Bracefield v Brisbane City Council [2003] QDC 454

[2003] QDC 454 DISTRICT COURT CIVIL JURISDICTION JUDGE McGILL SC No 4111 of 2003 JUDITH ANN BRACEFIELD Applicant and BRISBANE CITY COUNCIL Respondent BRISBANE ..DATE 15/12/2003 ORDER 1 WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. -- 1 of 9 -- 15122003 T11/RB28 M/T CMS132/2003 (McGill DCJ) 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is an application under section 59 of the Personal Injuries Proceedings Act to extend the time allowed by that Act in subsection 2(b) for starting a proceeding after a complying notice of claim has been given, notwithstanding the expiration of the limitation period. The circumstances of the matter were that the plaintiff alleges that she suffered injury on the 3rd of January 2000 while riding a bicycle on a bikeway occupied and maintained and presumably constructed by or on behalf of the respondent. The plaintiff consulted solicitors reasonably quickly and a letter giving notice of an intention to make a claim in respect of the plaintiff's injury was forwarded to the respondent by the applicant's solicitors on 15 September 2000. That gave some particulars of the date and place of the accident and foreshadowed a litigation to claim damages for personal injuries. That came to the attention of the contract and risk management department in the Brisbane City Council. The letter also sought documents under the Freedom of Information Act and as a result the letter was referred to the Freedom of Information Officer. That does not seem to have achieved a great deal because apparently no response has ever been received. The claim at the time was not subject to the Personal Injuries Proceedings Act which did not exist then, but some time after the Act originally came into operation in the latter part of 2002, the Act was applied retrospectively to a claim such as -- 2 of 9 -- 15122003 T11/RB28 M/T CMS132/2003 (McGill DCJ) 3 ORDER 1 10 20 30 40 50 60 the present and that meant that an obligation to give a notice of claim before taking a proceeding, which previously did not exist, was imposed on the applicant. That notice of claim was due by the 29th of December 2002, and was given on the 23rd of December 2002, although the notice of claim was defective in that all of the material required to be contained in or attached to the notice of claim was not included. The respondent responded to the notice of claim, but the operative response did not occur until 24 January 2003. That meant that the response was just too late to prevent the operation of section 13 of the Act under which the respondent was conclusively presumed to be satisfied the notice of claim was a complying notice of claim. It was initially submitted that a response on 24 January was within time on the basis that the response had to be within one month after the notice of claim was given. It was accepted the notice of claim was given on the 23rd of January but it was submitted that when counting the period of one month after that date, the 24th of December was not to be counted because section 38(1) of the Acts Interpretation Act meant that the given day upon which the period began was to be excluded. I do not think that section 38 applies in a situation such as the present when something has to be done within a specified period after a particular event occurs. The date on which the -- 3 of 9 -- 15122003 T11/RB28 M/T CMS132/2003 (McGill DCJ) 4 ORDER 1 10 20 30 40 50 60 event occurs is not counted but the period begins on the day following the date on which the event occurs. Accordingly the period of one month after 23 December 2002 began on 24 December 2002 and concluded on 23 January 2003, and the response on 24 January 2003 was more than one month after the notice of claim was given. Accordingly the respondent was conclusively presumed to be satisfied that the notice of claim was compliant. I think that means effectively that for the purposes of this Act I proceed on the basis that the compliant notice of claim was given on 23 December 2002. Had that not been the case then a compliant notice of claim was not given prior to the expiration of the limitation period, and so section 59 would not assist, but more than six months have expired since the date on which the respondent indicated that it was satisfied that the defects had been remedied. A notice about the defects in the notice of claim was given by the respondent and they were remedied and on the 4th of March 2003 the respondent advised that it was satisfied that those defects had been remedied, so that, but for the operation of section 13, the effect of section 20 is that a compliant notice of claim would be taken to have been given on that date. That was outside the three years after the date of the accident, but it was more than six months since before today and therefore section 77D is of no assistance to the applicant. So if I was wrong about the interpretation of the -- 4 of 9 -- 15122003 T11/RB28 M/T CMS132/2003 (McGill DCJ) 5 ORDER 1 10 20 30 40 50 60 operation of the time limit, then it would follow that there would be no basis upon which the applicant could be given any relief under the Act. However, on the basis that a complying notice of claim was given before the expiration of the limitation period, then the issue becomes one of whether the period of six months allowed by section 59 should be extended. As to that the first point to note is that the applicant's solicitor appears to have accepted that the response of the respondent, although out of time, was still an effective response and proceeded to answer it and provide the good deal of additional material so that the deficiencies in the notice of claim were fixed up. However, the applicant's solicitor was not particularly helpful thereafter. Matters reached the point where in March this year after reference had been made by the applicant's solicitor to the pending Freedom of Information Act request, the respondent solicitor said that that was being investigated but a copy of a further letter which had been sent in 2002 was sought. There was no response to that request, not was anything else constructive done by the applicant's solicitor until this application was filed. At one point in August this year the respondent's solicitor wrote denying liability and making an offer. The denial of liability was forwarded in response to section 20 of the Act. No step was taken by the applicant's solicitor to require a compulsory conference. The position of the applicant's -- 5 of 9 -- 15122003 T11/RB28 M/T CMS132/2003 (McGill DCJ) 6 ORDER 1 10 20 30 40 50 60 solicitor was that, as a result of his consideration of what he refers to as section 77 but must be reference to 77D of the Act, he understood that he had until 18 December 2003 to institute proceedings. It was said that he was concerned to investigate the issue of liability and he was therefore waiting for the response from the Freedom of Information request. However, it really does not seem that anything very serious was undertaken by him to investigate liability further and the interpretation that he had until the 18th of December this year to commence a proceeding is not what that I think could readily be derived from section 77D. However, it must be recognised in relation to that this is a relatively new and complicated legislation, and as was pointed out by Justice Dutney in Abel v. Roche Mining Flight Ltd on the 25th of November this year, there is legitimate confusion about its application. I think the evidence indicates there was some confusion about its application on the part of the applicant's solicitor. There is also the consideration that it seems to me that this is an area where failings on the part of legal practitioners should not necessarily be brought home to the applicants. This is a familiar area in the broader sense where a Court is being asked to exercise a discretion to relieve a party from the burden of a time limit which has been passed because of some failure on the part of the solicitor. In Tyler's case, -- 6 of 9 -- 15122003 T11/RB28 M/T CMS132/2003 (McGill DCJ) 7 ORDER 1 10 20 30 40 50 60 for example, it has been said that failings of solicitors will not necessarily be brought home to clients in relation to the time limits under the Rules for taking proceedings. And I think there is some analogy in relation to time limits under the Personal Injuries Proceedings Act. It does appear that the failure to proceed in a more timely way was the fault of the solicitor rather than the applicant personally. With regard to the other matters, I think that the applicant has shown enough with a view to showing liability to satisfy what was said to be the fairly low requirements referred to in Thomas v. Trans-Pacific Industries Pty Ltd [2003] 1 QdR 328, which were regarded as applicable in the context of an application under section 77D by McMurdo J in Cuthbert v. Adams [2003] QSC 320, and presumably would be the same in relation to an application under section 59. The other matters which might be relevant are the extent of the delay and the question of prejudice. In this case the solicitor was not entirely inactive. Things were done and the notice of claim was originally given within time and I think it is a fair inference that but for the fact that the Personal Injuries Proceedings Act was made retrospectively applicable to this claim, it is quite likely that a proceeding in the Court would have been commenced prior to the expiration of the limitation period. -- 7 of 9 -- 15122003 T11/RB28 M/T CMS132/2003 (McGill DCJ) 8 ORDER 1 10 20 30 40 50 60 So to some extent this is a case where the difficulties with the limitation period have arisen because of the imposition of that requirement retrospectively. It is also, I think, in relation to prejudice relevant that no specific prejudice is alleged by the respondent. The respondent had notice of the intention to take the proceeding a few months after the injury was suffered, and the notice of claim was given within the time limited by the Act. So it would be surprising if there was any great prejudice suffered by the respondent. Although the delay is not particularly well excused, at least as far as the applicant's solicitor is concerned, on balance, I think it is appropriate to exercise the discretion under section 59 to allow the claim to be commenced as long as it is commenced promptly, and I will allow under section 59(2)(b) a period of up to the 18th of December 2003 to start a proceeding in this Court against the respondent for damages for injuries suffered by the applicant on or about the 3rd of January 2000. ... HIS HONOUR: I will order the applicant to pay the respondent's costs of the application to be assessed. I do not say anything as to who should bear those costs, that is between the applicant and her solicitor. -- 8 of 9 -- 15122003 T11/RB28 M/T CMS132/2003 (McGill DCJ) 9 ORDER 1 10 20 30 40 50 60 ... HIS HONOUR: I will leave the order stand. It will pick up the reserved costs, but I had thought at the time that you should have paid those costs of the adjournment anyway, so I will not modify that order. ----- -- 9 of 9 --