Burnett v Fultoncote Pty Ltd[2007] QSC 22

SUPREME COURT OF QUEENSLAND

[1] MACKENZIE J:  The applicant succeeded in establishing that there was reasonable excuse for delay in giving a Part 1 notice under s 9 of the Personal Injuries Proceedings Act 2002 (“PIPA”).  There had been applications for declarations that the notice was a complying notice; alternatively that non-compliance had been remedied; and alternatively that leave be given to proceed despite non-compliance.  These applications were refused, largely because there was on-going correspondence between the parties.

[2] Leave was given to make submissions with regard to costs within seven days.  At least one of the submissions was apparently sent to the Registry rather than to my Associate and not brought to my attention until recently.  A copy of the other set of submissions prepared within time according to the date on their face, could not be located in the court’s system and a copy was subsequently obtained.  Hence the delay in concluding the matter.

[3] The applicant submits she should have costs on the standard basis since she has been successful on the substantive issue of the reasonableness of her excuse.  Further, an issue, conceded at the hearing to be untenable, concerning s 9(6) PIPA had been raised by the respondent prior to the hearing.  The applicant’s application had been strongly resisted.

[4] The respondent submitted that the applicant was seeking an indulgence.  It is true that the applicant had not complied with the primary method of commencing a claim under PIPA.  However, establishing reasonable grounds for non-compliance is recognised as part of the statutory scheme.  It is not seeking a discretionary indulgence in quite the same sense as seeking relief from non-compliance with the UCPR.  It is not the kind of case where there is as much force as there might otherwise be in a submission based on the notion that the applicant should pay costs if seeking an indulgence.

[5] The other cluster of reasons why a costs order in the respondent’s favour should be made, in the respondent’s written submissions, concerns a finding that there was reasonable excuse.  Emphasis is placed on the fact that an inference was drawn that the applicant had been guided by the professional judgment of her solicitor as to the time when the notice of claim ought to be given.  The thrust of the argument relied on as a ground for not awarding costs of the application to the applicant is that there was no affidavit from the applicant herself as to her personal circumstances or characteristics which would allow the applicant to make a judgment about the reasonableness of the excuse.

[6] In the written submissions there is effectively criticism of the fact that the inference was drawn that there was nothing to suggest that the applicant was not a person who would not merely rely on her solicitor to take reasonable steps in the proceedings.  It was submitted that it was incumbent on her to lead positive evidence that she relied on her solicitor.  Drawing the inference in the circumstances involved a reversal of the onus on her.  It was said that the absence of evidence from her upon which the respondent could form an opinion on the issue “placed the respondent in an invidious position” of having to produce positive evidence of a negative.  Complaint was made that the applicant refused or otherwise failed to proffer such evidence before or at the hearing.  The absence of the evidence had also been part of the submissions on the respondent’s behalf at the hearing. 

[7] I took the view in the reasons previously delivered ([2006] QSC 348) that there was sufficient evidence of the applicant’s background and reliance on advice in other evidence which enabled me to draw safely the inference that was drawn.  I expressly said that what had been said on the issue of sufficiency of proof of the applicant’s excuse in the absence of an affidavit from her was driven by the facts of the case and 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 reasonableness of the excuse.  There was no appeal against this approach.  Further, if the absence of evidence from the applicant was of concern to the respondent in the way alleged it could have been raised with the applicant’s solicitors prior to the hearing.  The fact that the respondent chose to resist the matter on a basis that failed in circumstances that are not commonly seen is of no decisive weight for present purposes.

[8] The applicant has been substantially successful, having established the right to have the claim recognised.  The refusal of the other declarations was due to the fact that the parties were still engaging in correspondence concerning aspects of them at the time of the hearing and for that reason were declined, essentially because the applications were rendered premature by that ongoing discussion.  In the circumstances, as the applicant has been substantially successful, I order that the respondent pay the applicant’s costs of and incidental to the application.