Boulter v Batten and Suncorp General Insurance Limited [2010] QDC 56

 

An application was brought by the defendants to strike out the Statement of Claim for want of compliance with Part 4, Division 5A of the Motor Accident Insurance Act 1994 (Queensland) (“Act”), namely the holding of compulsory conference and provision of a certificate of readiness.

Whilst the plaintiff was self-represented she had at times engaged 3 lawyers during the course of the claim. Ultimately, the claim was struck out, but not before substantial consideration of the the central issue of whether non-compliance rendered the proceedings a nullity and liable to be struck out without recourse to procedural remedies.

The approach adopted by judge Dorney QC was that of the High Court decision of Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364 and by the Queensland Court of Appeal in Phipps v Australian Leisure and Hospitality Group Ltd [2007] 2 Qd R 555, applying Hamling v Australia Meat Holdings Pty Ltd (No. 2) [2007] 1 Qd R 315:

[14] Turning then to Berowra Holdings, what was under consideration was a provision in legislation of New South Wales which stated, in general terms, that particular persons were not entitled to commence court proceedings for damages in respect of the relevant injury against the relevant employer until a period of time had elapsed since a notice of injury was given, although that non-entitlement was subject to certain exceptions. When dealing with the contention of nullity and invalidity, the joint judgment held that, in the adversarial system of justice, choice rests primarily with the parties and it is generally the case that the court’s power of decision or order is exercised upon the application of a party: at 371 [15]. Further, it was held that, generally, there is in law no restriction upon a person’s right to start an action and to carry it to the point at which a choice is cast upon the defendant to make some response in order to avoid judgment in default and that, once the procedural law has been engaged, all parties to the litigation are subject to it: also at 371 [15]. Thus, when the joint judgment came to consider the relevant provision under consideration, it held that the better view is that the provision does not inevitably result in the invalidity of proceedings commenced in contravention of it, either for want of the court’s jurisdiction or because the court has no jurisdiction except to accede to a defendant’s application (whenever brought) to set aside the proceedings and to do so without regard to the procedural history and the relevant Rules of Court: at 376 [34]. In particular, the Court held that the particular provision “does not extinguish rights or create new rights” but, rather, “it postpones the remedy for the common law right to initiate proceedings in a court of competent jurisdiction”: at 376 [35]. Consequently, the “right” which the provision confers “is conferred upon the defendant employer” and must be raised in accordance with the procedural rules pertinent to the particular court”: also at 376 [35]. Thus, such proceedings “are vulnerable to an application by the defendant to strike out the initiating process or to move for summary dismissal, but they are not a ‘nullity’”: at 376 [36].

[15] The consideration undertaken by the Queensland Court of Appeal in Phipps v Australian Leisure and Hospitality Group Ltd [2007] 2 Qd R 555 concerned two different sets of provisions. For present purposes, the focus will be upon s 275 of the Workers’ Compensation and Rehabilitation Act 2003. That provision stated that, before starting a proceeding in a court for damages, a claimant “must” give notice under that provision within the relevant period of limitation. It may be remarked that that particular wording is somewhat analogous to the wording relied upon by the defendants in this proceeding. It was held by Keane JA, with whom Muir J agreed, that, consistently with Hamling v Australia Meat Holdings Pty Ltd (No. 2) [2007] 1 Qd R 315, non-compliance with s. 275 does not result in a “nullity” and therefore be bound to be terminated summarily: at 566 [13]. As Keane JA went on to hold, such non-compliance does not mean that it is inevitable that the action should be dismissed since there is a judicial discretion to be exercised in that regard: at 566 [14]. As further observed, the statutory provisions in question in both Berowra Holdings and Hamling were concerned with statutory prohibitions on the commencement of proceedings, with such provisions being clearly directed at the procedural remedy by which substantive rights might be vindicated: also at 566 [14].

[16] Before turning to consider what is involved in what might be loosely termed the Berowra Holdings discretion, I find that in light of the analyses in both Berowra Holdings and Hamling and Phipps, although none directly concerned either of the provisions in question here, the law in Queensland must clearly be that the relevant non-compliance in this proceeding does not lead to a nullity, but rather engages the relevant procedural remedies. It is unnecessary to consider the position whether this Court would be bound by Horinack if it had considered s 51A and s 51C directly. Accordingly, I hold that it is necessary in this particular proceeding to move to the issue of the procedural remedies.

[17] In this particular exercise I am much assisted by the conclusions reached by Daubney J in Semmler v Coles Group Ltd [2008] 2 Qd R 556. There, although considering s 292 of the Workers’ Compensation and Rehabilitation Act 2003, it was held that the commencement of the proceeding contrary to the statutory moratorium imposed by s 292(2) did not render the proceeding a nullity and that such proceeding did engage the jurisdiction and procedural rules of the Supreme Court and was vulnerable to an application to strike it out. Relevantly, s 292(2) was not considered in Phipps or in Hamling. To my mind, that reinforces the conclusion that I have reached about the ability of inferior courts in the appellate structure to reach conclusions consistent with a proper analysis of the legal implications of the legislation in question. Regarding the relevant exercise of a discretion to terminate proceedings commenced contrary to the statutory prohibition, after considering the various arguments advanced, it was held that there was much force in point of principle and policy in the observation by Muir J in Phipps to the effect that a discretion as to whether an action commenced and maintained in breach of a relevant obligation to take a step should lead “normally” to an exercise of discretion in favour of the defendant and that the action be struck out: at 560.

[18] Turning, for a moment to the analysis by Keane JA in Phipps concerning the exercise of the relevant discretion discussed in Berowra Holdings, it was noted, first, that the reasons in Berowra Holdings did not explicitly identify the source and nature of the discretion held to exist in that case: at 568 [22]. Next, so far as is relevant to the exercise of discretion here, it was held that the question is whether, in light of the prospects of a change in the facts which bear upon an applicant’s entitlement to recover damages from a relevant respondent, a court should refuse to exercise the discretion to terminate the action because, on the facts as they presently stand, it cannot succeed: at 569 [27]. Thirdly, again so far as is relevant here, it was held that in the exercise of the relevant discretion the principal consideration is whether the infirmity in the applicant’s title to sue is likely to be cured: at 569 [28]. In the case in question, Keane JA then noted that it was material that:

• There was a real likelihood, amounting to a virtual certainty, that the notice of assessment would issue.

• The notice of assessment was likely to issue soon, or at least sufficiently soon for there to be no suggestion that any delay was likely to prejudice the respondent in its ability to have a fair trial.

• On the evidence, the notice of assessment soon to issue was likely to show that the applicant had suffered a substantial injury and that that circumstance tended to confirm that a loss of the opportunity to establish an entitlement to damages “on the merits” would be a substantial prejudice to the applicant.

• If the action were to be struck out, any new action by the applicant would be defeated by the Limitation of Actions Act 1974 and so the applicant would suffer prejudice in the form of a loss of the opportunity to have her claim determined on the merits: at 569-570 [28].

[19] Furthermore, in Phipps Keane JA noted that it was a material consideration in favour of allowing the action to proceed that no prejudice to the respondent had ensured from the non-compliance, with particular reference to s 275 of the relevant Act. Reverting then, for a moment to Semmler, Daubney J observed that while it needed to be noted that the discretion to terminate proceedings is to be exercised judicially and not punitively, in practical terms it will normally be for a plaintiff in such a case to persuade the court against the exercise of the discretion to terminate: at 560. Accordingly, there was an order for striking out.

Consideration of exercise of discretion

 

[20] Even disregarding the history canvassed above insofar as it is asserted on behalf of the defendants that abundant notice of the need to take steps to protect the plaintiff’s interests were given well before the expiration of the limitation period, this Court is still able to be satisfied that, given representation by three sets of solicitors, it was not beyond the capacity of the plaintiff to be informed of necessary compliance steps required under the Act. It is important in terms of procedural steps that the plaintiff was aware of the need to issue a proceeding before the expiration of the relevant limitation period such that the Claim and Statement of Claim were filed on the last day prior to the expiration of that period. Furthermore, there has been no intimation of any kind from the plaintiff that she intends to take any step with respect to all relevant non-compliances. In the circumstances where s 57(2) of the Act, as currently interpreted at appellate level, permits an application to be made subsequent to the expiry of the limitation period, I hold that such is a relevant factor in a case such as this when exercising the discretion.

[21] While it is readily conceded there may well be cases in which, like Phipps, there is a demonstrated likelihood of remedial steps being undertaken which might well incline a court to refuse to exercise a discretion to strike out the proceeding, I am left in the position where, even acknowledging that the plaintiff is self-represented now despite engaging those three sets of solicitors earlier, the relevant discretion can justifiably be exercised against the plaintiff, particularly where there is absolutely no demonstrated willingness to make any attempt to comply despite the absence of demonstrated prejudice to the defendants.

[22] Thus, although the consequences are serious for the plaintiff, she still has open to her a potential avenue to be able to sue for whatever rights she has arising from the motorcycle accident in which she was involved just over three years ago.

Brisbane Barrister – David Cormack

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