Carter Newell Lawyers have successfully opposed an application to extend the applicant’s statutory limitation period on the basis the applicant failed to comply diligently with pre-court procedures in Faram v Hensec Pty Limited.1
The application was made pursuant to s 59 of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA), which states:
59 Alteration of period of limitation
(1) If a complying part 1 notice of claim is given before the end of the period of limitation applying to the claim, the claimant may start a proceeding in a court based on the claim even though the period of limitation has ended.
(2) 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.
Background
The applicant alleges he sustained injuries in an altercation at a tavern on 3 March 2017.
A PIPA claim was commenced against the provider of security guard services and the tavern, alleging the injuries occurred as a result of the respondents’ failure to prevent the altercation.
Part 1 Notices of Claim were was served on the security provider on 27 January 2018 and on the tavern on 1 February 2019. Part 2 Notices of Claim were never provided.
The applicant’s solicitor made medicolegal appointments for the applicant in January 2019, however those appointments were cancelled as they could not obtain their client’s instructions to attend.
Pursuant to the Limitations of Actions Act 1974 (Qld) the three year statutory limitation period expired on 3 March 2020.
The applicant’s solicitor sought two informal extensions of the limitation period; the first was to 30 June 2020, and the second to 30 October 2020. The respondents consented to those informal requests.
Nearing 30 October 2020, the applicant’s solicitor foreshadowed an application pursuant to s 59 of PIPA to seek an open ended extension of the limitation period.
The respondents did not consent on the basis the applicant had not evidenced a willingness to prosecute his claim in line with the main objects of PIPA, and proffered the agreement must have a defined expiration date, particularly given the delays already incurred.
Carter Newell Lawyers, on behalf of the security provider, requested the applicant give consideration to a timetable for the outstanding steps, which included provision of a Part 2 Notice of Claim, responses to outstanding requests for information and documentation, and medicolegal assessment of the applicant.
The solicitors for the venue sought affidavits detailing the steps taken to progress the claim, and responses to their outstanding requests for information.
In response, the applicant’s solicitor commenced the Originating Application pursuant to s 59(2)(b) of PIPA. The application was opposed by both respondents.
The steps taken otherwise in relation to the claim are set out substantially in Her Honour’s judgment.
The authorities
The relevant considerations outlined by McMeekin J in Paterson v Leigh & Anor2 were revisited in relation to the equivalent s 57 of the Motor Accident Insurance Act 1994 (Qld).
The most significant consideration is that the discretion is unfettered, and the onus lies on the applicant to show why the discretion ought to be exercised in their favour.
An applicant who can show the delay is due to a ‘conscientious effort to comply’ will ordinarily have the discretion exercised in their favour, and conversely, applicants who ignore their obligations under PIPA will have difficulty. However, if the delay arises for a reason other than ‘a conscientious effort to comply with the Act’ this will not necessarily be fatal to the application.
An assessment of the length of and reasons for the delay are vital, and the giving of the Notice of Claim prior to the expiry of the limitation period (and any other compliance with PIPA) will be advantageous.
In balancing the applicant’s rights, courts will assess whether the respondents will be deprived of a complete defence afforded by the statutory time bar, and whether any prejudice will be suffered by the respondents which interferes with the interests of justice.
The submissions
The applicant sought the indulgence of the Court to extend the period of limitation to commence proceedings in relation to his claim.
In support of his Originating Application, it was submitted that the applicant had provided his Part 1 Notice of Claim prior to the expiration of the limitation period, allowing the respondents the opportunity to investigate the circumstances. It was also noted the limitation period was not ignored as informal extensions were expeditiously obtained, and the application was brought prior to the expiry of the final informal limitation period.
The respondents’ delay in adhering to time requirements of PIPA were particularised as relevant to the delay generally, but also as being relevant to any argument alleging prejudice.
It was argued that due to a considerable delay in receipt of the Qld Police file pursuant to Right to Information (RTI), the applicant would have been unable to proceed anyway, and therefore unable to sign a certificate of readiness.
It was submitted that the overarching excuse for the delay was because the assault giving rise to the claim had triggered post-traumatic stress disorder (PTSD) that the applicant incurred in his military service. He argued the effects of his condition interfered with him giving instructions in the PIPA claim.
The applicant conceded there was some delay that was not arising from ‘a conscientious effort to comply’ with PIPA, although suggested that this deficiency should not be considered fatal to the application.
The first respondent submitted it was not appropriate for the Court to exercise its discretion in circumstances where PIPA proceedings had not been diligently prosecuted. The applicant was aware of the time requirements under PIPA, however chose not to comply. At times throughout the PIPA process, the applicant had ignored upwards of 18 telephone calls from his solicitors in a row.
It was conceded there had been nominal delays by the respondents in carrying out certain steps under PIPA, however those steps had not impeded the applicant in any way in the expeditious prosecution of his claim.
It was submitted the delay in receiving the Police file pursuant to RTI did not impact upon the applicant’s ability to comply with PIPA, such as providing a Part 2 Notice of Claim, respond to requests for information or instruct medicolegal experts. It was also noted that the file was already in the respondents’ possession, which was disclosed to the applicant through the second respondent’s list of documents.
There was no evidence before the Court that the applicant had been diagnosed with and suffers from PTSD, or that the condition impeded his ability to provide instructions to his solicitors. It was therefore not open to the Court to draw the inference.
The respondents exhibited lengthy pages of the applicant’s various social media profiles, which sought to demonstrate the applicant enjoyed an active social life and was capable of providing instructions to his solicitors.
The respondents lastly submitted the applicant was aware of the time limits, and he did not swear an affidavit in support of his application, which would have been evidence of commitment to his future efforts to comply.
The decision
Her Honour Justice Brown did not consider the ‘not insignificant’ delays in prosecuting the claim to be occasioned by a ‘conscientious effort to comply’ with PIPA.
Based on the applicant’s conduct, Her Honour found it difficult to draw any conclusion other than that he had little interest in pursuing his claim.
While it was fair to state the applicant would not have been capable of convening a compulsory conference as at the expiry of the limitation period due to the failure to receive the Police RTI file, Her Honour concluded that the absence of the file had no causative connection to the failure of the applicant to take the steps required of him in relation to the progress of his claim.
It was determined that there was not sufficient evidence to conclude the applicant experienced difficulty providing instructions due to his PTSD. Further, Her Honour was satisfied his prolific use of social media demonstrated he was capable of contacting his solicitors and providing instructions.
Justice Brown considered there was limited evidence of any real prejudice being suffered by either respondent, apart from the deprivation of a complete defence being afforded by the statutory time bar.
The respondents’ delays in carrying out certain steps under PIPA were taken into account, however it was concluded that any delays by the respondents did not interfere with or contribute to the applicant’s delay to progress the matter and comply with PIPA.
Ultimately, Her Honour concluded the applicant’s minimal attempts to comply with PIPA did not afford the favourable exercise of the discretion granted by s 59(2).
The applicant was ordered to pay the respondents’ costs of the application.
Educational highlights
The onus lies with the applicant to prove they are deserving of the court’s discretion. That discretion is unlikely to be exercised if an applicant has not upheld the main object of PIPA.
There will be focus upon each party’s timely prosecution of the claim. Even if one party appears idle, the courts have established an insurer is not permitted to stand by and be reactive to a claim. It is important to carry out the pre-proceeding steps on time regardless of the other parties’ actions to ensure no criticism can arise at a later date.
Whilst s 20 of PIPA requires a respondent to respond to the offer contained in the Part 2 Notice of Claim, it appears that respondents must provide a liability response in the time stipulated under PIPA even if a Part 2 has not been received.
Social media evidence can be used to demonstrate an applicant’s ability to communicate with those around them, which may suggest an ability to provide instructions.
Whilst prejudice to the respondents is a factor for consideration, its absence is not fatal to a court’s discretion to extend the time with which a claimant may bring proceedings.
This decision provides respondents to PIPA claims with an avenue to press claimants for pro-active advancement of their claims and adherence to the PIPA timeframes, which is a welcome relief for insurers.
1 [2020] QSC 327.
2 [2008] QSC 277.
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