McDonald v Holy Spirit Care Services Ltd & Anor [2011] QDC 78

Issues: in the event of compliance with the compulsory steps and there remained 14 days in which to commence proceedings, whether Section 59 of PIPA applied and, secondly, in circumstances where the parties had agreed to extend the limitation periods, whether that was the implied extent of the limitation period.

Everson DCJ

[12] Section 59 of PIPA and the equivalent section of the Motor Accident Insurance Act 1994 (“MAIA”), s 57 have been the subject of considerable judicial comment. In Morrison-Gardiner v Car Choice Pty Ltd[1] McMurdo P observed –

Section 57 of the Act does not, in my view, entirely supersede the operation of the Limitation of Actions Act 1974 (Qld). The latter deals with extensions of the limitation period when a claimant becomes aware of a new material fact near to or after the expiration of the limitation period. Section 57 of the Act allows a judge to give leave to a claimant to start a proceeding in a court after the expiry of the limitation period when the claimant has given a complying notice of claim within the limitation period in circumstances where, but for the Act, the claimant could be expected to have commenced the proceeding in a court within the limitation period.”[2]

[13] Subsequently, Williams JA stated:-

“The provisions of s 57(1) and (2) are no more than a recognition of the fact that a claimant has to comply with a complex of pre-trial requirements ….Provided a claimant is able to establish an explanation for the failure to commence the proceeding within the ordinary limitation period, and provided there is no prejudice to the defendant, there is no reason why a court ought not grant an indulgence by extending the limitation period….Amongst other considerations the court would have regard to the explanation for the delay, the length of the delay, possible prejudice to the defendant, and the general interest of the court in having such proceedings prosecuted expeditiously.”[3]

[14] In Spencer v Nominal Defendant[4] Keane JA sought to explain the inter-relationship between s 57(2)(b) of the MAIA and the Limitation of Actions Act 1974. He stated that s 52(2)(b): –

“was created to ameliorate the position for claimants who experienced difficulty in complying with the technical requirements of the Act within the limitation period prescribed by the Limitation of Actions Act so that claims can be determined fairly on their merits.”[5]

The fact scenario presented to the court is set out in the following terms:-

“On 14 July 2006, a consent order was made which dispensed with a compulsory conference and the exchange of final written offers of settlement. The order also provided for an action for damages to be started by the applicant in respect of the claim no later than 14 July 2006, with that action, if started, to be stayed until the holding of a compulsory conference and the exchange of final offers of settlement.” [6]

[15] Keane JA, with whom the other members of the Court of Appeal concurred, concluded that the application “did not arise because of the need to comply with the Act. The relevant requirements of the Act had been dispensed with by agreement of the respondent and the consent order made pursuant to that agreement.”[7] He also found that “the making of the order sought by the applicant would defeat the respondent’s rights under the consent order of 14 July 2006”[8] which “operates both as a contract and an order of the court”[9].

[16] Turning to the facts before me, I am satisfied that the failure to commence the proceeding within the limitation period arose as a consequence of the need to complete the mandatory requirements of PIPA including the holding of a compulsory conference. Unlike the situation appertaining in Spencer the applicable mandatory requirements were not excused. Indeed, both the need to seek an extension of the limitation period and the truncation of the amount of time within the extended period open to the applicant to commence a proceeding arose out of the need to complete the mandatory requirements. The respondent candidly concedes that it will suffer no prejudice if leave is granted pursuant to s 59 other than the loss of the limitation of actions defence. In seeking to extend the limitation period in the manner he did, at no time did the applicant agree not to bring an application pursuant to s 59 of PIPA. Indeed, the applicant was not obliged to do anything at all. The question of breaching an agreement by enlarging the limitation period therefore does not arise on the facts before me.

Conclusion

[17] It is true that a number of principles have been identified as being relevant to the exercise of the court’s discretion in circumstances such as these,[10] however, the discretion which exists pursuant to s 59(2)(b) of PIPA is not subject to any express statutory qualification, although it is to be exercised with regard to its statutory purpose.[11] The following relevant considerations warrant the exercise of discretion in favour of the applicant of the facts before me:-

1. The diligent prosecution of his claim by the applicant;

2. The prompt bringing of this application after the applicant’s solicitor realised his oversight;

3. The absence of prejudice to the respondent; and

4. The interests of justice in enabling the claim to proceed where considerable resources have been expended in prosecuting it in accordance with the mandatory requirements of PIPA.

Brisbane Barrister – David Cormack

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