Askew v Eacham Shire Council [2006] QDC 79

DISTRICT COURT OF QUEENSLAND CITATION: Askew v Eacham Shire Council [2006] QDC 079 PARTIES: JUNE HELEN ASKEW Applicant v EACHAM SHIRE COUNCIL Respondent FILE NO/S: BD920/05 DIVISION: PROCEEDING: Originating Application ORIGINATING COURT: District Court Brisbane. DELIVERED ON: 13 April 2006 DELIVERED AT: Brisbane HEARING DATE: 7 April 2006 JUDGE: McGill DCJ ORDER: Declare that the claimant has remedied the non- compliance in the notice of claim. CATCHWORDS: PRACTICE – Pre-litigation procedure – Personal Injuries Proceedings Act – late notice of claim – late response to purported rectification – respondent not deemed satisfied. PRACTICE – Pre-litigation procedure – Personal Injuries Proceedings Act – late notice of claim – whether reasonable excuse for the delay given. Personal Injuries Proceedings Act 2002 ss 9(5), 13. Dunn v Lawrence [2005] QSC 291 – followed. Gillam v State of Queensland [2004] 2 Qd R 251 – considered. Piper v Nominal Defendant [2004] 2 Qd R 85 – applied. Sultan v New Asian Shipping Co Ltd [2003] QSC 231 – followed. COUNSEL: P. B. de Plater for the applicant S. T. Farrell for the respondent SOLICITORS: Schultz Toomey O’Brien Lawyers for the applicant Barry & Nilsson for the respondent -- 1 of 7 -- 2 [1] This is an application under the Personal Injuries Proceedings Act 2002 (“the Act”) for a declaration that the respondent is conclusively presumed to be satisfied that a notice of claim is a complying notice of claim, or in the alternative for a declaration that the applicant has remedied the non-compliance in the notice of claim which was given, or in the further alternative for an order authorising the applicant to proceed further with the claim notwithstanding the non-compliance. The application raises a point under s.13 of the Personal Injuries Proceedings Act 2002 (“the Act”) which both counsel submitted had not previously been decided, the question of whether a reasonable excuse had been given for failing to give a timely notice of claim, and finally the question of whether the court’s discretion to allow the claim to proceed, notwithstanding non-compliance with the requirement to give a notice of claim, should be exercised. Background [2] The history of the matter is a little unusual. The applicant alleges that she was injured in a single vehicle motor vehicle accident on 24 April 2002, while driving on a gravel road under the control of the respondent. It is alleged that the accident occurred because of the negligence of the respondent in maintaining the road. At the time of the accident the applicant was 63, and apparently suffered some injury in the accident. The accident was investigated by a police officer, who recorded that the applicant had no recollection of the accident; he thought she may have blacked out for a time, either as a result of the accident or possibly even before it. His report did not record anything about the state of the road, other than the presence of some tyre marks which he attributed to the applicant’s vehicle. It does not appear the accident was reported to the respondent at about that time. [3] At the time of the accident, of course, there was no Act.1 . The Act commenced on 18 June 2002 (see s.2) and at that time was not retrospective beyond then. Subsequently, however, it was amended by Act 38 of 2002 2 by which the applicant found herself under an obligation to comply with the requirement in the Act to give a notice of claim. The harshness of the retrospective imposition of this obligation was mitigated by the transitional provisions in Part 2, which provided that for the purposes of s.9(3)(a) the incident was taken to have occurred on 1 August 2002: s.77A(2). Accordingly she was required to give a notice of claim under s.9 of the Act within nine months of that date, that is by 1 May 2003. [4] She did not consult a solicitor about her injuries and any possible claim until April 2003. She could not, however, afford to pay for that solicitor to do anything for her in relation to any claim against the respondent, and he was not prepared to act without payment. In the meantime, there was a significant change to the road: it was sealed, which would have produced a road and road surface which were totally different from the way they were at the time of the accident3 . The applicant was presumably aware of this, because according to the police report she was at the time 1 It was not even a gleam in the legislature’s eye; the Bill for the Act was not introduced until 18 June 2002, by the then Attorney-General. 2 Also taken to have commenced on 18 June 2002, although assent was not given until 29 August 2002. 3 Affidavit of Tucker sworn 5 April 2005, par 5(b). -- 2 of 7 -- 3 of the accident living on that particular road, at Malanda on the Atherton Tableland4 . [5] She moved to Maleny in January 2004, and then consulted another solicitor, but the situation was the same and she could not afford to pay for him to do anything for her. Indeed, no action was taken by or on behalf of the applicant to carry the claim forward until she consulted other solicitors on 9 February 2005. Those solicitors were prepared to act on terms which she could afford, and something was therefore done in relation to her claim. [6] The first thing that was done, on 17 March 2005, was the filing of an application under s.43 of the Act for leave to commence a proceeding. When that application was served on the respondent5 it was supported by an affidavit which exhibited a draft claim and statement of claim, so at that stage, although there was no notice of claim, the respondent was provided with quite a bit of information about the applicant’s claim. An order giving leave under s.43 was made by another Judge on 4 April 2005. The claim and statement of claim pursuant to that leave were filed three days later. The limitation period expired on 24 April 2005. [7] A notice of claim in Form 1was executed at the end of June 2005 and forwarded to the respondent on 4 July 2005. On 27 July 2005, the respondent’s solicitors advised that the respondent was a proper respondent, but that the notice of claim was not compliant by reason of a failure to provide a reasonable excuse for the delay, as required by s.9(5) of the Act. That subsection provided:6 “If the notice is not given within the period prescribed under subsection (3), the obligation to give the notice continues and a reasonable excuse for the delay must be given in the notice or by separate notice to the person against whom the proceeding is proposed to be started.” [8] The applicant’s solicitors provided the respondent’s solicitors with a statutory declaration by the applicant concerning the delay. This was in purported compliance with s.9(5) and purported to remedy the non-compliance within the time allowed by s.12(2)(c) of the Act. The respondent now disputes that that statutory declaration provided a reasonable excuse for the delay, and on that basis submitted that the non-compliance has still not been remedied. However, the respondent did not comply with s.12(3); it did not, within one month after the end of the period specified in s.12(2)(c), give written notice stating whether or not it was satisfied the claimant had complied with the requirement, was satisfied with the action taken to remedy the non-compliance, or waived the non-compliance in any event. Eventually, after that, the present application was made. The Section 13 Point [9] The applicant’s first submission was that, because of the failure of the respondent to give the written notice required by s.12(3) within the time specified in that 4 She moved from North Queensland to Maleny in January 2004: affidavit of Tucker Exhibit ADT3 par 6. 5 22 March 2005; affidavit of Tucker par 4(a). 6 Counsel agreed that Reprint No. 1 is the applicable version. -- 3 of 7 -- 4 subsection, under s.13 of the Act the respondent was conclusively presumed to be satisfied the notice was a complying notice of claim. Section 13 provided: “If a claimant gives notice of a claim under this division or purportedly under this division to a person against whom a proceeding is proposed to be started, and the person does not respond to the notice under section 12 within the prescribed period under that section, the person is conclusively presumed to be satisfied the notice is a complying notice of claim.” [10] It was submitted on behalf of the applicant that the notice under s.12(3) is part of the respondent’s response to the notice of claim, and that accordingly there had been a failure to respond within the prescribed period under that section. It was further submitted that the time limit in s.12(3) would be surplusage, or unenforceable, unless s.13 applied to it. The clear purpose of s.13 was to enforce the time limits imposed by s.12, and therefore it should be given a purposive interpretation wide enough to make it applicable to the time limit in s.12(3). The respondent, on the other hand, submitted that s.13 only applied to what might be termed the “initial response” contemplated by s.12(2) of the Act, and relied on what was admitted to be dicta in two decisions of the Supreme Court. [11] In Sultan v New Asian Shipping Co Ltd [2003] QSC 231 Fryberg J said, in relation to an argument that s.13 applied where there was a failure to comply with s.12(3), at page 10: “It seems to me now, looking at the wording of section 13, that the notice about which it speaks is a notice not given within the prescribed period, that is, one which was supposed to be given within the prescribed period. That is a defined term under section 12(4) and applies only to the notice under section 12(2).” [12] In Dunn v Lawrence [2005] QSC 291 Mackenzie J referred at [13] to this decision, and expressed the opinion that s.13, at least in the form in which it was at the time which was relevant to that matter, did not operate in respect of a failure to give the notice required by s.12(3). His Honour did note, however, that the focus of the argument was not on that issue: [14]. [13] It seems to me that there is some force in the argument either way. It is true that s.12(4) defines “prescribed period”, but it does so for the purposes of s.12. The subsection does not say that the term “prescribed period” has that meaning as well in s.13. Section 12(3) is a provision which prescribes a period in which the respondent must do something by way of response, which could be seen as a response in a general way to the notice of claim, although in the immediate sense it is a response to the action taken by the claimant to remedy the non-compliance contemplated by s.12(2)(c). Subsection (3) does prescribe a period for that response, which could be appropriately described as a “prescribed period under” s.12, even though it was not the “prescribed period” as defined in s.12. [14] On balance, however, I consider the correct interpretation of s.13 is that it is directed to the initial response of the respondent, under s.12(2), not anything required to be done under subsection (3). Although that could be said in a way to be something done in response to the notice of claim, that is not, in my opinion, the -- 4 of 7 -- 5 more natural reading of that expression, whereas what is required in subsection (2) is obviously and directly a response to the notice of claim. Furthermore, s.13 refers to “the prescribed period” under s.12, rather than “a prescribed period”, which would have been the more appropriate expression had the intention of the legislature been that s.13 would apply in respect of both of the separate periods prescribed, for different purposes, under s.12. The use of the definite article suggests that the intention was rather to pick up the definition in s.12(4). [15] In those circumstances, I think the more natural meaning of the words actually used by the legislature confines s.13 to the initial response under s.12(2) to the notice of claim. Two Supreme Court Judges have, although not deciding the point, expressed a preference for that construction, at least after having given it some consideration (albeit not apparently with the benefit of full argument; in Sultan after the point was raised by his Honour, counsel for the applicant did not argue to the contrary; see page 11). I conclude that that is the correct interpretation. Accordingly, the first submission on behalf of the applicant fails, and I will not make the declaration sought in paragraph (a) of the application. Was there a reasonable excuse? [16] The next question is whether what was given by the applicant in the statutory declaration was “a reasonable excuse for the delay”. That term is not defined in the Act, and I was told by both counsel that there have been no authorities as to the meaning of that term in this Act. I have not been able to find any authorities on that point myself. Nevertheless, there is authority on the similar requirement in s.39(5) of the Motor Accident Insurance Act, which provides some guidance7 . In Piper v Nominal Defendant [2004] 2 Qd R 85, Davies JA said at page 91 that: “The question of reasonableness must be considered objectively but having regard to the claimant’s personal characteristics such as his age, intelligence and education.” [17] See also Williams JA at [30]. That case is also authority for the proposition that the claimant must provide “a reasonable explanation for why notice was not given within the initial three month period, and also a reasonable explanation for the delay thereafter.”8 In that case the period required for the notice was three months because the notice was to be given to the nominal defendant; relevantly here, the first reasonable explanation is in respect to the period to 1 May 2003. [18] In Gillam v State of Queensland [2004] 2 Qd R 251, it was held that the existence of a reasonable excuse was not a prerequisite either for the grant of leave under s.43 or for the making of an order under s.18(1)(c)(ii), although if a reasonable excuse was shown, that was a factor which was relevant to the exercise of the discretion in the claimant’s favour. It was also held that the fact that the claimant only found out about the existence of the relevant defendant shortly before the expiration of the limitation period was capable of providing a reasonable excuse for not giving a notice of claim to that defendant earlier: [30]. In Perdis v Nominal Defendant 7 Authorities under the latter Act have been found to be of assistance in the application of the Act: Taylor v Stratford [2004] 2 Qd R 224 at 229. 8 Piper (supra) [28] per Williams JA. -- 5 of 7 -- 6 [2004] 2 Qd R 64, it was held that it was not necessary to provide a reasonable excuse for the claimant’s solicitor, and that entrusting a matter to a solicitor reasonably believed to be competent amounted to a reasonable excuse for the claimant. [19] Obviously what is a reasonable excuse depends on the circumstance of the individual case9 . The particular point which arises in this case is not one which, so far as I can see, has been previously considered. The explanation for the applicant’s earlier inaction is essentially poverty. She consulted a solicitor in a way which was timely, both in the general sense and also by reference to the time limit which the legislature came to impose upon her, but the solicitor, as he was entitled to do, declined to act except in return for payment, and that she could not afford. Although at that stage she only consulted one solicitor, I do not think that that behaviour was unreasonable for a 63-year-old aged pensioner living on the Atherton Tableland10 . After she moved to Maleny, she again consulted a solicitor, but with the same result. That seems to me to indicate that she was still prepared to make reasonable efforts, but remained constrained by her poverty. Ultimately, and as it happens still within the limitation period, she was able to obtain solicitors who were prepared to act on terms which she could afford, and the respondent was informed of the claim during the limitation period by the application under s.43. Although there was some further delay before the notice of claim was provided, the respondent, from March 2005, had what might be described as informal notice of the claim. [20] It is clear enough that essentially the explanation for the failure to give notice earlier is simply the applicant’s poverty. There is no reason to assume that, had she been able to afford to pay the solicitor she first consulted, notice would not have been given within time. The applicant’s age and the remote location where she was living provide some explanation for the delay in respect to the period from the time of the accident to April 2003. The crucial question, in my opinion, in relation to the period prior to February 2005 is whether the applicant’s poverty provides a reasonable excuse for a failure to take action. [21] In my opinion, it does. It is difficult to believe that the intention of the legislature was that people who needed special assistance to comply with the requirements of the Act and were unable to afford that assistance would thereby be shut out of potentially good claims. The legislature of Queensland could not have intended in that way to discriminate against those citizens who suffer the disadvantage of poverty. In my opinion, poverty is certainly capable of providing a reasonable excuse for inactivity. [22] The more difficult question is whether there has been a sufficient explanation for the whole period of delay. There is no particular explanation for the delay from the time of the accident until April 2003, although inferentially it is attributable to the applicant’s age, her limited financial position, and the fact that she was living in a rural area. There could also have been more information provided as to how it came about that the situation changed only in early 2005, although that could, I think, 9 Taikato v R (1996) 186 CLR 454 at 464, admittedly in a different context. 10 I do not know how many solicitors there are in practice on the Atherton Tableland, nor how many of them are prepared to act on a speculative basis, but it would not surprise me if there were not many. In any case, there is no reason why someone like the applicant should have known about this. -- 6 of 7 -- 7 have been adequately met by a statement that it was only at that time that she became aware of the possibility of obtaining legal advice on a speculative basis. In all the circumstances, I think it is reasonable to infer that that was the situation given the steps that she had previously taken. The obligation on the applicant is to give, but only to give, a reasonable explanation for the delay, and I do not think that that should ordinarily require writing a dissertation. Part of this explanation was certainly concise, but on the whole I do not think it was too concise. Conclusion [23] In those circumstances, in my opinion a reasonable explanation for the delay was given by the statutory declaration, and I am prepared to declare, pursuant to s.18(1)(c)(i), that the applicant has remedied the non-compliance by providing the statutory declaration giving that explanation. In these circumstances, it is unnecessary for me to go on to consider whether the discretion should be exercised to allow the applicant to proceed notwithstanding non-compliance. In view of the fact that giving a reasonable explanation for the delay is relevant to the exercise of the discretion, it may well be appropriate to conclude that the extent of any inadequacy in the explanation for the delay would also be relevant to the exercise of the discretion. In those circumstances, I think it would be artificial for me to make any precautionary statement about how the discretion would have been exercised if I had come to a different view as to the reasonableness of the delay. [24] There is affidavit evidence in relation to the question of prejudice, which was not challenged although it was submitted that there was no great prejudice shown by that affidavit, particularly in circumstances where the substantial change to the physical state of the road occurred so soon after the accident, in September or October 2002. In these circumstances, even if notice had been given within the statutory timetable, there were going to be difficulties in investigating the claim, and it would not have been helpful to have gone out and examined the road. One would expect, however, that as a general proposition the passage of time after the relevant events would make it more difficult for them to be investigated, so it would be unsurprising if there were some prejudice because of the delay, which was for a period of about two years. However, it seems to me that, if a different view is taken in relation to the question of reasonable excuse elsewhere, that court will be in as good a position to decide on the exercise of the discretion as I am. [25] I declare that the claimant has remedied the non-compliance in the notice of claim. The application was resisted and has been successful, at least on one basis. In the circumstances, the respondent should pay the applicant’s costs of the application to be assessed. -- 7 of 7 --