PIPA: s.59(2) leave to commence & prejudice for a fair trial

Mears v State of Queensland [2017] QDC 322

Hornman-Wren SC DCJ

The applicant was a student at a school operated by the defendant. In July 2007, while the applicant was walking with another student to class, the applicant’s foot clipped the other student’s foot which led to the applicant tripping and falling on loose garden bark on the footpath. Because of the fall, the applicant suffered a broken ulna and radius and fractured two teeth.

The proceeding concerned whether an application pursuant to s 36(5)(a) of the Personal Injuries Proceedings Act 2002 (PIPA) fixing a time and place for the compulsory conference should be granted. The application turned on whether orders made on 26 September 2012 were made pursuant to s 59(2)(a) or 59(2)(b) PIPA.

Relevant background

The applicant served its Part 1 Notice of Claim on 10 July 2009, before the applicant turned 18 years on 30 September 2009. Since that time, the parties had a number of exchanges leading to 26 September 2012, when a consent order (Order) was made in the following terms:

  1. Pursuant to s 59(2) of the Personal Injuries Proceedings Act 2002 (‘the Act’) the applicant be given leave to commence proceedings within sixty (60) days of one of the following events occurring:

(a) a conference being held pursuant to ss 36, 37 and 38 of the Act and mandatory final offers being exchanged in accordance with s 39 of the Act; or

(b) the date of agreement, if the parties dispense with the compulsory conference by agreement pursuant to s 36(4) of the Act; or

(c) an order by the court, pursuant to s 36(5)(b) of the Act, dispensing with a compulsory conference.

 

Section 59(2) PIPA relevantly states:

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.

Discussion

His Honour rejected the respondent’s submission that the correct construction of the Orders was that it was made pursuant to s 59(2)(a) PIPA. His Honour stated:

[83] The distinction between s 59(2)(a) and s 59(2)(b) is that the former provides for an automatic extension of six months whereas the latter provides for an extension for a longer period, but only as allowed by the court. Section 59(2)(b) necessarily requires an application to the court. Section 59(2)(a), because it operates automatically as a matter of law, does not.

[84] Section 59(2)(a) does have two aspects; but not those contended for by the respondent. The two aspects to s 59(2)(a) are that the automatic extension of six months which it creates can run from either of two dates. The first is the date upon which complying Part 1 notice is given. The second is where a complying Part 1 notice has not been given, but the court has authorised the claimant to proceed further with the claim despite the claimant’s non-compliance. That authorisation may be given by the court on application of the claimant; but under s 18(c)(ii), not s 59(2)(a).

His Honour then referred to Hayley v Roma Town Council [2005] QCA 3 where McMurdo P stated:

[28] The ordinary meaning of the words of s 59(2)(a) is that claimants within s 59(1) of the Act, like Mr McDonald and Mr Haley and his company, may bring proceedings in court as a right within six months of the notice being given or leave being granted. … (emphasis added)

His Honour went on to state, in the present application:

[94] … the clear meaning of the order is that the proceeding is to be commenced within 60 days of one of the three events stipulated in the order occurring; one of which is a conference being held and mandatory final offers exchanged. The period within which any of those three events was to occur was not limited or prescribed by the order. The fact that it does not do so does not render the order void for uncertainty. …

In relation to whether to exercise the discretion, Hornman-Wren SC DCJ was satisfied that despite the considerable delay, a fair trial could still be had. His Honour did not consider that the respondents would suffer prejudice, noting that no issues were raised in relation to prejudice until after the request for the compulsory conference. As to the explanation for the delay, his Honour stated:

[103] The applicant has provided some explanation for the delay. The matters to which he refers would not have prohibited him from providing a breakdown of damages claimed at an earlier time. Although it is said for the applicant that his quantum was difficult to quantify and only ‘crystallised’ in late 2015, it would not have been impossible to formulate a claim for future economic loss at an earlier time. However, the explanation, together with his absence overseas for a period and disruptions within his solicitor’s office, are not without merit.

His Honour also noted that despite the plaintiff’s delay being inconsistent with the purposes of PIPA, it would not preclude his claim:

[104] … the applicant’s delay to this point means that the claim has not been resolved as speedily, or at as early a stage, as it might. Against that, however, is the applicant’s complete loss of his claim if an order is not made. Those particular considerations may have greater bearing on applications to dispense with a compulsory conference. …

The application was allowed, with the parties given 28 days to inform the court of the time and place of the compulsory conference.

David Cormack – Brisbane Barrister & Mediator

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