Baioumy v Wendt [2017] QDC 55

Morzone QC DCJ

In facts that were unusual, to say the least, the plaintiff alleged suffering personal injuries and being falsely imprisoned on a fishing vessel at sea for several days. The plaintiff alleged he was detained on the vessel as part of a plan to enable a child recover operation by the plaintiff’s former wife of their child in Egypt.

The plaintiff sought to leave to proceed despite failing to comply with pre-court procedures as required by the Personal Injuries Proceedings Act 2002 (Qld) (the “PIPA”). The plaintiff commenced court proceedings first and within time, but then only served the PIPA Notice of Claim one month after the expiration of the limitation period. This only came about after the defendant’s lawyer brought to the plaintiff’s lawyer’s attention the requirements of the pre-court proceedings under PIPA.

The defendant sought by cross application summary judgement under rule 293 of the Uniform Civil Procedure Rules 1999 (Qld).

Statutory framework

Section 9 of the PIPA provides that:

(1) Before starting a proceeding in a court based on a claim, 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.

(3) Part 1 of the notice must be given within the period ending on the earlier of the following days— 

(a)  the day 9 months after the day the incident giving rise to the personal injury happened or, if symptoms of the injury are not immediately apparent, the first appearance of symptoms of the injury;

(b)  the day 1 month after the day the claimant first instructs a law practice to act on the person’s behalf in seeking damages for the personal injury and the person against whom the proceeding is proposed to be started is identified.

The plaintiff relied on s 18(1)(c) to proceed with the claim. That section relevantly provides:

18 Claimant’s failure to give part 1 of a notice of a claim 

(c) the court, on application by the claimant— 


(ii) authorises the claimant to proceed further with the claim despite the noncompliance.

Consideration

Ultimately, his Honour allowed the plaintiff to proceed with the claim despite non-compliance with the PIPA.

In reaching this decision, Morzone QC DCJ relied on McKeekin J in Stanley-Clarke v Boyle [2012] QSC 196 to first determine whether the claim was justiciable. In Boyle, McKeekin J held:

[13] Proceedings commenced in breach of the provisions of this nature are not nullities… the legislation in question here gives the Court power to assist the applicant… PIPA gives no guidance as to the considerations that are relevant to the exercise of the discretion conferred. All that can be said is that plainly s 18(1)(c)(ii) requires that a discretion be exercised and of course it must be exercised judicially – the factors for and against balanced, and the decision made bearing in mind the purpose of the statute.

After considering conflicting authorities and in exercising the discretion, his Honour found:

[41]  In my view the current state of the law is that non-compliance with the pre-litigation procedures of the PIPA does not inevitably render the proceeding not justiciable, void or a nullity. Instead, as in the circumstances of this case, the court is empowered to excuse non-compliance pursuant to s 18(1)(c) of the PIPA.

[45] … Despite being prompted by the defendant’s solicitor, the plaintiff’s solicitor still engaged in inordinate delay. This can be explained by the solicitors’ continuing tardiness, ignorance and referral to counsel.

[46] The plaintiff had no knowledge of, and did not contribute to, the failure to serve the notice. This and the subsequent delay ought not be visited upon the plaintiff/client. I accept the solicitor’s ignorant inaction as a reasonable explanation for the delay.

[48] The defendant argues that he will suffer prejudice if leave is granted pursuant to s18(1)(c)(ii) of the PIPA because it will eliminate the fatalness of the defence.  I disagree. In my view the plaintiff’s action was commenced within time by filing the claim and statement of claim on 12 February 2014, almost a year before the expiry of the limitation period.  Even though the notice of claim was served outside the limitation period such non-compliance did not have the effect of altering the limitation period, and the defence was never available.

As to the plaintiff’s prospects of success, his Honour found that emails between the defendant and the recovery agent tended to show that the defendant knew his role in detaining the plaintiff. As such, his Honour found that there were real prospects of success and the need for a trial.

His Honour allowed the plaintiff’s application and dismissed the defendant’s application for summary judgement.

David Cormack – Brisbane Barrister & Mediator

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