Cousins v Mt Isa Mines Ltd [2006] QCA 261 [2006] 2 Qd R 343

SUPREME COURT OF QUEENSLAND CITATION: Cousins v Mt Isa Mines Ltd [2006] QCA 261 PARTIES: TRENT JEFFERY COUSINS (applicant/appellant) v MT ISA MINES LIMITED ACN 009 661 447 (respondent/respondent) FILE NO/S: Appeal No 10906 of 2005 SC No 664 of 2005 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Townsville DELIVERED ON: 21 July 2006 DELIVERED AT: Brisbane HEARING DATE: 29 May 2006 JUDGES: McMurdo P, Jerrard JA and Jones J Separate reasons for judgment of each member of the Court, McMurdo P and Jerrard JA concurring as to the orders made, Jones J dissenting in part on the issue of costs ORDER: 1. Allow the appeal 2. The respondent is to pay the appellant's costs of the appeal incurred after the date of the provision of the additional evidence, to be assessed on the standard basis 3. Set aside the orders at first instance 4. Instead order that: (a) the appellant be authorized to proceed further with his claim; (b) that further compliance with the Personal Injuries Proceedings Act 2002 (Qld) continue, the date of this decision being the relevant date for the receipt of a complying part 1 notice of claim; (c) that the appellant pay the respondent's costs of the originating application in any event CATCHWORDS: LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – PERSONAL INJURY CASES – appellant wishes to recover damages for personal injury – failure to provide a reasonable excuse for delay in providing a compliance notice – where failure constitutes non-compliance under Personal Injuries Proceedings Act -- 1 of 10 -- 2 2002 (Qld) – respondent concedes it suffers no prejudice from the delay – whether authority should be given to allow claim to proceed further PROCEDURE – SUPREME COURT PROCEDURE - QUEENSLAND – PRACTICE UNDER RULES OF COURT – EVIDENCE – identity of a witness was not known to appellant at the time of hearing – appellant wishes to adduce new information identifying that witness – identity of witness known to the respondent at the time of hearing – where new evidence affects the question of prejudice to the respondent – whether special grounds exist for reception of further evidence Limitation of Actions Act 1974 (Qld), s 31(2) Personal Injuries Proceedings Act 2002 (Qld), s 18 Uniform Civil Procedure Rules 1999 (Qld), r 24(4), r 389, r 766 Dempsey v Dorber [1990] 1 Qd R 418, followed Neuss v Roche Bros Pty Ltd [2001] 2 Qd R 487; [2000] QCA 130, cited Thomas v Transpacific Industries Pty Ltd [2003] 1 Qd R 328; [2002] QCA 160, cited Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178; Appeal No 9466 of 1999, 19 May 2000, applied COUNSEL: R J Douglas SC, with G R Mullins, for the appellant S G Durward SC for the respondent SOLICITORS: Maurice Blackburn Cashman for the appellant CLS Lawyers for the respondent [1] McMURDO P: I agree with Jones J that this appeal should be allowed. Jones J has set out the relevant facts and issues in his reasons so that I need not repeat them. [2] The determination of an application under s 18(1)(c)(ii) Personal Injuries Proceedings Act 2002 (Qld), regularly referred to (not always endearingly) as "PIPA", involves exercising a judicial discretion in the light of the facts and circumstances applying in each particular case. The following matters are relevant but not exhaustive to the exercise of that discretion. [3] Courts should remain cognizant of the main purpose of PIPA (s 4) which in the present case is relevantly: "... to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury ... to be achieved generally by - (a) providing a procedure for the speedy resolution of claims for damages for personal injury ... and (b) promoting settlement of claims at an early stage wherever possible; and -- 2 of 10 -- 3 (c) ensuring that a 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; and ... (e) minimising the costs of claims; ... ". [4] Before starting a proceeding in a court based on a claim to which PIPA applies, a claimant must give written notice of the claim in the approved form (s 9(1)) which is in two parts, part 1 and part 2 (s 9(1A)). If part 1 of the notice of claim is not given within the prescribed period under PIPA then the obligation to give it continues (s 9(5)). Under s 18(1) a claimant's failure to give a complying part 1 notice of claim prevents the claimant from proceeding further with the claim unless one of the matters set out in s 18(1)(a) - (c) occurs. In the present case, the pertinent matter is whether a court on the claimant's application should authorize the claimant to proceed further with the claim despite the non-compliance (s 18(1)(c)(ii)). [5] The fact that the refusal of an application under s 18(1)(c)(ii) will deny claimants the opportunity to litigate their common law rights is a matter favouring the granting of the application. [6] 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.1 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. [7] A judge would be unlikely to grant an application where the claimant's prospects of success in the claim were negligible so that the granting of the application would ultimately be fruitless, causing nothing but unnecessary expense to the parties. It will, however, be an unusual case where that issue could be clearly determined against the claimant at such an early stage. [8] The extent of any prejudice to be suffered by a respondent is always a highly relevant factor to the exercise of the discretion under s 18(1)(c)(ii): see s 18(2) PIPA and Dempsey v Dorber.2 [9] In the present case, I agree with Jones J that this Court should receive the claimant's further evidence and, with the benefit of that additional evidence, exercise its discretion afresh, under s 18(1)(c)(ii). Whilst the appellant's delay in complying with PIPA was undesirable and regrettable, he acted on the advice of lawyers, whom he believed were experienced in this area of law. He certainly did not deliberately delay with knowledge of the time requirements of PIPA. The respondent has not established the appellant has no real prospects of success in his claim for personal injuries so as to clearly make the granting of the application a costly waste of the parties' time. There is no evidence of prejudice to the respondent or to the employer and none is now asserted. To refuse the application would, on 1 [1990] 1 Qd R 418. 2 Above. -- 3 of 10 -- 4 the other hand, deny the claimant the opportunity to pursue his common law rights. In these circumstances the application should plainly be granted. [10] It follows that I agree with Jones J that the appeal should be allowed and, instead of the orders below, the appellant should be authorized to proceed further with his claim. The question remains as to the appropriate costs orders in the appeal and at first instance. Although the appellant also asserts the exercise of the judicial discretion at first instance miscarried, he has been successful in this appeal on the basis of further evidence which was not before the primary judge. The appellant brought the original application in circumstances where his failure to comply with PIPA required him to ask the court to grant an indulgence. The respondent should have its costs of the original application in any event. In the light of the further evidence produced to this Court the respondent no longer asserts any prejudice from the granting of the application. The respondent should pay the successful appellant's costs of the appeal but that obligation should be limited to those costs incurred since the filing of the appellant's further evidence. [11] I would make the following orders: 1. Allow the appeal. 2. The respondent pay the appellant's costs of the appeal incurred after the date of the provision of the additional evidence, to be assessed on the standard basis. 3. Set aside the orders at first instance. 4. Instead order that: (a) the appellant be authorized to proceed further with his claim; (b) that further compliance with the Personal Injuries Proceedings Act 2002 (Qld) continue, the date of this decision being the relevant date for the receipt of a complying Part 1 notice of claim; (c) that the appellant pay the respondent's costs of the originating application in any event. [12] JERRARD JA: In this appeal I have read the principal reasons for judgment prepared by Jones J, and agree with those reasons and the additional reasons of the President. I agree with both sets of reasons, and with the formal orders suggested by the President. [13] JONES J: The appellant was injured in the course of his employment on 21 August 2003. He was at the time employed as a belt splicer by Sandvik Materials Handling Pty Ltd (“employer”) and was engaged in repairing a conveyor belt owned by the respondent and located at its premises. The appellant wishes to commence proceedings against both his employer and the respondent to claim damages for this injury. [14] He has already claimed and received workers’ compensation entitlements and has given to the employer notice of his intention to claim damages. He has not however given, pursuant to Personal Injuries Proceedings Act 2002 (PIPA) a notice of claim which is accepted by the respondent as a complying notice. The area of alleged non-compliance is identified as not having “provided a reasonable excuse for the delay in providing the … Part 1 Notice of Claim”.3 3 Appeal Record p 26 ex “CAM3” -- 4 of 10 -- 5 [15] The appellant contended that a reasonable excuse for delay was provided and that the notice is a complying one. He sought declarations to this effect. In the alternative he sought leave to proceed pursuant to s 18(1)(c) in the event that the declarations were refused. 4 [16] At first instance, the appellant did not succeed in either approach and his application was dismissed with costs. [17] After canvassing the evidence relied upon, the learned hearing judge found: “[26] As I have said the respondent relies primarily upon the delays from August 2004 but says that the delays prior to that time are consistent generally with a failure to properly pursue the matter. [27] I do not think that the conclusion that the applicant has given a reasonable excuse for his delay in giving notice is justified on the evidence before me. [28] Nor in my view does the evidence support an exercise of the court’s discretion in the applicant’s favour under s 18. The notice was not given until almost two years after the accident and was one year and three months out of time. The applicant has instituted proceedings against his employer who owes him a non-delegable duty of care and one would expect that it is to the employer that the applicant would primarily look to be compensated. [29] The respondent asserts prejudice although no evidence was placed before me on this subject. Nonetheless the fact that the applicant cannot give the surname of the employee who he was working with and that the action arose out of the applicant’s employment with another party might, I infer, give rise to a risk of prejudice although the matter should not be put any higher than this. [30] The respondent accepted for the purposes of the application that the applicant had arguable prospects of success. [31] The delays in giving the notice are substantial. I have already dealt with what is said by the applicant about those delays and the deficiencies in the evidence in relation to those explanations. [32] The evidence in my view does not provide an adequate basis for an exercise of the Court’s discretion favourable to the applicant under s 18(1)(c).” Application to adduce further evidence [18] The appellant seeks leave pursuant to r 766 of Uniform Civil Procedure Rules 1999 (Qld) (UCPR) to adduce further evidence, particularly to provide the name of his co-worker, the lack of which attracted the comment in paragraph [29] above. The respondent raises no objection to the Court receiving the new evidence and it also concedes that it does not suffer any prejudice either from that course being followed or, more generally, from the delay in providing the notice of claim. 4 Appeal Record p 79 -- 5 of 10 -- 6 [19] To permit the receipt of new evidence in the circumstances here, the appellant is required to show special grounds for its reception. The appellant relies upon the fact that the new information was not received until January 2006 by which time the judgment had been delivered. The further information included the fact that the respondent had itself investigated the incident at an earlier time and was aware of the identity of the appellant’s co-worker. A further matter of significance is the fact that the employer, when sued, intends to join the respondent in the proceedings. [20] In circumstances where the respondent does not challenge any of these assertions, their combined impact leads me to the conclusion that the new evidence ought to be received: Thomas v Transpacific Industries Pty Ltd5. The new evidence changes the complexion of the issue to be determined. It removes the only basis upon which prejudice could be asserted by the respondent. [21] Whilst the new material relevantly identifies the co-worker, it does not touch upon the sufficiency of the applicant’s explanations for delay and so does not impact on that part of the evidence upon which his Honour exercised his discretion. Mr Douglas of Senior Counsel for the appellant, in the event that the further evidence is received, confines his submissions to the application for leave to proceed pursuant to s 18 of PIPA. In this regard it becomes necessary for the Court’s discretion to be exercised anew. Application for authority to proceed [22] The consequences of a failure to give a complying notice, and the means of remedying its effect, are prescribed by s 18 which is in the following terms:- “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 non- compliance; 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.” 5 [2003] 1 Qd R 328 at p 341 -- 6 of 10 -- 7 I have set out the complete terms of the section so that the three alternative routes whereby a claim can proceed might be compared. [23] Subsections (1)(a) and 1(b) depend upon the decision of a respondent as to either its preparedness (actual or deemed) to state that the notice, though not complying, is satisfactory, or its preparedness to waive compliance. [24] Subsection 1(c) allows for the court’s intervention which one expects would arise only if the respondent was not prepared to act under subsection (a) or (b). This intervention by the court will be either to resolve a dispute as to whether non- compliance has been remedied or, in the court’s discretion, to authorise the claimant to pursue the claim notwithstanding the continuing non-compliance. That discretion is not, in terms, fettered though its exercise would necessarily take into account the stated purpose and objects of the legislation (s 4). [25] Subsection (2) empowers the court when exercising its discretion favourably to a claimant to impose conditions upon the manner in which the claimant can proceed for the express purpose of minimising prejudice to the respondent occasioned by the non-compliance. If no prejudice to the respondent has been identified (as is the case here) then subsection (2) has no application. [26] The appellant by now confining his application to s 18(1)(c)(ii) simply has to persuade the Court that he should be authorised to proceed with his claim. As to what considerations are relevant to the Court’s decision there is no particular guidance. Obviously if the non-compliance has resulted in prejudice, the nature and extent of that prejudice would be relevant – whether the prejudice can be ameliorated by conditions or whether it is of such a nature that fairness between the parties can no longer be achieved. [27] Mr Douglas SC argued that the only relevant inquiry is whether there has been prejudice to the respondent. He points to subsection (2) as indicating the importance of this inquiry and to remarks of Connolly J in the decision of the Full Court in Dempsey v Dorber6 as indicating that authorisation will not be denied for mere non-compliance, further reference will be made to these remarks later in these Reasons. Mr Durward SC on behalf of the respondent contends that the scope of the Court’s considerations is not so confined. He argued that the Court could not ignore the purpose of the statute and the time regimes imposed by it. A claimant could not, he asserted, simply ignore the requirement to explain the delay and rely on there being no prejudice to seek authorisation to proceed. The learned primary judge made reference to the availability of an alternative remedy (para [28]) and to prospects of success (para [30]). [28] A comparison of terms of s 18(1)(c)(ii) with other legislative provisions where the court is called on to exercise a similar discretion may be informative but the purpose to be served is obviously different. For example, r 389(2) of UCPR requires the leave of the court if no step has been taken in an action for two years. Rule 24(4) of UCPR requires the court’s leave for the renewal of a claim which has not been served within five years of the original filing. Not unreasonably, such applications require an explanation for that delay. This is because a situation has resulted from lack of action on the part of the claimant who has already invoked the jurisdiction of 6 [1990] 1 Qd R 418 -- 7 of 10 -- 8 the court. Section 31(2) of the Limitation of Actions Act 1974 (Qld) which permits an extension of the limitation period, inevitably requires an explanation why the action could not have been commenced within the prescribed time. The relief sought by resort to this section has considerable significance for the party being sued. [29] In cases of these kinds there is an intense focus on the need to explain the delay. See for example, the number of times ‘delay’ is mentioned in the helpful list of relevant considerations set out in the judgment of Atkinson J (McMurdo P and McPherson JA agreeing) in Tyler v Custom Credit Corp Ltd & Ors.7 [30] The circumstances which result in a claimant seeking, pursuant to s 18(1)(c)(ii) of PIPA, authorisation to proceed with the claim is less dramatic. It is the failure to satisfy the respondent that the claim is a complying one. Initially, that satisfaction may be easy or difficult to obtain. If necessary, it will ultimately be determined by the court on an objective basis. In determining what are the relevant considerations on an application of this kind, the most significant is the fact that, unless authorised, the claimant will be denied the opportunity to litigate his or her claim. Against that consideration must be weighed the impact of any prejudice to the respondent and whether such prejudice can be ameliorated. This would appear to be the object of s 18(2). It is possible that prejudice due to the claimant’s conduct might be so overwhelming as to deny the prospect of a fair trial and thus count heavily against the granting of authorisation to proceed. [31] Of relevance but of lesser importance, it seems to me, is the need to maintain the objects of the legislation of providing for speedy and inexpensive resolution for claims. But in circumstances where there is no prejudice to the respondent, the failure to provide an explanation for non-compliance will not be a bar to authorisation. In Dempsey v Dorber Connolly J (Carter and Moynihan JJ agreeing) said:- “The question then is whether, there being no demonstrable prejudice to the defendant, the applications under O.9 r.1 and O.90 r.9 should be dismissed to mark the court’s disapproval of the inordinate delay, the failure to prove any attempt to serve the defendant and the failure to explain the delay. On balance I think not. These jurisdictions are not exercised on a punitive or even on a cautionary basis.”8 [32] Dempsey v Dorber concerned an application for leave pursuant to O 90 r 9 of the rules of the Supreme Court, the present equivalent of which is r 389 of UCPR. The Full Court there held that on such an application, while the reason for delay is a relevant circumstance, a satisfactory explanation for the delay was not a condition precedent to the granting of leave to proceed. It remains simply a factor to be considered with all other relevant factors. The test applied in Dempsey, adopted from the judgment in Birkett v James, 9 and continued in applications pursuant to r 389 of UCPR 10 provides that the power to dismiss an action for the want of prosecution shall be exercised only when the court is satisfied either – 7 [2000] QCA 178 at para [2] 8 Ibid at p 421 9 [1978] AC 297 10 Lillyville Pty Ltd v Colonial Mutual Life Assurance Society Ltd [1999] QSC 372; Tyler v Custom Credit Corp Ltd (supra) -- 8 of 10 -- 9 “(1) that the default has been intentional and contumelious e.g., disobedience to a peremptory order of the Court or conduct amounting to an abuse of process of the Court; or (2) (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers; and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party.”11 [33] Applications pursuant to s 18(1)(c)(ii) certainly do not demand any higher test, and may well demand less, having regard to the importance of a claimant having the opportunity to litigate the claim. The fundamental character of this right has often been commented upon in the context of the legislative regimes relating to claims for personal injuries. See Neuss v Roche Bros. Pty Ltd.12 It has been a topic of discussion in learned papers.13 [34] I do not accept that the terms or format of legislation confine the scope of considerations relevant to an application of this kind. It may or may not be relevant to consider whether the defects in the notice of claim can be remedied. Obviously it is the prejudicial effect of the non-compliance that will assume weight rather than technical non-compliance. Failure to give an explanation for delay in circumstances where no prejudice flows from the failure might have to be weighed against the objects and purposes of the legislation. But exercise of the discretion conferred by s 18(1)(c)(ii) to authorise a claim to proceed further requires a consideration of factors of varying relevance and insight but with a consciousness that not to allow the application will deny a claimant access to the court to litigate his or her cause of action in a court. In my view, such access would be denied only in circumstances of severest prejudice. [35] Turning now to the exercise of the discretion in the circumstances of this application, the respondent concedes that it has suffered no prejudice by reason of the claimant’s failure to give a complying part 1 notice. Coupled with this is the fact that the respondent will inevitably be joined as a party to the proceedings which the claimant intends to institute against his employer. The respondent does not suggest that the applicant has no prospects of success or that there was any other bar to his pursuit of the claim. The respondent points only to the technical non-compliance with the statutory requirements and to the extent of delay by which it has suffered no prejudice. Weighing these considerations there seems to me to be no basis for denying the claimant the opportunity to litigate his claim. 11 Ibid at p 422 12 [2001] 2 Qd R 487 at para [10] 13 See, for example, Mason CJ - Speech to Australian Institute of Administrative Law delivered on 19 September 2001. “No encouragement should be given to attempts to restrict access to the courts for the determination of rights by converting provisions restricting access into provisions having substantive validity. If the legislature intends to treat non-compliance with its prescribed requirements as not resulting in invalidity, it should be encouraged to say so without achieving that result indirectly through the operation of an ouster clause.” -- 9 of 10 -- 10 [36] I would therefore allow the appeal and in lieu of the orders pronounced below order that - (i) the appellant be authorised to proceed further with his claim. (ii) that further compliance with Personal Injuries Proceedings Act 2002 continue, the date of this decision being the relevant date for the receipt of a complying part 1 notice of claim. (iii) the respondent pay the appellant’s costs of the appeal incurred after the date of the provision of the additional evidence to be assessed on the standard basis. -- 10 of 10 --