Arai v Sushi Train (Australia) Pty Ltd & Anor [2004] QDC 162

DISTRICT COURT OF QUEENSLAND CITATION: Arai v Sushi Train (Australia) Pty Ltd & Anor [2004] QDC 162 PARTIES: TAKAHITO ARAI (Plaintiff/Applicant) V SUSHI TRAIN (AUSTRALIA) PTY LTD (First Defendant/ First Respondent) & TANGIGUCHI YUKIMORI (Second Defendant/ Second Respondent) FILE NO/S: DC No 1485 of 2004 DIVISION: District Court PROCEEDING: Application ORIGINATING COURT: District Court of Brisbane DELIVERED ON: 4/6/04 DELIVERED AT: Brisbane HEARING DATE: 2/6/04 JUDGE: Forde DCJ ORDER: 1. The Applicant is authorised to proceed further with claims against the First and Second Respondent, in respect of an incident occurring on 9 October 2002, the subject of his Notice of Claim of 13 December 2002 pursuant to s.18(1)(c)(ii) of the Personal Injuries Proceedings Act 2002. 2. Order that a copy of the reasons and this order be served on the Second Respondent. 3. The Second Respondent has liberty to apply in respect of this order. 4. Costs of and incidental to this application are costs in the cause. CATCHWORDS: PERSONAL INJURIES PROCEEDING ACT 2002 – -- 1 of 7 -- 2 PREJUDICE – FAILURE TO PROVIDE REASONABLE EXCUSE - Claimant’s failure to give notice – leave to proceed under s.18(1)(c)(ii) PIPA – Relief sought under s.13 of PIPA – whether court should grant application having regard to circumstances – whether any prejudice to respondents – Liability of Respondent – Non-Compliant Notice of Claim Personal Injuries Proceedings Act 2002 (Qld) ss. 9, 10, 12, 13, 18. Foster v Goggin and Anor. [2004] QDC 022 Gillam v State of Queensland [2003] QCA 566 Graco v United Services Club [2003] QSC 319 Kash v SM & TJ Cedergren Builders & Ors. [2003] QSC 426 Nicol v Caboolture Shire Council [2003] QDC 33 COUNSEL: Mr S Di Carlo for the Applicant Mr San Nam for the 1st Respondent No Appearance for the 2nd Respondent SOLICITORS: Stephens & Tozer for the Applicant Asahi Lawyers for the 1st Respondent Introduction [1] The Applicant, Takahito Arai, seeks leave under s.18(1)(c)(ii) of the Personal Injuries Proceedings Act 2002 (the “Act”) to proceed further in his claim against the First and Second Respondents. Alternative relief is sought under s.13 of the said Act. The Second Respondent, it is alleged, was employed by the First Defendant at the material time. On 9 October 2002, the Applicant alleges that the Second Defendant assaulted him by smacking him on the head. The injuries seem to be of a psychiatric nature only. [2] The Applicant (on one version) visited his solicitor in November 2002. In the affidavit of Mr. Dzelalija, the Applicant’s solicitor, he deposes that the Applicant gave him instructions on 9 October 2002. For the purposes of this application that -- 2 of 7 -- 3 latter date will be relied upon. The Second Respondent was served in December 2002 and the First Respondent on 29 January 2003. Pursuant to the provisions of the said Act s.9(5) requires that the respondents be served within one month of consulting his solicitor. [3] The main issues for determination on this application are the delay in serving the Notice of Claim, the effect of the failure of the First Respondent to challenge the Notice of Claim and the effect of ss.12 and 13 in relation to the latter. Any prejudice suffered by the First Respondent is relevant in a consideration of the factors under s.18(1)(c)(ii) which provides: “18. Claimant’s failure to give notice of a claim (1) A claimant’s failure to file a complying notice of claim prevents the claimant from proceeding further with the claim unless— … (c) the court, on application by the claimant— … (ii) authorises the claimant to proceed further with the claim despite non-compliance. (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.” The arguments opposing the application [4] The First Respondent contends that the Notice of Claim was non-compliant. The main reasons were that no explanation was offered for the delay in service of the claim, the First Respondent was not the proper respondent and the form of the notice was defective. In dealing with the latter points, Version one was used instead of the amended form, Version 2. The relevant forms are exhibits “FD1” to the affidavit of Mr. Dzelalija and Exhibit “D” to the affidavit of Mr. Nam. Whatever the form the Act requires that the respondent to the claim do take certain steps under -- 3 of 7 -- 4 s.10 within one month. One of these steps is to advise the claimant whether the respondent is a proper respondent and also to seek further information if necessary on that aspect. If the First Respondent had done so and challenged the allegation that the First Respondent was a “proper respondent” then the Applicant under s.10(4)(b) could have required the First Respondent to give notice under s.12. Further, in relation to s.12(3), if the First Respondent was not prepared to waive compliance with the requirements in relation to the Notice of Claim, it was required to give the Applicant written notice in terms of s.12(3) (a) or (b). Neither sections were complied with. Certainly since 9th of April 2003 non-compliance by the First Respondent with either section has certain consequences under s.13. [5] The failure to provide the correct form of the Notice of Claim requires some discussion in view of the submissions for the First Respondent. Version 2 is more explicit as to the requirements of the section. The First Respondent had solicitors acting for it on another matter involving the Applicant. It is a well known company and properly advised should have taken steps to comply with the Act. The consequences of failing respond to a Notice of Claim are set out in s.13 of the Act. There was a suggestion from the bar table of a communications problem but no grounds were established by the First Respondent for not acting under s.10 or s.12. At the time that the Notice was signed Version 1 was still applicable: Exhibit E to the Affidavit of Mr. Nam filed on 20 May 2004. Version 2 applied as at the date of service. Further expense and delay would have occurred with preparation of a new form. However, an amendment was made by Act No.16 in 2003 which gave retrospective operation to s.7(2) of the Act. Sub-section 2 requires the notice of a claim to be given in the form approved for a notice of a claim when the notice is given. I find that the failure of the First Respond to respond to the Notice of Claim -- 4 of 7 -- 5 means that it was “conclusively presumed to be satisfied the notice is a complying notice of claim”: Kash v SM & TJ Cedergren Builders & Ors. [2003] QSC 426 para.9 per McMurdo J. Delay in serving the Notices [6] A stronger point is the failure of the Applicant to provide any explanation as to why some three months elapsed before the First Respondent was served. One can take judicial notice that the Christmas period intervened but this does not explain the further delay. The Second Respondent was served in December. Pursuant to s.9(5). The First Respondent contends that the Applicant has an ongoing duty to explain the delay by way of a “reasonable excuse”. Pursuant to s.18(1)(ii), the explanation for the delay is a factor to be taken into account: Foster v. Goggin and Anor. [2004] QDC 022 per Brabazon DCJ at p.9; Gillam v. State of Queensland [2003] QCA 566 at p.7 per Jerrard AJ. Demonstrating that a reasonable excuse exists is not mandatory under s.18. No explanation for the delay has been offered in the present case. It has been held that the discretion under s.18(c) is unfettered and that it is not a requirement of the section that there be evidence of a reasonable excuse for the failure of the claimant to deliver a Notice of Claim within the prescribed period: Nicol v Caboolture Shire Council [2003] QDC 33 per Robin DCJ. In the present case, given the short delay of service, that would not, by itself, be fatal to the application to proceed under s.18. In Graco v United Services Club [2003] QSC 319 Helman J. held that four and one half months was not so great a delay as to warrant refusal of the application. As both Helman J. and Robin DCJ observed, the question of prejudice will be relevant in any determination. Prejudice to the First Respondent -- 5 of 7 -- 6 [7] The Limitation of Actions Act 1974 is not yet applicable. A request was made on 11 May 2004 of the Applicant’s solicitors by the First Respondent’s solicitors for documentation including any material relating to the explanation for the delay. After having been served in late January 2003, it was not until 13 May 2004 that a request was made of the First Respondent by its solicitors for a copy of all documents received by it from the Applicant. It seems that there was other litigation between the parties which resolved in about January 2003. For the First Respondent to now suggest that it is prejudiced by the delay in the delivery of the Notice of Claim ignores its own delay which may have been of more significance. I am not satisfied that the delay caused by the Applicant’s inaction was causative of any real prejudice. [8] One specific example of prejudice offered is that the Applicant is now back in Japan and that it would incur unnecessary expense having the Applicant return. The First Respondent is required to pay only the reasonable costs of having the Applicant examined by a doctor. It could not be expected to pay for air fares. Interestingly, the names of the doctors on whom the Applicant attended have been provided in the Notice of Claim but the First Respondent’s solicitors have not sought reports from them. I find that the claims of any prejudice are not specious. The Second Respondent’s whereabouts are not known to the Applicant’s solicitors. It does not follow that the initial delay in serving the Notice of Claim has resulted in prejudice because of this. The longer delay by the First Respondent may have also been the cause of this loss of contact. In fact, according to paragraph 28 of Mr. Nam’s affidavit, he is in possession of an address which the First Respondent provided in relation to the Second Respondent. He has not provided this to the Applicant’s solicitors at this point. -- 6 of 7 -- 7 [9] Even if s.13 did not apply to make the First Respondent “presumed to be satisfied the notice is a complying notice of claim”, I am satisfied that the discretion under s.18(1))c)(ii) should be exercised to allow the Applicant to proceed further with the claim despite non-compliance. Liability of First Respondent [10] It is conceded by Mr. Nam that the Applicant was working for the First Respondent at some stage as was the Second Respondent. The fact that the assault happened at work raises the possibility of the First Respondent being liable for the wrongful act of its servant. Little more is needed to establish some potential liability. The question of fault is not determined on this application. Prima facie, the claim is not futile. The argument that the First Respondent is not a proper party is therefore rejected. Also, the quantum of the claim is not really relevant at this point. Orders 1. The Applicant is authorised to proceed further with claims against the First and Second Respondent, in respect of an incident occurring on 9 October 2002, the subject of his Notice of Claim of 13 December 2002 pursuant to s.18(1)(c)(ii) of the Personal Injuries Proceedings Act 2002. 2. Order that a copy of the reasons and this order be served on the Second Respondent. 3. The Second Responent has liberty to apply in respect of this order. 4. Costs of and incidental to this application are costs in the cause. -- 7 of 7 --