Baioumy v Wendt [2017] QDC 55

DISTRICT COURT OF QUEENSLAND CITATION: Baioumy v Wendt [2017] QDC 55 PARTIES: MAZEN HASSAN MAHROUS HASSAN BAIOUMY (Plaintiff) v SEL WENDT (Defendant) FILE NO/S: 94 of 2015 DIVISION: Civil PROCEEDING: Application in proceeding ORIGINATING COURT: Cairns DELIVERED ON: 10 March 2017 DELIVERED AT: Cairns HEARING DATE: 3 February 2017 JUDGE: Morzone QC DCJ ORDER: 1. The defendant’s application for summary judgment filed 23 December 2015 is dismissed. 2. The plaintiff is authorised to proceed with the claim despite non-compliance with the Personal Injuries Proceedings Act 2002 (Qld) pursuant to s 18(1)(c)(ii) of that Act. 3. The plaintiff will file and serve an amended the Claim and Statement of Claim by 4:00 pm on 7 April 2017. 4. The defendant will file any amended defence by 4:00 pm on 28 April 2017. 5. The proceeding is otherwise stayed until the plaintiff complies with the Personal Injuries Proceedings Act 2002 (Qld) in all appropriate respects. 6. I will hear further submissions about costs. 7. Unless either party applies for, or the parties otherwise agree to, a different costs order by 4:00 pm on 10 April 2017, the costs of and incidental to the applications will be costs in the proceeding. -- 1 of 17 -- 2 CATCHWORDS: PROCEDURE – JURISDICTION AND GENERALLY – Personal Injuries Proceedings Act 2002 (Qld) – application for leave to proceed despite non-compliance with pre-litigation procedures – cross application for summary judgment - plaintiff filed proceedings for damages for false imprisonment before expiry of limitation period – plaintiff failed to service notice of claim before commencing proceedings or expiry of limitation period – whether failure to comply with pre-litigation procedure renders proceeding not justiciable, invalid or nullity - where notice of claim served outside limitation period – exercise of discretion – explanation of non-compliance due to interstate solicitor’s ignorance of practice and procedure – whether prejudice merely because loss of limitation defence - whether non-compliance is excusable or whether to strike out statement of claim – whether to stay proceeding pending compliance. PROCEDURE – SUMMARY JUDGMENT – whether plaintiff has real prospects of success – whether need for a trial. Legislation: Limitation of Actions Act 1974, s11 Personal Injuries Proceedings Act 2002 (Qld), ss 7, 9, 18, 43, 59 Uniform Civil Procedure Rules 1999 (Qld), s 293 Cases: Berowra Holdings Pty Ltd v Gordon [2006] 228 ALR 387 Boulter v Batten and Suncorp General Insurance Ltd [2010] QDC 56 ] Bulsey & Anor v State of Queensland [2015] QCA 187 Cousins v Mt Isa Mines [2006] 2 Qd R 343 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 Gillam v State of Qld & Ors [2003] QSC 566 Gray v Morris [2004] 2 Qd R 118 Holmes v Adnought Sheet Metal Fabrications Pty Ltd [2004] 1 Qd R 378 Lucy (Xiaoshuang) Lu v Andrew Petrou & Ors [2011] QSC 57 Madsen v Pope & Anor [2014] QDC 45 Martens v Stokes [2013] 1 Qd R 136 Phipps v Australian Leisure and Hospitality Group Limited [2007] QCA 130 Stanley-Clarke v Boyle [2012] QSC 196 State of Queensland v Coffey [2005] QSC 212 Taylor v Stratford & Ors [2003] QSC 427 Walker-Eyre v Emirates [2012] QDC 364 Woolnough & anor v Isaac Regional Council [2016] QSC 172 -- 2 of 17 -- 3 COUNSEL: D Hancock for the Plaintiff CJ Eylander for the Defendant SOLICITORS: Starnet Legal for the Plaintiff Miller Bou-Samra Lawyers for the Defendant [1] The plaintiff, an Egyptian national, seeks to sustain proceedings claiming damages for personal injuries caused by his false imprisonment arising from a bizarre international child recovery operation, but he failed to comply with pre-court procedures required by the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”). [2] The defendant cross-applies for summary judgement pursuant to rule 293 of the Uniform Civil Procedure Rules 1999 (Qld) (“Rules”). [3] The plaintiff also foreshadowed an application to join the alleged recovery agent, Col Chapman, as a second defendant, in the proceeding. That part of the application has not been pursued. Background [4] The proceeding commenced by claim and statement of claim on 12 February 2014 in the Supreme Court in Brisbane. [5] The plaintiff claims damages for false imprisonment on a fishing vessel against his will, for some days and despite requests to return to shore in the month of August 2015.1 The statement of claim is unconventionally drafted and created some doubt about the nature and extent of the claim. The defendant filed a defence on 24 May 2014. He did not dispute that the plaintiff voluntarily boarded the vessel operated by the defendant. However, he denied any wrongdoing and otherwise indicated an inability to further plead in the absence of further particulars of the allegations [6] There was no progression of the proceeding for almost 12 months before the parties agreed, by consent orders made on 22 April 2015, to mediate by 22 May 2015. The proceeding was not resolved. [7] The defendant’s solicitors then wrote on 29 May 2015 to the plaintiff’s interstate solicitors concerned that the claim appeared to relate to personal injuries, including psychological injuries. The defendant’s solicitor admirably alerted the plaintiff’s solicitor of the need to comply with pre-court procedures pursuant to the PIPA. The defendant’s solicitor also gave notice of the prospect of applying for summary judgment or striking out the pleading.2 [8] The defendant’s solicitor responded on 1 June 2015 and indicated that the he would consult with counsel and consider amending the statement of claim. He was silent about the need to comply with PIPA. [9] In the meantime, the proceeding was transferred by consent to the District Court in Cairns on 25 June 2015. 1 Claim & Statement of Claim 2 Affidavit of Miller - RJM1 -- 3 of 17 -- 4 [10] On 11 August 2014, the defendant filed an amended defence to expressly plead the plaintiff’s failure to properly constitute the action in compliance with the PIPA and the Limitations of Actions Act and relied upon these matters as a complete defence. [11] The defendant’s solicitor then wrote a letter pursuant to rule 444 of the Rules asserting that the proceeding was incompetent for want of compliance with service of a Notice of Claim and other pre-court procedures pursuant to the PIPA. The plaintiff foreshadowed an application for summary judgment under rule 293 of the Rules. [12] The plaintiff’s solicitor responded by email on 6 September 2016 with an indication that he would meet with his counsel, apparently oblivious to the peril of the proceeding. He then belatedly served a PIPA Notice of Claim and supporting material by email on 27 September 2016, being one month after the expiry of the limitation period. [13] The nature and extent of the plaintiff’s claim was further revealed in the Notice of Claim. In Item 18 he asserted that: “[The defendant] as owner and operator of the vessel retained and held [the plaintiff] on the vessel against his will. [The plaintiff] was falsely imprisoned on the vessel known as “Mr Bill” for the period of 17/8/13- 28/8/13.” [14] The supporting psychological report dated 19 January 2015 disclosed that the plaintiff was an Egyptian national. He met his wife in Melbourne, they married in 2008 and had a daughter in 2009. The couple separated in 2011 and the plaintiff returned to Egypt due to his mother’s ill health. In early 2013, his estranged wife and daughter came to Egypt to learn the culture and language. The plaintiff refused to permit his daughter’s return to Australia with her mother. He then claims that he was recruited to Cooktown in Australia to work as an interpreter on a fishing vessel for “rich Arab” tourists. He alleges that he boarded the vessel and was taken to sea, and was held against his will for a period of about 11 days between 16 August 2013 and 28 August 2013 without his mobile phone, adequate food water or medical assistance. It is alleged in effect that the ordeal was a ploy to separate the plaintiff from his child in Egypt and render him incommunicado on the high seas, while ‘child recovery agents’ kidnapped and returned the child with his mother (the plaintiff’s former wife) to Australia. [15] Paragraph 20 of the notice of claim describes the personal injuries suffered by the claimant/plaintiff, as:3 (a) Post traumatic stress disorder; and (b) adjustment disorder with depressed mood; and (c) aggravation of pre-existing right and left shoulder injury; and (d) muscle tear to gluteus maximus 3 Affidavit of Robert Miller filed 20/01/17, “RJM5” para 20 of the PIPA Form 1 -- 4 of 17 -- 5 [16] The plaintiff now applies for leave to proceed pursuant to section 18(1)(c) of the PIPA on the grounds that the plaintiff has a reasonable excuse for serving the Form 1 upon the defendant out of time and for non-compliance with the PIPA. [17] The defendant cross-applies for summary judgement against the plaintiff pursuant to rule 293 of the Rules. Leave to Proceed [18] The plaintiff seeks excusal from the non-compliance with s 9 of the PIPA, and that he be granted leave to proceed pursuant to s 18(10(c)(ii) of the PIPA, despite his non- compliance with the pre-court procedures of the PIPA.. [19] The defendant resists the application. He argues that the granting of leave pursuant to s18 (1)(c)(ii) of the PIPA will not assist the plaintiff with the limitation period because the plaintiff must still comply with s 43(1) of the PIPA to obtain the court’s leave to start urgent proceedings. The defendant argues that the plaintiff will fail in any event. Statutory Framework [20] Sections 7, 9, 18, 43 and 59 of the PIPA relevantly provide: 7 Provisions of this Act that are provisions of substantive law (1) Provisions of this Act that provide for the kinds of damage, and the amount of damages, that may be recovered by a person, and the provisions of chapter 2, part 1, divisions 1, 1A, 2 and 4, are provisions of substantive, as opposed to procedural, law. (2) Despite subsection (1), notice of a claim is to be given in the form approved for a notice of a claim when the notice is given. (3) Also, subsection (2) has effect for notice of a claim given before the commencement of this subsection. 9 Notice of a claim (1) Before starting a proceeding in a court based on a claim, a claimant must give written notice of the claim, in the approved form, to the person against whom the proceeding is proposed to be started. … (3) Part 1 of the notice must be given within the period ending on the earlier of the following days— (a) the day 9 months after the day the incident giving rise to the personal injury happened or, if symptoms of the injury are not immediately apparent, the first appearance of symptoms of the injury; -- 5 of 17 -- 6 (b) the day 1 month after the day the claimant first instructs a law practice to act on the person’s behalf in seeking damages for the personal injury and the person against whom the proceeding is proposed to be started is identified. 18 Claimant’s failure to give part 1 of a notice of a claim (1) A claimant’s failure to give a complying part 1 notice of claim prevents the claimant from proceeding further with the claim unless— (a) the respondent to whom part 1 of a notice of a claim was purportedly given— (i) has stated that the respondent is satisfied part 1 of the notice has been given as required or the claimant has taken reasonable action to remedy the noncompliance; or (ii) is conclusively presumed to be satisfied it is a complying part 1 notice of claim under section 13; or (b) the respondent has waived compliance with the requirement; or (c) the court, on application by the claimant— (i) declares that the claimant has remedied the noncompliance; or (ii) authorises the claimant to proceed further with the claim despite the noncompliance. (2) An order of the court under subsection (1)(c) may be made on conditions the court considers necessary or appropriate to minimise prejudice to a respondent from the claimant’s failure to comply with the requirement. 43 Starting urgent proceeding with the court’s leave (1) The court, on application by a claimant, may give leave to the claimant to start a proceeding in the court for damages based on a liability for personal injury despite noncompliance with this part if the court is satisfied there is an urgent need to start the proceeding. Does the PIPA apply? [21] The term “claim” is defined in the PIPA to mean “a claim, however described, for damages based on a liability for personal injury…”. “Personal injury” is defined in the PIPA as: personal injury includes – (a) fatal injury; and (b) prenatal injury; and (c) psychological or psychiatric injury; and -- 6 of 17 -- 7 (d) disease. [22] The defendant contends that the statement of claim ought be construed as containing no claim for damages for personal injury and it is too late to make a claim. Instead, the proceeding is for damages arising from alleged false imprisonment. [23] In Bulsey & Anor v State of Queensland,4 Fraser JA examined the development of the law on the type of damages for personal injuries and damages for assault and battery and false imprisonment, in relation to the PIPA, the Civil Liability Act 2003, and the general law. Damages for emotional harm, harm to reputation, deprivation of liberty, injured feelings such as outrage, humiliation, indignity and insult or to mental suffering, such as grief, anxiety and distress (not involving a recognised psychological condition) would not generally be regarded as an award for “personal injury damages”.5 [24] It seems to me that the defendant’s criticism of the poor pleading has significant force. In paragraph 7 of the statement of claim the plaintiff vaguely alleges that he suffered “physical ailments” whilst on board the vessel, which he particularised as:6 (a) Seasickness; (b) Migraines; (c) Repeated vomiting; (d) Lack of proper nutrition and water; (e) Other physical ailments. [25] The plaintiff’s prayer of relief includes claim for “Damages, including exemplary and/or aggravated damages”, particularised as: “The Plaintiff’s damages are to be assessed. The Plaintiff shall rely upon psychological and other reports, to be filed and served in due course.” [26] The statement of claim is woefully deficient in that it fails to properly and clearly plead that the defendant’s conduct caused the plaintiff personal injury of a nature and extent that resulted in particular damages as required by rr 150(1)(b), 155 and 157 of the Rules. It barely alludes to personal injuries consequential upon the defendant’s conduct, and the prayer of relief is broadly expressed. The scope of the personal injury claim was not properly communicated to the defendant until service of the PIPA notice of claim,7 which was too late and cannot cure any pleading defect. It merely highlighted the pleading deficiency. [27] Even with these deficiencies, it is tolerably clear that the pleading discloses that the plaintiff did suffer personal injuries. In that regard, in so far as the claim is for 4 Bulsey & Anor v State of Queensland [2015] QCA 187 at [85] – [87], 5 Bulsey & Anor v State of Queensland [2015] QCA 187 at [85] 6 Statement of claim para 7 7 Affidavit of Robert Miller - Exhibit “RJM 1” -- 7 of 17 -- 8 damages for physical, emotional and psychological injury it is a claim for "personal injury" and requires compliance with the pre-court procedures of the PIPA.8 [28] The plaintiff ought regularise the pleading at the earliest opportunity. Hence, the most appropriate way to deal with a problem is to give leave to the plaintiff to amend the pleading in compliance with the rules, and allow the defendant time to file any consequential amendments to his defence. Power of excusal despite noncompliance [29] The plaintiff’s application relies upon sub-section 18(1)(c) to authorise the plaintiff to continue the proceeding despite the failure to serve a notice of claim contrary to s 9 of the PIPA. The defendant argues that s 18, as well as ss 43 and 59, do not assist the plaintiff. I agree that ss 43 and 59 do not apply given their terms and because the proceeding has commenced, which leaves s 18 for further consideration. [30] Section 7 of the PIPA provides that ss 9 and 18 of the PIPA are “substantive, as opposed to procedural, law”. Past decisions have seized upon this provision to strike out non-complaint proceedings as not justiciable, void or a nullity. [31] In Holmes v Adnought Sheet Metal Fabrications Pty Ltd,9 the plaintiff suffered injuries while working in a prison on 23 December 1999. He commenced proceedings on 20 December 2012 against his employer and the State of Queensland. The plaintiff did not fulfil the requirements of the WorkCover Queensland Act 1996 and the PIPA. Dutney J struck out the proceeding. He regarded the proceedings commenced without compliance with s 9 of the PIPA as ‘void’ because of the distinction between a substantive law prerequisite and a merely procedural prerequisite.10 His Honour said: “Notwithstanding that the requirement to give the notice under s 9 is a requirement of substantive rather than procedural law the power to make an order under s18(1)(c) suggests that non-compliance is not intended to be necessarily fatal to the right to bring a proceeding in the absence of an order under s43. This is not the same as saying that a step taken in contravention of the mandatory statutory requirement is other than void. Section 18 seems to me to operate only in futuro. It does not address steps taken prior to its being called in aid. The court may only excuse nunc pro tunc a failure to satisfy a procedural requirement.” [32] In State of Queensland v Coffey,11 Moynihan J held that proceeding commenced contrary to s 9 of the PIPA without an order pursuant to either s 18(1)(c) or s 43(1) of the Act, were a “nullity”. He said: “Section 9 of PIPA provides that before starting a proceeding in a court based on a claim for personal injury a claimant must give written notice in the 8 Martens v Stokes [2013] 1 Qd R 136 9 Holmes v Adnought Sheet Metal Fabrications Pty Ltd [2004] 1 Qd R 378 10 Holmes v Adnought Sheet Metal Fabrications Pty Ltd at [25]. 11 State of Queensland v Coffey [2005] QSC 212 -- 8 of 17 -- 9 approved form to a person against whom the proceedings are proposed to be started. The pre-action procedures provided for in Chapter 2, are substantive as opposed to procedural, see s 7. They must therefore be complied with before valid proceedings can be instituted.”12 [33] A similar view was adopted by Philippides J (as she then was) in Lucy (Xiaoshuang) Lu v Andrew Petrou & Ors.13 [34] The point was most recently considered by McMeekin J in Woolnough & Anor v Isaac Regional Council.14 In that case the plaintiffs commenced a claim for damages including damages for personal injury arising from trespass to land. The limitation period for that part of the claim in negligence had expired. McMeekin J relied upon Coffey and Holmes as supporting the proposition that a failure to comply with the pre- court procedures rendered the proceeding unjustifiable. He observed: “That is so because that is what the legislature has provided: s 9 of the PIPA Act provides that, before starting a proceeding in a court based on a claim for personal injury, a claimant must give the person against whom the proceeding is proposed to be started a written notice of claim in the approved form. The section goes on to deal with the required contents of the notice and the time within which it must be given. Section 7 makes the requirement to give the notice pursuant to s 9 a provision of substantive law; it must therefore be complied with before valid proceedings can be instituted. Section 18 provides that a claimant who fails to give a notice of claim complying with the legislative requirements, may not proceed further with the claim except in certain defined circumstances (none of which are presently relevant).” [35] In that case, the plaintiffs were self represented in a dubious claim. Thismight explain why His Honour’s approach differed markedly from his earlier reasoning in Stanley- Clarke v Boyle15 in reliance upon the Court of Appeal case of Phipps v Australian Leisure and Hospitality Group Limited.16 [36] In Phipps17 the Court of Appeal considered the analogous provisions of the Workers’ Compensation and Rehabilitation Act 2003 (Qld), which regulated access to damages by an employee injured in the course of employment. Its provisions assume the existence of a right of action in the employee independently of the Act. The proceeding was commenced for damages for personal injury caused in the course of employment. By then the plaintiff has not complied with the relevant pre-court procedures. A damages certificate was obtained from WorkCover permitting proceedings to be commenced for injuries sustained before 30 June 2001, but the appellant had not received a notice of assessment in respect of the injury of 14 July 2003 when her action was commenced on 24 May 2004 contrary to ss 237 and 250. She had also failed to provide a Notice of Claim contrary to s 275 (analogous to s 9 of the PIPA). Thus, the appellant had not complied with ss 237(1)(a), 250 and 275 12 State of Queensland v Coffey [2005] QSC 212 at [6]. 13 Lucy (Xiaoshuang) Lu v Andrew Petrou & Ors [2011] QSC 57 at [34] – [35]. 14 Woolnough & Anor v Isaac Regional Council [2016] QSC 172 15 Stanley-Clarke v Boyle [2012] QSC 196 16 Phipps v Australian Leisure and Hospitality Group Limited [2007] QCA 130 17 Phipps v Australian Leisure and Hospitality Group Limited [2007] QCA 130 -- 9 of 17 -- 10 of the Act and sought relief including excusal under s 276 which is analogous to s 18 of PIPA. [37] In separate judgments the members of the court made the following pertinent observations: 1. Non-compliance with the Act did not result in a “nullity”, but rather engaged procedural remedies, with judicial discretion to be exercised to remedy the effect of failing to give notice.18 2. Sections 276, 296, 297 and 298 of the Act envisage circumstances in which proceedings may be commenced despite non-compliance with s 275. Whether the conditions requisite for the operation of those provisions have been met will not always be readily apparent. Courts, by inference, have jurisdiction to determine matters relevant to their application or non-application. It is thus “clear that Parliament entrusted the courts in which proceedings are commenced to differentiate between cases where facts are established which would enliven the exceptions; and cases where they are not”.19 3. It is also a material consideration, in favour of allowing the present action to proceed, that no prejudice to the respondents has ensued from the appellant's non-compliance with the Act up to the present time. That consideration is material as well in respect of the appellant's non-compliance with s 275 of the Act.”20 [38] While Phipps involved consideration of different legislation, the provisions are sufficiently analogous to the PIPA to provide authoritative statements relevant to the PIPA. It seems to me that non-compliance with the PIPA does not inevitably render the proceeding not justiciable, void or a nullity. Instead, the PIPA entrusted the court to grant procedural remedies in the proper exercise of judicial discretion pursuant to s 18. [39] Unlike his most recent decision in Woolnough21 (mentioned above), McMeekin J applied the reasoning in Phipps in Stanley-Clarke v Boyle.22 In that case the plaintiff commenced proceedings (well outside the limitation period) on 31 May 2012 claiming damages for personal injuries sustained on 29 August 2008. He failed to comply with the pre-court provisions of the PIPA. His Honour held that the court had a discretion, pursuant to s18(1)(c) of the PIPA, to authorise the claimant to proceed further with the claim despite non-compliance with the PIPA. He said: “Proceedings commenced in breach of the provisions of this nature are not nullities: Phipps v Australian Leisure and Hospitality Group Limited & Anor [2007] 2 Qd R 555. Unlike in Phipps the legislation in question here gives the Court power to assist the applicant. Section 18(1) provides that in the event of a claimant failing to give a complying part one notice of claim the claimant is prevented from proceeding further with the client unless, 18 Phipps - Keane JA at [13] & [14] & Muir JA agreed; P McMurdo J at [73]-[91] 19 Phipps at [39] per Muir JA citing Berowra Holdings Pty Ltd v Gordon [2006] 228 ALR 387 at 391 per Kirby J 20 Phipps, per Keane JA at [29] 21 Woolnough & Anor v Isaac Regional Council [2016] QSC 172 22 Stanley-Clarke v Boyle [2012] QSC 196 -- 10 of 17 -- 11 pursuant to section 18(1)(c), “the court, on application by the claimant (i) declares that the claimant has remedied the non-compliance; or (ii) authorises the claimant to proceed further with the claim despite the non- compliance.” PIPA gives no guidance as to the considerations that are relevant to the exercise of the discretion conferred. All that can be said is that plainly s 18(1)(c)(ii) requires that a discretion be exercised and of course it must be exercised judicially - the factors for and against balanced, and the decision made bearing in mind the purpose of the statute.”23 [40] I respectfully prefer His Honour’s approach in that case over that in Woolnough & Anor v Isaac Regional Council24 decided more recently with apparently little assistance. There are further examples of the Phipps’ approach being adopted in this court.25 [41] In my view the current state of the law is that non-compliance with the pre-litigation procedures of the PIPA does not inevitably render the proceeding not justiciable, void or a nullity. Instead, as in the circumstances of this case, the court is empowered to excuse non-compliance pursuant to s 18(1)(c) of the PIPA. Exercise of Discretion [42] This then enlivens the relatively broad discretion to excuse non-compliance as explained by McMurdo P in Cousins v Mt Isa Mines:26 “A claimant bringing an application under s 18(1)(c)(ii) should ordinarily demonstrate a good reason for non-compliance with the provisions of PIPA but a satisfactory explanation for delay on the part of a claimant is not a prerequisite to the granting of the application; cf Dempsey v Dorber ([1990] 1 Qd R 418]). There may, however, be cases where the delay is so significant, for example where the delay is unexplained, deliberate and occurs with full knowledge of the statutory requirements, that the delay alone warrants the refusal of the application… The extent of any prejudice to be suffered by a respondent is always a highly relevant factor to the exercise of the discretion under s18(1)(c)(ii): see s18(2) PIPA and Dempsey v Dorber.” [43] The relevant considerations depend upon the particular circumstances of the case. Here the circumstances warrant consideration of the failure to serve the notice of claim before issuing proceedings, the subsequent delay in doing so after the defect was drawn to the plaintiff’s attention, any explanation for the non-compliance and whether the defendant has suffered prejudice. Delay 23 Stanley-Clarke v Boyle [2012] QSC 196 at [14] & [15] 24 Woolnough & Anor v Isaac Regional Council [2016] QSC 172 25 Boulter v Batten and Suncorp General Insurance Ltd [2010] QDC 56 at [12] – [16] per Dorney QC DCJ and Madsen v Pope & Anor [2014] QDC 45 per Dorney QC DCJ. 26 Cousins v Mt Isa Mines [2006] 2 Qd R 343 at [6] and [8] -- 11 of 17 -- 12 [44] In Taylor v Stratford & Ors,27 Wilson J considered the question of “a reasonable excuse for the delay” in relation to s 37(3) of the Motor Accident Insurance Act 1994, and said: “… that an explanation for the delay in terms that the claimant had, in a timely fashion, entrusted the matter to a solicitor he reasonably believed was competent to do whatever was necessary and the failure to give a notice of claim was attributable to inaction on the part of the solicitor, will generally be a ‘reasonable’ one within the meaning of the section. (The qualification to that general proposition where, after a claimant has entrusted the matter to his solicitor, there is something which would cause a reasonable person in his position to make further inquiry or take other steps does not arise on the facts of the present case.) I consider that a similar interpretation should be given to s 9(5) of the Personal Injuries Proceedings Act 2002. In the present case the whole of the delay from the incident in which the applicant’s wife was injured until the notice was given on 14 May 2003 is explained in terms of inaction (stemming from a mistake of law) on the part of the applicant’s solicitor. The applicant’s solicitor has acknowledged responsibility for the delay. The applicant is in no way personally to blame. I am satisfied that a ‘reasonable excuse’ was given in the letters written by his solicitors on 14 May 2003.” [45] Here, the plaintiff’s solicitor has proverbially “fallen on his sword”.28 In paragraph 9 of his affidavit, he deposes to his ignorance about the rigors of the Queensland law in personal injury actions. Despite being prompted by the defendant’s solicitor, the plaintiff’s solicitor still engaged in inordinate delay. This can be explained by the solicitors’ continuing tardiness, ignorance and referral to counsel. [46] The plaintiff had no knowledge of, and did not contribute to, the failure to serve the notice. This and the subsequent delay ought not be visited upon the plaintiff/client. I accept the solicitor’s ignorant inaction as a reasonable explanation for the delay. Prejudice to Defendant [47] Here the defendant asserts that he has a complete defence to the personal injury claim in reliance on s11 of the he Limitation of Actions Act 1974, which relevantly provides: 11 Actions in respect of personal injury (1) Notwithstanding any other Act or law or rule of law, an action for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) in which damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting 27 Taylor v Stratford & Ors [2003] QSC 427 at [18]-[19] 28 Affidavit of Boden filed 2 December 2016 -- 12 of 17 -- 13 from the death of any person shall not be brought after the expiration of 3 years from the date on which the cause of action arose. [48] The defendant argues that he will suffer prejudice if leave is granted pursuant to s18(1)(c)(ii) of the PIPA because it will eliminate the fatalness of the defence. I disagree. In my view the plaintiff’s action was commenced within time by filing the claim and statement of claim on 12 February 2014, almost a year before the expiry of the limitation period. Even though the notice of claim was served outside the limitation period such non-compliance did not have the effect of altering the limitation period,29 and the defence was never available. [49] It seems to me that the relevant prejudice is that which results from the non- compliance and consequential delay. In Gillam v State of Qld & Ors,30 Jerrard JA explained that the notice of a claim and related provisions are “designed to encourage the disclosure of information likely to assist in identifying loss and damage actually suffered by a claimant and the existence or non-existence of liability for that damage, and whose. Those legislative objects are relevant to the exercise of the discretion granted by s18, with s18(2) providing for orders reducing prejudice to respondents from a claimant’s non-compliance, rather than preventing such a claimant from proceeding further. Obviously enough, orders designed to achieve imparting of relevant information as promptly as possible would help minimize prejudice.” [50] The statement of claim set out the nature of the cause of action, and alerted the defendant to the personal impact on the plaintiff. The later notice of claim and disclosure has since provided the defendant with greater particularity. [51] The Defendant has not identified any prejudice, save for the loss of the limitation defence, which is the very mischief sought to be overcome by s 18(1)(c) of the PIPA. Merit [52] Save for the procedural deficits, it seems to me that the plaintiff’s case is meritorious. [53] There is no dispute that the plaintiff voluntarily boarded the vessel operated by the defendant. However, the defendant maintains that: he did not falsely imprison the plaintiff; he did not prevent him from leaving; the plaintiff did not suffer any physical ailments, the defendant did not lock him in a cabin, and he did not fail to provide him with food and water, or assault him.31 [54] This is at odds with the defendant’s apparent involvement in an email trail, which provides a chilling exchange between the alleged principal recovery agent, Col Chapman, and the defendant. (a) In an email form Chapman to the defendant sent on 13 August 2013, Chapman advises that he had “just deposited the final $5000 payment”, seeks confirmation of receipt, attached “Stilla and Mazens itinerary”, and ask for the “phone number for the new satellite phone you have acquired when convenient”. 29 Compare s 59, PIPA. 30 Gillam v State of Qld & Ors [2003] QSC 566 at [19] per Jerrard JA 31 Amended Defence filed 11 August 2014 -- 13 of 17 -- 14 (b) The defendant then replied by email dated 14 August 2913 as follows: Hi Col, Money been deposited will send receipt later, Yong lady and child arriving same flight, with the 2 Gentlemen? Have Picked up Sat phone form P.O. will email number with receipt. Are there nay other requirements I should know regards food/customs, (no pork products etc). Regards Selwyn G Wendt. (c) Then by email from Col Chapman to the defendant dated 14 August 2013, Mr Chapman replied to the defendant’s queries, and then informed him as follows: “…. Facts to remember about the ruse. 1. Mazen is coming aboard as a security/interpreter and cultural guide. Our clients do no speak English. Or so he thinks. 2. I am Mr Chapman. I am an international property developer specialising in high end resorts and gold course. 3. My clients are very wealthy Egyptian businessmen currently in Port Douglas. 4. My clients are very private people and require privacy and security. 5. All mobile phones (Mazen’s and Still’s) will be turned off and handed to you upon boarding and not returned until the charter is over. Mazen is already aware of this requirement and has agreed. This way we hope to ensure he is incommunicado. 6. Brad Stilla is our guy and is fully across the entire operation. His job is to keep Mazen occupied. 7. Mazen thinks the clients and I will be arriving at any time, He thinks we will use VHF radio to communicate our arrival by Chopper. 8. Brad Still’s cover is that he is our security manager. 9. We will call or message you on the satellite phone once we are safely out of Egypt. -- 14 of 17 -- 15 10. Mazen has told us that he is ingle and has no kids. He thinks we are fools. 11. On eth last day of the charter please advise Stilla and Mazen that you have received a communication form me that the clients have decided to go ahead with the venture and do not need to travel out to the island after all. Then head back to the mainland at a very leisurely pace. 12. Once they depart the vessel, please hand back the mobile phone. Any other questions please fell free to ask. Kind regards Col Chapman” (d) On 15 August 2013, the defendant acknowledged the instructions with: “Thanks mate all good”; and he remarked about food and provided the satellite number. (e) A later email from Mr Chapman’s daughters account to the defendant on 20 August 2013 (during the period of the alleged false imprisonment) provides: “Hi, We are urgently trying to contact Sel. He gave me a satellite phone number, but I cannot get through. We need him to sty out at sea for at least 4 extra days please. Once this is confirmed we will forward extra funds. Kind regards Col Chapman” [55] If accepted, this evidence tends to show that the defendant was well aware of his role and reward to detain the plaintiff on the vessel pending completion of the recovery operation in Egypt. It is foreseeable that that conduct could result in a claim for false imprisonment and consequential loss and damage. [56] I am satisfied that the plaintiff has a real prospect of succeeding on the claim for damages for personal injury. Relief [57] The plaintiff ought be entitled to excusal from his non-compliance with s 9 and the pre-court procedures required by the PIPA. His non-compliance effectuated by his solicitors’ inordinate delay, which has been explained, ought not be sheeted home to -- 15 of 17 -- 16 the plaintiff personally. The defendant has not suffered any relevant prejudice as a result of the delay. [58] The proceeding should be stayed until there is compliance with Part 1 of Chapter 2 of PIPA,32 unless to do so would be futile in the circumstances of the case. Summary Judgment [59] The defendant cross applies for summary judgement against the plaintiff’s entire claim pursuant to rule 293 of the rules. [60] Rule 293 of the rules provides: (1) A Defendant may, at any time after filing notice of intention to defend, apply to the Court under this part for judgment against a plaintiff. (2) If the Court is satisfied – (a) that the plaintiff has no real prospect of succeeding on all or part of the plaintiff’s claim; and (b) there is no need for a trial of the claim or the part of the claim; the court may give judgment for the defendant against the plaintiff for all or part of the plaintiff’s claim and may make any other order the court considers appropriate. [61] The rule confers discretion to grant summary judgment only if it is satisfied of the two limbs of the rule itself.33 The discretion ought be exercised in the clearest of cases.34 Further, the court ought keep in mind why the interests of justice usually require the issues to be investigated at a trial.35 These considerations loom large in the circumstances of this case. [62] I have remarked about the merit of the plaintiff’s claim and the bizarre circumstances of the case, which will require credit assessments of the witnesses to determine competing versions. [63] I am satisfied that plaintiff has real prospects of success, and there is a need for a trial of the claim. The defendant’s summary judgment application will fail. Conclusion and Orders [64] I will allow the plaintiff’s application but dismiss the defendant’s application for summary judgment. 32 Cf. Walker-Eyre v Emirates [2012] QDC 364 at [54]-[56] per McGill SC DCJ, and Madsen v Pope & Anor [2014] QDC 45 at [22] per Dorney QC DCJ. 33 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at [11]-[13] per Williams JA 34 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at [3] per McMurdo P 35 Gray v Morris [2004] 2 Qd R 118 per PD McMurdo J -- 16 of 17 -- 17 [65] I will hear further submissions about costs. The plaintiff required the indulgence of the court to maintain a flawed and poorly pleaded proceeding, yet the defendant has failed in his attempt to end the proceedings early. In the circumstances, unless either party applies for, or the parties otherwise agree to, a different costs order, the costs of and incidental to the applications ought be costs in the proceeding. [66] For these reasons, I will order that: 1. The defendant’s application for summary judgment filed 23 December 2015 is dismissed. 2. The plaintiff is authorised to proceed with the claim despite non-compliance with the Personal Injuries Proceedings Act 2002 (Qld) pursuant to s 18(1)(c)(ii) of that Act. 3. The plaintiff will file and serve an amended the Claim and Statement of Claim by 4:00 pm on 7 April 2017. 4. The defendant will file any amended defence by 4:00 pm on 28 April 2017. 5. The proceeding is otherwise stayed until the plaintiff complies with the Personal Injuries Proceedings Act 2002 (Qld) in all appropriate respects. 6. Unless either party applies for, or the parties otherwise agree to, a different costs order by 4:00 pm on 10 April 2017, the costs of and incidental to the applications will be costs in the proceeding. Judge DP Morzone QC -- 17 of 17 --