Newson v Aust Scan Pty Ltd t/a Ikea Springwood & Ors [2010] QSC 223

30/06/2010

Catchwords

STATUTORY CONSTRUCTION – Personal Injuries Proceedings Act 2002, s 32(2) – DUTY TO DISCLOSE – DISCRETION TO EXCUSE NON COMPLIANCE – where Act states that party cannot rely on document that was not disclosed – where document not disclosed prior to Compulsory Conference and nearly five years after notice of claim – where applicant seeks to rely on non-disclosed document – whether the court should exercise its discretion to excuse non compliance with disclosure requirements

Alan Wilson J

[3] The plaintiff suffered serious injuries when he was crushed between a truck and a loading dock at the first defendant’s business premises at Springwood on 15 July 2004. The parties undertook all the pre-court procedures required by PIPA during which the first defendant failed, however, to disclose a document it now seeks to rely upon. The document is said to constitute its policy ensuring a safe system of work for persons like the plaintiff. It is called ‘Goods receiving at the IKEA store – Think Safety’. The existence of the document was not revealed until the first defendant referred to it in its defence, delivered in August 2009.

[4] The plaintiff says the non-disclosure is so serious that the first defendant should not be allowed to use the document at all in these proceedings. The first defendant admits its non-disclosure, but seeks to be excused. The argument hinges around the meaning and effect of s 32 of PIPA, which provides:

32 Consequence of failure to give information

(1) This section applies if a party fails to comply with a provision of division 1 or this division requiring the party to disclose a document to another party.

(2) The document can not be used by the party in a subsequent court proceeding based on the claim, or the deciding of the claim, unless the court orders otherwise.

(3) If the document comes to the other party’s knowledge, the document may be used by the other party. (emphasis added)

His Honour noted

The nature and parameters of the discretion arising under s 32(2) have not, apparently, fallen to be considered by the court before.

[10] This Court has previously considered the effect of the phrase bestowing the discretion here in the context of UCPR r 905 which provides that, unless the court orders otherwise, if a person fails to satisfy a condition the court has included in an order the person loses the benefit of the order. In Vicary v State of Queensland[5], P Lyons J observed that the discretion under r 905 arose in circumstances intended to be remedial and should, therefore, be construed liberally[6].

[11] The nature of the court’s discretion to excuse non-compliance with these parts of PIPA was considered, although in a different context, by Byrne SJA in Luck v Lusty EMS Pty Ltd [2008] QSC 146. There, the defendant elected not to have the plaintiff submit to a medical examination during the pre-litigation PIPA phase, and its solicitors signed a certificate of readiness under s 37. The claim did not settle at the compulsory conference and the plaintiff began his action, whereupon the defendant applied for an order that he undergo a medical examination. The application was resisted on the basis that the obligation to submit to an examination under PIPA s 25 ceased once defendant’s solicitor had signed the certificate.

Conclusion

[19] The difficulty for the first defendant here is that the solicitor’s affidavit does not show that the care and diligence and, in particular, the close attention to disclosure which is plainly called for by PIPA was applied to the relevant document over a period of 18 months – between 9 October 2007, and 5 June 2009. It is accepted that, as the solicitor says, the document first came into her possession after the initial round of disclosure under s 27; but s 37 reiterates the obligation in preparation for the compulsory conference. In explaining what happened at that time, she says:

  1. It is my standard practice to inquire, prior to a compulsory conference as to whether disclosure requirements have been complied with, whether disclosure is up to date, and whether an updated list of document (sic) is required, before signing a Certificate of Readiness.
  2. As no updated list was prepared, I assumed that there was nothing further to disclose. I relied upon that assumption. I signed the Certificate of Readiness.

[20] These passages do not reveal the person(s) of whom the enquiry was made, or by whom the updated list should have been prepared. Nor do they reveal any system or procedure within the solicitor’s office for ensuring compliance with the provisions which could be described as exhibiting a reasonable degree of diligence.

[21] The notice of claim under s 9 of PIPA was served on the first respondent on 14 September 2004. Almost five years passed before the existence of the document was first revealed, in the first defendant’s defence of August 2009. The plaintiff, and the second and third defendants, have not contributed in any way to the non compliance.

[22] It is said for the first defendant that the plaintiff will not suffer any prejudice if it is allowed to rely upon the document. It is probably true that, at worst, the plaintiff may be forced to reprise the PIPA processes or that, as his counsel pressed, the trial of his action would be delayed if his advisers are forced to investigate the potential effect of the document on liability and seek evidence to rebut those potential effects. The consequences of a favourable exercise of the discretion are material but, here, must be considered in the light of the importance the legislation places upon proper compliance.

[23] The only additional thing that might be said about the elements of the discretion arises from the traditional emphasis, in our system of justice, upon a trial which truly and fully enables all parties to ventilate the real issues between them. Nothing in s 32 suggests the legislature did not take that into account, and the wording of the provision indicates a deliberate choice (in the context of the strong emphasis upon full disclosure) to visit serious, even draconian, consequences upon the defaulting party. In the present case it might also be said that if this defendant is excused, the bar is in reality set quite low. Again, that is not a conclusion which sits comfortably with the simple words used in the provision.

[24] For these reasons I am persuaded the first defendant’s application should be refused. That determination makes it unnecessary to declare, as the first defendant sought, that the first defendant be restrained from relying on the document.

[25] The plaintiff also seeks orders that certain nominated paragraphs in the defence of the first defendant should be struck out. The question is whether or not those sections involve a ‘use’ of the offending document. That is certainly true of paragraphs 6(c), (d) and (e), 8(b) and (c), 11(d), 13(a) and (c)(i) and they ought be removed. The first defendant should, however, be allowed the opportunity to re-plead in accordance with this decision.

[26] As to costs, there is no reason to depart from the usual rule. The first defendant should pay the costs of the plaintiff, and the second and third defendants, of and incidental to the applications brought by it, and the plaintiff, on the standard basis.

 

Brisbane Barrister – David Cormack

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