State of Queensland v Coffey[2005] QSC 212

SUPREME COURT OF QUEENSLAND

[1] MOYNIHAN J:  The defendant in each of these actions applies to have the claim and the statement of claim struck out on the basis that the plaintiff has failed to comply with the Personal Injuries Proceedings Act 2002 (PIPA) Chapter 2 Part 1.

[2] In each action the defendants filed and served conditional notices of intention to defend taking the point that the proceedings were a nullity because they were commenced contrary to s 9 of PIPA without an order pursuant to either s 18(1)(c) or 43(1) of the Act.

[3] The applications can conveniently be dealt with and disposed of together.  Mr Coffey, the plaintiff in each action sues the State of Queensland (and named individuals in action 596) for damages for personal injury consequent upon a number of alleged breaches of duty owed to him as a consequence of his being incarcerated. 

[4] The plaintiff acts on his own behalf.  The proceedings already have a troubled history because of that, the intricacies of the requirements of PIPA and the plaintiff’s distrust of the defendants and their legal representatives.

[5] I should make clear that I don’t consider that attitude is justified.  It apparently flows from the matters mentioned in the previous paragraph.  It is compounded by the plaintiff’s mis-appreciation of the relevant law and proceedings manifest in his oral and written submissions.

[6] Section 9 of PIPA provides that before starting a proceeding in a court based on a claim for personal injury a claimant must give written notice in the approved form to a person against whom the proceedings are proposed to be started.  The pre-action procedures provided for in Chapter 2, are substantive as opposed to procedural, see s 7.  They must therefore be complied with before valid proceedings can be instituted. 

[7] Chapter 2 Division 4 provides for a compulsory conference and mandated offers with exceptions which are of no present concern before court proceedings can be instituted.

[8] So far as action 595 is concerned, on 27 July 2004 the plaintiff delivered a notice of claim pursuant to PIPA in respect of an incident alleged to have occurred in September 2001.  On 3 December 2004 he filed a claim and a statement of claim in relation to that and 22 other incidents which were alleged to have occurred between December 2000 and September 2001.  For reasons it is unnecessary to explore, the claim and statement of claim were effectively served on 21 April 2005.   In the meantime, on 14 January 2005 the defendant notified the plaintiff that the proceedings were a nullity because of non-compliance with PIPA.  On 27 May they invited him to consent to their being discontinued or struck out but he declined to do so. 

[9] So far as action 596 is concerned, on 22 October 2004 the plaintiff delivered a notice of claim in respect of an incident alleged to have occurred on 5 March 2001.  On 3 December 2004 he filed a claim and a statement of claim which was effectively served on 21 April.  In correspondence of 28 April and on 11 and 24 March 2005 the defendants took the point that PIPA had not been complied with but the plaintiff declined to discontinue the proceedings or consent to their being struck out. 

[10] The plaintiff opposed the striking out of the claim and the statement of claim and the order for costs sought against him. 

[11] The defendants have taken points of non compliance with the provisions of PIPA in respect of the previous notices of claim including also timely compliance.  I don’t understand these matters to be in issue any more and it’s unnecessary to pursue them.  It seems to have contributed to the plaintiff’s difficulties.

[12] The defendants have been responding to the plaintiff’s requests for disclosure but there has been as yet no compulsory conference as required by PIPA.  The plaintiff is apparently not satisfied with the disclosure but that is not a matter to be determined on these applications.  If he wants to pursue it he will have to do it separately.

[13] There appears to be some confusion on the plaintiff’s part about limitation periods which has played a part in his institution of the proceedings.  That seems to flow from PIPA’s prescription of times for steps and the matters just referred to.

[14] So far as the Limitation of Actions Act 1974 is concerned the defendants in each action accept that the limitation period for the causes of action reflected in each of the claims does not expire until 7 December 2007.  That reflects the plaintiff having been the subject of a disability as a consequence of his serving sentences of imprisonment. 

[15] There appears to be no justification at all for the plaintiff’s concern that the defendants might depart from their position that the limitation period expires on 7 December 2007. 

[16] If they did, the correspondence and statements made to the court on these proceedings would make it to say the least, extremely difficult for them to do so.  In the light of those considerations, the plaintiff would appear to be well advised to abandon any concern reflecting the expiration of the period of limitation under the Limitation of Actions Act 1974 prior to 7 December 2007.

[17] The plaintiff has not however made any formal application for relief from the provisions of PIPA.   

[18] The plaintiff refers to s 43.  That provides an exception to the general prohibition of commencing an action by providing for leave to commence proceedings.   There appears to be no urgency founding the grant of relief under s 43 given what I have already said about the limitation period and the plaintiff has made no such application.

[19] Holmes v Adnought Sheet Metal Fabrication Pty Ltd [2004] 1 Qd R 378 in any event demonstrates that jurisdiction under s 43 cannot be exercised in respect of an action commenced before the necessary procedural steps have been taken.

[20] Section 59 of PIPA does not provide any comfort to the plaintiff in the present application.  It deals with the impending expiration of limitation period but as I have already said, the limitation period in respect of these actions does not expire until 7 December 2007.

[21] As I have said it is clear that each action was commenced without the plaintiff complying with or being excused from the pre-litigation action procedures prescribed by PIPA.  The actions have not been validly constituted and should be struck out. 

[22] UCPR 689 provides that costs are in the discretion of the court but are to follow the event unless the court considers another order is more appropriate.  I am not persuaded that the costs should other than follow the event.

[23] I order that in each action the claim and the statement of claim be struck out and that the plaintiff is to pay the defendants’ costs of and incidental to the application, and the actions to be assessed on the standard basis.