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Romano v Brisbane City Football Club[2018] QDC 67

Romano v Brisbane City Football Club[2018] QDC 67

DISTRICT COURT OF QUEENSLAND

CITATION:

Romano v Brisbane City Football Club & Anor [2018] QDC 67

PARTIES:

DANIELLO ROMANO

(appellant)

and

BRISBANE CITY FOOTBALL CLUB (ABN 57 009 971 500)

(first respondent)

BRISBANE CITY COUNCIL

(second respondent)

FILE NO/S:

892 of 2017

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

13 April 2018

DELIVERED AT:

Cairns

HEARING DATE:

18 October 2017

JUDGE:

Fantin DCJ

ORDER:

  1. The appeal is allowed.
  2. The appellant is granted leave to start a proceeding pursuant to s 43(1) of the Personal Injuries Proceedings Act 2002 (Qld), such leave being granted nunc pro tunc and with effect from 13 February 2017.
  3. The parties are granted leave to file and serve further written submissions (not exceeding 3 pages) with respect to costs by 4pm on 27 April 2018.
  4. Costs will be determined on the papers.

CATCHWORDS:

CIVIL LAW – APPEAL – PERSONAL INJURIES – TORT – LIMITATIONS OF ACTIONS – where the appellant suffered personal injury – appeal against decision of Magistrate refusing application for leave to start proceeding pursuant to s 43 Personal Injuries Proceedings Act 2002 (Qld) – where expiration of limitation period was imminent –– exercise of discretion – whether Magistrate erred

Legislation

District Court of Queensland Act 1967 (Qld) s 113

Limitations of Actions Act 1974 (Qld) s 30

Magistrates Courts Act 1921 (Qld) ss 45, 47

Motor Accident Insurance Act 1994 (Qld) s 57
Personal Injuries Proceedings Act 2002 (Qld) ss 4, 18, 43, 59

Uniform Civil Procedure Rules 1999 (Qld) rr 27, 766

Cases

Davison v Queensland (2006) 226 CLR 234

Gillam v Queensland [2004] 2 Qd R 251

GU v TO [2005] QCA 480

Hankin v Riseley [2006] QDC 254

House v The King (1936) 55 CLR 499

Kash v SM & TJ Cedergren Builders [2004] 1 Qd R 643

Nicol v Caboolture Shire Council [2003] QDC 33

Paterson v Leigh & Anor [2008] QSC 277

Prentice v Harbrew Pty Ltd [2011] QDC 179

COUNSEL:

S Di Carlo for the Appellant

P D Lane for the First and Second Respondent

SOLICITORS:

Grasso Searles Romano Lawyers for the Appellant

Hall & Wilcox for the First Respondent

Barry Nilsson Lawyers for the Second Respondent

  1. [1]
    The appellant was born on 13 February 1996. He claims that on 4 September 2012, while doing football training at night as a member of the first respondent’s under 16 National Premier League side, he sustained personal injuries. He says that the pitch was poorly maintained, that his foot rolled in a pothole or ditch which he did not see and upon landing he fractured his left fibula. The injury required surgery to insert a plate and pins into the bone. He was training under the supervision of a coach authorised by the first respondent on a ground owned by the second respondent and used by the first respondent. He alleges that the respondents had a duty to provide a safe playing surface for the purposes of playing soccer and that they breached their duty of care.
  1. [2]
    As the appellant was 16 years old at the time of the alleged injury, he was then under a legal disability. That disability ceased on 13 February 2014 when he turned 18. By virtue of s 30(1)(c) of the Limitation of Actions Act 1974 (Qld) (LAA), the limitation period in which he could commence proceedings expired on 13 February 2017. 
  1. [3]
    On 9 February 2017 the appellant filed in the Magistrates Court an application for leave to start a proceeding pursuant to s 43(1) of the Personal Injuries Proceedings Act 2002 (PIPA) despite non-compliance with PIPA on the basis that there was an urgent need to start the proceeding.  He also filed a statement of claim seeking damages for personal injuries.
  1. [4]
    The application was listed for hearing on 13 February 2017, the date of expiration of the limitation period.
  1. [5]
    The s 43 application was heard by learned Magistrate Shearer, who refused it.
  1. [6]
    The appellant appeals against that decision.

Principles applicable to the appeal

  1. [7]
    The appeal is pursuant to s 45(1)(a) of the Magistrates Courts Act 1921 (Qld) (MCA).
  1. [8]
    The notice of appeal does not operate as a stay of execution on judgment: s 45(4) MCA.
  1. [9]
    On the hearing of the appeal, this court may do any of the following (relevantly): draw inferences of fact from facts found by the Magistrate, or from admitted facts or facts not disputed; order judgment; make any other order, on such terms as it thinks proper, to ensure the determination on the merits of the real questions in controversy between the parties; and make such order with respect to the costs of the appeal as it thinks proper: s 47(a), (c), (d) and (f) MCA.
  1. [10]
    The court has, for an appeal from a Magistrates Court, the same powers as the Court of Appeal has to hear an appeal: s 113 District Court of Queensland Act 1967 (Qld). 
  1. [11]
    In an appeal against the exercise of a judicial discretion, the principles in House v. The King[1]apply:

"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

  1. [12]
    The main purpose of the PIPA is to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury: s 4(1). That purpose is to be achieved, relevantly, by providing a procedure for the speedy resolution of claims, promoting settlement of claims at an early stage wherever possible and 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: s 4(2)(a), (b) and (c).
  1. [13]
    Section 43 PIPA permits a court to give leave to start a proceeding notwithstanding non-compliance with the relevant part of the Act. It overcomes the prohibition on a proceeding being commenced prior to compliance with other parts of the Act.
  1. [14]
    Section 43 relevantly provides:

“43 Starting urgent proceeding with the court’s leave

  1. (1)
    The court, on application by a claimant, may give leave to the claimant to start a proceeding in the court for damages based on a liability for personal injury despite noncompliance with this part if the court is satisfied there is an urgent need to start the proceeding.
  1. (2)
    The order giving leave to start the proceeding may be made on conditions the court considers necessary or appropriate having regard to the particular circumstances of the case.
  1. (3)
    However, if leave is given, the proceeding started by leave is stayed until the claimant complies with this part or the proceeding is discontinued or otherwise ends.”
  1. [15]
    Had the application been granted, the appellant’s proceeding would have been stayed pending compliance with the pre-court procedures in Part 1 of Chapter 2 of PIPA.
  1. [16]
    There are a number of decisions of this court concerning s 43 applications made directly to this court, and decisions of the Court of Appeal on appeal from this court on s 43. But the parties were unable to identify any other decision of this court concerning an appeal from a decision of a Magistrate pursuant to s 43 PIPA.
  1. [17]
    The cases identify the following principles relevant to the exercise of the discretion:
  1. The function of s 43 is to prevent litigants being deprived of the right to submit real and genuine controversies to the determination of the courts by the due procedure appropriate for the purpose[2];
  1. In s 43, the legislature has entrusted the courts with a wide discretion to ensure that, in appropriate cases, the Act would not shut out claimants who ought to have their day in court[3];
  1. The court has a broad and unfettered discretion to grant leave to commence proceedings where it is demonstrated that an urgency arises where an existing limitation period, or an already extended limitation period, is about to expire and the claimant is not yet in a position where they are entitled under PIPA to commence proceedings[4];
  1. Section 43 is predicated on there being an ‘urgent need’ for proceedings to be commenced although the pre-action procedures prescribed by PIPA have not been complied with. In most cases that urgency will be established by the fact that the applicable limitation period will expire before those pre-action procedures can be complied with or where, because of some consideration personal to the claimant or a witness (for example, imminent death), it is necessary in the interests of justice that the proceeding be commenced notwithstanding that the pre-action procedures have not been complied with[5];
  1. The imminent end of a limitation period will provide an urgent need to start a proceeding[6];
  1. Section 43 is remedial in effect and should be construed broadly.  Success in an application under this section is not dependent on demonstrating a reasonably arguable case for an application to extend the limitation period[7];
  1. Section 43 contains no restrictions on the discretion it grants, and certainly none requiring the court to be satisfied a reasonable excuse exists for the delay or other non-compliance with PIPA Part 1 of Chapter 2 PIPA[8];
  1. Section 43 contains no requirement that the court look for an excuse, reasonable or otherwise, for non-compliance with PIPA Chapter 2, Part 1[9];
  1. It would ordinarily be inappropriate to exercise the s 43 discretion by refusing leave to commence proceedings just before expiry of the limitation period against a party only recently identified by PIPA processes as potentially liable[10];
  1. The fact that the claimant has not complied with Part 1, Chapter 2 of PIPA at that time (eg. by providing a compliant Notice of Claim) is not a reason for refusing leave[11];
  1. Section 43(3) expressly contemplates the making of orders granting leave to claimants to commence proceedings when that may ultimately prove to be a futile step. It is premature, on an application for leave under s 43, to pre-empt a subsequent application under s 18(1)(c)(ii) to excuse non-compliance with the requirement to provide a reasonable explanation for delay[12];
  1. Section 43 has a discrete and different operation to s 59 of PIPA, which gives a power to extend the limitation period.  The considerations affecting the respective exercises of these powers are different, and a claimant’s case could warrant a s 43 order to avoid it being time barred where the same case might not warrant a s 59 order once it is out of time[13];
  1. It is almost a practice now to allow these applications [under s 43] on the eve of limitation periods ending, to preserve the traditional rights of injured people, and the taking of an “understanding attitude” is in line with Court of Appeal and High Court decisions[14];
  1. Ordinarily, an application under s 43 must be filed and served on the respondent at least 3 business days before the hearing of the application: r 27(1) UCPR. If an application is not served as required by subrule (1), the court must not hear and decide the application unless it considers it just to hear and decide the application on the day set for hearing and 1 of the following applies—
  1. (a)
    the court is satisfied delay caused by giving notice of the application would cause irreparable or serious mischief to the applicant or another person;
  1. (b)
    the court is satisfied the respondents to the application will suffer no significant prejudice if it hears and decides the application on the day set for hearing;
  1. (c)
    the respondents to the application consent to the court hearing and deciding the application on the day set for hearing:

r 27(3). This permits the court to make an order under s 43 in the absence of the respondent where the limitation period will expire on the day of hearing of the application[15].  A person affected by such an order may apply to the court for it to be set aside: r 27(4);

  1. When an application under s 43 heard just before the end of a limitation period is later held on appeal to have been refused (wrongly), the court can make remedial orders on that appeal. It can make orders nunc pro tunc under s 43, granting leave to start a proceeding in a court on the date the application was heard, ie. taking effect on the earlier date and before the end of the limitation period[16].

Grounds of appeal

  1. [18]
    The appellant relies on 2 grounds of appeal.
  1. [19]
    First, that the learned Magistrate erred in law and in fact in refusing the application for the reasons that the first respondent would be denied procedural fairness and urgency for the application had not been demonstrated other than due to a lack of diligence by the applicant.
  1. [20]
    Second, the learned Magistrate erred by taking into account irrelevant matters or failing to take into account irrelevant matters.

Hearing before the Magistrate

  1. [21]
    The application was filed on Thursday 9 February 2017 and listed for hearing at 2:15pm on Monday 13 February 2017.
  1. [22]
    It was not served at least 3 business days before the hearing date, as required by r 27(1) UCPR. The application was emailed to both respondents at about 5:20pm on Friday 10 February 2017. The application was heard at 2:15pm on Monday 13 February 2017. The first respondent did not appear. The second respondent did appear but advised the Magistrate it was not able to respond meaningfully to the application. It did not adduce evidence.
  1. [23]
    The material before the Magistrate comprised the originating application, the appellant’s affidavit in support of the application and the statement of claim. The appellant in his affidavit described the circumstances of the injury. He said that at the time of the injury, and subsequently, he did not intend to take any action in respect of the claim, but he had recently had pain in his injured leg and he decided that he wished to make a claim for personal injuries. He also deposed “I have recently been advised by my solicitor, Siobhan French of Grasso Searles Romano that I need to comply with provisions of chapter 2 of the [PIPA] if I wish to bring a claim and…that the Limitation of Actions Act requires me to commence proceedings no later than 3 years after my age of majority which will expire on 13 February 2017.”
  1. [24]
    The hearing before the learned Magistrate took 15 minutes and included the following exchanges:

“BENCH: … Well, when you haven’t served the first respondent and he’s entitled to have been served, what do you want me to do.  The application can’t proceed properly in relation to them, can it.

MS FRENCH: No. Your Honour, I – I can certainly undertake to serve the first respondent.

BENCH: How’s that going to help you, you’ll be out of time.

….

MS FRENCH: Your Honour, instructions from my principal were that, perhaps, the matter could proceed ex parte and the application be – be granted.

BENCH: Well, no.  Why would I deny other parties a proper opportunity to be heard …

When at the end of the day, I – and I imagine that Mr Romano, the applicant, is related to the Romano of the law firm.

MS FRENCH: Yes, Your Honour.

BENCH: Right, so they’ve known about this matter since 2012 and at the absolute death before the time limit expires, they don’t properly serve either of the respondents but want me to make orders in their favour without going through the proper process.

MS FRENCH: Yes, Your Honour.  The only instructions that I do hold was that the reason, which I have also mentioned to – to your Honour, was that Mr Romano, the applicant in this matter, was hoping to resolve this with the football club.

BENCH: Well, he wanted them to give him money without having to go through the formalities of the …

Well, look I’m not –when the first and second respondents have not been served in accordance with (a) not being served at all, but secondly, not in accordance with the rules – I’m not inclined to hear an application on that basis, and particularly when the applicant clearly knew all about this for some considerable time, notwithstanding the fact the injury occurred in 2012.  Obviously, the firm’s been involved in the matter for some period of time.

…

There is no reason whatsoever that’s been advanced that – to indicate that it was either impractical or impossible to serve either of the respondents within the required timeframe.

…

So I don’t see why the court should grant an indulgence on that basis, dispensing with procedural fairness and the requirements of the UCPR.

…

I know you’ve been sent here as the sacrificial lamb so I’m not directing anything at you.

…But I’m certainly not denying them procedural fairness simply because the applicant’s solicitors haven’t done their job properly.

… Why would I not dismiss the application?

MS FRENCH: Your Honour, in relation to the application – and I have mentioned this – I – these are my only instructions: is that, again, we –there had been efforts made to try and negotiate with the club in relation to it and that’s why it was left until the eleventh hour.  That doesn’t – that doesn’t correct any of the issues your Honour has raised, of course, in relation to service, and that Mr Romano, the applicant, actually still plays for the club and – and, again, hence the reason that it was until the – until the eleventh hours, your Honour. …

BENCH: Even if we’d been – had had the other – other respondents had been served, why – what do you say is the urgent need to start the proceeding? The only urgency seems to derive from the fact that your firm has simply left it to the last minute…

BENCH: How does that – the fact that the – an applicant – proposed applicant is dilatory in commencing a proceeding because they want to try to extract some money from a respondent without having to sue for it, how does that therefore create a situation of urgency that requires the court to dispense with the ordinary procedures.”

  1. [25]
    The learned Magistrate considered the failure to serve the application within time a compelling factor which outweighed the imminent expiry of the limitation period. He did not consider or refer to r 27(3) UCPR, which permits the court to proceed notwithstanding short service, nor to r 27(4) which permits a party affected by an order to apply to set it aside. He made remarks about the extent to which the appellant had received legal advice and about the conduct of the appellant’s legal representatives, which were contrary to the evidence or about which there was no evidence.
  1. [26]
    The learned Magistrate’s decision, delivered immediately and comprising one page, stated, relevantly:

“The first thing to note is that neither of the respondents have been served. …

In those circumstances, I’m disinclined to hear the application for obvious reasons of procedural fairness for starters particularly when regard’s had to the fact that there’s no reason whatsoever why the solicitors for the applicant couldn’t have served the respondents in a timely way in accordance with the rules and had them – therefore given them an opportunity to respond to the application but beyond that section 43 of the Personal Injuries Proceedings Act requires that the applicant satisfies the Court that there is an urgent need to start the proceeding.

The only basis upon which any urgency seems to have arisen is that the applicant, essentially, has been trying to negotiate a payout from the soccer club without the need to commence a proceeding but that, of itself, doesn’t create a situation or urgency.  That’s  - what it has created is a circumstance of dilatoriness by the applicant and his solicitor that has led to a situation where an application’s been brought on the very last day of the limitation period but not for any reason outside the applicant’s control and not for any reason that might provide some sort of reasonable excuse for why a proceeding wasn’t started within the timeframe prescribed by the Act.  The only reason that that hasn’t occurred is the applicant’s own – and his solicitor’s own dilatoriness.

That, in my mind, doesn’t create a situation in which an urgent need is created to commence a proceeding.  The rules are not there to be bent simply to overcome the consequences of a parties [sic] own choices. In my view, they’re there to – or they contemplate situations in which an urgent need to commence proceedings is - arises from circumstances largely outside the control of an applicant …

In my view, the task of satisfying a court that there’s an urgent need to proceed [indistinct] urgent need to give leave to the party to commence a proceeding outside the time limits is really obviated because, as I see, the only urgency that has arisen has arisen as a consequence of the decisions of the applicant and his solicitor.

So with respect to section 43(1), I’m not satisfied that there is an urgent need to start the proceeding having regard to the fact that the position that the plaintiff or applicant finds himself in is one entirely of his own choice and creation.  And in circumstances in which neither respondent has been served and the application’s not been brought in accordance with the rules, I’m not inclined to make the order.  The application is dismissed.”

  1. [27]
    It is immediately apparent that, in refusing the application, the learned Magistrate gave significant weight to the fact that the respondents had not been served with the application within time, gave determinative weight to whether there was a reasonable excuse for the delay and non-compliance with PIPA, found that the applicant and his solicitor were responsible for that and did not consider that the imminent end of the limitation period provided an urgent need to start a proceeding. In doing so, his discretion clearly miscarried.
  1. [28]
    As the limitation period expired on the day of the hearing, any delay in hearing and determining the application would have resulted in the applicant being shut out of litigating his claim. It is difficult to imagine a more “urgent need” to start a proceeding under s 43, having regard to the purposes of PIPA.
  1. [29]
    In those circumstances, the court should have determined pursuant to UCPR r 27(3)(a) that it was just to hear and decide the application on the day set for hearing because the court would have been satisfied that delay caused by giving notice of the application “would cause irreparable or serious mischief to the applicant”.
  1. [30]
    The respondents submit that, because of the failures with respect to service, they were denied the opportunity to lead evidence or make submissions about prejudice suffered by them if leave were granted. This is consistent with the learned Magistrate’s finding that the respondents would be denied procedural fairness.
  1. [31]
    This submission, and the learned Magistrate’s finding, overlook the fact that the court may make an order under s 43 in the absence of the respondent where the limitation period will expire on the day of hearing of the application[17].  The proceeding is then automatically stayed pending compliance with the relevant parts of PIPA.  A person affected by such an order may apply to the court for it to be set aside: r 27(4). It is premature on an application under s 43 to pre-empt a subsequent application under the Act to excuse non-compliance with the requirement to provide a reasonable explanation for delay.
  1. [32]
    In my view, the learned Magistrate erred in law and in fact in:
  1. failing to take into account relevant considerations: that there was an urgent need to start the proceeding because the expiration of the limitation period was imminent, and in those circumstances, the appellant’s failure to give proper service of the application was not determinative;
  1. taking into account irrelevant considerations: whether there was a reasonable excuse for the delay and non-compliance with PIPA, his assumptions about the role of the appellant and his solicitors in that delay, and that the respondents would be denied procedural fairness because they had not been served within time;
  1. finding that urgency for the application had not been demonstrated; and
  1. giving determinative weight to whether there was a reasonable excuse for the delay and non-compliance with PIPA.
  1. [33]
    Having identified specific error, the order must be set aside and this court must exercise the discretion afresh, unless, in that separate and independent exercise I conclude that no different order should be made.

Further evidence on appeal

  1. [34]
    The first respondent and the appellant sought to adduce further evidence on appeal. Although the appellant initially opposed the first respondent’s application to adduce further evidence, it ultimately submitted that if the court received such evidence, it should also accept the appellant’s further evidence to enable the court to determine the real question in controversy in the proceeding: whether leave should be granted pursuant to s 43 PIPA.
  1. [35]
    The court may, on special grounds, receive further evidence as to questions of fact, either orally in court, by affidavit or in another way: r 766(1)(c) UCPR, s 47(d) MCA.
  1. [36]
    The following criteria are important in determining whether or not there are special grounds justifying the reception of further evidence:
  1. It must usually be shown that the evidence could not have been obtained with the use of reasonable diligence at the hearing;
  1. The evidence, if allowed, would probably have an important impact on the result of the case though it need not be shown that the evidence would be decisive of the matter; and
  1. The evidence is credible, though it need not be incontrovertible.

The power to receive further evidence is not limited to evidence of facts relating to the issues between the parties but includes matters which throw light on the conduct of the trial.

  1. [37]
    In the hearing below, the appellant’s solicitor had informed the learned Magistrate:
  • “these are my only instructions: is that, again, we – there have been efforts made to try and negotiate with the club in relation to it and that’s why it was left until eleventh hour”[18];
  • “[the appellant was] trying to, perhaps, resolve it without having to make the applic – having to make – do it – do a full application …”[19];
  • “the only instructions that I do hold was that … Mr Romano, the applicant in this matter, was hoping to resolve this with the football club”[20].
  1. [38]
    The first respondent sought to adduce further evidence from club officials to the effect that:
  1. before service of the application, the directors and registrar had no knowledge of the incident or injury;
  1. there were no prior negotiations between the appellant and the first respondent about a possible claim;
  1. the appellant’s father was the co-principal of the legal firm acting for him; and
  1. the respondents would suffer prejudice by reason of the delay if leave were granted, because the first respondent could not locate any relevant documents.
  1. [39]
    The appellant sought to adduce further evidence (in response to the evidence in paragraphs 1 and 4 above) identifying a number of officials or employees of the first respondent who were aware of the incident. His evidence was that the Director of Coaching was present on the night the incident occurred and that the Junior Football Director and other club officials had exchanged emails with the appellant’s mother about his injuries shortly after they occurred. Copies of the emails were exhibited to his affidavit. His solicitor also provided an affidavit clarifying certain statements she had made at the hearing. The solicitor’s evidence included that at the time of the hearing, she had been a solicitor for just over one year, that this was her first appearance in court for this type of application and that her nervousness and lack of experience caused her to not articulate clearly her instructions at that time.
  1. [40]
    Leave was granted to both parties to adduce the further evidence on the basis that I would give it such weight as I considered relevant.
  1. [41]
    Much of the evidence goes to the issue of whether there was a reasonable excuse for the delay or non-compliance. That is not relevant to the exercise of the discretion under s 43 but may be an argument for another day. Even if the first respondent’s further evidence were thought to have some limited relevance, it would not have had an important impact on, nor been decisive of, the outcome in this case. That is because the compelling factor in the exercise of the discretion here was the imminent expiration of the limitation period.

Exercise of the discretion

  1. [42]
    The limitation period expired on the day listed for the hearing of the application. That was clearly an “urgent need” to commence proceedings for the purposes of s 43.
  1. [43]
    The respondents contended that 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, relying by analogy upon a statement of Justice McMeekin in Paterson v Leigh & Anor [2008] QSC 277[21]. 
  1. [44]
    They submit that: “Here, however, there was a deliberate course of conduct on the part of the appellant to make no effort whatsoever to comply with the PIPA regime. There was a conscientious effort not to comply.  As a result, a Notice of the Claim was deliberately not provided to the respondents or either of them.”[22]  They further submit that “by consciously refraining from compliance with the pre-court procedures prescribed by the PIPA, the appellant deliberately acted contrary to the main purpose of the Act”[23].
  1. [45]
    Those are strong assertions. In support of them, the respondents submit that:
  1. the appellant still plays football for the first respondent club so there is no confusion as to the parties allegedly potentially liable;
  1. knowing that, and with the benefit of legal advice, not one step was taken by the appellant to advance his claim;
  1. the appellant was related to the principal of the legal firm which acted for him and the firm had known about the incident since it allegedly occurred 4.5 years before;
  1. before the Magistrate, evidence was given from the bar table about attempts at negotiation but there was no evidence of those negotiations; and
  1. there was no evidence of any liability investigation being done or any communication with the respondents.
  1. [46]
    Some of those facts (including paragraphs 1, 2 and 5) are not established on the evidence. However even if there were evidence of all of those facts, in my view the principle in Paterson relied upon by the respondents does not apply here. 
  1. [47]
    Paterson concerned a different legislative provision, being an application for an extension of the limitation period pursuant to s 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld) (MAIA).  The court observed that although the discretion to be exercised in respect of an application pursuant to s 57(2)(b) is unfettered, the onus lies on the applicant to show good reason why the discretion ought to be exercised in his or her favour.  Relevant factors in the exercise of the discretion under s 57(2)(b) include any delay on the part of the claimant and whether the applicant is able to show that the delay which has occurred was occasioned by a “conscientious effort to comply” with the Act.
  1. [48]
    In contrast, under s 43 PIPA there is no requirement that the court be satisfied there is an excuse, reasonable or otherwise, for the delay or non-compliance[24].  Once an applicant can show the imminent end of a limitation period, that will provide the requisite “urgent need” to start a proceeding for the purposes of s 43.  The function of s 43 is to mitigate any injustice which might have been caused to the applicant by the requirements otherwise imposed by the Act.  It cannot be said to be directly analogous to s 57(2)(b) MAIA.
  1. [49]
    While a reasonable explanation for the delay was not required, in any event the appellant did provide one by way of his affidavit filed 9 February 2017.

Conclusion

  1. [50]
    In my view, having regard to all the relevant circumstances, the principles relevant to the exercise of the discretion and the purpose of the legislation, leave should be granted under s 43 to start the proceeding.
  1. [51]
    It does not seem to me that any other condition is necessary or appropriate having regard to the particular circumstances of the case, pursuant to s 43(2).
  1. [52]
    The appeal will be allowed and leave granted nunc pro tunc to the appellant to start the proceeding pursuant to s 43(1).
  1. [53]
    By virtue of s 43(3) the proceeding is automatically stayed until the appellant complies with the relevant part of the Act or the proceeding is discontinued or otherwise ends.
  1. [54]
    The appellant seeks an order that the respondents pay the appellant’s costs of the appeal. The respondents requested the opportunity to make further submissions with respect to costs, if the appeal were allowed. I will permit the parties to make written submissions on costs and will determine the question of costs on the papers.

Footnotes

[1] (1936) 55 CLR 499, 504 and 505

[2] Davison v Queensland (2006) 226 CLR 234 per Gummow, Hayne, Heydon and Crennann JJ at p 242

[3] Nicol v Caboolture Shire Council [2003] QDC 33 at [14]

[4] Gillam v Queensland [2004] 2 Qd R 251; [2003] QCA 566 at [24]

[5] GU v TO [2005] QCA 480 at [16]

[6] Gillam at 258-9

[7] Davison v Queensland (2006) 226 CLR 234

[8] Gillam at [23] – [25], [37]

[9] Gillam at [25]

[10] Gillam at  [25]

[11] Nicol supra

[12] Gillam at [23], [38]

[13] Kash v SM & TJ Cedergren Builders [2004] 1 Qd R 643 at [24]

[14] Hankin v Riseley [2006] QDC 254 per Robin QC DCJ

[15]For example see Prentice v Harbrew Pty Ltd [2011] QDC 179 per Robin QC DCJ

[16] GU v TO at [13], [65]

[17]For example, see Prentice v Harbrew Pty Ltd [2011] QDC 179 per Robin QC DCJ

[18] T5 lines 42-45

[19] T2 lines 35-40

[20] T3 lines 38-40

[21] at [8]

[22] Respondents’ Outline of Argument paragraphs 9 and 10

[23] Ibid paragraph 20

[24] Gillam at [25]

Close

Editorial Notes

  • Published Case Name:

    Romano v Brisbane City Football Club & Anor

  • Shortened Case Name:

    Romano v Brisbane City Football Club

  • MNC:

    [2018] QDC 67

  • Court:

    QDC

  • Judge(s):

    Fantin DCJ

  • Date:

    13 Apr 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Davison & Ors v Queensland (2006) 226 CLR 234
3 citations
Jump To
Cite 1 - (2006) 226 CLR 234
Cite 2 - (2006) 226 CLR 234
Cite 3 - (2006) 226 CLR 234
Gillam v State of Queensland[2004] 2 Qd R 251; [2003] QCA 566
9 citations
Jump To
Cite 1 - [2003] QCA 566
Cite 2 - [2004] 2 Qd R 251
Cite 3 - [2004] 2 Qd R 251
Cite 4 - [2004] 2 Qd R 251
Cite 5 - [2004] 2 Qd R 251
Cite 6 - [2004] 2 Qd R 251
Cite 7 - [2004] 2 Qd R 251
Cite 8 - [2004] 2 Qd R 251
Cite 9 - [2004] 2 Qd R 251
GU v TO [2005] QCA 480
3 citations
Jump To
Cite 1 - [2005] QCA 480
Cite 2 - [2005] QCA 480
Cite 3 - [2005] QCA 480
Hankin v Riseley [2006] QDC 254
2 citations
Jump To
Cite 1 - [2006] QDC 254
Cite 2 - [2006] QDC 254
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Kash v SM & TJ Cedergren Builders[2004] 1 Qd R 643; [2003] QSC 426
2 citations
Jump To
Cite 1 - [2004] 1 Qd R 643
Cite 2 - [2004] 1 Qd R 643
Nicol v Caboolture Shire Council [2003] QDC 33
2 citations
Jump To
Cite 1 - [2003] QDC 33
Cite 2 - [2003] QDC 33
Paterson v Leigh [2008] QSC 277
2 citations
Jump To
Cite 1 - [2008] QSC 277
Cite 2 - [2008] QSC 277
Prentice v Harbrew Pty. Ltd. [2011] QDC 179
3 citations
Jump To
Cite 1 - [2011] QDC 179
Cite 2 - [2011] QDC 179
Cite 3 - [2011] QDC 179

Cases Citing

Case NameFull CitationFrequency
Romano v Brisbane City Football Club (No 2) [2018] QDC 2152 citations
1

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