying:

“We have sought further instructions from our client in relation to his current earning capacity and his future intentions in this regard. Given our client’s age, this has been the most difficult aspect of his claim to quantify.  We expect to provide you with submissions shortly.”

31. Nothing followed until 1 March 2016,^[31] when the applicant’s solicitors emailed Crown Law saying:

“We mailed our client’s settlement offer to your office today.  In accordance with our client’s obligation pursuant to s 22 of the Personal Injuries Proceedings Act 2002, our client has instructed us to issue the requested statutory declaration per the letter dated 18 September 2012.  Upon review of the document from our client, we noted that some pages of the statutory declaration were not signed by our client and the Justice of the Peace.  We mailed a new copy of the statutory declaration to our client today requesting the document be correctly signed and witnessed.

Once our client has attended to the signing and witnessing of the statutory declaration, and upon receipt of same, we will forward same to you.  We do not expect any significant delays in obtaining the signed statutory declaration.

We apologise for the delay in providing the requested information.”

32. The signed statutory declaration, together with the second supplementary list of documents, were provided under a letter dated 30 March 2016.^[32]  In that letter the applicant’s solicitor’s suggested that the compulsory conference be held on 20 May 2016.
33. On 18 April 2016, the applicant’s solicitors again wrote to Crown Law.^[33]   Amongst other things, they sought confirmation that the respondent was agreeable to a compulsory conference being held on 20 May 2016.
34. The respondent’s response was set out in a letter from Crown Law dated 3 May 2016^[34] in which it said:

“Our client is not prepared to participate in a compulsory conference on 20 May 2016, or, at this stage, at all.  

It has been almost 9 years since the incident the subject of your client’s claim and almost 7 years since your client’s legal disability ceased on his 18th birthday.

We acknowledge that, on 26 September 2012, the Deputy Registrar granted your client leave to, inter alia, start a proceeding within sixty (60) days of the compulsory conference and exchange mandatory final orders.  We acknowledge also that our client consented to the relevant order being made, but it did not (and could not) have known at the time of its consent, that it would take your client another three and a half years to produce particulars of his claim for quantum as required and request a compulsory conference.

Your client has had ample opportunity over the past 9 years to progress his claim to compulsory conference but, for reasons unknown to our client, has not done so.

There have been several lengthy delays over the past 9 years during which your client has not taken any substantive step (or any step at all) to progress his claim to compulsory conference.  Our client has suffered prejudice to its defence of the claim as a direct consequence of these delays.

In the circumstances, our client invites your client to immediately withdraw his claim against our client.  Alternatively, your client will need to apply to the court for an order fixing a time and place for the compulsory conference under s 36(5) of the Personal Injuries Proceedings Act 2002.  We put you on notice now that our client will oppose any such application on grounds of, inter alia, delay and prejudice as outlined above.”

35. On 20 May 2016^[35] the applicant’s solicitors responded saying:

“We note that your client is not prepared to participate in a compulsory conference.  Your client intends to oppose any application to the court for an order fixing a time and place for the compulsory conference on the grounds of, inter alia, delay and prejudice.

We have informed your client of the difficulties encountered in quantifying our client’s economic loss.  Your client has not responded with any indication of prejudice. Your client did not raise any concerns with the delay in producing the particulars of our client’s claim for quantum.  At no stage did your client take any steps against our client to indicate its intention to do so after your later dated 29 January 2013.   The right to take any action in relation to delay by your client has been waived by its own conduct.

We do not accept that your client has suffered prejudice to its defence of the claim as a consequence of the delay.  We note the onus is on your client tp prove that they have suffered any prejudice. Without any particulars we do not accept your client has suffered any prejudice, in this matter.  

We propose that this matter proceed to compulsory conference by the end of June 2016.  If your client is still not prepared to participate in a compulsory conference, our client will bring an application for an order fixing date and time of same.  If your client insists on opposing the claim outlined above, our client will defend the application (sic) and seek a cost order be made against your client.  We reserve the right to produce this letter to the court.”

36. A further response was provided by Crown Law on behalf of the respondent on 31 May 2016^[36] in the following terms:

“To clarify our client’s position, while our client is presently opposed to a compulsory conference, our client is not opposed, in principle to a compulsory conference, and will participate, if a court so orders and allows this matter to proceed.  The issue is whether, given the delay, your client should be permitted to proceed further with his claim.  Our client is opposed to the excessive (and largely unexplained) delays that have occurred in the progression of your client’s claim.

Your client’s failure to progress his claim in a timely manner is not in line with the purpose of the Personal Injuries Proceeding Act 2002 as stipulated in ss 4(2)(a) and (b) of that Act and we note that, if such excessive delays had occurred during litigation, your client would require the leave of the court to proceed in accordance with r 389 of the Uniform Civil Procedure Rules 1999.  Indeed, in any other circumstances than the present, your client would either be statute barred from proceeding with his claim, or would require leave of the court.  The previous order made impliedly contemplates the timely progression of the matter, which has not occurred solely as a result of your client’s inaction.  In these circumstances, if the matter is to be allowed to proceed, it will need to be by order of the court.  In short, your client is seeking an indulgence from the court and the onus is on him to establish reasons why he ought be allowed to proceed with his claim despite his apparent disregard for the legislation which governs his claim.

It is a matter for your client as to whether he accepts our client’s assertion that it has suffered prejudice as a consequence of the excessive delays that have occurred in this matter.  However, we point out that prejudice may exist merely as a consequence of the passage of time.  After almost nine (9) years of delays and inaction by your client, our client maintains that there is no way to ensure that a trial will be fair and, it has, therefore suffered prejudice of the kind contemplated by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 451 at 551-552.  This prejudice is sufficient reason for the matter not to be allowed to progress. Given that your client will be effectively seeking an indulgence from the court, as is usual in such applications, our client will appropriately be seeking an order that your client pay our client’s costs of and incidental to the foreshadowed application, regardless of the outcome.”

The applicant’s evidence concerning delay

37. In an affidavit filed in support of the application, the applicant deposes that his great ambition had always been to be a pilot and to work for the Australian Defence Force.  However, he was assessed as medically unfit as a result of “a couple of injuries, one of which was the injury the subject of the claim”.^[37]
38. He states that his second career choice was to study engineering, but that this career path was not available to him after he completed grade 12 because he did not achieve a sufficiently high OP to gain entry.^[38]
39. He attributes his studies having suffered in grades 11 and 12 to the accident and having had much time off school, and then having struggled to regain his former motivation for study when he returned to school.  He says that the task of catching up with his classmates was difficult for him.^[39]
40. He claims that upon completing grade 12 he had a lower OP than classmates who had previously obtained similar or lower marks than he did prior to the accident.  To the best of his knowledge three of them were accepted into engineering at the University of Southern Queensland.^[40]
41. He deposes to having undertaken an apprenticeship in mechanical aircraft maintenance which he completed in November 2011.^[41]
42. In 2012, having completed his apprenticeship, he reconsidered his career choices and was, from a financial perspective, daunted by the prospect of studying full-time. He had by then been living away from home for some four years.  He says that had he commenced his engineering degree after leaving school he would have been able to live at home.^[42]
43. He says that for the next two to three years he continued in his career as an aircraft maintenance technician, but was concerned with his career progression.  In 2012 he considered studying for a degree; possibly engineering, being a field of study which he had always considered when he was at school.  Although established in his career as an aircraft maintenance technician, it was not his career of choice and he considered it less advantageous.^[43]

44. He says that when he was informed of the court’s order of 26 September 2012 protecting the limitation period of his claim he was not aware that he had to make an urgent decision on his future plans and he had not been advised that there was any urgency in providing information to finalise his claim for future loss of income.^[44]
45. He says that in 2015 he was in a position to make a commitment to his future in engineering and decided to pursue that in 2018.^[45]  Before that, he says he was apprehensive about making a decision to commence an engineering degree feeling that he needed to gain maturity.^[46]

Relevant legislative provisions

46. Section 4 of the PIPA provides:
    1. (1)
       The main purpose of this Act is to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury.
    2. (2)
       The main purpose is to be achieved generally by—

       1. providing a procedure for the speedy resolution of claims for damages for personal injury to which this Act applies; and
       2. promoting settlement of claims at an early stage wherever possible; and
       3. ensuring that a person may not start a proceeding in a court based on a claim without being fully prepared for resolution of the claim by settlement or trial; and
       4. putting reasonable limits on awards of damages based on claims; and
       5. minimising the costs of claims; and
       6. regulating inappropriate advertising and touting.
47. Section 18 provides:
    1. (1)
       A claimant’s failure to give a complying part 1 notice of claim prevents the claimant from proceeding further with the claim unless—

       1. the respondent to whom part 1 of a notice of a claim was purportedly given—
          1. has stated that the respondent is satisfied part 1 of the notice has been given as required or the claimant has taken reasonable action to remedy the noncompliance; or
          2. is conclusively presumed to be satisfied it is a complying part 1 notice of claim under section 13; or
       2. the respondent has waived compliance with the requirement; or
       3. the court, on application by the claimant—
          1. declares that the claimant has remedied the noncompliance; or
          2. authorises the claimant to proceed further with the claim despite the noncompliance.
    2. (2)
       An order of the court under subsection (1)(c) may be made on conditions the court considers necessary or appropriate to minimise prejudice to a respondent from the claimant’s failure to comply with the requirement. 
48. Section 36(6) provides:

“(6)   In considering whether to make any order under

subsection (5), the court must take into account— 

1. (a)
   the extent of compliance by the parties with their respective obligations relating to the claim; and 
2. (b)
   how the main purpose of this Act is to be achieved having regard, in particular, to section 4 (2) (a) to (e).”

49. Section 59 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— 

1. (a)
   6 months after the complying part 1 notice is given or leave to start the proceeding is granted; or 
2. (b)
   a longer period allowed by the court. 

3. (3)
   Also, if a proceeding is started under subsection (2) without the claimant having complied with part 1, the proceeding is stayed until the claimant complies with the part or the proceeding otherwise ends. 
4. (4)
   If a period of limitation is extended under the Limitation of Actions Act 1974, part 3, this section applies to the period of limitation as extended under that part.”

The parties submissions on the application

50. Mr Fryberg of counsel for the respondent, in written submissions, submits that the order of the court made on 26 September 2012, although silent as to which subsection of s 59(2) of the PIPA it was made under, upon its proper construction, must have been made under s 59(2)(a).  He submits that it is not capable of having been made under s 59(2)(b).
51. He submits that for it to have been made under s 59(2)(b) it would be necessary that the “longer period allowed by the court”, as referred to in that provision, be identifiable.  He further submits that identifying the longer period would have been an easy matter had the order specified a date by which proceedings were to be commenced or a method for calculating a definitive period was stated.  He contends that in the absence of any method of ascertaining a date, at the time at which the order was made, by which proceedings must be commenced, no period is stated. Any order not clear and ascertainable at the time at which it was made would, he submits, be void for uncertainty.  Where it is intended that an extension of the time limit is longer than six months, he submits that it must be clear that such is the intention of the order.  
52. In oral submissions, Mr Fryberg also submitted that the various steps referred to in the order were all capable of being completed within six months of the making of the order.  The 60 days following such steps could also expire within the 60 day period.  He submits that if it could be a shorter period, then in terms of s 59(2)(b) the court cannot have been fixing a longer period by the order.
53. He submits that if the order were to be construed as one made under s 59(2)(b) it is open-ended and that such an order does not further the purposes of either the PIPA or of time limitations.
54. For the respondent it is submitted that:

“It is usual for claimants to get an extension of time, almost in the normal course of matters, without the need for the exercise of discretion in most cases, under s 59(2)(a) where the Part 1 notice has been given but the complainant cannot complete the pre-court procedures prior to the expiration of the limitation period.  This is because of the limited nature of an extension under s 59(2)(a).  An extension under s 59(2)(b) requires greater examination of why a longer period is necessary, and how long that period should be.”^[47]

55. Mr Fryberg cites the judgment of McMurdo P in Hayley v Roma Town Council^[48] as authority for that submission.
56. He submits that there was nothing in the material on the application for an order under s 59(2) which would support a longer period of time, or what that should be. He also submits that applications for an order under s 59(2)(b) would not properly be the subject of consent orders as they require the exercise of discretion, noting that the request for the order, said to be made by consent, made it clear that the matter did not call for the exercise of a discretion.
57. Ultimately, on the issue of the nature of the order under s 59(2), Mr Fryberg submits that the order has lapsed because the time limited under the order has expired.  
58. In the alternative, he submits that if it was made under s 59(2)(b) it was still necessary to comply with it within a reasonable time; which he contends has not occurred.
59. On this issue, Mr R Trotter of counsel who appeared for the applicant submitted that the order must have been one made under s 59(2)(b) because the extension of the time limit provided under s 59(2)(a) is one which operates as of right.
60. Mr Fryberg’s response to that submission is that s 59(2)(a) encompasses two different ‘aspects’.  The first is where a complying Part 1 notice is given in which case there may be an automatic extension of six months obviating the need for an application to be brought.  The second is that there may be an extension of six months after leave to start the proceeding is granted.  In this case, Mr Fryberg says that is the date of 26 September 2012 order.
61. Beyond the issue of the nature of the order made in September 2012, the respondent accepts that refusal of the application would effectively bring the proceedings to an end and submits that, in that sense, it involves consideration similar to those relevant to an application to strike proceedings out for want of prosecution.

62. Apart from the matters prescribed by s 36(6), the respondent submits that the following matters are relevant to the exercise of the discretion:
    1. (a)
       the failure of the claimant to take advantage of the leave granted in 2012;
    2. (b)
       what steps the claimant has taken to progress the matter, both since the extension was granted and since the incident;
    3. (c)
       any explanation for the delay;
    4. (d)
       any prejudice to a fair trial of the matter should it proceed; and
    5. (e)
       the prospects of the matter generally.
63. It submits that it has complied with its obligations in relation to the claim, pointing to the several requests for information which it made of the applicant.  It submits that despite the applicant having alleged in correspondence that it had waived the right to take action occasioned by the delay, the evidence did not support it having done so.
64. By contrast, the respondent submits that the applicant has not discharged its obligations and, apart from a period between July 2009 and March 2010, has failed to progress the matter.  The respondent submits that having obtained the extension in September 2012, it was not until almost four years later that the applicant provided the information required under the legislation.
65. The respondent contends that the applicant has not acted in a way consistent with the legislative purpose of the speedy resolution of claims and that the factors in s 4(a) – (e) of the PIPA do not lend themselves to the granting of relief under s 36(5).
66. Mr Fryberg submits that the applicant’s failure to commence proceedings pursuant to the September 2012 order (which he contends is now spent) is also a factor relevant to the exercise of the court’s discretion under s 36(5), and weighs against it.
67. The respondent submits that the applicant’s explanation for the delay is not convincing.  It contends that it is difficult to see how he could not be aware that diligence, if not urgency, was necessary given the seven requests for the provision of the information, and that he was represented by solicitors familiar with the legislation.  It is submitted that, in any event, his solicitors were aware of the urgency even if he was not.
68. It is submitted that difficulty in providing information relevant to future economic loss is not an unusual feature, nor is a lack of awareness about urgency.  It is submitted for the respondent that neither are convincing explanations for the length of the delay.  Uncertainty about future economic loss is submitted to be a regular feature of economic loss claims and never a reason for failing to provide some form of quantification.
69. As to prejudice, the respondent does not submit that there is any specific prejudice. Rather, it points to general prejudice as explained by McHugh J in Brisbane South Regional Health Authority v Taylor,^[49]and refers particularly to the degrading of memory over time.  It submits that the court cannot have faith that a fair trial could be held, there not being statements from every relevant witness, although conceding that there may be some statements and written records of some of the relevant matters. It submits that even where statements exist, cross-examination, including of the applicant, will be of limited utility.
70. As to steps taken by the applicant, the respondent contends that from May 2010 only one thing was required to be done before the matter could be set down for a compulsory conference, but that the only step^[50] taken by the applicant was to extend the time period.
71. The respondent submits that the applicant’s prospects in the substantive proceedings if the matter is permitted to proceed to trial are not good.  It submits that it is not a straightforward liability case for the applicant and that, although less relevant, quantum is likely to be “extremely modest”.
72. The respondent contends that the applicant failed to commence proceedings after the expiration of the limitation period, despite having obtained leave to do so, and that the leave has now lapsed.
73. It submits that:

“Just as with the exercise of the discretion in s 59 as stated in Haley v Roma Town Council, the long delays caused by the claimant give rise to the general prejudice discussed by McHugh J in Brisbane South Regional Health Authority v Taylor, preventing a fair trial of the matter.  Just as with the exercise of the discretion in s 59 as stated in Haley v Roma Town Council, in considering the exercise of discretion under s 36, the court must be ‘cognisant of the purpose of the Act’ and the general considerations apposite to any extension of the limitation period as discussed by McHugh J.”

74. Apart from his contention that the consent order made in September 2012 was made pursuant to s 59(2)(b), Mr Trotter submits for the applicant that the order is clear on its face.  The respondent did not seek to limit the time of the extension when it was made, and instead consented to the order in that form.  It has not exercised the liberty to apply granted within the order.
75. He submits that the general prejudice relied on by the respondent “is scarcely, if at all, applicable to the present case”, the central feature of the case being whether or not the school allowed any time for students to travel between classes, particularly when a change of clothes was required, and a distance of some several hundred metres was involved.  He submits that “these are matters of documentary fact”, and that the respondent has had ample time to obtain statements and prepare its case as it has been notified fully of the applicant’s claim since receiving the Part 1 Notice of Claim.^[51]
76. The applicant submits that the considerations under the PIPA are quite different to those under the Uniform Civil Procedure Rules 1999 because the PIPA ensures, through provisions such as s 9, that the applicant provides the respondent with all its material on both liability and quantum. He refers to the applicant having provided photographs of the accident site, and all of the evidence required by s 9, along with the Notice of Claim.  Mr Trotter points to the respondent having been able to advise that it has completed its investigation sufficiently to deny liability, and to not claim contributory negligence.  He refers to the respondent having taken statements from witnesses and that no further medical reports have been sought to be obtained by it.  
77. He submits that in those circumstances, it is highly unlikely that the respondent has suffered prejudice.
78. The applicant identifies that the respondent’s first complaint of delay was in its letter of 3 May 2016.  He suggested that the respondent was party to the delay.
79. He identifies that the respondent first spoke of prejudice its letter of 31 May 2016.
80. The applicant submits that the real issue is what changed between the first request for a compulsory conference to take place on 21 August 2015 and the subsequent requests.  The first request was met with the response that the respondent was not prepared to participate in a compulsory conference or to progress the matter further until the statutory declaration and schedule of damages previously sought were provided.  That material was provided before the respondent’s refusal to participate on 5 May 2016.

The nature and status of the order of 26 September 2012

81. The respondent’s submissions as to the nature and status of the order of 26 September 2012 must be rejected.  The order can only have been made pursuant to s 59(2)(b), not s 59(2)(a).  Accordingly, it has not lapsed.  Nor is it void for uncertainty.^[52]
82. The respondent’s submission that there are two ‘aspects’ to s 59(2)(a) and the orders which are capable of being made under it is incorrect.  Section 59(2)(a) does not, as one aspect, provide an automatic extension of six months from the giving of a complying Part 1 notice and, as a second aspect, permit the granting of leave under s 59(2)(a) itself for an extension of the limitation period by six months from such grant of leave.  Section 59(2)(a) does not itself provide for the granting of leave at all. 
83. The distinction between s 59(2)(a) and s 59(2)(b) is that the former provides for an automatic extension of six months whereas the latter provides for an extension for a longer period, but only as allowed by the court.  Section 59(2)(b) necessarily requires an application to the court.  Section 59(2)(a), because it operates automatically as a matter of law, does not.  
84. Section 59(2)(a) does have two aspects; but not those contended for by the respondent.  The two aspects to s 59(2)(a) are that the automatic extension of six months which it creates can run from either of two dates.  The first is the date upon which complying Part 1 notice is given.  The second is where a complying Part 1 notice has not been given, but the court has authorised the claimant to proceed further with the claim despite the claimant’s non-compliance.  That authorisation may be given by the court on application of the claimant; but under s 18(c)(ii), not s 59(2)(a).  
85. That this is the proper construction of s 59 was made clear in the authority cited by the respondent in its submissions, but in support of a different contention: Haley v Roma Town Council.  The respondent cited that case in support of its submission as to how the discretion under s 59(2)(b) should be exercised, as was discussed by McMurdo P^[53] at [30].  However, at [27] to [29] her Honour had discussed, more broadly, the proper construction of s 59.  Her Honour said:

“[27]  The ordinary meaning of the words of s 59(1) of the Act is that, subject to s 59(2), it empowers a claimant who has, before the end of the period of limitation, given a complying notice of claim under the Act to start a proceeding in a court based on the claim, after the limitation period has expired. Mr McDonald and Mr Haley and his company were such claimants.

28. [28]
    The ordinary meaning of the words of s 59(2)(a) is that claimants within s 59(1) of the Act, like Mr McDonald and Mr Haley and his company, may bring proceedings in court as a right within six months of the notice being given or leave being granted. This will generally not be useful to a claimant unless the respondent completes the obligations under the Act more quickly than the Act requires. Ordinarily it can be expected that the many steps taken for parties to comply with the Act will take more than six months from the date the claimant gives the notice of claim.
29. [29]
    The plain meaning of the words in s 59(2)(b) of the Act gives the court a general discretion to extend the necessary time for a claimant, who is within s 59(1) but who is not assisted by s 59(2)(a), to bring a proceeding in court after the expiration of the limitation period.” (emphasis added)

Footnote 84 explained the “leave being granted” referred to at the end of the first sentence in paragraph [28].  That footnote reads, “That is, under s 18(1)(c)(ii) of the Act”.

86. Those passages from Haley make clear that s 59(2)(a) provides only for an automatic extension; that is, the bringing of a proceeding as of right within the six month period.  It also makes clear that the right may be exercised within six months from either the Part 1 notice being given, or the court having granted leave under s 18(1)(c)(ii) on the application of the claimant despite non-compliance. 
87. The only involvement of the court in extending time under s 59(2) arises under s 59(2)(b).  
88. The President’s reference to “a claimant, who is within s 59(1), but who is not assisted by s 59(2)(a)”, includes a claimant, such as the claimant in this matter was in September 2012, who has given a complying Part 1 notice, but for whom the six month extension provided under s 59(2)(a) does not operate to permit the starting of a proceeding outside the limitation period.  In this matter, the period of six months from the date of the giving of the Part 1 notice expired well within the limitation period. 
89. The application to the court which was made in September 2012 was thus for an order under s 59(2)(b).  The making of such an order did, contrary to the statement in the request for consent order, require the exercise of the court’s discretion.  It may not, therefore, have been a matter which should ordinarily be sought from the Registrar.^[54]  
90. However, in the course of the hearing when the court raised with Mr Trotter whether an application under s 59 could properly be described as an application for “extension of time for steps to be taken prior to, or in the course of, a proceeding (e.g. pre-court procedural steps under the Personal Injuries Proceedings Act 2012)” as referred to in para 5(j) of District Court Practice Direction No. 2 of 2010, Mr Fryberg indicated that the respondent’s position was “that s 59 applications do fall within this point”.^[55]  That position was taken on the basis that, on the respondent’s construction, an application could be made under s 59(2)(a).  Because, for reasons already explained, the extension of time under s 59(2) which requires an order upon application is that under s 59(2)(b), the respondent’s concession as to s 59 applications responding to para 5(j) of the Practice Direction should be understood as extending to the application upon which the consent order was made in September 2012.

91. In any event, the order was made with the consent of the parties and must have been considered appropriate by the Registrar.^[56]  It applies as if it had been made by the court.^[57]  No application has been made to set it aside.
92. For those reasons, the order made with the consent of the parties in September 2012 did not require the applicant to commence proceedings within six months.  That is so simply upon a proper construction of s 59.  However, it is also the conclusion which would be drawn from the terms of the order itself. 
93. On the construction contended for by the respondent, the meaning to be given to the order is that the proceeding must be commenced, in any event, within six months of the date of the order.  Clearly, the order does not itself say that.  The respondent’s submission was that it did not do so as it was already part of the order because it commences with the words “Pursuant to s 59(2) of the Personal Injuries Proceedings Act 2002”.  The respondent contended that this made it subject to the six months as limited by s 59(2)(a).  For the reasons already explained, it does not. 
94. Therefore, the clear meaning of the order is that the proceeding is to be commenced within 60 days of one of the three events stipulated in the order occurring; one of which is a conference being held and mandatory final offers exchanged.  The period within which any of those three events was to occur was not limited or prescribed by the order.  The fact that it does not do so does not render the order void for uncertainty.  The time within which the proceedings must commence is certain, although contingent on the other matters.  That is understandable.  At the time at which the order was made, those matters, if they were to occur, would do so on dates or within times which were unknown. 
95. The Order allows a longer period within the meaning of s 59(2)(b).
96. Furthermore, at the time of making the order, two mechanisms existed for triggering the commencement of the 60 day time period other than by the holding of a compulsory conference, or agreement being reached to dispense with the conference.  The first mechanism is within the order itself at paragraph 1(c).  It incorporated, within the order itself, the possibility of dispensing with the compulsory conference by an order of the court under s 36(5)(b).
97. The second mechanism, external to the order, was an application such as this brought under s 36(5)(a) to have the court fix a time for the compulsory conference. By that mechanism, the conference would be held and offers exchanged in accordance with order 1(a), thereby triggering the 60 days.  Either party is able to make an application under s 36(5)(a), not just the claimant.
98. Understood in this way, it is not correct to say that the time within which obligations are to be performed under the order are unable to be ascertained.

The exercise of the discretion

99. In my opinion, the discretion should be exercised in favour of the applicant and a time and place fixed for the compulsory conference.
100. The applicant has now complied with his obligation under the PIPA.^[58]  He has responded to the respondent’s request under s 22(5), and has verified by statutory declaration the information provided as he was required to do under s 22(7).  It is the case that he has been dilatory in doing so.  When the information was provided on 30 March 2016 it was almost six years after it had first been requested by the respondent’s solicitor.  It was some six and a half years after the applicant ceased to be under a legal disability, and some three and a half years after the order extending the limitation period was made and the first request for verification by statutory declaration had been requested.  I accept that all of the delay is relevant to determining whether discretion should be exercised.

101. The respondent had, however, requested the information as recently as 5 June 2015, having made successive requests over the preceding years.^[59]  That request in June 2015 was made in response to the first suggestion of a compulsory conference made by the applicant.  Although not expressly stated as such, it is readily inferred that the respondent was complaining about the delay in providing the requested information. An application under s 35 to enforce compliance with the s 22 requests had been foreshadowed almost 15 months earlier.
102. However, the request of 5 June 2015 in response to the suggested compulsory conference did not complain of delay such that the applicant should not proceed with his claim.  No prejudice was suggested at that time.  To the contrary, the further request at that time implied a capability and willingness on the respondent’s part to participate in the compulsory conference once the information and schedule of damages were provided.  At that time the respondent was not seeking to foreclose the possibility of a compulsory conference; it was still seeking to facilitate it.  As the submissions for the respondent make plain, throughout the period during which it was making its requests, the provision of that information remained the only step which the applicant needed to take before a compulsory conference could be held.  
103. The applicant has provided some explanation for the delay.  The matters to which he refers would not have prohibited him from providing a breakdown of damages claimed at an earlier time.  Although it is said for the applicant that his quantum was difficult to quantify and only ‘crystallised’ in late 2015, it would not have been impossible to formulate a claim for future economic loss at an earlier time.^[60] However, the explanation, together with his absence overseas for a period and disruptions within his solicitor’s office, are not without merit.  
104. In respect of the achievement of the main purpose of the PIPA, that being to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury, and having particular regard to the matters set out in s 4(2)(a)-(e), the applicant’s delay to this point means that the claim has not been resolved as speedily,^[61] or at as early a stage,^[62] as it might.  Against that, however, is the applicant’s complete loss of his claim if an order is not made.  Those particular considerations may have greater bearing on applications to dispense with a compulsory conference.  In such a case the speedy resolution through promotion of settlement at an early stage may not be advanced by the making of such an order.
105. The considerations set out in 4(2)(c)-(e) will also have less, if any, relevance in a case such as this where the refusal of an order will mean the loss of the claimant’s claim. 
106. In respect of the other relevant matters identified in the respondent’s submissions, the steps taken by the applicant to progress the matter and the explanation for the delay have already been addressed. 
107. The asserted failure of the applicant to take advantage of the leave granted in 2012 was premised upon the leave having now lapsed.  That has not occurred.  The asserted failure is, in fact, no failure at all.  The applicant is actually taking steps, albeit belatedly, to place himself in a position whereby he can take advantage of the leave granted. 
108. A detailed analysis of the applicant’s prospects of success should this matter progress to a trial is not able to be (and should not be) conducted at this time.  Both parties seem reasonably bullish on the issue.  That is perhaps not surprising.  It is a case on which liability is likely to be contested at trial.  It will, perhaps, not be an overly easy case for the applicant to prove; but his prospects seem reasonable enough. As Mr Fryberg candidly submitted, the fact that the award of damages may be modest is less relevant.  The applicant’s prospects would not disincline me to grant the application.  
109. The issue of greatest merit is the prejudice caused to the respondent by the applicant’s delay.  Mr Fryberg points to no specific prejudice; but nor does he have to.  The general prejudice identified by McHugh J in Brisbane Regional Health Authority v Taylor is likely to be present to some degree.  As Atkinson J put it in Tyler v Custom Credit Corp Ltd & Ors:^[63]

“The prejudice caused by the passing of time may be as insidious as it is subtle in that the parties cannot demonstrate what it is that they have forgotten.”

110. However, as her Honour went on immediately to observe, citing Smith v Harvey-Sutton:^[64]

“It is necessary to remember however that the inevitable disadvantage to all parties of delay does not necessarily mean that the relevant issues cannot be fairly tried.”

111. In this case, because the applicant was a child at the time he sustained injury, there was always the potential for some delay as permitted by law.  Perhaps with that in mind, steps were taken by the respondent to investigate the matter.  As Mr Trotter identifies, it was able to form a view about liability.  That was facilitated by the requirements of the PIPA, a complying Part 1 notice of claim having been given. Statements have been taken.  
112. No suggestion of prejudice was raised until after the request for a compulsory conference was made and all the information had been provided.  
113. Prejudice was not suggested at the time at which the first suggestion for a compulsory conference was made.  Rather, the respondent merely stated that it was not in a position to participate until such time as the then outstanding information was provided.

114. If the matter ever goes to trial, memories will not be as good as they may have been if tried at an earlier time; but I am not of the view that a fair trial cannot be had.
115. Prejudice caused to the respondent by the delay, even taken with all other considerations, would not cause me to refuse the application. 

Disposition

116. The application is allowed.
117. The parties are to confer with a view to reaching agreement as to a suitable time and place for holding a compulsory conference and to inform the court within 28 days of this order of the agreement reached. 
118. In the absence of notification of agreement, the court will fix a time and place for the holding of a compulsory conference. 

Costs

119. The applicant has succeeded in the application: but against a background of considerable delay. 
120. The respondent sought to resist the application on a construction of s 59 and the consent order which was incorrect; but there were still quite legitimate points which it took in respect of the exercise of discretion.
121. It is appropriate that the costs of the application be reserved for resolution after the trial, if there is one.