Wright v Sirrom Corporation (Aust) Pty Ltd

In this case, a Pt 1 Notice of Claim under the Personal Injuries Proceedings Act 2002 was given by the applicant to the respondent after much confusion as to the identity of the proper respondent. The proper respondent did not respond to the notice of claim. The issue was whether the notice was delivered pursuant to s 9 or s 14.  Crow J determined that the notice was given pursuant to s 9 and that, in light of the respondent's failure to respond, the applicant was entitled to the benefit of s 13, such that the respondent was conclusively presumed to be satisfied that the notice was a complying Pt 1 Notice of Claim.

Crow J

21 February 2019

Background

The applicant suffered injury at the Newlands Northern Colliery in July 2014. [4]. He commenced a proceeding against Newlands Coal Pty Ltd and Glencore Coal Queensland Pty Ltd, as occupiers of the property, and FK Gardner & Sons Pty Ltd. [5]. In that proceeding the applicant alleged that FK Gardner & Sons Pty Ltd was the body responsible for the property and yard maintenance work at the facility where he sustained his injury. [5]. The pleading was based upon information provided by Newlands Coal Pty Ltd and also the fact that in a Personal Injuries Proceedings Act 2002 ("PIPA") Notice of Claim issued to FKG Group Pty Ltd, that company responded pursuant to s 12 of PIPA confirming that it was a proper respondent. [6].

There followed a great deal of correspondence concerning the identity of the proper respondent. [7][10]. Ultimately, it became clear – despite the s 12 response by FKG Group Pty Ltd confirming that it was the maintainer – that Morris Corporation held the contract for maintenance at the relevant time. [11]. Morris Corporation had subsequently changed its name to Sirrom Corporation (Aust) Pty Ltd ("Sirrom"). [11]. The applicant dealt with this difficulty and confusion by forwarding a PIPA Pt 1 Notice of Claim ("the notice") to Sirrom. [13]. It did not provide a response. [13]. The applicant subsequently commenced the present proceeding against Sirrom, in which he applied for a number of orders relating to the continuation of the proceeding against Sirrom. [3].

Legislation

Section 9 provides that before starting a proceeding in a court based on a claim (which is a defined term), a claimant must give written notice of the claim, in the approved form, to the person against whom the proceeding is proposed to be started.  Section 14 provides that a claimant may, within the time prescribed, add someone else as a respondent by giving the person Pt 1 of a Notice of Claim referred to in s 9. Section 13 provides that if a claimant gives Pt 1 of a Notice of a Claim to a person against whom a proceeding is proposed to be started, and the person does not respond to it under ss 10 or 12 within the prescribed period, the person is conclusively presumed to be satisfied it is a complying Pt 1 Notice of Claim.

Arguments

The applicant advanced two arguments:

(a) The first was that the notice was provided under s 9 and because of the failure to respond as required by s 12, pursuant to s 13 it was deemed to be a complying Notice of Claim. [14].

(b) The second, alternative, argument was that the notice was provided under s 14, and because of the failure to respond was deemed to be a complying Notice of Claim pursuant to s 13. [14].

Sirrom argued that the notice was provided under s 14, was therefore out of time, and accordingly could not be deemed pursuant to s 13 to be a complying Notice of Claim. [15]. Sirrom also argued that there was no need for a declaration that the Notice of Claim was deemed compliant because the noncompliance had been remedied and Sirrom had consented to being joined. [17]. The reason for the applicant's desire to engage s 13 and have the notice be deemed to be compliant was an unresolved issue as to whether the applicant would succeed in an application to extend the relevant limitation period. [19].

Decision

The issue was therefore whether the applicant had invoked s 9 or s 14 in providing the notice to Sirrom. Crow J said the following of s 14:

"The procedure in s 14 for the giving of a notice of claim with the effect of adding ‘someone else as a respondent’ reflects the purpose of the Act as set out in s 4(2)(a), (b), (c) and (e). By its terms, s 14 makes it plain that someone else may be added as a respondent to a claim by the giving to the person a part 1 notice of claim which is the same as first such notice which is given (ie a copy of the first part 1 notice), together with a copy of all documents given to or received by the other or original respondent. The s 14 procedure does not require the drawing of a new part 1 notice of claim at all. So much is made plain by the clear words of ss 14(1), (2), and (3)." [24].

Crow J noted, amongst other things, that the notice was not the original Notice of Claim provided to the original respondents. [25]. His Honour held that, properly construed, it was plain that the notice was given pursuant to s 9 of the Act. [27]. His Honour held that because Sirrom did not respond pursuant to s 10 or s 12 within the prescribed time period, it was conclusively presumed to be satisfied that the Notice of Claim was a complying Pt 1 Notice of Claim. [29].

M J Hafeez-Baig