Body Corporate for the Groves No. Four Minyama CTS 20785 v Kennedy (No. 2) [2022] QDC 299

DISTRICT COURT OF QUEENSLAND CITATION: Body Corporate for the Groves No. Four Minyama CTS 20785 v Kennedy (No. 2) [2022] QDC 299 PARTIES: BODY CORPORATE FOR THE GROVES NO. FOUR MINYAMA CTS 20785 (applicant) MURIEL KENNEDY (respondent) FILE NO/S: D115/2022 DIVISION: Civil PROCEEDING: Application DELIVERED ON: 4 November 2022 (ex-tempore) DELIVERED AT: Maroochydore HEARING DATE: 4 November 2022 JUDGE: Cash DCJ ORDERS: Order as per draft CATCHWORDS: PROCEDURE – ORIGINATING APPLICATION – application for the dispensation of signatures on certificate of readiness APPEARANCE: K Gothard instructed by Barry.Nilsson Lawyers for the applicant Respondent in person [1] HIS HONOUR: This is an originating application brought by the Body Corporate for The Groves No. Four Minyama Community Title Scheme 20785, the respondent to which is Muriel Kennedy. As noted in my decision concerning substituted service of 7 October 2022, the application is concerned with a potential claim pursuant to the Personal Injuries Proceedings Act 2002 (Qld). Ms Kennedy asserts she fell and was injured on common property at a multi-unit development at Minyama where she lives. She attributes her fall and injuries to the negligence of the body corporate. [2] In January and April 2019, Ms Kennedy gave notice of her claim in accordance with the pre-proceeding processes in the Personal Injuries Proceedings Act. Despite reams of correspondence there seems to me to have been little actual progress of Ms Kennedy’s potential claim since then. The insurers for the body corporate have instructed Barry.Nilsson Lawyers to represent the body corporate. Despite this, Ms Kennedy seems determined to write only to the insurer and thinks she is entitled to evidence that Barry.Nilsson have been instructed to act for the body corporate. [3] Ms Kennedy’s correspondence is voluminous. A sample can be seen exhibited to Court document 2. From what I have read, and I have not read all of it, very little -- 1 of 4 -- 2 seems directed toward actually progressing her claim. It is also a curiosity that Ms Kennedy also seeks to impose unilateral restrictions on how the body corporate is to communicate with her, without recognising any similar limitation might attach to her own epistles. [4] The solicitors for the body corporate have been attempting for some time to arrange a compulsory conference. While Ms Kennedy expresses a superficial willingness to attend, and has at times agreed to attend, each attempted conference has ultimately failed. Ms Kennedy does not accept those failed conferences are the result of any conduct on her part. The myriad excuses and explanations for Ms Kennedy’s apparent inability to attend the conference are mentioned in paragraph 13 of the affidavit that is Court document 2. Since July 2002, the solicitors for the body corporate have also attempted to arrange for independent medical examinations, with similarly fruitless results.1 [5] That situation has led to the present application. The solicitors for the body corporate ask the Court to order that Ms Kennedy attend independent medical examinations and participate in the compulsory conference. They also seek orders that would require Ms Kennedy to communicate with the solicitors and restrain her from corresponding with the insurer about her claim. [6] The first matter to be determined is whether the District Court has jurisdiction to make the orders sought. The District Court is a statutory court of limited jurisdiction. There is no proceeding by claim underway. As such, the jurisdiction conferred on the Court by section 68 of the District Court Act 1967 (Qld) is not engaged. Section 35 of Personal Injuries Proceedings Act permits “the court” to enforce compliance with Chapter 2, part 1, divisions 1 and 2 of the Act. These are the divisions concerned with pre-proceeding procedures, including conferences and independent medical examinations. By section 8, the definitions for the Act are to be found in Schedule 1. In turn, schedule 1 relevantly defines Court in these terms court, in relation to a claim, means— (a) if a proceeding based on the claim has been started—the court hearing the proceeding; or (b) if no proceeding based on the claim has been started—a Court with jurisdiction to hear the claim. [7] The definition in (b) would apply in this case, as no proceeding based on the claim has been started. The question then is whether the District Court is a court with jurisdiction to hear the claim, if one were commenced. The money limit of the District Court is $750,000. While, for understandable reasons, Ms Kennedy has not quantified her claim at this early stage, it is impossible to think that it would exceed $750,000 and the parties are content for me to proceed on that basis, thus engaging the jurisdiction of the District Court as it concerns this application. [8] Turning to the merits of the application. It is appropriate to begin by noting the legislative instruction that the purposes of the Personal Injuries Proceedings Act are achieved by having regard to the matters in section 4 of that Act. Relevantly today, those would include subsections 2(a), (b) and (c), which are to the effect that the purpose of the Act is to be achieved generally by providing a procedure for the speedy resolution of a claim for damages of personal injury, by promoting settlement of 1 See paragraph 14 of Court document 2. -- 2 of 4 -- 3 claims at an early stage wherever possible, and by ensuring the person may not start a proceeding in a Court based on a claim without being fully prepared for resolution of the claim by settlement or trial. It is for these reasons that divisions 1 and 2 of Chapter 2, part 1 of the Act exists. Compliance with these provisions will usually lead to the efficient disposition of claims or potential claims. Non-compliance only adds to delay and expense. Ms Kennedy has in the end agreed that there should be orders for independent medical examinations and for a conference to occur. The arrangements proposed by the solicitors for the body corporate are more than reasonable and would include orders that they pay, in effect, the reasonable costs of Ms Kennedy attending the examinations. The examinations would occur by February of next year, allowing the parties to then meaningfully participate in a conference which would be held here on the coast on the 4th of April 2023. It is appropriate to make those orders, and as I have noted, they are not in the end resisted by Ms Kennedy. [9] The applicant seeks, as well, an order which was in the terms of requiring Ms Kennedy to disclose any expert reports on which she intends to rely by the 1st of December. In the course of oral submissions, it was made clear that it was sought to have Ms Kennedy disclose to the body corporate any medical records or reports that she wants to rely upon, especially as they might be relevant to the independent medical examinations. As I have noted in the course of discussion with Ms Gothard on behalf of the applicant, the difficulty is that the order would necessarily be ill-defined and it is unclear what information it might produce. That is no criticism of the applicant in this case, it is unfortunately a reflection of the state of things at the moment. So as things stand, I am not inclined to make an order in terms of draft order 2. [10] Another order which is in dispute is proposed order 3(a), by which the applicant seeks to dispense with the need for signatures on a certificate of readiness prior to the compulsory conference. The reason proffered by the applicant is that they cannot say with any confidence they would be in a position to sign a certificate of readiness absent material from the defendant, and to dispense for the need for the signature will ensure that the conference can proceed as scheduled. I am persuaded it would be appropriate in those circumstances to dispense with the signature and I will so order. [11] That leaves then the question of the costs of this application. In my view the appropriate order is to simply reserve the costs of the application, such that if the issue of costs needs to be resolved at some future stage, it can be brought before the Court on the appropriate notice. [12] For these reasons, then, the orders that I propose to make would be to this effect, and I will discuss them having regard to the draft order proposed by the applicant. Draft order 1 would stand with the adjustment to the date for the appointment with Dr Chalk as discussed. The appointment with Dr Fraser would stay the same. I will not make proposed order 2. Proposed order 3(a), (b) and (c) would be the same, but it would have the change of date in (b) to 4 April, and (c) would have inserted into it the words “in person” between the words “held” and “at” so it would now read: The conference be held in person at balance boardroom etc. [13] I have not yet addressed order 4 of the draft provided by the applicant. It is appropriate to make order 4 which will restrain Ms Kennedy from corresponding directly with the insurer and ensure that she correspond about her claim only with the solicitors who are instructed to act. Order 4 would remain the same, except it would be renumbered, presumably, 3. Five which ought to be renumbered 4, will be that the costs of the -- 3 of 4 -- 4 application are reserved and there will be a new 5 which is liberty to apply on three days’ notice. [14] I ask the applicant to provide a draft order in those terms to initial in chambers and place with the papers. -- 4 of 4 --