Romano v Brisbane City Football Club & Anor [2018] QDC 67

The appellant, Romano sought leave to appeal to the District Court following the refusal of Magistrate Shearer refused to grant leave pursuant to s 43(1) of the Personal Injuries Proceedings Act 2002 (Qld). The basis for the denial by Magistrate Shearer was that the respondent to the application had not been served with the required three business days under r 27(1) of the Uniform Civil Procedure Rules (1999). The application had been filed on Thursday 9 February 2017, served by email at 5:20 pm on Friday 10 February 2017, when it was returnable on Monday 13 February 2017.

The applicant had an urgent need to have the application heard because the limitation period commenced expiring on 13 February 2017, the date three years after the applicant turned 18 years age (s 30(1)(c) of the Limitations of Actions Act 1974).

Magistrate Shearer’s response to the issue of service was:

[24] The hearing before the learned Magistrate took 15 minutes and included the following exchanges:

“BENCH: … Well, when you haven’t served the first respondent and he’s entitled to have been served, what do you want me to do. The application can’t proceed properly in relation to them, can it.

MS FRENCH: No. Your Honour, I – I can certainly undertake to serve the first respondent.

BENCH: How’s that going to help you, you’ll be out of time.

….

MS FRENCH: Your Honour, instructions from my principal were that, perhaps, the matter could proceed ex parte and the application be – be granted.

BENCH: Well, no. Why would I deny other parties a proper opportunity to be heard …

When at the end of the day, I – and I imagine that Mr Romano, the applicant, is related to the Romano of the law firm.

MS FRENCH: Yes, Your Honour.

BENCH: Right, so they’ve known about this matter since 2012 and at the absolute death before the time limit expires, they don’t properly serve either of the respondents but want me to make orders in their favour without going through the proper process.

MS FRENCH: Yes, Your Honour. The only instructions that I do hold was that the reason, which I have also mentioned to – to your Honour, was that Mr Romano, the applicant in this matter, was hoping to resolve this with the football club.

BENCH: Well, he wanted them to give him money without having to go through the formalities of the …

Well, look I’m not –when the first and second respondents have not been served in accordance with (a) not being served at all, but secondly, not in accordance with the rules – I’m not inclined to hear an application on that basis, and particularly when the applicant clearly knew all about this for some considerable time, notwithstanding the fact the injury occurred in 2012. Obviously, the firm’s been involved in the matter for some period of time.

There is no reason whatsoever that’s been advanced that – to indicate that it was either impractical or impossible to serve either of the respondents within the required timeframe.

So I don’t see why the court should grant an indulgence on that basis, dispensing with procedural fairness and the requirements of the UCPR.

I know you’ve been sent here as the sacrificial lamb so I’m not directing anything at you.

…But I’m certainly not denying them procedural fairness simply because the applicant’s solicitors haven’t done their job properly.

… Why would I not dismiss the application?

MS FRENCH: Your Honour, in relation to the application – and I have mentioned this – I – these are my only instructions: is that, again, we –there had been efforts made to try and negotiate with the club in relation to it and that’s why it was left until the eleventh hour. That doesn’t – that doesn’t correct any of the issues your Honour has raised, of course, in relation to service, and that Mr Romano, the applicant, actually still plays for the club and – and, again, hence the reason that it was until the – until the eleventh hours, your Honour. …

BENCH: Even if we’d been – had had the other – other respondents had been served, why – what do you say is the urgent need to start the proceeding? The only urgency seems to derive from the fact that your firm has simply left it to the last minute…

BENCH: How does that – the fact that the – an applicant – proposed applicant is dilatory in commencing a proceeding because they want to try to extract some money from a respondent without having to sue for it, how does that therefore create a situation of urgency that requires the court to dispense with the ordinary procedures.”

The decision of Magistrate Shearer delivered immediately was:

“The first thing to note is that neither of the respondents have been served. …

In those circumstances, I’m disinclined to hear the application for obvious reasons of procedural fairness for starters particularly when regard’s had to the fact that there’s no reason whatsoever why the solicitors for the applicant couldn’t have served the respondents in a timely way in accordance with the rules and had them – therefore given them an opportunity to respond to the application but beyond that section 43 of the Personal Injuries Proceedings Act requires that the applicant satisfies the Court that there is an urgent need to start the proceeding.

The only basis upon which any urgency seems to have arisen is that the applicant, essentially, has been trying to negotiate a payout from the soccer club without the need to commence a proceeding but that, of itself, doesn’t create a situation or urgency. That’s – what it has created is a circumstance of dilatoriness by the applicant and his solicitor that has led to a situation where an application’s been brought on the very last day of the limitation period but not for any reason outside the applicant’s control and not for any reason that might provide some sort of reasonable excuse for why a proceeding wasn’t started within the timeframe prescribed by the Act. The only reason that that hasn’t occurred is the applicant’s own – and his solicitor’s own dilatoriness.

That, in my mind, doesn’t create a situation in which an urgent need is created to commence a proceeding. The rules are not there to be bent simply to overcome the consequences of a parties [sic] own choices. In my view, they’re there to – or they contemplate situations in which an urgent need to commence proceedings is – arises from circumstances largely outside the control of an applicant …

In my view, the task of satisfying a court that there’s an urgent need to proceed [indistinct] urgent need to give leave to the party to commence a proceeding outside the time limits is really obviated because, as I see, the only urgency that has arisen has arisen as a consequence of the decisions of the applicant and his solicitor.

So with respect to section 43(1), I’m not satisfied that there is an urgent need to start the proceeding having regard to the fact that the position that the plaintiff or applicant finds himself in is one entirely of his own choice and creation. And in circumstances in which neither respondent has been served and the application’s not been brought in accordance with the rules, I’m not inclined to make the order. The application is dismissed.”

Fantin J

Her Honour allowed the appeal and considered the authorities, concluding in respect of s 43(1):

[13] It is almost a practice now to allow these applications [under s 43] on the eve of limitation periods ending, to preserve the traditional rights of injured people, and the taking of an “understanding attitude” is in line with Court of Appeal and High Court decisions[14].

Further, her Honour found:

[25] The learned Magistrate considered the failure to serve the application within time a compelling factor which outweighed the imminent expiry of the limitation period. He did not consider or refer to r 27(3) UCPR, which permits the court to proceed notwithstanding short service, nor to r 27(4) which permits a party affected by an order to apply to set it aside. He made remarks about the extent to which the appellant had received legal advice and about the conduct of the appellant’s legal representatives, which were contrary to the evidence or about which there was no evidence.

[28] As the limitation period expired on the day of the hearing, any delay in hearing and determining the application would have resulted in the applicant being shut out of litigating his claim. It is difficult to imagine a more “urgent need” to start a proceeding under s 43, having regard to the purposes of PIPA.

[29] In those circumstances, the court should have determined pursuant to UCPR r 27(3)(a) that it was just to hear and decide the application on the day set for hearing because the court would have been satisfied that delay caused by giving notice of the application “would cause irreparable or serious mischief to the applicant”.

Accordingly, her Hound found Magistrate Shearer erred in law and fact:

[32] In my view, the learned Magistrate erred in law and in fact in:

  1. failing to take into account relevant considerations: that there was an urgent need to start the proceeding because the expiration of the limitation period was imminent, and in those circumstances, the appellant’s failure to give proper service of the application was not determinative;
  2. taking into account irrelevant considerations: whether there was a reasonable excuse for the delay and non-compliance with PIPA, his assumptions about the role of the appellant and his solicitors in that delay, and that the respondents would be denied procedural fairness because they had not been served within time;
  3. finding that urgency for the application had not been demonstrated; and
  4. giving determinative weight to whether there was a reasonable excuse for the delay and non-compliance with PIPA.

Her Honour distinguished the statement of principle by analogy by Justice McMeekin in Paterson v Leigh & Anor [2008] QSC 277[21]:

[47] Paterson concerned a different legislative provision, being an application for an extension of the limitation period pursuant to s 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld) (MAIA). The court observed that although the discretion to be exercised in respect of an application pursuant to s 57(2)(b) is unfettered, the onus lies on the applicant to show good reason why the discretion ought to be exercised in his or her favour. Relevant factors in the exercise of the discretion under s 57(2)(b) include any delay on the part of the claimant and whether the applicant is able to show that the delay which has occurred was occasioned by a “conscientious effort to comply” with the Act.

[48] In contrast, under s 43 PIPA there is no requirement that the court be satisfied there is an excuse, reasonable or otherwise, for the delay or non-compliance[24]. Once an applicant can show the imminent end of a limitation period, that will provide the requisite “urgent need” to start a proceeding for the purposes of s 43. The function of s 43 is to mitigate any injustice which might have been caused to the applicant by the requirements otherwise imposed by the Act. It cannot be said to be directly analogous to s 57(2)(b) MAIA.

Accordingly, relying on the authority of GU v TO [2005] QCA 480 her Honour granted leave to start a proceeding pursuant to s 43(1), such leave being granted nunc pro tunc and with effect from 13 February 2017.

David Cormack – Brisbane Barrister & Mediator

 

 

 

 

 

 

 

 

 

 

 

 

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