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  4. Zaporozhki v AAI Limited (trading as GIO) - [2022] QSC 22

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Zaporozhki v AAI Limited (trading as GIO)[2022] QSC 22

Zaporozhki v AAI Limited (trading as GIO)[2022] QSC 22

SUPREME COURT OF QUEENSLAND

CITATION:

Zaporozhki v AAI Limited (trading as GIO) [2022] QSC 22

PARTIES:

VLADAN ZAPOROZHKI

(plaintiff)

v

AAI LIMITED (TRADING AS GIO)

ABN 48 005 297 807

(defendant)

FILE NO:

SC No 1011 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

7 March 2022

DELIVERED AT:

Brisbane

HEARING DATES:

16 August and 12 November 2021

JUDGE:

Wilson J

ORDERS:

  1. 1.The plaintiff’s rule 24 UCPR application for renewal of his claim filed on 14 June 2021 is dismissed.
  2. 2.The plaintiff pay the defendant’s costs of and incidental to his application on the standard basis to be assessed.
  3. 3.In relation to the defendant’s applications, the question of costs is adjourned to a date to be fixed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SERVICE – PERSONAL SERVICE – where the plaintiff was required to serve the claim and statement of claim on the defendant in accordance with the Service and Execution Process Act 1992 – where the plaintiff alleged that he served the claim by post pursuant to s 9(1) of SEPA – where the plaintiff was required to prove service – where the plaintiff only provided an assertion that the claim was served without supporting evidence – whether the plaintiff proved service occurred as alleged

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COMMENCING PROCEEDINGS – TIME FOR SERVICE OF ORIGINATING PROCESS AND RENEWAL – where the plaintiff did not serve the claim on the defendant within one year of filing – where the plaintiff alleges reasonable efforts have been made to serve the defendant – where the plaintiff did not take further steps in the proceedings for two years after alleging he served the claim – whether the plaintiff made a reasonable effort to serve the claim and statement of claim

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COMMENCING PROCEEDINGS – TIME FOR SERVICE OF ORIGINATING PROCESS AND RENEWAL – where the plaintiff did not serve the claim on the defendant within one year of filing – where there were not reasonable efforts made to serve the defendant – where the defendant alleged COVID-19 caused a delay – where the plaintiff applied to extend limitation periods which may otherwise have expired – where whether, in all the circumstances, there was “another good reason” to renew the claim

COUNSEL:

The plaintiff appeared on his own behalf

S Blount for the defendant

SOLICITORS:

The plaintiff appeared on his own behalf

McCabe Curwood for the defendant

  1. [1]
    On 5 November 2011, the plaintiff sustained injuries to his left shoulder, cervical spine, lumbar spine and head in the course of his employment as a painter when he slipped and tumbled down a flight of stairs while carrying a ladder.  The injury occurred in New South Wales and the plaintiff obtained statutory workers’ compensation under the New South Wales scheme.  He has since relocated to Queensland.

Claim and statement of claim

  1. [2]
    On 1 February 2019, the plaintiff filed a claim and statement of claim against the defendant in this court, claiming damages of $1,900,000 plus interest and costs.  The plaintiff brings his claim for damages against the defendant insurer directly, not against his employer.  The plaintiff sets out the following matters in his statement of claim:
    1. (a)
      the injuries he suffered and the pain and suffering that he then experienced;
    2. (b)
      the delay in the defendant accepting his claim;
    3. (c)
      the delay of approximately three and a half months between the date of his injury and the date he first received treatment;
    4. (d)
      the delay of approximately five months between his injury and the payment of weekly compensation, as well as the subsequent delays in payment of weekly compensation;
    5. (e)
      his expenses and debts;
    6. (f)
      his efforts to return to work;
    7. (g)
      his difficulties in getting the defendant to pay for an MRI between September 2014 and April 2015; and
    8. (h)
      that a Dr Popoff “was looking for a shoulder surgery”, as well as his subsequent assessment for whole person impairment by Dr Higgs.
  2. [3]
    In relation to the last point, the plaintiff’s statement of claim states:

“Dr Robin Higgs gave me 17% of the previous 15% damage.  The fact that I worked and damaged my health for a few more %.  Dr Higgs himself says in his report that my impairment worsened and that I am able to work for a maximum of 15-20 hours and that work is the substantial contributing factor to injury and to my present condition.  During this time while I was working, every moment was dangerous to me or others because I was dizzy and lost my balance.  I climbed to the ladders and scaffolds.  I could fall and hurt myself or others at any moment.” 

  1. [4]
    The plaintiff states that he has been on Centrelink since June 2016 and is no longer working.
  2. [5]
    In 2017, the plaintiff moved to Queensland.  The statement of claim states that he has a new general practitioner who is sending him to a neurologist “because of the problem of a concussion of the head (migraines, loss of balance, dizziness)”.  According to the statement of claim, “after reviewing and consulting, I am permanently incapable of work”.
  3. [6]
    The statement of claim sets out his current symptoms as follows:

“Current symptoms

During this time I was suffering from the following:

  1. a)Pain, discomfort and serious restriction of movement of my left shoulder;
  2. b)Pain, some restriction of movement/tightness and discomfort in my neck and spine;
  3. c)Cannot lift anything with my left arm without pain; cannot lift push or pull anything of above a couple of kg with my left arm/shoulder;
  4. d)Dizziness and I lose balance.  There are also tiredness, blurred vision and strong migraines
  5. e)Cannot sit for more than 15 minutes without needing to get up and walk around;
  6. f)A bit of depression and anxiety because my symptoms were not getting better.”
  1. [7]
    Under the heading “Consequences and disregard of the law”, the plaintiff alleges a number of breaches of statute, negligence, discrimination and breaches of human rights:

“Consequences and disregard of the law:

  1. a)I received the first medical treatment 11/Feb/2012 after 3.5 months of injury, and the law says that medical provisional payment/treatment must be provided to the injured worker immediately and there is no reasonable excuse for this.  Guidelines for claiming work Compensation, SIRA, A2 Provisional payments, page 9.
  2. b)Insurance violated the law, section 279, 280 Workers Compensation Act 1998, which jeopardised my recovery and showed professional negligence to the injured worker.
  3. c)They were late with a weekly payment, where I get my first payment 26/Mar/2012 after 5 months, violated the law section 267, 274, 275 Workers Compensation Act 1998
  4. d)Reimbursement to a worker or employer or payment of a properly completed invoice submitted by medical or other treatment or service providers for a claim where liability has been accepted is to be made promptly (Section 74A(1) Workplace Injury Management and Workers Compensation Act 1998) once the costs are incurred and properly verified (Section 60(3), Workers Compensation Act 1987
  5. e)There is no reasonable excuse for such things, and nothing can justify their behaviour.  There is no law in the explanation for sabotaging the treatment of an injured worker.  In both cases, my human rights have been compromised.  How other insured persons are entitled to a medical payment immediately and weekly payment for seven days (in exceptions for 21 days) so I have the same right.  Insurance and the employer used my ignorance of English and ignorance of the work cover system to avoid liability and to avid the responsibility to pay medical expenses and weekly payment.
  6. f)I’ve lost my career: I love my painting job and I had great plans.  In this business I wanted to build a career, but it is now destroyed.  In fact, it may well be better for the insurance to react by law and payment me medical expenses in time as well as weekly payment
  7. g)I have to go for surgery.  It haunts me, I’m afraid what will happen after surgery because no one has to look after about me.  I’m afraid I may not wake up from anaesthesia.”
  1. [8]
    In his conclusion, the plaintiff appears to primarily plead negligence sounding in damages for physical and neurological injury:

“Conclusion

By their negligence and by the late payment, I was forced to work what was worsening my condition of health and permanently become incapable of work.  Not treated with a conclusion of the head and all other injuries that have not been treated in time have reflected on my balance and strong migraines, which I still cure.  I want the court to accept my appeal because under the law insurance must immediately treat the injured.  What they did not do about 3.5 months, permanently ruined me for work.  Because of their negligence, I became an invalid.  The injuries happened in Sydney, NSW, but I now live in Queensland and it is very difficult for me to have a hearings there, because I would have to travel often, and my health does not allow me to travel too far.  I want justice and a monetary compensation.”

  1. [9]
    The relief claimed by the plaintiff is two liquidated sums: one for professional negligence in not providing medical provisional payments and medical treatment, and the other for professional negligence for non-payment of weekly compensation.  It is expressed in the prayer for relief as follows:

“The plaintiff claims the following relief:

  1. 1.Not provide medical provisional payment/medical treatment by the law professional negligence – compensation of $950,000
  2. 2.Non-payment of weekly payment by the law-professional negligence-compensation of $950,000
  3. 3.Total $1,900,000
  4. 4.Interest under the Supreme Court Act 1995 and
  5. 5.Costs”

New South Wales workers’ compensation framework

  1. [10]
    The Workers Compensation Act 1987 (NSW) (“1987 Act”) and Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“1998 Act”) create a statutory regime for the provision of compensation to workers who are injured in the course of their employment.  Broadly speaking, the 1987 Act dictates a person’s substantive entitlements to compensation for workplace injuries, whereas the 1998 Act deals with procedural requirements.
  2. [11]
    In relation to the plaintiff’s tortious allegations, the substantive law of New South Wales applies, including the law of limitations of actions, because the torts alleged occurred in New South Wales.  However, the procedural laws of Queensland apply, including the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”).[1]

Chronology

  1. [12]
    On 5 November 2011, the plaintiff was working as a painter for Zoran the Painter.com Pty Limited (“Zoran”), when he slipped and tumbled down a flight of stairs while carrying a ladder.
  2. [13]
    On 28 November 2011, the plaintiff’s general practitioner, Dr Kuzmanovski, issued a New South Wales WorkCover medical certificate.  The certificate stated that the plaintiff had suffered a “dislocated left shoulder, concussion of the head, mechanical derangement of cervical spine, mechanical derangement of lumber spine”, and was unfit to work from 5 November 2011 to 20 January 2012.
  3. [14]
    QBE Insurance (“QBE”) was the scheme agent responsible for managing the workers’ compensation claim at the time on behalf of the nominal insurer. 
  4. [15]
    On 6 January 2012, QBE wrote to both the plaintiff and his employer, saying that it considered there was a reasonable excuse for not accepting provisional liability on the basis that the plaintiff may have been a contractor, not a “worker” for the purposes of the 1998 Act.
  5. [16]
    On 17 January 2012, QBE wrote to Dr Kuzmanovski stating that it had “reasonably excused” the plaintiff’s claim pending investigation as to whether he was an employee of Zoran at the time of the accident.
  6. [17]
    On 8 February 2012, QBE wrote to the plaintiff stating that it had accepted provisional liability.
  7. [18]
    On 8 February 2012, QBE issued an injury management plan in respect of medical treatment recommended by Dr Kuzmanovski.
  8. [19]
    On 25 March 2013, QBE informed the plaintiff that it had ceased weekly compensation from 16 December 2012.
  9. [20]
    On 2 April 2013, the plaintiff filed an application in the Workers Compensation Commission (“WCC”) to resolve dispute 5569 of 2013, which sought weekly compensation and medical expenses.
  10. [21]
    On 20 February 2014, arbitrator Mr Phillips SC of the WCC directed that the application of 2 April 2013 be amended to include a claim for lump sum compensation for the plaintiff’s left upper extremity, cervical spine and lumbar spine injuries as a result of the injury of 5 November 2011.
  11. [22]
    On 5 May 2014, Dr Crocker, an approved medical specialist, produced a medical assessment certificate of degree of permanent impairment and general medical dispute for 9% whole person impairment.
  12. [23]
    On 6 June 2014, by consent of the parties, the WCC made orders for the plaintiff’s claim for lump sum compensation and weekly compensation to be discontinued and for QBE to pay for the medical treatment recommended in the medical assessment certificate of Dr Crocker.
  13. [24]
    On 2 March 2015, QBE issued a declinature notice stating that ongoing medical treatment in relation to the accident of 5 November 2011 was no longer reasonably necessary.
  14. [25]
    On 18 November 2015, Dr Higgs gave a report to the plaintiff's former solicitors stating that the plaintiff suffered 17% whole person impairment.
  15. [26]
    On 1 April 2016, the plaintiff's former solicitors gave notice of the plaintiff's claim for whole person impairment and weekly compensation.
  16. [27]
    On 24 March 2017, the plaintiff's former solicitors gave further notice that the plaintiff was seeking compensation for whole person impairment and weekly compensation.
  17. [28]
    On 19 October 2017, the plaintiff was informed by QBE that his claim had been transferred to GIO, who took over as the scheme agent managing the claim on behalf of the nominal insurer.
  18. [29]
    On or about 24 October 2017, the plaintiff's former solicitors ceased acting for him.
  19. [30]
    On 6 March 2018, the plaintiff, now self-represented, filed a further application to resolve a dispute in the WCC, seeking referral to an approved medical specialist to assess whole person impairment.
  20. [31]
    On 16 November 2018, a delegate of the registrar of the WCC referred the assessment of whole person impairment for the left upper extremity, cervical spine and lumbar spine injuries to Dr McKee, an approved medical specialist.
  21. [32]
    On 23 January 2019, Dr McKee provided a medical assessment certificate providing an assessment of 9% whole person impairment for the left upper extremity, cervical spine and lumbar spine injuries.
  22. [33]
    On 29 January 2019, the plaintiff filed an appeal against the medical assessment certificate issued by Dr McKee.
  23. [34]
    Three days later, on 1 February 2019, the plaintiff filed an originating process in the Supreme Court of Queensland claiming $1,900,000 plus interest and costs, and naming AAI (trading as GIO) as the sole defendant. 
  24. [35]
    The plaintiff states that as soon as he received certified copies of the claim and statement of claim from the Supreme Court, he sent these documents to “his known address” for the defendant at GPO Box 1464 Sydney NSW. 
  25. [36]
    On 11 June 2019, an appeal panel revoked the medical assessment certificate of Dr McKee and issued a medical assessment certificate for 14% whole person impairment for the left upper extremity, cervical spine and lumbar spine injuries.
  26. [37]
    On 5 August 2019, the WCC issued a certificate of determination under section 294 of the 1998 Act by consent.  Pursuant to these orders, the plaintiff discontinued his claim for medical and related treatment and the defendant paid the plaintiff lump sum compensation in the amount of $20,350 for 14% whole person impairment.
  27. [38]
    On 11 September 2019, pursuant to rule 59.10 of the Uniform Civil Procedure Rules 2005 (NSW), the three month period in which the plaintiff could seek judicial review of the appeal panel’s decision in the Supreme Court of New South Wales without requiring leave expired.
  28. [39]
    On 28 April 2020, the plaintiff filed another application to resolve a dispute in the WCC seeking weekly compensation.
  29. [40]
    On 15 July 2020, arbitrator Mr Edwards of the WCC issued a certificate of determination determining that the plaintiff had suffered a concussion injury in the accident of 5 November 2011 and had suffered consequential headaches, loss of balance and vertigo.
  30. [41]
    On 10 September 2020, Mr Edwards issued a further certificate of determination determining that the insurer was to pay weekly compensation to the plaintiff from 21 January 2012 to the date of the determination, with the defendant to be given credit for payments already made.
  31. [42]
    On 9 October 2020, pursuant to section 352(4) of the 1998 Act, the 28-day period for appealing the certificate of determination without having to demonstrate exceptional circumstances expired.
  32. [43]
    On 8 April 2021, the plaintiff again sent the claim to the defendant.
  33. [44]
    On 19 April 2021, the defendant received the claim.

The present applications

  1. [45]
    These proceedings concern two interlocutory applications.  The ultimate question before the Court is, in effect, whether the plaintiff’s claim should be allowed to proceed.
  2. [46]
    On 14 June 2021, the plaintiff filed an application seeking the following orders:
    1. (a)
      the renewal of his claim under rule 24 of the UCPR;
    2. (b)
      the extension of the limitation periods, if any, under the Limitation of Actions Act 1974 (Qld) (“Limitation of Actions Act”); and
    3. (c)
      that QBE be added as the first defendant and GIO Insurance be made the second defendant.
  3. [47]
    On 15 July 2021, the defendant filed a conditional notice of intention to defend, as well as an application seeking the following orders:
    1. (a)
      the claim filed 1 February 2019 be set aside pursuant to rule 16(e) of the UCPR for want of the court’s jurisdiction to determine a claim for damages arising out of work injuries to which the New South Wales workers’ compensation legislation applies;
    2. (b)
      the claim filed 1 February 2019 be set aside pursuant to rule 16(f) of the UCPR because, at the time of service, 19 April 2021, the claim was no longer in force and had not been renewed at the time it was served;
    3. (c)
      the claim filed 1 February 2019 be set aside pursuant to rule 16(f) of the UCPR because the claim, filed in the Supreme Court in Queensland, was not served in New South Wales in accordance with the Service and Execution of Process Act 1992 (Cth);
    4. (d)
      the claim filed 1 February 2019 be set aside pursuant to rule 16(e) of the UCPR because the allegations are out of time under the Limitations of Actions Act 1974 (Qld) or alternatively the Limitation Act 1969 (NSW);
    5. (e)
      the claim filed 1 February 2019 be set aside pursuant to rule 16(e) of the UCPR because there are insufficient prospects of success;
    6. (f)
      the claim filed 1 February 2019 be set aside pursuant to rule 16(e) of the UCPR because the allegations are made against a defendant different to the one presently joined; and
    7. (g)
      the plaintiff pay the defendant’s costs of this application.
  4. [48]
    So, the plaintiff is both an applicant and respondent in the applications before the Court and the defendant is both a respondent and applicant.  For ease and consistency, I refer to the plaintiff/applicant/respondent as “the plaintiff” and the defendant/respondent/applicant as “the defendant” in my reasons.
  5. [49]
    The plaintiff represented himself at the hearing with the assistance of a translator.

Renewal of the claim under rule 24 of the UCPR

  1. [50]
    The plaintiff filed his claim on 1 February 2019.  By operation of rule 24(1) of the UCPR, the claim would have expired on 1 February 2020 unless it was served on the defendant before this date.  If the claim was served on the defendant after 1 February 2020, then the plaintiff is barred from taking further steps in the proceedings unless he obtains an order renewing the claim under rule 24(2).
  2. [51]
    The plaintiff applies for an order renewing his claim under rule 24 of the UCPR, which states:

“24    Duration and renewal of claim

  1. (1)
    A claim remains in force for 1 year starting on the day it is filed.
  2. (2)
    If the claim has not been served on a defendant and the registrar is satisfied that reasonable efforts have been made to serve the defendant or that there is another good reason to renew the claim, the registrar may renew the claim for further periods, of not more than 1 year at a time, starting on the day after the claim would otherwise end.
  3. (3)
    The claim may be renewed whether or not it is in force.
  4. (4)
    However, the court’s leave must be obtained before a claim may be renewed for a period any part of which falls on or after the fifth anniversary of the day on which the claim was originally filed.
  5. (5)
    Before a claim renewed under this rule is served, it must be stamped with the court’s seal by the appropriate officer of the court and show the period for which the claim is renewed.
  6. (6)
    Despite subrule (1), for any time limit (including a limitation period), a claim that is renewed is taken to have started on the day the claim was originally filed.”

When was the claim served?

  1. [52]
    Rule 24(1) of the UCPR establishes the general proposition that a claim is to be in force for the purpose of service for one year. Where service has not occurred, rule 24(2) makes provision for renewal. The plaintiff has made a rule 24 application to renew his claim. Accordingly, it must be predicated on the basis that the claim was not served within a year of filing. However, despite making a rule 24 application, the plaintiff states that he served the claim in early 2019.
  2. [53]
    In an affidavit filed on 14 June 2021 in support of his application to renew his claim, the plaintiff deposed:

“I filed the claim in January 2019. As soon as I received certified copies from the Supreme Court of Brisbane, I sent them to my known address GIO (AAI Limited t/as GIO GPO BOX 1464 Sydney NSW). I was expecting their response, or the Supreme Court response, because I thought it was so necessary. That’s what I did when I represented myself before the Worker Compensation Commission. At that address, I also gave the, the documents that I used before the Worker Compensation Commission. As proof, I approach: Appeal against of AMP 25.01.2019 and Certificate of service 30.01.2019; Application to Resolve a Dispute 07.11.2019 and Certificate of Service 08.11.2019; Application to Resolve a Dispute 08.04.2020 and Certificate of Service 29.04.2020.

From this evidence you can see that I always sent a sealed envelope with documents and an application to the same address (page 3,12,25), receipt and truck number (page 8, 21, 35). As I sent the documents and the Application to Dispute to the same address several times, so I sent when I received my Claim with stamps from Supreme Court Brisbane. Unfortunately, I did not save the receipt from the post and track number. I must say that the insurance company GIO never responded to my letters and requests, but that the Workers Compensation Commissions initiated a telephone conference and timetable proceedings (page34). I apologies that more than 2 years have passed since my claim, I am not a lawyer, I thought the procedure was the same as with WCC and the duty of the GIO Insurance was to respond to my claim.”

  1. [54]
    The exhibits to the plaintiff’s affidavit contained receipts from Australia Post with tracking numbers in relation to other documents the plaintiff sent to the defendant. However, the plaintiff deposed that he did not save a copy of the receipt in relation to his claim.
  2. [55]
    The plaintiff’s written submissions for these applications states:

“I have sent a claim, statement of claim, affidavit and Certificate of Exhibit from 01 Feb 2019 to my known address GIO (AAI Limited t / as GIO, GPO BOX 1464, Sydney, NSW). This is the same address where I sent the requests for the Worker Compensation Commission (now Personal Injury Commission), (Zaporozki 08 June 2021, Affidavit A, pages 01 - 34). Also, I sent Claim again 08 Apr 2021 and again I didn’t get any response (Zaporozki 06 Avg 2021, Affidavit B 8, page 33). It was only when I sent Form 9, and gave the Court the power to initiate the case, that insurance was only then announced.”

  1. [56]
    In oral submissions, the plaintiff referred to some evidence being available on his bank statement. He stated:

“I was trying to find a receipt about the postage of that claim.  I was at the post office and I was told that they could provide me with addresses in the last two months. I – I was able to see on my bank statement that I actually posted that on the 21st of February. They didn’t reply to that.  I also send an application in April – the 8th of April 2021 and they confirmed that they had received it. But again I didn’t get any feedback. Only when I send the form 9 did they reply to it.” 

  1. [57]
    There was no evidence to substantiate such a submission.  However, after the hearing and after being provided the defendant’s further submissions on the issue of service, the plaintiff provided further submissions which state that he sent the claim to the defendant in February 2019:
  1. “(1)
    I enclose evidence confirming that I sent the Claim, Statement of Claim etc, to the respondent in February 2019.
  2. (2)
    In my statement from the bank you see the date 04 Feb 2019 when I paid the Supreme Court Brisbane hearing costs.
  3. (3)
    The date 06 Feb 2019 shows that sent an envelope with documents from Post Eleanor. That envelope relates to my claim for professional negligence from insurance before the Supreme Court of Brisbane.
  4. (4)
    Alternatively, it may happen that I sent the lawsuit on 22 Feb 2019, which also exists on my statement from the bank, or some other date, but all dates cover only a few months from the filing of the original lawsuit from 01 Feb 2021.
  5. (5)
    A second letter was sent to the same address on 08 Apr 2021, for which I have proof, to which they also did not reply, but confirmed that they had received it. It was obvious that the letter arrived at the same address because it was not returned to me.
  6. (6)
    Since the respondent requested me to submit the dates which I filed the lawsuit (9) (d) in their submission of 16 Nov 2021, I have done so now.
  7. (7)
    I asked the Australian Post to help me with these dates, and confirm to whom I then sent the documents, but so far I have not received any response. I have no authority to do anything more than this, but perhaps a court order for the Australian Post would help solve this problem. Also, there is a receipt of shipments in the GIO insurance, I ask the GIO lawyer to examine the documents on the receipt of shipments for February 2019. Where I am sure that they will find the receipt of my shipment.”
  1. [58]
    The reference in the plaintiff’s submissions to enclosing evidence “confirming that I sent the Claim, Statement of Claim etc to the respondent in February 2019” is to an affidavit attaching bank statements from 1 February 2019 to 22 February 2019.
  2. [59]
    The plaintiff’s assertion about sending the claim to the defendant in early 2019 was not challenged at the hearing.  However, I note that there is no evidence to support this assertion.  The bank statement that the plaintiff has produced does not prove that he sent the documents to the defendant in February 2019.  Rather, it is evidence that, on 6 February 2019, he paid $10.55 to “Post Elanora Lpo Elanora” and, on 22 February 2019, he paid $8.80 to “Post Elanora Lpo Elanora”.  There is no documentary evidence to substantiate what these payments are for.
  3. [60]
    Ms Kruse (the team leader in the defendant’s litigation and impairment team) has provided an affidavit regarding the issue of service.  Ms Kruse deposed that:

“Legal mail is received by GIO in 2 main ways. The first way is the physical mail is sent to our post office box and scanned by Decipha which is an external company employed to scan our documents. Documents are coded and transferred onto a GIO claim by reference to a G 10 claim number. Documents coded as legal mail are captured by a robot and rolled into an unassigned legal mail queue. The Litigation Specialists and team leaders review that mail and allocate it to the appropriate personnel or to a new Litigation Specialist. Once legal mail is allocated to a Litigation Specialist a reminder is set up so future legal mail is transferred to the Litigation Specialist by the robot. The second way is that legal mail is sent electronically to an email address and uploaded onto the claims file. Again, legal mail is captured by a robot and reviewed.”

  1. [61]
    Ms Kruse deposes that, based on her inquiries and to the best of her knowledge, the plaintiff’s claim was not received by the defendant until 19 April 2021.  Ms Kruse does not specify whether the post office box she refers to is the same post office box that the plaintiff says he posted the claim to in early 2019.  Ms Kruse’s evidence was not challenged by the defendant.
  2. [62]
    As the plaintiff was serving an originating process outside of Queensland, rule 123 of the UCPR applies.  Rule 123 states that an originating process must be served in accordance with the Service and Execution Process Act 1992 (Cth) (“SEPA”).
  3. [63]
    Section 9(1) of SEPA states that service of a process, order or document on a company is to be effected by leaving it at, or sending it by post to, the company’s registered office.  Section 11(4) of SEPA states that:
  1. “(4)
    Service of a process, order or document under this Act by post on a company, a registered body or any other body corporate is taken to have been proved only if the following are proved:
  1. (a)
    it was sent by pre-paid post to an address for service on the company, registered body or other body corporate under section 9 or 10;
  2. (ab)
    it was addressed to the company, registered body or other body corporate, or, if the address for service is the office of a solicitor, to that solicitor;
  3. (b)
    the day on which it was posted.”
  1. [64]
    Section 11(5) of SEPA sets out how service may be proved:
  1. “(5)
    Service of a process, order or document under this Act may be proved:
  1. (a)
    by affidavit sworn before:
  1. (i)
    any justice of the peace having jurisdiction in the State or part of the State in which the service was effected; or
  2. (ii)
    a Commissioner for Affidavits or Declarations; or
  3. (iii)
    a notary public for that State or part of that State; or
  4. (iv)
    a person who is a barrister or a solicitor, or both; or
  1. (b)
    in any way in which the service might have been proved if it had been effected within the State in which the process, order or document was issued.”
  1. [65]
    Section 11(6) states that it is only necessary to call the deponent to give evidence of service if a court, authority or tribunal, or a person appearing before a court, authority or tribunal, so requires.
  2. [66]
    Section 11(11) sets out when service is presumed to have occurred:
  1. “(11)
    A process, order or document served by post under this Act is presumed to have been served on the fourth day after the day it was posted unless evidence is adduced that raises real doubt that the process, order or document was delivered by post to the person to whom it was addressed within 4 days after the day it was posted.”
  1. [67]
    The defendant, in their further submissions on service made on 16 November 2021, relied on In the matter of Futre Developments Pty Ltd[2] (“Futre Developments”).
  2. [68]
    In Futre Developments, Robb J considered the application of s 109X of the Corporations Act 2001 (Cth) on the question of whether a claim seeking to set aside a statutory demand had been served on the registered office of a company within time. This question turned on when the statutory demand had been “served”. The facts were that the office of an accountant was the registered office of the company, the accountant had a street address and a post office box address, the post office as a matter of informal practice often delivered letters addressed to the street address to the post office box, and the accountant did not check the mail every day. The account “opened up” the letter on 19 September 2014, putting the claim to set aside within time. However, Robb J found the letter had been “served” on 17 September 2014, putting the claim out of time.
  3. [69]
    The defendant states that although not directly considering the requirements of sections 9 and 11 of SEPA, Futre Developments points out the distinction between the street address of a registered office and a post office box.

As the document must be posted to the registered office of the company, the address must be the street address of the registered office, and not a post office box maintained by either the company, or the organisation that maintains the registered office of the company.[3]

  1. [70]
    They also suggest Futre Developments is also of assistance in indicating the evidence that may be relied on by a court to prove service. The decision indicates the party posting the process gave evidence:
    1. (a)
      The process was put in a prepaid express post envelope;
    2. (b)
      The envelope was addressed to the street address of the registered office of the company;
    3. (c)
      The tracking identification sticker was removed from the express post envelope and retained;
    4. (d)
      The envelope was posted at an express post box at “about 8pm on 15 September 2014”; and
    5. (e)
      On 8 October 2014, the party posting the process searched the Australia Post website and found a confirmation of delivery at 11:22 on 17 September 2004 (although there was no confirmation of the place of delivery).[4]
  2. [71]
    The defendant notes that on the present facts, the plaintiff’s affirmed evidence of posting the claim was:

I filed the claim in January 2019. As soon as I’d received certified copies from the Supreme Court of Brisbane, I sent them to my known address CIO (AAI Limited t/as GIO, GPO Box 1464, Sydney NSW). Unfortunately I did not save the receipt from the post and track number.

  1. [72]
    The defendant’s written submissions state that:

The plaintiff gives affirmed evidence as to the circumstances of the service of other documents, but this is irrelevant to the service of the originating process at issue. To the extent the plaintiff has made written and oral submissions in substitute for affirmed evidence, the court should give these little weight as, on a central issue in the plaintiff’s own application under r 24 of the UCPR 1999 (Qld), the court should not accept evidence from the bar table as a substitute for affirmed evidence.

  1. [73]
    The plaintiff in the proceedings under rule 24 has the burden of proving service.  To satisfy this burden, the plaintiff must prove that the originating process was sent by post to the defendant’s registered office on or about 1 February 2019.[5]  To do so, he must demonstrate, by affidavit[6]:
    1. (a)
      the originating process was sent by pre-paid post;
    2. (b)
      the defendant’s registered office was the address on the pre-paid post; and
    3. (c)
      the day on which it was posted.[7]
  2. [74]
    On the material before me, I am not satisfied that the plaintiff has discharged this burden.
  3. [75]
    The only evidence before me is the plaintiff’s assertion in his affidavit that he filed the claim in January 2019 and, as soon as he received certified copies from the Registry, he sent the claim to a GPO box in Sydney (which was the same as the GPO box where he sent previous correspondence to the defendant).  He did not save the receipt from the post or the tracking number.  I note that he kept receipts for other documents that he sent to the plaintiff, including when he sent the claim to the defendant on 8 April 2021.
  4. [76]
    Further, it seems the plaintiff himself is not sure when he posted the documents. The plaintiff, in his submissions dated 9 August 2021 and 24 September 2021, does not provide a definite date he posted the documents. Rather, he states that he sent the documents “as soon as [he] received certified copies” to his “known address”. In his submissions dated 18 November 2021, he provides two possible dates: 6 February 2019 or 22 February 2019. However, he also notes that it may have been sent on “some other date”.
  5. [77]
    The bank statement produced by the plaintiff does not satisfy me as to any of the matters set out in section 11(4) of SEPA. 
  6. [78]
    Further, on the evidence before me, it is not clear that the defendant’s registered office was the address on the pre-paid post.
  7. [79]
    In relation to the plaintiff serving the defendant with the claim in 2019, I am not satisfied that the plaintiff has proved the matters set out in section 11(4) of SEPA. Therefore, I find that service of the defendant did not occur in February 2019.
  8. [80]
    In relation to the plaintiff serving the defendant with the claim in 2021, he has provided an affidavit attaching an Australian Post receipt dated 8 April 2021 for three large letters sent by registered post.  There is no evidence as to who these letters were sent to or the contents of these letters.  However, the defendant acknowledges that they received the claim on or about 19 April 2021.[8]

Renewal of the claim

  1. [81]
    To be effective, service of a claim must take place whilst the claim remains in force, which is for one year after filing.  In this case, service did not occur within one year of filing, as the claim was filed on 1 February 2019 and served upon the defendant more than two years later.  Service of a stale claim is, however, an irregularity, not a nullity.  It is therefore capable of being cured in the exercise of my powers under rule 371 of the UCPR.  However, such an exercise would be appropriate only if I were satisfied that it was proper to renew the claim under rule 24.[9]
  2. [82]
    The plaintiff in this case requests a renewal of the claim for a period of more than the one-year period permitted by rule 24(2) of the UCPR.  In Gillies v Dibbetts,[10] Margaret Wilson J (Thomas and McPherson JJA agreeing) observed:

“[21] Under r. 24 the Registrar may renew a claim “for further periods, of not more than 1 year at a time, starting on the day after the claim would otherwise end”. Although the rule refers to renewal for “not more than 1 year at a time”, the court may renew it for a greater period in exercise of its general power to extend a time set under the rules.” (citations omitted)

  1. [83]
    The question then becomes whether the clam should be renewed.  The onus is on the plaintiff to demonstrate that the order for renewal should be made.[11]
  2. [84]
    Rule 24(2) permits the renewal of a claim in two circumstances:
    1. (a)
      when the registrar is satisfied that “reasonable efforts have been made to serve the defendant”; or
    2. (b)
      when the registrar is satisfied that there is “another good reason to renew the claim”.

Reasonable efforts to serve the defendant?

  1. [85]
    The plaintiff states that he sent the claim to the defendant in February 2019.
  2. [86]
    The only evidence to support such a finding is the plaintiff’s assertion in his affidavit, which is not supported by any documentary evidence.  I note that, whilst the defendant kept evidence of when he sent other documents to the defendant, there is no evidence in relation to the plaintiff sending the statement of claim and other documents to the defendant in February 2019.  There is simply no evidence to support the plaintiff’s assertion that he sent the defendant these documents in February 2019. 
  3. [87]
    In fact, on one view, the plaintiff’s actions are contrary to such an assertion.  I note that, if the plaintiff had sent his claim when he states he did, there would have been no reason for him to send them to the defendant again in April 2021, or to file an interlocutory application on 15 June 2021 seeking renewal of the claim.  He has not provided any explanation for these actions, except for stating that the defendant had not been in contact with him.  Such actions by the plaintiff are consistent with the inference that the plaintiff sent the claim to the defendant for the first time in April 2021, not in 2019.
  4. [88]
    However, in fairness to the plaintiff, these matters were not put to him.  So, I will proceed on the basis of the plaintiff’s evidence that he did post the claim to the defendant on 1 February 2019.  Even on this favourable basis, in my view, reasonable efforts have still not been made by the plaintiff to serve the defendant.
  5. [89]
    The plaintiff states that he expected a response from the defendant.  However, he did not get one for over two years and during that time, he did nothing.  Then, seemingly out of the blue, he sent the claim to the defendant in April 2021.
  6. [90]
    The plaintiff further states in his written submissions that:

“The court should accept the filing of the lawsuit from 01 Feb 2019 because I duly sent it, as I sent it on 08 Apr 2021, to which they also did not respond within 28 days.”

  1. [91]
    Despite acknowledging that the defendant should have responded to his claim within a 28-day period in 2021, the plaintiff took no further action in 2019, except for resending the claim over two years later. All of this seems inexplicable.  The plaintiff has not explained his incongruous conduct.
  2. [92]
    In my view, by doing nothing for over two years before taking any further steps in the proceedings, the plaintiff has not made a reasonable effort to serve the claim and statement of claim.  Having made that finding, the issue becomes whether there is “another good reason” to renew the claim.

Another good reason to renew the claim and statement of claim

The relevant principles

  1. [93]
    The plaintiff bears the onus of establishing that an order for renewal ought to be made.  In general, the plaintiff “must establish some good reason why the case should be excepted from the general rule that the court will not exercise its jurisdiction in favour of renewal.”[12]  Whether there is “another good reason” must be considered in the context of rule 5 of the UCPR, which states:
  1. “(5)
    Philosophy—overriding obligations of parties and court
  1. (1)
    The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.
  2. (2)
    Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.
  3. (3)
    In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.
  4. (4)
    The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.

Example—

The court may dismiss a proceeding or impose a sanction as to costs, if, in breach of the implied undertaking, a plaintiff fails to proceed as required by these rules or an order of the court.”

  1. [94]
    In Wallace v Bendigo and Adelaide Bank Limited & Anor (“Wallace”),[13] McMurdo JA stated:
  1. “[37]
    As has been said in many cases, r 24 must be applied in the context of r 5, which requires parties to proceed expeditiously and to avoid undue delay. As White JA, with whom Chesterman JA agreed, said in High Top Pty Ltd v Kay Sheila Lawrence [2010] QCA 270 at [35]:

‘[A]ny conduct of proceedings by a party which entails unexplained or inexcusable delay cannot expect to be vindicated by a court (or the registrar) exercising the discretion granted in r 24(2).’”

  1. [95]
    In The IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission (“IMB Group”),[14] Keane JA (as his Honour then was) stated:
  1. “[53]
    Rule 24(2) facilitates the preservation of proceedings which might otherwise become stale through no fault of the plaintiffs. A party who deliberately chooses to refrain from serving a claim will rarely be able to show good reason to warrant the renewal of the claim.
  2. [54]
    No case was cited to this Court in which r 24(2) or its analogues has been held to authorise a renewal of a claim in favour of a party who deliberately chooses not to serve a claim where the facts of the case sufficient to enable the case to be pleaded are known to the plaintiff. Whatever the position may have been in that regard in the absence of a provision such as r 5(3) of the UCPR, the presence of r 5(3) means that the approach pursued by the plaintiffs in the present case should not be vindicated by the court.”
  1. [96]
    In Quinlivan v Konowalous & Ors,[15] Davis J helpfully summarised the authorities dealing with the interaction between rule 24(2) and rule 5 of the UCPR:
  1. “[73]
    In McIntosh & Anor v Maitland & Ors, Jackson J, in setting aside a Registrar’s decision to renew a claim which was not served within a year of being issued, reviewed modern authorities decided after the introduction of rules like r 5 of the UCPR and then said this:

‘In my view, it can no longer be said in this court that, in cognate branches of the procedural law, there is a tendency to relax rigid time limits where that is legally possible and where it can be done without prejudice or injustice to other parties. That would be inconsistent with a number of the statutory rules, concepts, principles and practices that are now recognised and incorporated into our modern laws of civil procedure.’

  1. [74]
    His Honour’s remarks are, with respect, well supported by statements of the High Court in Aon Risk Services Australia Limited v Australia National University and Batistatos v Roads and Traffic Authority (NSW). Recently, in UBS AG v Tyner, a case concerning a stay based on an abuse of process, Kiefel CJ, Bell and Keane JJ observed:

‘It is to hark back to a time before this Court’s decisions in Aon and Tomlinson and the enactment of s 37M of the FCA to expect that the courts will indulge parties who engage in tactical manoeuvring that impedes the “just, quick and efficient” resolution of litigation.’

  1. [75]
    In the same case, Gordon J said:

‘This appeal raises important issues about the way in which litigation is conducted in the 21st century. Over the last 20 years, there has been a ‘cultural shift’ in the conduct of civil litigation. The legal system has faced, and continues to face, great challenges in providing appropriate mechanisms for the resolution of civil disputes. Cost and delay are long-standing challenges. The courts and the wider legal profession have an obligation to face and meet these and other challenges. Failure to respond creates (or at least exacerbates) hardship for litigants and potentially results in long-term risks to the development, if not the maintenance, of the rule of law.’ (citations omitted)

  1. [76]
    Rule 5 of the UCPR forms part of the statutory context against which the discretion conferred by r 24(2) is to be exercised.
  2. [77]
    Viewed against the implied undertaking of all parties, including the plaintiff, to proceed in an expeditious way, the taking of a deliberate and calculated decision not to serve the claim within the year period stipulated by the UCPR, is a significant consideration weighing against the renewal of the claim.” (citations omitted)
  1. [97]
    I set out the principles relating to the assessment of whether there is “another good reason” to renew a claim under rule 24(2) in some detail in Murdoch Lawyers Pty Ltd v Gouldson.[16]  After reviewing the relevant authorities, I summarised the applicable principles as follows:
  1. “[66]
    In summary, the authorities reveal that the following factors are of particular relevance in deciding whether there is “another good reason” to renew a claim under rule 24(2) of the UCPR:
  1. (a)
    The reasons for the plaintiffs’ delay in serving the claim. In particular, whether they made a deliberate choice not to serve the claim, which counts strongly against renewal. The inability to precisely formulate the loss suffered is not, of itself, a “good reason” to renew a claim.
  2. (b)
    Whether the limitation period for any of the causes of action pleaded expired before the application to renew the claim. Expiry of the limitation period counts against renewal.
  3. (c)
    The strength of the plaintiffs’ case, although this factor is not determinative.
  4. (d)
    Whether renewal of the claim would cause prejudice to the defendant. Proof of prejudice will count against renewal but the defendant does not bear the onus of proving that renewal would prejudice them.
  1. [67]
    This is not, however, an exhaustive list. The discretion to renew a claim is a wide one, informed in particular by the philosophy of the UCPR set out in rule 5. The relevant circumstances and considerations will vary according to the facts of each case.”
  1. [98]
    Those principles are also applicable in this case.

The reasons for the plaintiff’s delay

  1. [99]
    In my view, the plaintiff has not provided an adequate explanation for his delay in serving the defendant and there has been inexcusable delay in this matter.  The plaintiff states that he sent the claim to the defendant in early 2019.  However, I have found that, even if it did occur, this did not constitute service of the defendant.  This event, of posting the claim to the defendant in early 2019, is not irrelevant to the discretion to the exercise of the discretion under rule 24.  Indeed, in most circumstances it would count in the defendant’s favour.  However, in this case, the defendant’s actions, or lack of action for two years, in my view, constitutes an inexcusable delay. 
  2. [100]
    Proceeding on the basis that the plaintiff sent the claim to the defendant in 2019, he has not provided an adequate explanation as to why he did nothing for over two years.  The only reason proffered was that he was expecting a response from the defendant or the Supreme Court.  He states in his affidavit:

“I apologise that more than 2 years have passed since my Claim, I am not  lawyer, I thought the procedure was the same as with WCC, and the duty of the GIO Insurance was to respond to my claim.”

  1. [101]
    In relation to WCC procedure, on 8 April 2020 the plaintiff signed an application to resolve a dispute in the WCC.  On 29 April 2020, he sent the documents in relation this WCC application to the defendant and, on the same day, he filed a certificate of service with the WCC.  The WCC then set out a timetable for commission proceedings, culminating in a teleconference on 26 May 2020. 
  2. [102]
    As can be seen, the WCC responded to his application to resolve a dispute in the WCC in a relatively short period of time and set out steps that needed to be taken. Despite not receiving any response from either the defendant or the Court for two years, the plaintiff did nothing in this period except to litigate his matters in the WCC.
  3. [103]
    In oral submissions, the plaintiff blamed COVID-19 for taking so long to re-send the application. He stated:

“At the time I didn’t realise that it was the – that form 9, that was the start of the case, and I would ask this honourable court to take into consideration that at the time in 2020, the Coronavirus pandemic started, and all the lock-ups and lock-downs started at the time, and that’s why it took me so – so long to re-send the application.”

  1. [104]
    This claim was filed in February 2019 and it was over a year later before COVID-19 had any impact in Australia.  In that time, the plaintiff did nothing in relation to his claim.  By the time COVID-19 could be a relevant consideration, the claim was already stale.  I do not accept that the COVID-19 pandemic provides an adequate explanation for the plaintiff taking so long to serve the defendant.
  2. [105]
    In all of the circumstances, I am not satisfied that the plaintiff has provided a sufficient explanation for his delay in serving the defendant, especially considering his conduct in waiting two years to take a further step to advance his claim (which was paradoxically to re-send the claim to the plaintiff.  There is no explanation by the plaintiff for re-sending the claim.
  3. [106]
    I note that the plaintiff states the following about the defendant’s response (or lack of it) in his written submissions:

“They ignored to send a response to the claim from 1 Feb 2019, they ignored to send a response to the claim that I resubmitted from 08 Apr 2021 (I notified the Registry Supreme Court of Brisbane) “

  1. [107]
    It is interesting to note that, in 2021, when he did not hear from the defendant, the plaintiff states that he then “notified” the Supreme Court Registry.  He took no such step in 2019, or indeed for two years.
  2. [108]
    I acknowledge that the plaintiff is self-represented in this matter and English is his second language. All of these factors would present difficulties.  However, even taking into account these difficulties, in my view, the defendant has not provided an adequate explanation for his delay.  
  3. [109]
    In my view, the delay in this matter is inexcusable.  Such a finding is effectively determinative of this matter because, due to the inordinate delay, the plaintiff has not acted expeditiously and I am not satisfied that the plaintiff has shown good reason to renew the claim.  However, I will also briefly address the issue of limitation periods.

Limitation periods 

  1. [110]
    In McIntosh & Anor v Maitland Lawyers & Ors (“McIntosh”),[17] Jackson J discussed the significance of a limitation period having expired prior to an application for renewal being made.  His Honour considered that:
  1. “[36]
    ...[T]he expiry of the limitation period under a statute of limitations is an important circumstance when considering an application to renew a claim under r 24(2). That is because a plaintiff who starts a claim in the last days before the expiration of a limitation period, but does not serve it so as to avoid having to proceed in an expeditious way, and then seeks to renew the claim after one year without making reasonable efforts to serve seeks, in effect, to extend the maximum limited time to proceed as of right.”
  1. [111]
    The discretion to renew a claim may be exercised despite a statutory limitation period having expired.  However, the expiry of a limitation period is a significant factor that counts against the exercise of the discretion, particularly when the parties do not proceed in an expeditious manner following its expiry.[18]  

The plaintiff’s submissions

  1. [112]
    In this case, the plaintiff not only makes an application for renewal pursuant to rule 24, but also an application to extend the limitation period, if any, under the Limitation of Actions Act.  It is not clear what cause or causes of action this application to extend the limitation period relates to.
  2. [113]
    In relation to limitation periods, the plaintiff states the following in his written submissions:

“Conclusion: We have seen that my problems for obtaining treatment and other benefits continue and recur, and if they continue and recur it can be extended the limitation, if there is a limitation for my case.

Also, the problems and deterioration of my health continue, and I continue to go to the doctors, my treatments are not completed, it means that it continues, and if they continue it can be extended the limitation, if there is a limitation for my case.

I also refer to the Limitation of Actions Act 1974 (QLD) and to certain paragraphs that I think can help me.

Paragraph 10 (3) An action upon a specialty shall not be brought after the expiration of 12 years from the date on which the cause of action accrued.

Paragraph 30(b) (i) Limitation Act QLD 1974

30(b) (i) that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action

Paragraph 30 C (i) (ii) Limitation Act QLD 1974

(c) A fact is not within the means of knowledge of a person at a particular time if, but only if—

(i) The person does not know the fact at that time; and

(ii) as far as the fact is able to be found out by the person—the person has taken all reasonable steps to find out the fact before that time.

Paragraph 31 Limitation Act QLD 1974”

  1. [114]
    I note that the defendant states that the plaintiff’s claim is for workplace injuries and, due to the operation of the New South Wales workers’ compensation legislation, there is no jurisdiction to hear such a claim.  The plaintiff, however, states that his claim does not relate to workplace injuries, but rather is for negligence and breach of statutory duty:

“My lawsuit is for professional negligence, for failure to provide medical care on time, for which there is no reasonable excuse, and it is also a claim for non-payment weekly payment on time.”

  1. [115]
    The nub of the plaintiff’s claim seems to appear in his conclusion in his statement of claim:

“By their negligence and by the late payment, I was forced to work what was worsening my condition of health and permanently become incapable of work.  Not treated with a conclusion of the head and all other injuries that have not been treated in time have reflected on my balance and strong migraines, which I still cure.  I want the court to accept my appeal because under the law insurance must immediately treat the injured.  What they did not do about 3.5 months, permanently ruined me for work.  Because of their negligence, I became an invalid.” 

  1. [116]
    In his 14 June 2021 affidavit, filed with his application for renewal and extension of time, the plaintiff states the following:

“QBE ignored my injury for a full 4 months, my right to payment was ignored for 5 months, which puts both my physical and mental health into a serious problem. They were a responsible, they knew they had to help me and they consciously avoided their help. Negligence and discrimination continue even after that, each payment was delayed for up to a month and a half, so I was forced to work temporarily and if I was ill, by not paying weekly payment they forced my to work, so my health condition worsened.

My problems became more serious in 2014. At my request, and at the request of my GP and Orthopedist to allow me an MRI, they rejected me, that is, they ignored me. I only got an MRI after 8 months. QBE Insurance sent me to Dr. English in 2017, their appraiser. Dr. English agreed with the other doctors that I had an injury and that I needed surgery but the insurance company never handed over his assessment to the Workers Compensation Commission which is another ignoring and covering up of my illness.”

  1. [117]
    The plaintiff has not properly particularised his claim.  However, doing the best I can, it appears that time limitation periods may have expired.  The statement of claim is framed in very general terms.  It refers to a number of dates and allegations:
    1. (a)
      The plaintiff states that the incident occurred on 5 November 2011.
    2. (b)
      In relation to medical treatment, the plaintiff states:
      1. He received the first medical treatment on 11 February 2012, three and a half months after his injury.
      2. The law says the medical provisional payment/treatment must be provided to the injured worker immediately and there is not reasonable excuse for this. 
      3. “What they did not do about 3.5 months, permanently ruined me for work. Because of their negligence, I became an invalid.”
      4. His request for a MRI was ignored in September 2014 and payment for a MRI was rejected in March 2015.
    3. (c)
      In relation to getting paid, the plaintiff states:
      1. The first “check sent to me on 26/3/2012. After 5 months. Since then there has always been a payment problem.”
      2. “They were late with a weekly payment, where I got my first payment 26 March 2012 after 5 months, violated the law sect 267, 274, 275 Workers Compensation Act 1998.”
      3. In October to December 2012, he worked for about $300 a week but the “insurance monitors me and informs my employer that I had an injury.”
      4. He lost his job because “I’m making a problem for the employer, the insurance stops paying weekly payment.”
    4. (d)
      From April 2014 to June 2015, he was working as a painter.
    5. (e)
      He was informed by Dr Higgs in November 2015 “that work is the substantial contributing factor to injury and to my present condition.”  
    6. (f)
      Since June of 2016, he has been on Centrelink and has not been working
  2. [118]
    In his affidavit, he refers to Dr English and the defendant ignoring and covering up his illness in 2017.
  3. [119]
    In his written submissions he provides the following particulars in relation to the payments he received from the defendant:

“Weekly payment in 2012

  1. –21 Apr 2012 to 04 May 2012 = paid on 25 June 2012
  2. –02 June 2012 to 30 June 2012 = paid on 13 July 2012
  3. –01 Jul 2012 to 21 Jul 2012 = paid 17 Aug 2012

It can be seen from the attached that they are still late with payment…”

  1. [120]
    In relation to late payments, the plaintiff made the following oral submission:

“The second issue, the fact that we – I changed the statement in the affidavit of the 24th of September 2021.  These are just three examples that they were late with the payments, while the rest could be found in the statement that I provide.” 

Limitation period for work injury damages

  1. [121]
    I note that, while the plaintiff’s application refers to the Limitation of Actions Act 1974 (Qld), New South Wales law governs the applicable limitation periods.[19]
  2. [122]
    Section 151D of the 1987 Act provides that an action for work injury damages cannot be brought more than three years after the date on which the injury was received without leave of the court:

“151D Time limit for commencement of court proceedings against employer for damages

  1. (2)
    A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken.
  2. (3)
    The Limitation Act 1969 does not apply to or in respect of court proceedings to which this section applies….”
  1. [123]
    Basten JA in Gower v State of New South Wales[20] stated that, in order to obtain leave to commence proceedings out of time under section 151D of the 1987 Act, an applicant must demonstrate:
    1. (a)
      a sufficient and acceptable explanation for each period of delay;
    2. (b)
      a reasonably arguable claim of negligence against the defendant; and
    3. (c)
      that the conduct of a trial many years after the injury was suffered would not cause the defendant significant prejudice, so as to render the trial unfair.
  2. [124]
    The plaintiff has provided almost no explanation for the period, or periods, of delay leading to his claim for work injury damages.  
  3. [125]
    It is clear the plaintiff was aware of the factual basis of his claim prior to 2017. He states in his submissions that:

“Between 2012 and 2017, my case was represented by lawyer Tim Driskol of Beilby Poulden Costello, Sydney. I presented to him and asked him to file a lawsuit for professional negligence that they were late to grant me provisional medical treatment and weekly payment, but he advised me to finish the Workers Compensation Commission first, and until I finish that I have no right to file a lawsuit for damages they inflicted on me. In 2017, the QBE lawyer and my lawyer make an agreement to pay me 11% for the permanent whole body imparmet (sic) and not to ask for anything more. My English is getting better, I am researching the law myself and I find out that I have been deceived all these years, that I had the right to file a lawsuit for professional negligence and not to wait so many years as my lawyer advised me. I terminate my cooperation with him and take over the case myself. I tried to hire a new lawyer, but unfortunately I didn't succeed, no one wanted to take over my case.”

  1. [126]
    The main point that arises from this evidence is that the plaintiff had discussions with his legal representatives prior to, or in or about, 2017, about filing a claim against the insurer.  It is clear from his statements that he has known “all these years” and had waited “so many years” to bring an action.  The plaintiff’s legal representatives ceased acting for him in October 2017 and the plaintiff waited until 2019 until he filed the claim.

Limitation period for actions in negligence

  1. [127]
    In relation to any claim for personal injury arising out of negligence, sections 50C and 50D of the Limitation Act 1969 (NSW) provide relevantly:

“50C Limitation period for personal injury actions

  1. (1)
    An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire--
  1. (a)
    the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff,
  2. (b)
    the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned.

Note — 

The 12 year long-stop limitation period can be extended by a court under Division 4 of Part 3.

…

  50D Date cause of action is discoverable

  1. (1)
    For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts--
  1. (a)
    the fact that the injury or death concerned has occurred,
  2. (b)
    the fact that the injury or death was caused by the fault of the defendant,
  3. (c)
    in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.
  1. (2)
    A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.
  2. (3)
    In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person…”
  1. [128]
    As the three year discoverability period expired first, the 12 year long-stop provision is not relevant.  
  2. [129]
    The three year post discoverability period may not be extended.[21]
  3. [130]
    In considering section 50D of the Limitation Act 1969 (NSW), Basten JA in Murgolo v AAI Ltd t/as AAMI,[22] held that the court must determine a fixed point in time at which a claimant knew certain facts, but it does not follow that the first date on which the claimant thought they knew those facts is “frozen in time” as at the relevant date, regardless of subsequent events.  Further, although Basten JA noted that limitation questions should not be decided on interlocutory proceedings except in the clearest of cases, he added this proviso:
  1. “[63]
    Those observations will not apply equally in all cases involving those provisions.  There may be valuable economy of resources to be achieved by disposing of proceedings which are clearly out of time without the need for a full trial…”

Limitation period for action for breach of statutory duty resulting in personal injury

  1. [131]
    In relation to personal injury arising out breach of duty, section 18A of the Limitation Act 1969 (NSW) provides:

“18A Personal injury

  1. (1)
    This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury…
  2. (2)
    An action on a cause of action to which this section applies is not maintainable if brought after the expiration of a limitation period of 3 years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims.”
  1. [132]
    This date may be extended for a short time if material facts of a decisive character were not within the knowledge of the plaintiff until after the commencement of the third year prescribed by section 18A, and there is evidence to establish the cause of action:

“58 Ordinary action

  1. (1)
    This section applies to a cause of action founded on negligence, nuisance or breach of duty, for damages for personal injury, not being a cause of action which has survived on the death of a person for the benefit of the person's estate under section 2 of the Law Reform (Miscellaneous Provisions) Act 1944, and not being a cause of action which arises under section 3 of the Compensation to Relatives Act of 1897.
  2. (2)
    Where, on application to a court by a person claiming to have a cause of action to which this section applies, it appears to the court that—
  1. (a)
    any of the material facts of a decisive character relating to the cause of action was not within the means of knowledge of the applicant until a date after the commencement of the year preceding the expiration of the limitation period for the cause of action, and
  2. (b)
    there is evidence to establish the cause of action, apart from any defence founded on the expiration of a limitation period, the court may order that the limitation period for the cause of action be extended so that it expires at the end of one year after that date and thereupon, for the purposes of an action on that cause of action brought by the applicant in that court, and for the purposes of paragraph (b) of subsection (1) of section 26, the limitation period is extended accordingly.
  1. (3)
    This section applies to a cause of action whether or not a limitation period for the cause of action has expired—
  1. (a)
    before the commencement of this Act, or
  2. (b)
    before an application is made under this section in respect of the cause of action.”
  1. [133]
    There is also a provision allowing for an ultimate extension of 5 years under the Limitation Act 1969 (NSW):

“60C Ordinary action (including surviving action)

  1. (1)
    This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.
  2. (2)
    If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period, not exceeding 5 years, as it determines.”

Limitation period for failure to make payments  

  1. [134]
    In relation to an action for breach of statutory duty, section 14(1)(b) of the Limitation Act 1969 (NSW) provides that a limitation period of 6 years applies.  Sections 52, 54, 55 and 56 of the Limitation Act 1969 (NSW) outline the circumstances in which the limitation period may be postponed or extended for reasons of disability, confirmation, fraud and deceit, and mistake respectively.

Consideration of limitation periods

  1. [135]
    The plaintiff filed his claim on 1 February 2019 and served it on 19 April 2021.  The plaintiff faces the following limitation periods:
    1. (a)
      three years for work injury damages;
    2. (b)
      three years post discoverability for personal injury arising out of negligence;
    3. (c)
      three years or five years for personal injury arising out of breach of duty; and
    4. (d)
      six years for failure to make payments. 
  2. [136]
    Due to the lack of particularisation of the plaintiff’s claim, it is difficult to ascertain with certainty the dates of the events that found each of the plaintiff’s claims. The plaintiff has provided the following dates in his statement of claim:
    1. (a)
      the injuries occurred in November 2011;
    2. (b)
      the first medical treatment took place in February 2012;
    3. (c)
      the first weekly payment was in March 2012;
    4. (d)
      he worked from October to December 2012 and from April 2014 to June 2015;
    5. (e)
      his request for an MRI was ignored in September 2014 and payment for an MRI was rejected in March 2015;
    6. (f)
      he was informed in November 2015 by Dr Higgs that work was a substantial contributing factor to his injury and present condition; and
    7. (g)
      in June 2016 he stopped working.
  3. [137]
    Based on the last date that he provides in his statement of claim about his injuries (which is November 2015, when he saw Dr Higgs), it seems that time limitations may have expired:
    1. (a)
      in relation to any claims for work injury damages, as the three year limitation period would have expired prior to filing the claim in 2019;
    2. (b)
      in relation to any claims for personal injury arising out of negligence, as the three year time limitation would have expired prior to filing the claim in 2019;
    3. (c)
      in relation to any claim for personal injury arising out of breach of duty, as the three year time limitation would have expired prior to filing the claim in 2019;
    4. (d)
      in relation to any claim for personal injury arising out of breach of duty, as the extended five year time limitation would have expired after filing the claim in 2019 but prior to serving it upon the defendant.
  4. [138]
    Even if the fact that plaintiff stopped working in June 2016 (which is the last date that he provides in his statement of claim) is of some relevance, the limitation periods would seem to have expired prior to his filing of the rule 24 application.
  5. [139]
    In relation to the failure to make payments in 2012, the six year limitation period would have expired prior to filing the claim in 2019.  However, if this claim also relates to the decision to reject the MRI in March 2015, then this time limitation appears to have expired prior to serving the defendant in April 2021. 
  6. [140]
    In the plaintiff’s affidavit, he refers to Dr English and the defendant ignoring and covering up his illness in 2017.  It is speculative to say what claim, if any, this may relate to.  However, even if it did have some relevance to one of the causes of action, I note that any three year limitation period would likely have expired after the plaintiff filed his claim but prior to the defendant being served.
  7. [141]
    Due to the lack of particularization of the plaintiff’s claim, it is difficult to ascertain with certainty the dates of the events that found each of the plaintiff’s claims. However, doing the best I can, it appears that some time limitations may have expired.

The strength of the plaintiff’s case

  1. [142]
    In considering whether to renew the claim under rule 24 of the UCPR, it is also relevant to consider whether a claim is so strong that a serious injustice would result if it were not allowed to proceed.[23]  Put another way, an “apparently worthwhile” action is a positive factor supporting renewal.[24]  However, this consideration is not necessarily solely determinative of the discretion.[25] 
  2. [143]
    In IMB Group, Keane JA noted that the denial of the ability to pursue even an apparently worthwhile claim is a feature which will be present in every case where recourse is had to rule 24:

“[47] Finally on this point, it must be said that even if it be accepted that the substantive obstacles to the ultimate success of the plaintiffs’ claims might be overcome so that the loss of the opportunity to pursue those claims is not illusory, as Williams J said in Muirhead v Uniting Church, that ‘circumstance alone could never constitute “good reason” for purposes of … an application’ pursuant to r 24(2). Denial of the ability to pursue an apparently worthwhile action:

‘is a feature which will be present in every case where recourse is had to r 24, at least where the relevant limitation period has expired. For that reason that circumstance alone can never in law constitute sufficient “good reason”.’”

  1. [144]
    In High Top Pty Ltd v Kay Sheila Lawrence t/a Kay Lawrence Accountancy (“High Top”),[26] McMurdo P stated that:
  1. “[11]
    The IMB Group case rightly states that an ‘apparently worthwhile action’ is a factor favouring the positive exercise of the court's discretion in renewing an unserved claim under r 24(2) where the action can proceed without prejudice to the defendant. But the IMB Group case does not state, and is not authority for, the proposition that, where it is possible to make such a determination in an application under r 24(2), it is an error to consider the strength of a plaintiff's claim. On the contrary, the IMB Group case suggests that if a plaintiff's claim is so strong that a serious injustice would result were it not allowed to proceed, that would be a persuasive reason, in the absence of some significant prejudice to the defendant, to allow the claim to proceed by renewing it. Together with a satisfactory explanation for delay and absent competing circumstances, these matters would, in the terms of r 24(2), constitute ‘another good reason to renew the claim’.”
  1. [145]
    The strength of the plaintiff’s case is a relevant, but not determinative, consideration.  The strength of the case should also be considered together with whether the party seeking to renew the claim has provided a satisfactory explanation for the delay. 
  2. [146]
    In this case, the defendant submits that the plaintiff’s case must fail for two reasons:
    1. (a)
      as this is a claim for workplace injuries, there is no jurisdiction to hear this matter due to the threshold requirements of the 1987 and 1988 Acts; and
    2. (b)
      if this claim is not for workplace injuries (as the plaintiff asserts) then there are no prospects of success.
  3. [147]
    I do not intend to determine these issues on this application.  As Jackson J stated in McIntosh:[27]
  1. “[94]
    However, there is no reason to investigate this question by detailed analysis, either in the present case, or in most other cases of this kind. That point was made in both Heaven and Wakim. Over and again, courts have said that the denial of the ability to pursue an apparently worthwhile claim:

‘… is a feature which will be present in every case where recourse is had to r 24, at least where the relevant limitation period has expired. For that reason that circumstance alone can never in law constitute sufficient “good reason”.’”

  1. [148]
    In Wallace,[28] it was acknowledged that even where a claim was not entirely without merit and where there would be a very substantial detriment to the plaintiff from the failure of his rule 24 application, this was not the only consideration.
  2. [149]
    Even if I rejected the defendant’s arguments and found that the plaintiff had a worthwhile claim or one not entirely without merit, in my view, the plaintiff still would not have demonstrated a “good reason” for renewal due to the failure of the plaintiff to provide a satisfactory explanation for the delay” 

Prejudice

  1. [150]
    In this case, the defendant acknowledges that it could not raise any specific evidence that it would be prejudiced if the claim was renewed. 
  2. [151]
    I note the inability of the defendant to show that the renewal would result in any specific prejudice or detriment cannot, of itself, constitute a “good reason” to renew the claim.  The onus of proving that there is “another good reason” to renew the claim rests with the plaintiff.[29]  In McIntosh, Jackson J cautioned that, “In my view, when more than six years have elapsed since the relevant events, it should not be assumed that the defendants are not prejudiced by the delay in their ability to respond to a claim about the quality of their advice on the ground that the plaintiff’s evidence in support of the claim will be largely documentary”.[30]
  3. [152]
    It is for the plaintiff to exclude the possibility that the defendant would be materially prejudiced by the renewal of the claim.  General prejudice will be presumed to flow from the effluxion of time, but in this case no specific prejudice has been identified.

Conclusion

  1. [153]
    Rule 24(1) establishes the general proposition that a claim is to be in force for the purpose of service for one year.  The principal purpose of rule 24(1) is to afford a plaintiff ample opportunity to effect service upon the defendant.  Rule 24(2) makes provision for renewal in cases where there is a good reason for renewing the claim, even though it has not yet been served on the defendant.
  2. [154]
    In my view, the plaintiff’s claim should not be renewed under rule 24(2).  It must be borne in mind that the discretion conferred by rule 24(2) falls to be exercised in context, which includes rule 5, which states the philosophy of the UCPR.
  3. [155]
    What the court must determine is whether there is “another good reason” for the renewal. Given what has been said by Keane JA (as his Honour then was) in IMB Group, which was further explained by Jackson J in McIntosh, the Court’s assessment will be vitally concerned with the extent to which the plaintiff has complied with the implied obligation to proceed in an expeditious way. 
  4. [156]
    As Keane JA explained in IMB Group, rule 24 facilitates the preservation of proceedings which might otherwise become stale through no fault of the plaintiff.  In this case, the proceedings became stale through the fault of the plaintiff.  Taking the most generous view of the facts for the plaintiff, the plaintiff filed his claim, then sent the claim to the defendant, waited for the defendant or the Court to contact him and then inexplicably re-sent the claim again to the defendant after two years of doing nothing.  In my view, the plaintiff has not shown good reason for the delay.
  5. [157]
    Upon consideration of the relevant circumstances, in my view, there is no good reason to renew the claim under rule 24(2).  Rule 24 must be applied in the context of rule 5, which requires parties to proceed expeditiously and to avoid undue delay. As White JA, with whom Chesterman JA agreed, said in High Top,[31]:
  1. “[35]
    …[A]ny conduct of proceedings by a party which entails unexplained or inexcusable delay cannot expect to be vindicated by a court (or the registrar) exercising the discretion granted in r 24(2).”
  1. [158]
    In this case, the plaintiff has provided an explanation for the delay.  However, for the reasons I have set out, I do not regard his explanation as satisfactory.  In my view, the plaintiff has not acted in an expeditious way and therefore has not complied with his implied undertaking to proceed expeditiously.  He has not provided a satisfactory explanation for the delay in serving the defendants and has not demonstrated “another good reason” for renewal.[32]
  2. [159]
    The consequence is that the plaintiff’s claim has lapsed, and no further steps may be taken in this proceeding.  Having reached this conclusion, it is not necessary for me to consider the remainder of the plaintiff’s application or the defendant’s application.
  3. [160]
    It follows that the plaintiff’s application for renewal must be dismissed. Accordingly, the proceedings are at an end.

Costs

  1. [161]
    The defendant seeks their costs.  The general rule for costs is rule 681 of the UCPR which provides that: 

“681 General rule about costs

  1. (1)
    Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.
  2. (2)
    Subrule (1) applies unless these rules provide otherwise.”
  1. [162]
    In Oshlack v Richmond River Council,[33] McHugh J (with whom Brennan CJ agreed) endorsed the following statement of Devlin J in Smeaton Hanscomb & Co Ltd v Sassoon I Setty, Son & Co (No 2)[34]:

“Prima facie, a successful party is entitled to his costs. To deprive him of his costs or to require him to pay a part of the costs of the other side is an exceptional measure.”  

  1. [163]
    The Court should only exercise its discretion to depart from the general rule that costs follow the event with “good reason”.[35]  The Court’s discretion must be determined “on fixed principles ... according to rules of reason and justice, not according to private opinion ... benevolence ... or sympathy”.[36]
  2. [164]
    The plaintiff submits that costs should not be awarded against him as he has no ability to pay.  In his written submissions, he asks the court to release him from costs as he is currently working as a carer and has no other income.
  3. [165]
    The lack of capacity, or limited capacity, of a party to pay costs is not normally a sufficient reason to displace the usual position that costs should follow the event.  As noted by Applegarth J in Rintoul v State of Queensland:[37] 
  1. “[40]
    ... This usual order as to costs embodies the principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. As McHugh J stated in Oshlack v Richmond River Council:

‘The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation. As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved. Large scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increased, and often unnecessary, burden on the scarce resources of the publicly funded system of justice.’

  1. [41]
    The applicant’s limited capacity to pay a costs order is not a sufficient reason to depart from the usual order that costs follow the event. It is a matter for the respondents as to whether the applicant’s limited resources and her other personal circumstances, including the ill-health of her husband, provide reasons as to why a costs order should not be enforced.”
  1. [166]
    In my view, the plaintiff’s limited capacity to pay a costs order is not a sufficient reason to depart from the usual order that costs follow the event.
  2. [167]
    The plaintiff has been unsuccessful in his applications, so it is unnecessary to consider the substance of the defendant’s applications.
  3. [168]
    However, in my view, the issue of costs in relation to the defendant’s applications should be adjourned.
  4. [169]
    I note that this matter was originally listed for a one day hearing. One of the reasons why an additional day was required was that the defendant developed further submissions in their oral argument that were not included in their written submissions. The defendant required a translator and in my view, it was unfair for him to have to respond to this material in this way.
  5. [170]
    In relation to the defendant’s applications:
    1. (a)
      If the issue of costs cannot be resolved, then the parties should file and serve short written submissions on the questions of costs.
    2. (b)
      I encourage the parties to agree on a timetable for the exchange of written submissions and, if it is appropriate, then I will deal with the question of costs on the papers, unless either party requests a hearing.
    3. (c)
      In order to facilitate that process, I will adjourn the question of costs to a date to be fixed.

Orders

  1. [171]
    The plaintiff’s rule 24 UCPR application for renewal of his claim filed on 14 June 2021 is dismissed.
  2. [172]
    The plaintiff pay the defendant’s costs of and incidental to his application on the standard basis to be assessed.
  3. [173]
    In relation to the defendant’s applications, the question of costs is adjourned to a date to be fixed.

Footnotes

[1]  See generally John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503.

[2]  [2014] NSWSC 1712.

[3] In the matter of Futre Developments Pty Ltd  [2014] NSWSC 1712 at [50].

[4] In the matter of Futre Developments Pty Ltd  [2014] NSWSC 1712 at [20]-[21].

[5] Service and Execution of Process Act 1992 (Cth) s 11(4).

[6] Service and Execution of Process Act 1992 (Cth) s 11(5).

[7] Service and Execution of Process Act 1992 (Cth) s 11(4).

[8]  Although the defendant states that it received the claim, it raises another issue with service.  Sections 9 and 16 of SEPA respectively provide that service on companies and registered bodies is to be effected by leaving the document at, or sending it to, the company’s registered office, and that service is only effective if process is accompanied by notice prescribed under the SEPA.

The defendant states that the plaintiff has not complied with either of these requirements.  The failure to provide the correct notice is an irregularity capable of waiver.  However, the defendant does not waive this requirement.

[9] Gillies v Dibbetts (2001) 1 Qd R 596 at 603.

[10]  [2001] 1 Qd R 596.

[11] Quinlivan v Konowalous & Ors [2019] QSC 285 at [51].

[12] The IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148 at [31], citing Muirhead v The Uniting Church in Australia Property Trust (Q) [1999] QCA 513 at [29] per Williams J, Davies JA agreeing.

[13]  [2020] QCA 122.

[14]  [2007] 1 Qd R 148.

[15]  [2019] QSC 285.

[16]  [2021] QSC 96 at [55]-[65].

[17]  [2016] QSC 203.

[18]  Murdoch Lawyers Pty Limited & Ors v Gouldson & Anor [2021] QSC 96 at [61].

[19]  See generally John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503.

[20]   [2018] NSWCA 132 at [4].

[21] Limitation Act 1969 (NSW) s 62A(2).

[22] (2019) 101 NSWLR 376 at [51].

[23] Wallace v Bendigo and Adelaide Bank Limited [2020] QCA 122 at [34].

[24] The IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148 at [48].

[25] Murdoch Lawyers Pty Limited & Ors v Gouldson & Anor [2021] QSC 96 at [63].

[26]   [2010] QCA 270 at [11].

[27] McIntosh & Anor v Maitland Lawyers & Ors [2016] QSC 203 at [94].

[28] Wallace v Bendigo and Adelaide Bank Limited & Anor [2020] QCA 122 at [34].

[29] Murdoch Lawyers Pty Ltd & Ors v Gouldson & Anor [2021] QSC 96 at [64].

[30] McIntosh & Anor v Maitland Lawyers & Ors [2016] QSC 203 at [92].

[31] High Top Pty Ltd v Kay Sheila Lawrence trading as ‘Kay Lawrence Accountancy’ [2010] QCA 270 at [35].

[32]  I should also add that the plaintiff’s statement of claim is framed in very general terms and refers to a number of dates. Due to the lack of particularisation of the plaintiff’s claim, it is difficult to ascertain with certainty the dates of the events that found each of the plaintiff’s claims. However, doing the best I can, it appears that some time limitations may have expired.

[33]  (1998) 193 CLR 72 at 96.

[34]  [1953] 2 All ER 1588 at 1590.

[35] NJF Holdings Pty Ltd v De Pasquale Bros Pty Ltd [1999] QSC 328 at [22] per Chesterman J.

[36] Williams v Lewer [1974] 2 NSWLR 91 at 95 per Rath J.

[37]  [2018] QCA 20 at [40]-[42] per Applegarth J (with whom Morrison and Philippides JJA agreed).

Close

Editorial Notes

  • Published Case Name:

    Zaporozhki v AAI Limited (trading as GIO)

  • Shortened Case Name:

    Zaporozhki v AAI Limited (trading as GIO)

  • MNC:

    [2022] QSC 22

  • Court:

    QSC

  • Judge(s):

    Wilson J

  • Date:

    07 Mar 2022

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
Futre Developments Pty Ltd [2014] NSWSC 1712
3 citations
Jump To
Cite 1 - [2014] NSWSC 1712
Cite 2 - [2014] NSWSC 1712
Cite 3 - [2014] NSWSC 1712
Gillies v Dibbetts[2001] 1 Qd R 596; [2000] QCA 156
2 citations
Jump To
Cite 1 - [2001] 1 Qd R 596
Cite 2 - [2001] 1 Qd R 596
Gower v State of New South Wales [2018] NSWCA 132
1 citation
Jump To
Cite 1 - [2018] NSWCA 132
High Top Pty Ltd v Kay Sheila Lawrence [2010] QCA 270
3 citations
Jump To
Cite 1 - [2010] QCA 270
Cite 2 - [2010] QCA 270
Cite 3 - [2010] QCA 270
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
2 citations
Jump To
Cite 1 - (2000) 203 CLR 503
Cite 2 - (2000) 203 CLR 503
McIntosh v Maitland [2016] QSC 203
3 citations
Jump To
Cite 1 - [2016] QSC 203
Cite 2 - [2016] QSC 203
Cite 3 - [2016] QSC 203
Muirhead v The Uniting Church in Australia Property Trust [1999] QCA 513
1 citation
Jump To
Cite 1 - [1999] QCA 513
Murdoch Lawyers Pty Ltd v Gouldson(2021) 7 QR 726; [2021] QSC 96
4 citations
Jump To
Cite 1 - [2021] QSC 96
Cite 2 - [2021] QSC 96
Cite 3 - [2021] QSC 96
Cite 4 - [2021] QSC 96
Murgolo v AAI Ltd t/as AAMI (2019) 101 NSWLR 376
1 citation
Jump To
Cite 1 - (2019) 101 NSWLR 376
NJF Holdings Pty Ltd v De Pasquale Bros Pty Ltd [1999] QSC 328
1 citation
Jump To
Cite 1 - [1999] QSC 328
Oshlack v Richmond River Council (1998) 193 CLR 72
1 citation
Jump To
Cite 1 - (1998) 193 CLR 72
Quinlivan v Konowalous [2019] QSC 285
2 citations
Jump To
Cite 1 - [2019] QSC 285
Cite 2 - [2019] QSC 285
Rintoul v State of Queensland [2018] QCA 20
1 citation
Jump To
Cite 1 - [2018] QCA 20
Smeaton Hanscomb & Co. Ltd v Sassoon I Setty, Son & Co. [1953] 2 All ER 1588
1 citation
Jump To
Cite 1 - [1953] 2 All ER 1588
The IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission[2007] 1 Qd R 148; [2006] QCA 407
3 citations
Jump To
Cite 1 - [2007] 1 Qd R 148
Cite 2 - [2007] 1 Qd R 148
Cite 3 - [2007] 1 Qd R 148
Wallace v Bendigo and Adelaide Bank Limited [2020] QCA 122
3 citations
Jump To
Cite 1 - [2020] QCA 122
Cite 2 - [2020] QCA 122
Cite 3 - [2020] QCA 122
Williams v Lewer [1974] 2 NSWLR 91
1 citation
Jump To
Cite 1 - [1974] 2 NSWLR 91

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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