Burnett v Fultoncote Pty Ltd[2006] QSC 348

SUPREME COURT OF QUEENSLAND

[1] MACKENZIE J:The applicant sought declarations in relation to dependency proceedings under the Personal Injuries Proceedings Act 2002, (“the Act”), as follows:

1.That the applicant had provided reasonable excuse for the delay in giving the respondent a Part 1 notice of claim pursuant to s 9 of the Act;

2.That the applicant gave the respondent a complying Part 1 notice of claim pursuant to s 9 of the Act;

3.That in the alternative, pursuant to s 18(1)(c)(i) of the Act the applicant had remedied non-compliance; or

4.That in the alternative, the applicant be given leave pursuant to s 18(1)(c)(ii) of the Act to proceed further with the claim despite non-compliance.

Background to delay

[2] Relevant milestones are as follows.  On 10 February 2004 the de facto husband of the claimant died in a workplace accident.  On 16 February 2004 she consulted solicitors regarding a dependency claim.  On 7 March 2004 she gave instructions to them to pursue a damages claim.  On 6 April 2005 the respondent pleaded guilty to breaches of the Workplace Health and Safety Act 1995.  On 1 August 2006 the Coroner at Southport delivered findings regarding the death of the applicant’s de facto husband.  On 6 September 2006 the applicant served a notice of claim form upon the respondent. 

[3] The affidavit of Mr Koutsoukis, solicitor for the applicant, filed 24 October 2006, deposes to prompt enquiries made by him of the Division of Workplace Health and Safety and the Queensland Police Service after the applicant initially sought advice from him.  It appears that seven months elapsed before a decision was taken to release documents of the former pursuant to FOI.  The documents themselves were received on 7 October 2004 and in September 2005 more were released.  According to Mr Koutsoukis, although he had obtained that information, he did not believe it was appropriate to lodge a notice under the Act or the Workers’ Compensation and Rehabilitation Act 2003 until the Coroner had determined whether an inquest would be held. 

[4] On 15 February 2006 he wrote to the Coroner’s Court in Southport, referring to a telephone conversation that had led him to think that the Coroner did not intend to hold an inquest.  On 27 March 2006, the Coroner advised that he did not intend to hold an inquest because, in his view, the death had been thoroughly investigated, charges had been laid and dealt with, and he was unable to see what further evidence might be obtained.  He advised that a copy of the findings would be sent to Mr Koutsoukis once they were completed.  The findings were not made until 1 August 2006 and forwarded the same day. 

[5] The Part 1 notice of claim under the Act was then delivered on 6 September 2006.  It included a section claiming reasonable excuse for delay, the substance of which was that the applicant said that she had promptly instructed a lawyer to proceed with a damages claim and that it was not appropriate to commence proceedings until the Workplace Health and Safety investigation and the Coroner’s findings were complete. 

[6] On 3 October 2006, the respondent’s solicitors responded that none of the reasons for the delay provided fell within s 9(6) of the Act.  It was also advised that the claim was non-compliant and that the respondent refused to waive non-compliance. 

[7] Then on 13 October 2006 Mr Koutsoukis wrote to the respondent’s solicitors pointing out that it had not been identified whether their client was a proper respondent to the claim.  He required a reply within 7 days, to which the respondent’s solicitors demurred on the ground that they had one month, until 13 November 2006, to respond further.  In the meantime the present application had been filed on 24 October 2006 and listed for hearing on 8 November 2006. 

Was there reasonable excuse?

[8] The assertion in the letter that no reasonable excuse had been demonstrated because the excuse did not fall into a category within s 9(6) was not pressed and it is now conceded to be incorrect to limit the notion of reasonable excuse in that way.  The concession that the circumstances stated in s 9(6) are not exhaustive of the circumstances in which a reasonable excuse may be demonstrated is well founded. 

[9] The respondent accepted in written submissions that the test of reasonable excuse is an objective one, taking into account the claimant’s personal characteristics such as age, intelligence and education  (Piper v Nominal Defendant [2004] 2 Qd R 85 at 94, 96).  Perdis v Nominal Defendant [2004] 2 Qd R 64 at 74, 75-76 requires the court to focus on the actions of the claimant.  I will not repeat what was said at 75-76 about the approach to reasonable excuse where the carriage of the claim is entrusted to an apparently competent lawyer and there are no circumstances to cause the claimant concern that the claim is not being progressed appropriately. 

[10] Three points were made by the respondent about the reasonableness of the excuse.  Firstly, it was said that, although the claimant consulted a solicitor within a week of the accident, a delay of two years nine months demonstrated extraordinary inaction.  Secondly, it was submitted that reliance by the client on the need to wait to see if an inquest was held was “vacuous”.  Thirdly, it was submitted that because the applicant did not swear an affidavit, it was therefore impossible to assess her personal characteristics. 

[11] There is uncontradicted evidence that the applicant was, at the time of the accident, a 55 year old unemployed person whose last work, in 1994, was as a cleaner in a nightclub.  There is nothing to suggest that she was a person who would not merely rely on her solicitor to take appropriate steps in the proceedings.  There is evidence that the matter was progressed from the beginning by making enquiries which took time to be resolved.  It may be observed that this matter is probably in the minority of cases under the Act in which the facts were established by independent investigation and an admission of breach of statutory duty established by reason of the plea of guilty and conviction of the respondent.  Although the issue of prejudice to the respondent is not relevant to reasonable excuse (Piper 91, 97) those factors minimise it.  It also makes the likelihood of a Coroner’s inquest establishing any new facts objectively small and the utility of waiting to see if an inquest was to be held debatable.  However no challenge was made to what is implicit in Mr Koutsoukis’ affidavit that it was his professional opinion that he should wait until the decision whether to hold an inquest had been made before giving the notice of claim.

[12] To state those matters is not to lose the focus that it is the applicant’s excuse that is critical.  What has been said has two purposes.  One is to show that there is a circumstantial case that the matter was one that was being progressed, albeit cautiously, not one that went to sleep, and that if the applicant had enquired (which is not directly established on the evidence) she would have been advised in accordance with Mr Koutsoukis’ view of the steps needing to be taken before the notice of claim was served.  The second is that, in the notice of claim, the applicant adopted, with some particularity, the process undertaken in progressing the matter as her reasons why there was a reasonable excuse for delay.  It is an inference that is open from this, in the absence of any contrary indication, that she was relying on advice from her solicitor at material times during the course of the gathering relevant information, and that given the steps her solicitors believed appropriate it was not unreasonable not to be concerned about the time the matter was taking.

[13] What has been said on the issue of sufficiency of proof of the applicant’s excuse in the absence of an affidavit from her is driven by the facts of this case.  It should not be taken as an endorsement of the view that in all cases it is unnecessary for an applicant to depose to issues relevant to the reasonableness of the excuse. 

Other declarations

[14] At the time of the hearing, there was ongoing correspondence, the last of which was sent the day before the hearing, about compliance with the parties’ respective obligations under the Act.  The correspondence went to the question of whether the notice of claim was compliant.  The last letter dated 7 November 2006 raises issues that go outside the scope of the application, particularly in relation to what is sufficient to constitute “identifying the noncompliance” in s 12(2)(b), in contrast with s 12(3)(b) which requires “full particulars of noncompliance”.  At the hearing, an issue arising from that letter, of reliance on alleged matters of non-compliance not clearly identified in the first correspondence giving notice under s 12(2), was raised by the applicant. 

[15] Given the belated emergence of these issues, and the original scope of the applications and the written outlines of argument which do not deal with them, it is a case where it is appropriate to decline to make any of the declarations sought in paragraphs 2 to 4 of the originating application in accordance with the principle that, in appropriate circumstances, a court may follow that course.  In particular, I am not convinced that further analysis of the effect of the correspondence as a whole may not ensue between the parties, making the applications premature.

Orders

1. It is declared that the applicant provided a reasonable excuse for the delay in giving the respondent a Part 1 notice of claim pursuant to s 9 of the Personal Injuries Proceedings Act 2002;

2. Otherwise the application is refused.

3. The parties have leave to make written submissions as to costs within 7 days.