Binns v Caltex Australia Petroleum Pty Ltd & Ors [2011] QDC 190

1-1 [2011] QDC 190 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN QC No 2959 of 2010 THERESE ELLEN BINNS Applicant and CALTEX AUSTRALIA PETROLEUM PTY LTD and OTHERS Respondent BRISBANE ..DATE 12/08/2011 ORDER CATCHWORDS Personal Injuries Proceedings Act 2002 s 10, s 13 Claimant sought declaration each of two apparently related companies was a "proper respondent" to her part 1 notice of claim as manager of commercial premises where she was injured in a fall - whether the companies failed to respond following provision of requested information under s 10(3) which contains no time limit, "within the period prescribed under the section", given that s 10(1) prescribes a limit of a month - declaration made - evidence before court indicates one or both companies was a proper respondent -- 1 of 12 -- 1-2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is an application by the plaintiff (as it’s convenient to call her) that the court declare the fourth and fifth defendants proper respondents to her claim under the Personal Injuries Proceedings Act 2002 (PIPA). She wants to get on with the mandatory pre-litigation steps that the Act requires her to take. There are two entitles, presumably associated, in the Jones Lang Lasalle camp. The plaintiff/applicant does not know which to proceed against and the circumstances are ones in which the court would not make a choice to keep only one involved, with the consequence that the wrong one may be selected. The plaintiff says she suffered a fall at premises in Stanthorpe, where the commercial operations were a service station associated with the first defendant and a restaurant associated with the second defendant. The third defendant is the owner of the premises. The fourth and fifth defendants are sought to be held responsible for the condition of the premises, which the plaintiff is disposed to blame for her incident, as manager of it. The basis for the plaintiff's assertion is an email communication of the 1st December 2010 from the third defendant's camp enclosing a property management agreement between an entity which may be taken to represent the owner, -- 2 of 12 -- 1-3 ORDER 1 10 20 30 40 50 60 and the fourth defendant. In advance of to the hearing, in preparing for it, I've referred to an affidavit of Ms Mulhall, filed prior to her affidavit in support of this particular application. Exhibited to it is that same communication of the 1st December 2011 and also the enclosed property management agreement. It appears to make the manager responsible for relevant matters generally encapsulated in the obligation in Item 8, to be responsible "for the proper and efficient conduct use and operation of the property" and following obligations in respect of risk management systems and the like and ensuring that appropriate insurance is arranged. There are definitions of the property in terms of "the land" which is itemised in a schedule which appears to me to be item 3, although referred to as item 4. That contains some descriptions of some 16 properties in south-east Queensland and a couple that would appear to be in Victoria. It does not include any property in Stanthorpe. However, the email communication I refer to advises that the owner acquired that property subsequent to the management agreement: "therefore the property is not listed in the reference schedule. However, property is defined to include any other land purchased by the owner. MFS acquired the property in or around January 2007 and it clearly forms part of the various reports from JLL to MFS following acquisition" -- 3 of 12 -- 1-4 ORDER 1 10 20 30 40 50 60 For practical purposes, that information which has now twice been put before the court without being challenged or qualified in any way, is reliable. The fourth and fifth defendants have been curiously coy throughout the plaintiff's attempts to have PIPA procedures undertaken. They are no doubt entitled to take a hard line in this matter should they choose to do it. When notices of claim part 1 under PIPA were served on the defendants is unclear. The contention's made in the plaintiff's camp that it happened early in 2010; be that as it may, it occurred for certain when in November 2010 notices were sent. The plaintiff has been frustrated in attempts to get those defendants to acknowledge being a proper respondent for PIPA purposes, obliged to take a cooperative role for the purposes of the Act. Mr Given presented this application for her. The story in his analysis starts with Section 9, requiring a claimant, before starting any proceeding in a Court, to give written notice in the approved form. Under Section 10, a person receiving such a notice has certain obligations. Subsection (1), which imposes a time limit of a month, requires a written response advising whether the -- 4 of 12 -- 1-5 ORDER 1 10 20 30 40 50 60 relevant person is a proper respondent under (a) or inability to decide under (b) or if it's considered that the person is not a proper respondent, so notifying in writing with reasons, and also provision of "any information the person has that may help the claimant to identify a proper respondent to the claim" (under (c)). A penalty of 100 penalty units attaches to non- compliance. Alternative (b) is the track which the fourth and fifth defendants, represented today by Mr de Silva, took. The information requested in that circumstance in a fax of the 5th November 2010 was supplied by a fax in response dated November the 12th, 2010. Provision of that information obliged the recipients under Section 10(3) to have regard to it and if then considering that it is a proper respondent giving notice under Section 12 or in the (3)(b) situation, if considering the person is not a proper respondent "give the claimant in writing - (i) reasons why the person believes the person is not a proper respondent to the claim and (ii) any information the person has that may help the claimant to identify a proper respondent to the claim." Again, there's a penalty. As Mr de Silva points out, there's no time limit in subsection (3), in stark contrast to the situation in subsection (1). It's on that basis that he distinguishes Hardwick v. Vanderfeld Holdings Pty Ltd (2003) QSC 468 which was a decision depending on subsection (1). -- 5 of 12 -- 1-6 ORDER 1 10 20 30 40 50 60 The decision the court has to make today depends on subsection (3), the plaintiff's assertion being by reference to Section 13 of PIPA that if persons in the situation of the relevant defendants "does not respond to it under Section 10 or 12 within the prescribed period under the section, the person is conclusively presumed to be satisfied" that the part 1 notice of claim is a complying one. Section 13 specifically refers to the “prescribed period under the section”. There is none in Section 10(3). [NOTE ADDED ON REVISION OF TRANSCRIPT: However, there is a prescribed period under the section (found in subsection (1)) of a month. It is not doing any violence to the purpose of PIPA (which includes speedy resolution of claims - under section 3) or any hardship to any person to apply the s 10(1) time limit to s 10(3), which essentially deals with the same subject matter. This approach may provide a better solution than Mr Given’s suggestion that “reasonable time” (which would have long ago expired) is the prescribed time limit. The “alternative” Mr Given was cut off from outlining below may have been this one.] In Hardwick, as appears in paragraph [3] of the reasons, the person served had neither given notice under Section 12 of PIPA nor advised of further information needed to decide whether any of three companies was a proper respondent to the claim, nor given reasons why it was considered that any of the companies was not a proper respondent to the claim or -- 6 of 12 -- 1-7 ORDER 1 10 20 30 40 50 60 information that might help the claimant. His Honour's conclusion in the next paragraph was that Vanderfeld Holdings did not respond under Section 10 of the PIPA within the month prescribed, so it was conclusively presumed to be in a position described in Section 13. Reference is made to Cashpay SH v S M & TJC Builders (2003) QSC 426 at paragraphs 7 to 11. Mr de Silva submits that the aid of the court need not be sought by the plaintiff under Section 35 of PIPA because the Act itself offers prospects of resolving the issue as to whether or not a claimant has identified a proper respondent. Section 10(4) provides that a claimant advised that a person who has been identified is one who is not a proper respondent may either accept that situation, or require the person to give notice to the claimant under Section 12. A claimant has similar possibility open under subsection (2)(b); of that subsection she adopted the course of giving information under (a). The notification of the fourth and fifth respondents came in a letter of 22nd November 2010 which simply stated "In our view, no Jones Lang Lasalle entity is a proper respondent to your client's claim." No reason or request for further information was given. Mr de Silva's submission is that that omission has been satisfied by the flurry of email communications around the 1st -- 7 of 12 -- 1-8 ORDER 1 10 20 30 40 50 60 of December 2010. The plaintiff's lawyers forwarded the email they received to the relevant individual, a Mr Warwick Sauer. He responded promptly, "So far as I could see, the subject property is not referred to anywhere in that document. On what basis do you say this document has any relevance whatever?" - effectively ignoring the information which had been given in relation to the history subsequent to the signing of the agreement in the forwarded email. A communication the next day from Mr Sauer requested a response to his previous email. In my opinion, Mr deSilva's clients have then embarked on a course of making things as difficult as they possibly can for the claimant, with the consequence of holding her up seriously. Before the court are letters from the other defendants cooperating in the next important step in the saga which will be the compulsory conference. In my opinion the non-responsive communications emanating from Mr Sauer to the extent they give reasons are absurd in not responding to the assertions of Louise Edwards, company secretary of GEO Property Group in her email of the 1st December 2010. There's no attempt to give information. I don't accept Mr de Silva's submission that cobbling things together, the claimant has got reasons - I think his client's response was the one of 22nd November 2010 and that it does not amount to a response. -- 8 of 12 -- 1-9 ORDER 1 10 20 30 40 50 60 I appreciate the difficulties arising from the reference to "within the prescribed period" in s.13 in respect to which Mr Given's submission supported by Hardwick v Cash is that what's required is a full response, not simply something that looks like a response. There has in fact been no response at all - what follows from that, Mr Given? If the Court holds that? MR GIVEN: If there's been no response at all? HIS HONOUR: Yes. MR GIVEN: Yes. Your Honour, s.13----- HIS HONOUR: Well, what do you say about the reference to the "within the prescribed period"? What's the prescribed period? MR GIVEN: There's no prescribed period, your Honour. But the section 10(b) says that after being given information, the respondent must take certain advice. It must be implied in that that the information must be given within a reasonable time. HIS HONOUR: Well, that's the only basis you can succeed on, isn't it? MR GIVEN: Yes, your Honour. Alternatively, your Honour could -- 9 of 12 -- 1-10 ORDER 1 10 20 30 40 50 60 find the section----- HIS HONOUR: Well, Mr de Silva isn't applying to the Court for additional time----- MR GIVEN: No, your Honour. HIS HONOUR: Are you, Mr de Silva? MR de SILVA: We're not, your Honour. HIS HONOUR: All right. I can see the difficulty here, Mr Given, but I think the practical and a permissible course is for it to go by default. ----- they're not asking for time to do anything further, then they're in s.13 territory. Well, once we get to that, Mr de Silva, do you have anything else to say about Mr Given's proposed orders? MR de SILVA: May I have just a moment, your Honour. HIS HONOUR: What you want is orders as per 1, 3, 4, 5 and 6. MR GIVEN: Yes, please, your Honour, including reserved costs. I might say, your Honour, that those orders were sought informally before the application was filed, and those are set out in Exhibit 45 in Ms Mulhall's affidavit. They're the reserved costs from Monday, your Honour. -- 10 of 12 -- 1-11 ORDER 1 10 20 30 40 50 60 HIS HONOUR: Oh, they are my reserved costs. MR GIVEN: Yes. Your Honour may recall----- HIS HONOUR: Well, why should you get them? MR GIVEN: Your Honour, there was an application for an adjournment based on short service. The basis of the application is set out in Mr de Silva's submissions, as being for one reason, and that is to consider the terms of the property management agreement. HIS HONOUR: I actually had submissions. MR GIVEN: Yes, your Honour. Your Honour will recall that the application for an adjournment was opposed on the basis that it would serve no purpose. Your Honour would find, consistent with the way the respondents have behaved, that they have adduced no evidence today and made no submissions on this property management agreement. So what was determined today could have been determined on Monday, and the plaintiff has again been inconvenienced with a penalty as to costs. HIS HONOUR: Yes. MR de SILVA: With respect, your Honour, late service of the -- 11 of 12 -- 1-12 ORDER 1 10 20 30 40 50 60 application didn't afford us enough time to consider all the issues, including the relevance of the property management agreement. It's only the additional time that we've had till today to have been able to - our client's been able to properly consider the matter. HIS HONOUR: Yes. I make orders in terms of paragraphs 1, 2, 4, 5 and 6 of the application filed the 28th July 2011, with the addition after the word "application” of “including reserved costs”. ----- -- 12 of 12 --