Bretnall v Cougar Air Pty Limited [2008] QDC 22

DISTRICT COURT OF QUEENSLAND CITATION: Bretnall v Cougar Air Pty Limited [2008] QDC 22 PARTIES: PHILLIP ANDREW BRETNALL (Applicant) v COUGAR AIR PTY LIMITED (Respondent) FILE NO/S: Number 192 of 2008 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court DELIVERED ON: 22 February 2008 DELIVERED AT: Brisbane HEARING DATE: 31 January 2008 JUDGE: Robin QC DCJ. ORDER: Applicant’s costs (fixed at $2,000) reserved, to be pursued no later than the conclusion of the proceeding instituted pursuant to s 43, when, if still unresolved, they be the applicant’s costs against the respondent in that proceeding CATCHWORDS: Personal Injuries Proceedings Act 2002 s 22, s 28, s 35, s 43 Whether respondent should pay costs of s 43 application made necessary by delay in pre-litigation steps – respondent attributes blame to a “contributor” not before the court – costs reserved (although amount of them fixed) but time limit imposed for pursuing them COUNSEL: S. McNeil for the applicant M Niotakis (solicitor) for the respondent SOLICITORS: Quinlan Miller & Treston for the applicant Niotakis, Barry & Nilsson for the respondent -- 1 of 9 -- 2 Reasons for Judgment [1] On the eve of the expiration of the limitation period in respect of personal injuries allegedly suffered by the applicant in an incident on 1 February 2005, the following order was made: “It is ordered that: 1. Time for service of this Application be abridged. 2. The Applicant be given leave to commence proceedings against the Respondent pursuant to Section 43 of the Personal Injuries Proceedings Act 2002 notwithstanding non-compliance with the requirements of Chapter 2 of the Act. 3. The proceeding by stayed until the Applicant complies with the requirements of Chapter 2, Part 1 of the Act. 4. Decision on the application that the Applicant’s costs be fixed at $2,000 and paid to him by the Respondent is reserved.” [2] The respondent offered no opposition to orders 1, 2 and 3, but contested the application so far as it sought an order that it pay the applicant’s costs of and incidental to the application fixed in the sum of $2,000. The following are reasons in relation to the decision reserved by paragraph 4 of the order. On 31 January 2008 insufficient time was available for proper consideration of that aspect of the application. It was indicated to the parties that the outcome of deliberations upon the reserved question might be that the matter of incidence of costs should be reserved for later consideration when fuller information regarding responsibility for Mr Bretnall’s being placed in a position of having to make his last-minute application might be available. [3] He found himself facing the all too familiar difficulties of a would-be plaintiff whose claim falls within the Personal Injuries Proceedings Act 2002 when the limitation period is about to expire before the mandatory pre-litigation steps called -- 2 of 9 -- 3 for by the Act have been completed. Mr Bretnall is pursuing a parallel claim against his employer under the Workers’ Compensation and Rehabilitation Act 2003, which is proceeding satisfactorily. That Act has provided an automatic extension of the limitation period in the circumstances, which frees Mr Bretnall from any necessity to start a proceeding. (A Notice of Claim compliant with the requirements of the WorkCover Queensland Act 1996 dated 10 July 2006 effectively commenced the damages claim against the employer.) As one would expect, the parallel claims are being sought to be managed together, so that issues respecting the extent of injury and of economic loss and the like and a possible resolution of them by agreement are being approached cooperatively, in ways that avoid replication of effort and costs. [4] Mr Bretnall’s employment duties included those of a workplace health and safety officer (like those of the corresponding applicant in Gillam v State of Queensland [2003] QCA 566). On 1 February 2005, the court is informed, he found himself alone at a construction site, by inference charged with ensuring it was in a suitable state to permit relevant tradespeople to carry their tasks efficiently and safely. He found a doorway over which blinds were to be installed urgently, to permit completion of a sale of the particular apartment to take place, blocked by an air- conditioning unit; given the exigencies of the situation, the absence of any indication not to do so (for example of its weight, had the air-conditioning unit been in its packaging) and the absence of anyone to help, he tried to move the unit out of the way by himself and hurt his back. [5] The respondent is blamed for the accident as the contractor to supply air- conditioning units to the site. The wrong unit was supplied. When it responded to an appropriate complaint by arranging for the supply and installation of the right -- 3 of 9 -- 4 air-conditioning unit, it failed to remove the one previously wrongly installed but, rather, left it in an inconvenient position from which it would obviously need to be removed if work in the apartment was to proceed. [6] Mr Bretnall got his Personal Injuries Proceedings Act claim underway with a compliant Part 1 Notice of Claim in December 2005. He subsequently completed and made available to solicitors by then acting for the respondent his sworn Part 2 Notice of Claim in May 2006. A response from them was forthcoming dated 11 October 2006 under s 20 of the PIPA denying liability, asserting that if anyone might be held responsible for the claim it would be Rapcivic Contractors Pty Ltd or Chase Air-Conditioning, and asserting that Mr Bretnall’s own contribution to his injuries was 100 percent. An offer of settlement of “$nil” was made, and a claimant’s offer was invited by reference to s 20(1)(c). Matters proceeded in a cooperative way, Doctor Gillett being brought in and reporting to both solicitors in March 2007. [7] Prior to that, Mr Bretnall’s solicitors had written to the others on 5 January 2007 requesting “a copy of any sub-contract made between your client Cougar Air Pty Ltd and Chase Air-Conditioning. We require specifically a copy of any sub- contract and any or all documentation that might exist that confirms the arrangements between your client and Chase Air-Conditioning. If there is no written documentation or contract evidencing the arrangements between the two companies, and the arrangement was verbal, we would ask for this information to be provided to us by way of Statutory Declaration”. Rapcivic is said to be a related company of the employer, named as Unit Trend Services Pty Limited. There is a suggestion they may be the same entity and a suggestion of a company called Cherrycove Pty Ltd being involved as well. Whether or not assertions against any -- 4 of 9 -- 5 of them are still being pursued, Chase is being involved as a “contributor”. Its insurer (named as AMP) has been active in the matter. Mr Rehbock’s firm received a “contributor” response on 7 August 2006. The respondent’s solicitors provided the applicant’s under cover of a letter of 24 October 2007 an “investigative report” of MJM Investigations (Australia) Pty Limited prepared for Suncorp in relation to its insured Paul Raymond Mani trading as Chase Air-Conditioning & Refrigeration dated 11 July 2007. The material leaves in some confusion whether Chase has insurance with AMP or Suncorp, but that is by-the-by. [8] The “relevant day” after which the compulsory conference required by s 36 of PIPA could be called has been identified (by the applicant’s counsel, Ms McNeil) as 11 April 2007. No compulsory conference has been called, despite Mr Bretnall’s urgings, the respondent’s solicitors advising that “as soon as we have been advised of that appointment [of solicitors by AMP], we will continue to pressure AMP’s solicitors to attend a compulsory conference in this matter in December 2007”. A further letter of 23 November 2007 says, “we will pressure those solicitors to get on top of this matter quickly so that a compulsory conference can be convened in the very near future”. On the employer side, Mr Butson of CLS Lawyers has indicated preparedness to attend a compulsory conference. According to Mr Rehbock, Ms Chang of AMP/G10 advised him that the file had “fallen through the cracks” when a claims handler left. His view is that the delay is “wholly the fault of AMP/G10”. [9] Nothing whatever appears to indicate any delay attributable to the applicant of any significance. In my opinion it is reasonable for him to wait until all relevant participants can usefully attend the compulsory conference. While the foregoing may suggest concerning delay by Chase or its insurer (who are not before the court) -- 5 of 9 -- 6 for which the respondent probably cannot be held responsible, the respondent itself appears to bear responsibility for delay in some measure in this regrettable scenario in which the applicant is compelled to make a s 43 application, rather than (should failure of the PIPA processes require it) start a proceeding in the court. Mr Bretnall will also have to bear the filing and other costs of starting his Claim in the court. [10] The applicant’s proper request of 5 January 2007, followed up more than once in later correspondence, produced no useful response. The solicitors on 28 May 2007 wrote that they were liaising “in order to provide copies of the documentation requested”, referring to “difficulties in this regard as our client’s administrative officer has been on extended compassionate leave. However, we expect to be in a position to provide copies of the requested documents shortly”. On 19 October 2007 the applicant’s solicitors extracted some sort of acknowledgement of inability “to secure from the insured copies of the documents”. Mr Rehbock’s current information is that there are no documents, in which event one would expect his client to have provided relevant information as requested. [11] The respondent may well be in breach of s 27: “27 Duty of respondent to give documents and information to claimant (1) A respondent must give a claimant— (a) copies of the following in the respondent’s possession that are directly relevant to a matter in issue in the claim— (i) reports and other documentary material about the incident alleged to have given rise to the personal injury to which the claim relates; (ii) reports about the claimant’s medical condition or prospects of rehabilitation; (iii) reports about the claimant’s cognitive, functional or vocational capacity; and (b) if asked by the claimant— -- 6 of 9 -- 7 (i) information that is in the respondent’s possession about the circumstances of, or the reasons for, the incident; or (ii) if the respondent is an insurer of a person for the claim, information that can be found out from the insured person for the claim, about the circumstances of, or the reasons for, the incident. (2) A respondent must— (a) give the claimant the copies mentioned in subsection (1)(a) within the period prescribed under a regulation or, if no period is prescribed, within 1 month after receiving a complying part 1 notice of claim and, to the extent any report or documentary material comes into the respondent’s possession later, within 7 days after it comes into the respondent’s possession; and (b) respond to a request under subsection (1)(b) within the period prescribed under a regulation or, if no period is prescribed, within 1 month after receiving it. (3) If the claimant requires information provided by a respondent under this section to be verified by statutory declaration, the respondent must verify the information by statutory declaration. (4) If a respondent fails, without proper reason, to comply fully with this section, the respondent is liable for costs to the claimant resulting from the failure.” [12] I would be disinclined to accept that compassionate leave of an officer justifies holding up the applicant for virtually the whole of 2007. The PIPA requires cooperation of respondents brought within its purview, however unfair or inconvenient that may seem. Section 27(4) (whose counterpart in respect of claimants is s 22(8)) envisages that costs may be awarded against those delinquent in complying with PIPA requirements. There is no proscription of costs orders as encountered in other legislation. In my view it has to be accepted that costs can be awarded against a person for failure to comply with pre-litigation requirements. Judge McGill determined that such an order should be made against a respondent in -- 7 of 9 -- 8 respect of the costs of a s 43 application in Bird v Coco’s Fresh Food Market [2004] QDC 278. In the end, being of the view that otherwise the appellant should pay the costs of the application, his Honour “set off” the separate costs and made no order. [13] If it could be demonstrated that a respondent was blameworthy, with the consequence that a s 43 application which otherwise could have been avoided became necessary, it would be open to the court to order that respondent to pay the applicant’s costs. Here, there is the complication of the involvement of Chase. In principle, if Chase is in default under PIPA, for example, it may be liable to have costs orders made against it under the general provision of s 35: “35 Court’s power to enforce compliance with divs 1 and 2 (1) If a party fails to comply with a duty imposed under division 1 or 2, the court may, on the application of another party to whom the duty is owed, order the first party to take specified action to remedy the default within a time specified by the court. (2) The court may make consequential or ancillary orders, including orders as to costs.” [14] Somewhat reluctantly, I have concluded that things are too uncertain to enable an order to be made with confidence in its fairness at this stage. Chase is not here to have its say. The court’s order is that the applicant’s costs remain reserved for later determination as to who should bear them, although I am prepared to fix them at $2,000. I would add the proviso that if the applicant wishes to pursue those fixed costs in this application, he do so no later than the time when the proceeding he was authorised to commence under s 43 is concluded, at which point, if the matter remains unresolved, the costs of this application should be his costs against the present respondent in that proceeding. In my view, if he is successful against the respondent in such a proceeding, that will provide retrospective justification of his claim and limit the scope for the respondent to assert that it bore no responsibility, -- 8 of 9 -- 9 because Chase or somebody else did bear the relevant responsibility. In due course any costs liability of the respondents may be passed on to Chase, by an order made upon appropriate evidence. -- 9 of 9 --