[2017] QDC 126
DISTRICT COURT OF QUEENSLAND
CIVIL JURISDICTION
JUDGE RYRIE
No 1146 of 2017
CHRISTOPHER GREGORY WILKINS Applicant
and
THOMAS BORTWICK & SONS (AUSTRALIA) Respondent
PTY LTDBRISBANE
11.20 AM, THURSDAY, 6 APRIL 2017
JUDGMENT
DELIVERED EX TEMPORE
.
HER HONOUR: I think – yeah.
MS KLUSS: ‑ ‑ ‑ as I think your Honour made the point yesterday. Yeah.
HER HONOUR: If I can just say further and in accordance with my reasons, it’s an oral application, I take it, that you’re making, for ‑ ‑ ‑
MR NEWTON: I am.
HER HONOUR: Pursuant to section 43 PIPA.
MR NEWTON: Correct.
HER HONOUR: Under the rules.
MR NEWTON: Yes.
HER HONOUR: I’m happy, in the circumstances, with guidance from Gillam that with the limitation period about to expire, even though I provided an order that leave to proceed despite non-compliance, that doesn’t mean that in any way deem it as compliant or that the respondent, as I understand it to – and former application was actually consenting or agreeing that they were giving their consent as to compliance. Quite the contrary. The fact that it was argued suggests absolutely the opposite.
In those circumstances, then, I consider it is appropriate on application, which is made orally today, to give leave to the plaintiff to start a proceeding in court for damages. The – I’m satisfied there is an urgent need to start those proceedings. The limitation period will run out in due course.
Just to follow up with some further reasons in relation to whether or not the original order which are made on the application that was before me yesterday, the subject of the same file, I made, pursuant to section 18(1)(c)(ii) of the PIPA Act that the applicant be granted leave to proceed with the claim despite non-compliance. That was contested. It was sought in front of me today that I should do so on condition, which are generally and regularly seen as part of section 59 of PIPA.
I do not consider – and I haven’t changed my mind, I just want some reasons for decision – under 18(2)(c) that an order, when it is made under A18(1)(c)(ii), may be made on conditions I think necessary or appropriate to minimise prejudice to a respondent.
In my mind, there were not real good reasons provided that, in my mind, would allow me to make those conditions that were being sought to be attached. The first thing I need to say about 59 and its relevance is that section 59 can only be invoked where a complying notice of claim, either deemed or declared by the court, is given
within the period of limitation. Neither is the case here. So that’s the end of that relevance of that section.
Turning then to 18(1)(c), if I make an order which I was prepared to do under 18(1)(c)(ii) which authorises the claimant to proceed further despite the non-compliance, it should not in my mind, attach similar conditions that were being sought with a view to, in a way, which would ultimately prejudice the right of a defendant to have raised as a complete defence if they so choose, that their limitation period that they could raise as a defence would be denied.
It’s for those reasons that those conditions that were being sought with respect to A18(1)(c)(ii) are not orders that, in my mind, can fall within 18(2) and that was the reason I indicated yesterday that it may well be that if I was to act under that particular section in favour of the applicant yesterday, that section 43 might be more appropriate.
Now, I appreciate what Mr Newton has said, that it was a really a cost-saving exercise that might well be beneficial to both parties to, in order, the delay of the issue of a pleading in relation to a claim pursuant to 43 where there’s an urgent basis and leave is provided and given, which I’m prepared to do. But even having regard to that, nevertheless, it’s my view that the leave under 43 is still required. I’m prepared to give it. It is urgent and that if the claim has to be filed today then so be it. Those are my reasons for decision, Mr Newton.
MR NEWTON: Thank you, your Honour.
HER HONOUR: I should say I’ve also had regard to the decision that was provided to me in relation to Judge McGill of Lamb v Ting and it was a different factual scenario – thank you – to the parties to provide what they thought might well be a case that might assist. I’m not going to make any order as to costs.
MR NEWTON: Thank you, your Honour.
HER HONOUR: Thank you for both coming. Okay. The other reasons for decision will be published. I haven’t got them from the – those who transcribe. We stand in the queue, as you can appreciate, when criminal matters and other matters are being dealt with. They take priority over these matters. So I may get them next week – early next week. I don’t know.
MR NEWTON: But in terms of issuing a pleading today, I can plead with comfort that I have leave to proceed under 18.
HER HONOUR: Yes. Yes, section 43 as well.
MR NEWTON: And 18(1)(c)(ii).
HER HONOUR: Roman numeral, yes.
MR NEWTON: And I have leave under 43 ‑ ‑ ‑
HER HONOUR: Forty-three.
MR NEWTON: ‑ ‑ ‑ to commence these proceedings.
HER HONOUR: Commence these proceedings.
MR NEWTON: Thank you, your Honour.
HER HONOUR: Okay. All right.
MR NEWTON: That solves my immediate problem. Thank you.
HER HONOUR: Okay. All right. Okay. Is there anything else? No.
MR NEWTON: No. Thank you, your Honour.
HER HONOUR: Okay. All right. I’ve got other matters so if you want to just step back out and I will deal with the next matter.
MR NEWTON: Thank you, your Honour.
HER HONOUR: Okay.
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