PIPA: ss. 18 and 59 leave to proceed for fresh allegations denied

Yarwood v State of Queensland [2017] QDC 305

Devereaux SC DCJ

The applicant, admitted as a solicitor in 1996, was sentenced to 4.5 years’ imprisonment in March 2011 for fraud related offences. The applicant alleges that he suffered personal injuries over a period of time from 9 March 2011 to 13 December 2011 while in the defendant’s custody.

During this time, the applicant submitted that he allegedly suffered debilitating psychiatric injuries. Relevantly, the applicant was the victim of an assault and numerous verbal harassment including threats to his life, family and person while at, and in transit to, various correction centres.

Within three months of his release, the applicant served a Form 1 notice of claim on the defendant on 2 February 2012. Ultimately, the defendant denied liability and rejected the applicant’s offer. The parties participated in a compulsory conference on 6 February 2014 without result, leading to the claim being filed on 3 June 2014. Crucially, the notice of claim failed to include all allegations made in the pleadings.

By 6 August 2014, a defence and reply were filed, and the applicant served a list of documents on the respondent.

The applicant sought a declaration that the notice of claim nevertheless complied with the requirements of the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”) or alternatively, that the applicant have leave pursuant to s 59(2)(a) PIPA to commence proceedings against the respondent.

The respondent sought an order dismissing the proceeding pursuant to s 22 of the Civil Proceedings Act 2011 (Qld) which relevantly provides:

 (1) This section applies to the District Court and Magistrates Courts.

 Note—

 The Supreme Court has inherent power to dismiss proceedings for want of prosecution.

              

(2) If 2 years have passed since the last step was taken in a proceeding, the court may dismiss the proceeding.

Discussion

Discussing the deficiencies in the notice of claim, Devereaux SC DCJ stated as follows:

[33] To the extent that the pleaded claim includes and relies on incidents not set out in the notice of claim, the notice may be said not to comply with s. 9 of the Personal Injuries Proceedings Act and the Regulation. On this analysis, s. 18 of the Act would be engaged. Section 18 relevantly provides:

 (1) A claimant’s failure to give a complying part 1 notice of claim prevents the claimant from proceeding further with the claim unless—

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

(i) declares that the claimant has remedied the noncompliance; or

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

His Honour noted that the relevant power was s 18(1)(c)(ii) and referred to Cousins v Mt Isa Mines Ltd (2006) QCA 261 where Jones J stated, that the relevant power:

[34] … requires a consideration of factors of varying relevance and insight but with a consciousness that not to allow the application will deny a claimant access to the court to litigate his or her cause of action in a court. In my view, such access would be denied only in circumstances of severest prejudice.

In the present case, his Honour stated that an application for an order under s 18(c)(ii) would have been promising prior to the filing of the claim:

[37] … the plaintiff gave notice of a claim by way of a complying notice of claim but the notice did not include all of the assertions in the statement of claim. There is likely to be some degree of prejudice to the defendant in having to deal with the allegations of threats made in the solitary confinement unit and the Brisbane holding cell as ‘new’ allegations made after the compulsory conference but these allegations were brought to the defendant’s attention, at the latest, when the statement of claim was served in June 2014. And, as I have said, the nature of the claim, as being for damages for primarily psychiatric injury arising out of the plaintiff’s experiences in the defendant’s custody with a focus on a physical assault of 11 May 2011, has been clear since the service of the notice of claim on 2 February 2012.

As to whether authority to proceed can be granted when the proceeding has been commenced, his Honour referred to Holmes v Adnought Sheet Metal Fabrications Pty Ltd [2004] 1 Qd R 378, where Dutney J said, at 383:

Section 18 seems to me to operate only in futuro. It does not address steps taken prior to its being called in aid. The court may only excuse nunc pro tunc a failure to satisfy a procedural requirement.

Ultimately, his Honour found:

[42] The plaintiff’s problem is not so much that the claim has already been commenced but that it was commenced out of time, at least insofar as the plaintiff relies on incidents before June 2011. Section 18(1)(c) cannot allow a claimant to avoid the limitation period.[6] To extend the limitation period, the plaintiff must apply under s. 59 of the Personal Injuries Proceedings Act.

As to the applicant’s application pursuant to s 59 PIPA, his Honour ultimately found that as there was no complying notice of claim in support of the case pleaded in the statement of claim, it acted as a bar to the grant of leave.

The plaintiff’s application was refused. The proceeding was dismissed.

David Cormack – Brisbane Barrister & Mediator

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