PIPA: changing of the guard – requests for information & physical inspections

Day v Woolworths Ltd & Ors [2016] QCA 337

Further to the earlier post, the applicant, Day sought leave to appeal. The applicant was successful in relation to being released from the undertaking previously given but otherwise failed. The reasoning of Jackson J (McMurdo P and Philippides JA agreeing) changes the previous approach under the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”) in relation to requests for information once proceedings are commenced and pre-proceeding physical inspections.

The applicant slipped on a piece of shallot in a supermarket operated by the first respondent, Woolworths near a promotional stand operated by the second or third respondents. The applicant sought further information from Woolworths relying on s 27 of PIPA and an order for an inspection (to reconstruct the scene). At first instance, the request for an inspection was denied on the basis that a reconstruction was not necessary to decide the issue or any other. In relation to the request for information, some of the requests were granted, however many were beyond the scope and not allowed.

Since then, the compulsory conference was held and court proceedings commenced.

In response Jackson J held:

[36] The first respondent submitted that s 27 of PIPA continues to operate to enable a claimant to ask for information about the circumstances of or the reasons for the incident after a court proceeding is started for the claim. It relied on Angus v Conelius[6] for that conclusion. However that case considered provisions of the Motor Accident Insurance Act 1994 (Qld). There are differences in the statutory provisions involved under PIPA. Accordingly, in Cleary v Rinaudo[7] it was held that provisions close in their text to those of PIPA did not operate to create a continuing right to ask for information under the equivalent to s 27 of PIPA after a court proceeding was started.[8] Although I incline to think that the latter view is correct in the case of PIPA, it is not necessary to answer the question finally in this case.

[44] It was in dispute before the District Court whether there was power to order physical inspection of the first respondent’s premises for the purposes of the applicant’s claim under PIPA. The first respondent submitted that the court did not have that power before a proceeding claiming damages for personal injuries is started in court.

[45] However, the first respondent did not rely on this point in its initial written outline of argument in opposition to the orders sought on the appeal. Nevertheless, where a question is raised on the face of a proceeding as to the power of a court to make an order sought, it is not just matter for the parties whether the court has power. It is a matter of law. The parties cannot by agreement confer power to make an order.

[46] Accordingly, the question of the District Court’s power to make the order was raised by the court at the hearing of the appeal and supplementary submissions were provided on this question by both the first respondent and the applicant.

[47] The primary Judge found that the District Court had power to make an order, relying on r 250.[12]

[48] Rule 250 of the UCPR provides in part:

“(1) The court may make an order for the inspection, detention, custody or preservation of property if—

(a) the property is the subject of a proceeding or is property about which a question may arise in a proceeding; or

(b) inspection of the property is necessary for deciding an issue in a proceeding.” (emphasis added)

[49] In my view, a claim under PIPA is not a “proceeding” within the meaning of r 250. That is because a “proceeding” under the UCPR starts when the originating process is issued by the court.[13] An originating proceeding is either a claim, (originating) application, notice of appeal or notice of appeal subject to leave.[14] Other forms of originating process are not provided for. By r 3 of the UCPR, unless the rules otherwise expressly provide, the rules apply to civil proceedings in, inter alia, the Supreme Court and the District Court. It is not expressly provided that they apply in the pre-court proceedings under PIPA. At the time when the orders were made by the District Court, there was no relevant proceeding in the District Court other than the application for the order itself. In my view, the power to make on order under r 250 depends on the existence of an originating proceeding for other relief. Otherwise, an order might be made even if no proceeding of that kind is ever started.

[50] In addition, it is unlikely that an order interfering with the private law property rights of a party or non-party is impliedly authorised under r 250 in those circumstances, because of the principle of statutory interpretation now described as the “principle of legality”, as discussed in recent High Court authority.[15]

His Honour was further not inclined to read into section 36(5) of PIPA that “any other orders” applies to inspections and found it was ancillary to the compulsory conference. Similarly, Jackson J found section 35(1) of PIPA is limited to documents and not physical inspections.

David Cormack – Brisbane Barrister & Mediator

 

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