PIPA: s.59(2) neglect in commencing proceedings & costs

Filep v AMP Capital Investors Ltd & Anor [2016] QDC 300

Rackemann DCJ

The application sought leave to commence proceedings outside the limitation period. The claim alleged applicant slipped in the car park of a shopping centre in 2010.

A notice of claim was served on the first respondent in 2011 and to the second respondent in 2012. During 2013, the pre-litigation steps were not completed and the applicant’s solicitor wrote to the respondents seeking an agreement to extend the limitation period which was ultimately agreed for 6 March 2014.

Final mandatory offers were exchanged however the revised limitation period was due to expire during the acceptance period. No proceeding was commenced and the application was filed on 4 May 2016.

Section 59(2) of the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”) provides:

(1) If a complying part 1 notice of claim is given before the end of the period of limitation applying to the claim, the claimant may start a proceeding in a court based on the claim even though the period of limitation has ended.

(2) However, the proceeding may be started after the end of the period of limitation only if it is started within—

(a) 6 months after the complying part 1 notice is given or leave to start the proceeding is granted; or

(b) a longer period allowed by the court.

(3) Also, if a proceeding is started under subsection (2) without the claimant having complied with part 1, the proceeding is stayed until the claimant complies with the part or the proceeding otherwise ends.

(4) If a period of limitation is extended under the Limitation of Actions Act 1974, part 3, this section applies to the period of limitation as extended under that part.

Rackemann DCJ referred to Paterson v Leigh & Anor where McMeekin J at [8] summarised the exercise of the discretion in s 59(2) of the PIPA. Relying on those principles, Rackemann refused the relief sought by the applicant in the present case. His Honour held:

[10] … the delay in bringing the subject application after the expiration of the extended limitation period is very substantial. The reason for that delay is not so much to do with conscientious endeavours to comply with the pre-litigation steps, but rather relates to a combination of confusion, ineptitude, lack of supervision, inattention and neglect on the part of the applicant’s solicitors, and a failure by the applicant either to cause her solicitors to perform or to replace them.

[17] The solicitors for the second respondent were not sent a copy of the first originating application until by facsimile on 15 December 2014. The application was still unsupported by affidavit material at that time … It seems that the first originating application was never properly served on the first respondent.

[36] Whilst one might have a degree of sympathy for an applicant whose potential claim … is imperilled by the negligence of their solicitors, there is no presumptive entitlement to relief under s 59 in those circumstances. Such considerations need to be viewed in light of all relevant matters, including the consequences for the respondents if relief were granted. Such relief would deprive them of the complete defence afforded by the statutory time bar. Further, it has already been noted that the length of the delay in this case is substantial, such that the claim which the applicant now wishes to pursue relates to an alleged incident which occurred more than six years ago. Delay tends to deteriorate the quality of justice. 50 The passage of time almost inevitably creates a general level of prejudice as the relevant factual enquiry becomes more remote and the recollections of potential witnesses fade.

[41] … in the event that [the respondents] were now called upon to defend a claim in relation to what is now an historical incident, the relevant facts in respect of which will be difficult, if not impossible, for them to fully establish, in order to test the plaintiff’s claim. I am not satisfied that there can, in the circumstances, be a fair trial.

Filep v AMP Capital Investors Ltd & Anor [2016] QDC 331

Rackemann DCJ

On 25 November 2016 Rackemann DCJ rejected an application for leave to commence proceedings outside the limitation period pursuant to s 59(2) of the Personal Injuries Proceedings Act 2002 (Qld).

Relevantly, the application was refused largely due to the substantial delay, related to, inter alia, a combination of confusion, inattention and neglect on the part of the applicant’s solicitors.

Unsurprisingly, the issue of costs came to be determined and whether the costs order should be on an indemnity basis. The applicant’s solicitors were agreeable to paying both respondents’ costs on a standard basis while the respondents each sought costs to be assessed on an indemnity basis due to the unusual circumstances and unreasonable conduct of the applicant’s solicitors.

Rackemann DCJ found as follows:

[5] … The negligence of the applicants solicitors to which reference has already been made, relates to the delay in bringing the application for relief. The application itself however, was an understandable and proper, albeit unduly delayed, attempt to recover the position of the applicant. There is no suggestion that the application for relief was an abuse of process or brought for any ulterior purpose.

[6] … It is true that there remained gaps in the applicant’s material, which were not filled, notwithstanding a second adjournment to permit the applicant to obtain further material. The reason for the failure to obtain further material after that adjournment is not clear. It might have been that nothing further, of assistance to the applicant’s position, could be obtained. I am not prepared to infer neglect or unprofessional conduct on the part of the solicitor’s in that regard.

[7] The material, in its ultimate form, did not make for a strong case for the exercise of discretion under s 59(2) of PIPA, but I do not consider that it was so weak as to conclude that the application was brought, or persisted with, in the face of no prospects of success.

The applicant’s solicitors were ordered to pay the respondents’ costs assessed on a standard basis.’

David Cormack – Brisbane Barrister & Mediator

 

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