Wilkins v Thomas Bortwick & Sons (Australia) Pty Ltd

[2017] QDC 125

DISTRICT COURT OF QUEENSLAND

CIVIL JURISDICTION

JUDGE RYRIE

No 1146 of 2017

CHRISTOPHER GREGORY WILKINS  Applicant

and

THOMAS BORTWICK & SONS
(AUSTRALIA) PTY LTD  Respondent

BRISBANE

11.05 AM, WEDNESDAY, 5 APRIL 2017

JUDGMENT

.

HER HONOUR:   By originating application filed 30^th of March 2017, document number 1 on Court file, the applicant, namely Mr Wilkins, has applied to the Court for certain orders. Those orders are that relief be provided pursuant to section 18(1)(a)(ii) of the Personal Injuries Proceedings Act 2002 as amended, here and after referred to as PIPA; or, in the alternative to, pursuant to section 18(c) it says, (2) of the Act, the applicant should be granted to proceed the claim despite non-compliance; and (3) in an alternative, pursuant to 59(2)(b) to commence proceedings within 60 days of the following events occurring. Other orders are also sought, including that costs be costs in the proceedings.

The application is opposed by the respondent.  Affidavits were received by the Court by leave, as well as written submissions that have been marked, in effect, exhibits 1 and 2.  I have had regard to those outlines as well as regard to the oral submissions that were helpfully made by the respective parties before me in my consideration of it.

A brief background in respect of the matter is that the relevant date of the accident the subject of the notice of claim that was provided occurred on the 6^th of April 2014.  Section 9 of the PIPA Act requires that a notice of claim be provided in the approved form to a person against whom the proceeding is proposed to be started and there are time restrictions in respect of that.  Section 9(2) provides that the notice must contain information that is required and 9(3) provides that the notice must be given within the period ending on the earliest of either of the dates, namely, nine months after the date of the incident giving rise to the incident – injury that happened, which would be 6^th of January 2015;  or, as relevantly in this case, one month after the day the claimant first consulted a lawyer about the possibility of seeking damages for personal injuries and the person against whom the proceedings was proposed to be started was identified.

That date, uncontested between the parties is that instructions were, in fact, received by the appellant’s solicitors on the 20^th of June 2016 which, in effect, meant that the notice that was provided on the 9^th of March 2017 was about, approximately eight months after the receipt of those instructions.  Put another way, section 9 had not been complied with in either respects because of the late delivery of notice of claim.  That notice of claim was delivered one month prior to the expiry of the Limitations of Actions Act, namely, that if the accident happened on the 6^th of April 2014 as alleged, then the expiry of the limitation period for bringing such an action under the Limitations of Actions Act would be 6^th of April 2017.

Section 9, subparagraph (5) provides that if the notice is not given within the period prescribed, as I have already just outlined, the obligation to give the notice continues and the reasonable excuse for delay must be given in the notice or by separate notice to the person against whom the proceedings is proposed to be started.  The submissions that have been received and, indeed, the oral stance taken on behalf of the applicant was that notwithstanding the capacity of this Court, as an alternative, to grant leave to proceed despite compliance under section 18(1), subparagraph (c)(ii)

of PIPA, that the applicant is nevertheless of the view that a reasonable excuse had been provided in relation to why there was a late delivery of the notice under the primary ground that was sought in the application.

The main focus of the argument that was provided by the respondent was that there has been no reasonable excuse for delaying provided.  The material that I have read, dealing with this first point is, that the respondent asserts that there was no reasonable explanation for any delay.  The applicant, on the other hand, suggests that it was not contested that it was an operational error by the former solicitor who had carriage of the matter, who failed to – after receiving instructions on the 25^th of June 2016, to file  within the requisite period required under section 9 to deliver the notice of claim.

While the operational error by the former solicitor may well be a reasonable explanation or at least an excuse as to why that timetable was missed.  Nevertheless, as already intimated to the parties during the course of the hearing, the requirement for an explanation for delay seeking the exercise of the discretion under 18(1)(c), subparagraph (ii), which is what the applicant is doing as an alternative, is not, a precondition for the Court in the exercise of such a discretion.

Authority for that proposition comes from Gillam v State of Queensland & Ors [2003] QCA 566. Helpfully, as discussed in that case, even though it was dealing with section 43 of PIPA, nevertheless Justice Jerrard, as he then was, of the Appeal Court, in that regard, from paragraph 26 on. It was submitted in paragraph 26 in Gillam that the discretion given to a Court by section 18(1)(c), subparagraph (ii) of PIPA, which is the alternative relief being sought by the applicant on this application, would not and should not be exercised in an applicant’s favour in the absence of a reasonable excuse for delay. That submission was also made before me on behalf of the respondent.

That was, as said in Gillam, because the result of the scheme of PIPA being that section 9(3) requires a reasonable excuse that should also be imported into section 18.  That submission in reference to Gillam was rejected as noted at paragraphs 27 in the decision Section 18(1)(c), subparagraph (ii) empowers the Court to authorise the claimant to proceed despite non-compliance.  At paragraph 29, because of the particular section, namely, 18(1)(c)(ii), Justice Jerrard pointed out  there appears no need to make a finding as to the existence of a reasonable excuse.  Accordingly, it is not mandated by that particular section, in regards to the exercise of discretion under that particular provision 18(1)(c), subparagraph (ii).

Put another way, what was held in Gillam was that there was no requirement at all for reasonable excuse for any delay to be provided either under section 18(1)(c)(ii) or, in fact, section 43 of PIPA, which is what the case was focused on.  That is not to say that delay or prejudice are factors that are simply ignored, even when one considers section 18(1)(c), subparagraph (ii) before exercising the discretion under those sections but, as I have already intimated, a reasonable explanation for delay, per se, is not a condition of relief under section 18(i)(c)(ii).  In the event that a

reasonable explanation is given, then the notice, in any event, are compliant under section 9(5) and leave under section 18 would be, therefore, unnecessary.

The support of the submission there was a reasonable explanation for delay in putting forward the notice of claim at the point that it did, this was due to operational error by the former solicitor who had the carriage of the matter.  The respondent, on the other hand, considered that there has not been a reasonable excuse for the delay.  The delay of the applicant’s solicitors as an operational error, it is submitted by the respondents, is not a reasonable excuse for delay in any event.  In support of that submission, the respondent says that the reasonable excuse for delay under PIPA is to ensure that the respondent is provided adequate and timely notice of an incident and is relevant for the purpose of the legislation to facilitate expeditious resolution of claim. I do not disagree with the later submission;  however, I do not accept that the submission made by the respondent that there may not a reasonable excuse for the delay if it was because of an operational error on behalf of a failure by a solicitor in the employ of a claimant’s solicitor to serve a part 1 notice in time.

On the face of it, I consider that when it was delivered on 9^th of March 2017, it was only approximately eight months after the instructions had been received in any event, taking into account, obviously, the one month allowed after the receipt of those instructions under section 9, it is not a long delay and, sadly, not uncommonly not an unusual error that is made by solicitors, not deliberately, in dealing with complex matters in litigation.  As such, I may well have been of the view that there was reasonable delay explained.  But, as I have said, even if I am wrong in that, in any event, it is not a precondition for my exercise of my discretion under section 18(1)(c), subparagraph (ii) and in accordance with the principles of Gillam that I find such an excuse was reasonable for the delay.

Even if I was wrong, in respect of the operational error being able to justify a finding of reasonable excuse for delay, as a result of a solicitor’s failure to do what was required under certain time limits in respect of PIPA, nevertheless, the alternative order under A18(1)(c)(ii) should, in my mind, be made. 

It is true that delaying is not just simply ignored completely, nor for that matter prejudice, even if I am looking at section 18(1)(c) paragraph (ii).  While I do not need to have as precondition a reasonable excuse for it, I can still look at the period of time of delay, a factor that is relevant.

There is very little delay in the real sense, it was eight months after there receipt of instructions that the notice claim was ultimately delivered, one month prior in any event to the expiration of the Limitations of Actions Act.  So the delay in my mind is not significant.

The second point, of course, is that prejudice is always a relevant factor, even when one is looking at section 18(1)(c) paragraph (ii).  The prejudice submitted by the applicant says there is none, the prejudice is that the claim is already subject to a current WorkCover claim, that is a statutory claim of which had been reported to the

employer, to a person called Maurice, which is evident in the notice of claim that has been filed.

The respondent says that the report to Maurice, as evident from the notice of claim that has been filed, is dependent upon solely of the applicant’s memory in respect of it and the acceptance obviously of it.  The respondent also says that there is prejudice that is sheeted home to them because of no reports of any alleged injury, no reports have ever been received in respect of it, until ultimately the notice of claim was delivered.

As such, it is difficult, the respondent says, to even accept that the injury may well have even occurred in the manner that the applicant says it did now its notice of claim filed.  The notice of claim sets out, in respect of question 40, what the applicant has said.  It sets out that on the relevant date he had spoken to Maurice Jansen and ultimately that there were persons present who may well be able to account for his presence, notwithstanding the respondent says there is no records as such that indicate, for the moment, that he was even working on the day he says he was hurt.

The other thing that the respondent submits on the question of prejudice is that there are no records of any report of injury.  It does appear to be, on the face of question 40 as I read it, that there were other persons present, other than the plaintiff having told Maurice that he had suffered an injury relating to the installation of the gearbox because there was no one made available to help him do the job, that communication to Maurice was on the 7^th of April 2014.

While I agree that upon his prospects at trial in relation to whether he is accepted as a witness is relevant, nevertheless, I am of the view that that ultimately will be a matter that be – can be determined at trial as to whether or not ultimately the applicant will be accepted or otherwise as being involved in an accident on the day that is alleged in the manner that he describes.

The time that has past, namely the date of the accident being 2014, where a limitation purely in respect to personal injury is only, in any event, expires on the 9^th of March, at 6 April 2017, allows for proceedings to be bought in respect of any injuries within that period.  Clearly PIPA provides the prescribed provisions with notifying the respondent in a timely way, in order that he can facilitate the resolution of claims and more particularly, as the respondent asserts, provide them with the opportunity to do a timely investigation in respect of the incident as alleged.

On balance I am satisfied that there is no prejudice to the degree that would prevent the applicant from satisfying me on the balance of probabilities that this is a matter that be granted leave to proceed.  Time will ultimately tell whether or not he is accepted as a truthful witness at trial, if ultimately it gets to that point.

The respondent also says that there is, on their view of it, there is no prospects of success in the great sense of the word.  The respondent says the claimant has poor

prospects against the respondent on the grounds that the alleged injuries raised in the course of his duties as an engineer and the duties in which the applicant was attending when the alleged incident occurred were entirely outside the scope of any duty of care owed to the applicant.

Neither of those grounds, in my mind, however, persuade me finding that prima facie that the applicant, if accepted, irrespective of whether he was an engineer or not, is able to demonstrate, at least on a prima facie point of view, that his claim is not in itself futile.  The matters raised by the respondent, in my mind, would be properly considered as matters for the trial judge to determine, one, whether or not the alleged injury even occurred on the date and in the manner that is asserted in light of, as the respondent says, no actual report in writing to the employer and secondly, whether or not he was acting outside the scope of any duty of care that was owed to him in any event.  Those are questions, in my mind, that can only be determined at trial.

Accordingly I am of the view that the exercise of my discretion should be exercised to allow this matter to proceed.  I have had regard to the outlines of the respondent and I have taken those into account.  I have also had regard that the exercise in my discretion should be under section 18(1)(c) subparagraph (ii), which is the alternative ground that is sought.  I consider it the appropriate order to make.

Clearly because the notice of claim was delivered prior to the expiry date of the Limitations of Actions Act, section 59, as another alternative order in the application that was being sought, can only be invoked where a complying notice of claim is given within a period of the limitation.  At the moment there is no complying notice because, as pointed out by the applicant’s counsel, the claim is still being investigated and the injuries which have been suffered have still not stabilised.

Accordingly I am prepared to make the following order, allow the application and order pursuant to section 18(i)(c)(ii) that the applicant be granted leave to proceed with the claim despite non-compliance with the relevant Act.

Dealing with the question of costs now, the applicant has submitted there should be costs in the proceedings.  The respondent says, on the other hand, that cost of the proceedings should be given in their favour in view of the fact that the matter has been bought by the application by the applicants who have been the ones seeking leave to proceed.

In this regard, as I understood the submissions made, the applicant says that there should be costs in the proceedings because they could have, in any event, received the benefit of leave of the Court under 18(i)(c)(ii), which was a ground that they had sought in the alternative in their application.  That, in my mind, ignores the consideration that even though it may not be a pre-condition for the Court’s exercise under that relevant section for a reasonable excuse for delay to be provided, nevertheless, questions of prejudice and delay [indistinct] are still considered by the Court and indeed, prospects of success in some degree before that exercise of their discretion to grant leave under that section is given.

The respondents, on the other hand, argue they should be granted costs in their favour because the leave was necessary to be obtained by the applicants.  In any event, it is not one that I consider is one that the applicant should bear the costs or it be costs in the proceedings as sought.  I know the applicant’s submission primarily was that some of the matters that were raised by the respondent as to prejudice relating to the acceptance or otherwise of the applicant at the trial and the like if the application was granted, ultimately will determine whether or not the applicant, particularly after review of the statutory claim is completed, will – and its processes undertaken, will dictate whether or not the applicant will ultimately be successful.  While I accept all of those principals submitted by Mr Newton, nevertheless, I consider in the circumstances of this case that the applicant to pay the respondents costs on a standard basis in respect of this application.

Even having regard to those submissions that Mr Newton made, the order of the Court will be as follows. The applicant be granted leave pursuant to section 18(1)(c)(ii) of the Personal Injuries Proceedings of 2002 to proceed further with his claim despite non-compliance with section 9 of the Personal Injuries Proceedings Act 2002. The applicant is to pay the respondent the costs of the application in respect of their appearance thrown away as a result of the application being bought.

That is the end of the reasons for decision in respect of Wilkins v Thomas Bortwick & Sons (Australia) Pty Ltd.

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