Earthrowl v State of Queensland [2003] QDC 441

DISTRICT COURT OF QUEENSLAND CITATION: Earthrowl v State of Queensland [2003] QDC 441 PARTIES: NICOLE EARTHROWL Applicant v STATE OF QUEENSLAND Respondent FILE NO/S: BD 3663/03 DIVISION: Civil jurisdiction PROCEEDING: Application ORIGINATING COURT: District Court DELIVERED ON: 8 December 2003 DELIVERED AT: Brisbane HEARING DATE: 17 November 2003 JUDGE: Judge Robin QC ORDER: APPLICATION DISMISSED COSTS TO BE ASSESSED CATCHWORDS: Personal Injuries Proceedings Act 2002, s 77D(2)(b) – application for leave to start a proceeding in respect of injury from an incident on 23 September 1999 (in places said to be 23 January 1999) – notice of claim under s 9 given out of time on 6 June 2003 – notice otherwise non-compliant – if court had discretion to grant leave under s 77D(2)(b), the circumstances did not justify leave whether permissible to start proceedings by filing a statement of claim in the application considered COUNSEL: Mr D J Kelly for the Applicant Ms K Philipson for the Respondent SOLICITORS: Parker Simmonds for the Applicant Crown Solicitor for the Respondent [1] The applicant on 6 June 2003 served on the respondent a Form 1 Notice of Claim under the Personal Injuries Proceedings Act 2002 (PIPA). It is based on an incident recorded as occurring on 23 September 1999, described as follows: -- 1 of 12 -- 2 “My house was raided by Police, in which they were looking for a man wanted for questioning called Damien Garwood. Damien took chase, in which all officers chased him, leaving the police at scene alone with me. The dog attacked me, not letting go until they returned. Was hospitalised.” No doubt it was the police dog left “alone” with the applicant. In Item 11 in the Form 1, she described her part in the incident thus: “Unwanted victim got bitten by mistake by Police dog. Bitten 5 times, taken to Caboolture Hospital by Ambulance.” The affidavit of the applicant’s solicitor identifies the relevant injuries as including five bite marks, one requiring stitching, damaged tail bone and severe trauma. The applicant consulted his firm about 16 May 2003, long after the applicable three year limitation period had expired. [2] Crown Law’s response to the Form 1, in a letter of 24 June 2003, was as follows: “I refer to previous correspondence. I note that your client’s Notice of Claim was given outside the time frame prescribed by the Personal Injuries Proceedings Act 2002. I also note your advice that your client had previously consulted another firm and was advised that she should not proceed with her claim. In order to enable my client to consider whether such explanation is a reasonable excuse for the delay in providing the Notice of Claim, would you please advise the date on which your client first consulted your firm about the possibility of making a claim for her personal injuries. In the meantime, without an admission that your client’s explanation for the delay in giving her Notice is reasonable, I have reviewed the notice of claim and provide the following response under sections 9, 10 and 12 of the Personal Injuries Proceedings Act 2002 (PIPA) and section 3 of the Personal Injuries Proceedings Regulations 2002 (the ‘Regulations’). Section 10 – Proper respondent Notice is given under sections 10 and 12 of PIPA that State of Queensland, (Queensland Police Service) considers that it is a proper respondent to the claim. -- 2 of 12 -- 3 Section 12 – Compliance of the notice of claim The respondent is not satisfied that the notice is a complying notice of claim under PIPA and the Regulations. My client identifies the following aspects of non-compliance of the notice of claim: • Supporting material: The claimant has not provided copy of any doctor’s certificate relating to the alleged injury required by section 9(2)(c) PIPA and section 5(1)(a) of the Regulation. • Question 4 (Has the injured person consulted a lawyer about the possibility of making a claim?): The claimant indicated that she consulted a lawyer about making a claim two years ago. However, the claimant did not state the name of the law firm or lawyer consulted, its address and telephone number and whether that lawyer now acts for the claimant. • Question 6 (Is the State of Queensland the respondent named in this Notice of Claim?): The claimant indicated that the State of Queensland is the respondent named in the Notice of Claim. However, the claimant failed to indicate which Government Department she believes was responsible. Would you please confirm that no Government Department other than the Queensland Police Service was involved in the alleged incident. • Question 7 (General details): The claimant failed to indicate the time of the incident. Even if the exact time of the incident is not known, the claimant ought to have indicated whether the incident occurred in the morning or afternoon. • Question 9 (A brief description of the incident): The claimant states “… Damien took chase, in which all officers chased him, leaving the police at the scene alone with me. The dog attacked me, not letting go until they returned…”. I presume the claimant intended to say that the officers chased Damien Garwood, leaving the police dog at the scene alone with the claimant. However, would you please clarify that this is what occurred. • Question 19 (Emergency response entity or investigative entity which came to the scene of the incident): The claimant indicated that ambulance and police attended the scene of the incident. However, the claimant did not provide the name, station and contact details of such entities. The claimant ought to provide such details, if known. If the claimant does not know these details, please advise accordingly. • Question 18 (Reasons why the injured person believes that person caused the incident): The claimant failed to answer question 18. -- 3 of 12 -- 4 • Question 21 (Did the injured person go to hospital?): The claimant indicated that she attended the Caboolture Hospital. However, please provide the date on which she attended. • Question 23 (Who has treated the injured person and what treatment has been provided?): The claimant again indicated that she attended the Caboolture Hospital. However, she did not provide the nature of the treatment provided. Please provide this information. Requirements not waived The respondent does not waive compliance with the issues mentioned above. The respondent will allow your client 30 days from the date of this letter, that is by 24 July 2003, to take reasonable action to remedy the areas of non-compliance that I have identified. Those areas of non-compliance could be addressed by: a) providing a statutory declaration from your client about the above matters; or b) providing the answers on a further notice of claim form, which should be sworn or affirmed as instructed in the notice. If this method is used, could you please clearly mark on page 12 of the notice the words ‘AMENDED NOTICE OF CLAIM’. Non Admission Please note that the position taken by the respondent about your client’s compliance with the provisions of PIPA should not be construed as an admission or acknowledgment of liability.” [3] The applicant’s solicitor replied on 30 July 2003: “With the greatest of respect, we believe that our clients claim is no more than $10,000.00 and the additional expense that you are putting our client through with respect to responding to those issues of non- compliance, which we dispute, severely impedes on our clients damages. Accordingly, we are instructed to make an offer, being a one off offer for $5,000.00 inclusive of costs and satisfaction of our clients claim. This offer is open for a period of 7 days. If our clients offer is not accepted within 7 days, we will obviously respond to your letter of 24 June 2003 and further proceed with making an application to court.” -- 4 of 12 -- 5 [4] So far as material before the court shows, the only subsequent contacts were Crown Law’s seeking an extension of time to consider the applicant’s offer (and renewing the request for further information), the applicant’s solicitor’s confirming “pursuant to the Act (PIPA) our client has rejected any implied or express offer” (and that the applicant “seeks conciliation and advancement of the claim”) and a telephone call seeking clarification of that letter. [5] The originating application filed 3 November 2003 seeks the following: “1. A declaration that the Claimant has given a Notice of Claim under s.9 of PIPA as required; or 2. A declaration that the Claimant has remedied non- compliance with s.9 of PIPA. 3. The Claimant has authority to proceed further with the Claim despite non-compliance with PIPA. 4. The Applicant has leave pursuing to s.77D(2)(b) of PIPA to commence a proceeding in the District Court of Queensland by 18 December 2003. 5. That this Application be treated as an action commenced by claim and the said proceedings to be treated as a continuation of this action. 6. The Applicant’s costs of and incidental to this Application to be assessed on a standard basis as her costs in the Claim.” [6] Mr Kelly, appearing for the applicant, said (pp 9-10 of the transcript) that she “seeks to take advantage of what is available to her and that is why 77D(2) we say applies because the limitation period has, in fact, ended. She can, on the basis of s 18 be given leave to proceed further with the claim despite a non-complying notice. That leave, pursuant to s20 sub(2) means that it is a complying notice of claim and then leave applies under s 77D(2)(b) to give her the order that she seeks, that is that she be entitled to commence a proceeding based on a claim prior to the 18th of December … If the limitation period expires between the 18th of June 2002 and the 18th of December 2003, yes, there is a possible extension available, and that seems to be … introduced as a result of the introduction of a new regime and making allowance for people not being totally up to speed with that regime when it commenced.” -- 5 of 12 -- 6 [7] It might be noted that all of Mr Kelly’s instructing solicitor’s correspondence is headed “Date of Accident: 23 January 1999”. If that is the correct date, s 77D can have no role to play, because the period of limitation ended before 18 June 2002. For present purposes, I assume that the solicitor got the Notice of Claim right, but got the letters wrong. Section 77A is: “77A Special provision for personal injuries arising out of incidents happening before 18 June 2002 (1) This section applies to a personal injury arising out of an incident happening before 18 June 2002 and in relation to which a period of limitation has not ended. (2) For the purposes of section 9(3)(a), the day the incident giving rise to the personal injury happened is taken to be 1 August 2002. (3) For the purposes of section 9(3)(b), a claimant is taken not to have consulted a lawyer earlier than the day 3 months after the day the Personal Injuries Proceedings Amendment Act 2002 receives assent. (4) To remove any doubt, it is declared that this Act, other than sections 58 and 77, does not apply in relation to the personal injury if, during the period starting on 18 June 2002 and ending at the end of 30 June 2002, a person started a proceeding in a court for damages based on a liability for the personal injury. (5) Subsections (2) and (3) are subject to section 19.” [8] Other things being equal (that is, assuming a three year limitation applies), sub-s (1) brings in injury-causing incidents that happened after 18 June 1999. It appears the applicant could avail herself of s 77A until 23 September 2002. On that basis, her Notice of Claim would have to be given (if it was to satisfy s 9(3)) by the earlier of 1 May 2003 (using s 77A(2)) or 29 December 2002 (using s 77A(3)). The applicant’s Notice of Claim came too late. [9] Section 77D of the PIPA is: “Alteration of limitation period for personal injury arising out of an incident happening before 18 June 2002 (1) This section applies in relation to a personal injury arising out of an incident happening before 18 June 2002 if – -- 6 of 12 -- 7 (a) the period of limitation for a proceeding based on a claim for the personal injury ends during the period starting 18 June 2002 and ending at the end of 18 December 2003; and (b) a proceeding based on the claim has not been started in a court, including in a court outside Queensland or Australia. (2) If the period of limitation has ended, the claimant may start a proceeding in a court based on the claim – (a) if a complying notice of claim is given before 18 June 2003; or (b) at a later time, not more than 6 months after the complying notice of claim is given and not later than the end of 18 December 2003, with the court’s leave. (3) If a proceeding is started under subsection (2) without the claimant having complied with chapter 2, part 1, the proceeding is stayed until the claimant complies with the part of the proceeding otherwise ends. (4) This section does not limit section 43.” [10] Assuming an incident date of 23 September 1999, s 77D becomes applicable by virtue of sub-s(1). As to whether sub-s (2) authorises the starting of a proceeding outside the limitation period, on its face, paragraph (a) would authorise the applicant to start a proceeding, if she had given a complying Notice of Claim before 18 June 2003. The Notice of Claim given about a month before is not complying, broadly for reasons assigned by Crown Law. [11] However, paragraph (a) does not apply, even to a complying notice – had one been given by the applicant in May 2003, on the basis of decisions determining that s 77D(2)(a) is to be construed as if a comma were inserted between “given” and “before 18 June 2003”: Cuthbert v Adams (2003) QSC 320, where agreement is expressed with Lamb v State of Queensland [2003] QDC 0003 at para [5]. [12] Turning to sub-s (2)(b) of s 77D, it permits the court to allow a proceeding to be started not later than 18 December 2003, the court’s jurisdiction also being circumscribed so that it may not give leave for a proceeding to be commenced at a later time than six months after the complying Notice of Claim is given. There is -- 7 of 12 -- 8 still no complying Notice of Claim here, so that the relevant cut-off is 18 December 2003, as the application acknowledges. Assuming jurisdiction, the question becomes whether the court should grant leave, in the exercise of the discretion conferred upon it. I can see no good reason why the court should grant leave, subverting the strong and well-understood policy of the Limitation of Actions Act 1974. The situation may be very different if the advent of the PIPA regime produces difficulties from a limitations standpoint for would-be plaintiffs who attempt to comply with the new pre-litigation procedures. The PIPA has the effect of barring commencement of proceedings by claimants who may be ready to start them, until steps required by PIPA are taken, and times allowed for the taking of steps have elapsed. An understanding attitude may reasonably be taken towards such claimants: compare Nicol v Caboolture Shire Council [2203] QDC 033 (presently the subject of an undetermined appeal). The present applicant has done nothing within the limitation period. [13] The question becomes whether the court should assist the applicant in another way, by putting her in the position of having given a “complying Notice of Claim” as at a date late enough so that the six months time limit causes no embarrassment. That is why a declaration or authorisation under s 18(1)(c) is sought. Section 18 is: “(1) A claimant’s failure to give a complying notice of claim prevents the claimant from proceeding further with the claim unless– (a) the respondent to whom notice of a claim was purportedly given— (i) has stated that the respondent is satisfied the notice has been given as required or the claimant has taken reasonable action to remedy the non-compliance; or (ii) is presumed to be satisfied the notice has been given as required; or (b) the respondent has waived compliance with the requirement; or (c) the court, on application by the claimant – -- 8 of 12 -- 9 (i) declares that the claimant has remedied the non- compliance; or (ii) authorises the claimant to proceed further with the claim despite the 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.” [14] As to the declaration, I am not attracted by the notion that the court ought to declare something which is patently false, for the purposes of s 18(1)(c)(i). As to (c)(ii), pending availability of the Court of Appeal’s views I adhere to my view in Nicol that the court has a very wide discretion to do what seems just. Conditions can be set under s 18(2) calculated to ensure that the advantages PIPA apparently seeks to make available are brought about in due course, before any proceeding in a court advances very far. There are similar considerations applicable under s 43 (“Need for urgent proceeding”), which is not relied on here, doubtless for the good reason that no urgency appears, of the kind alluded to in sub-s 4(a)(i) or, say, the looming expiry of a limitation period. [15] All that seems to be presented on behalf of the applicant, who has provided no affidavit of her own, is an assertion that injustice arises from the applicant’s having been given bad legal advice when she first consulted a lawyer “Two years ago”, according to her answer to Item 4 in her Notice of Claim. Whatever might be the position if clear proof were available that a lawyer in whom confidence had justifiably been reposed advised against bringing a claim which appears sound and worth pursuing, there is no justification for acting on assumptions, as the court is being asked to do here. -- 9 of 12 -- 10 [16] It is unnecessary to express a view about other matters canvassed in the application, as they might bear on the court’s exercise of discretion, such as the apparently modest extent of the applicant’s proposed claim, clearly within the monetary jurisdiction of a Magistrate’s Court. Serious questions might arise as to the desirability of indulging applicants whose prospects of recovering a substantial amount in proceedings which may be very expensive to the parties are poor, however desirable it may seem (as it arguably does here) to have the facts ventilated in a court: everyone should be concerned at an injury suffered by a citizen by the bite of a police dog. [17] Ms Phillipson’s submissions for the respondent urge that the application be dismissed for its failure to show that the matter falls within the monetary jurisdiction of the District Court, having regard to UCPR r 26(8). If Ms Phillipson is asserting that the District Court lacks jurisdiction where the claim is worth no more than $10,000, I would respectfully disagree. However, the appropriateness of proceeding in a court with higher or unlimited jurisdiction will often be a matter of concern, the assumption being that costs are likely to be incurred at an unnecessarily lavish level unless a proceeding is commenced in that court having sufficient monetary jurisdiction which is lowest in the hierarchy of courts. [18] Ms Phillipson did not raise the difficulty respecting jurisdiction identified in Startune Pty Ltd v Ultra-Tune Systems (Aust) Pty Ltd (1991) 1 Qd R 190. I doubt that, in an application such as the present, it is necessary to state that the proceeding the applicant wants authority or leave to bring will involve a claim for damages within the District Court’s jurisdiction; this much is probably inherent in paragraph 4 of the orders now sought: see [5] above. For purposes of the PIPA, “court” -- 10 of 12 -- 11 means “a court with jurisdiction to hear the claim”: see the dictionary in the Schedule. I would not expect that a District Court order could authorise a proceeding in the Supreme Court, although I see no reason why the reverse would not apply, or why, if the applicant had succeeded here, she could not commence a proceeding in the Magistrate’s Court (if she deleted reference to the District Court from paragraph 4 of the application). Of course, she could, more economically, one presumes, have filed this application in the Magistrates Court. (I would instance, as an example of two courts being involved, a matter in which I made an interlocutory order in Brisbane on 17 November 2003, McCrae v Nominal Defendant, Bundaberg, File 66 of 2000, in which a District Court proceeding was commenced under the Motor Accident Insurance Act 1994 pursuant to leave to start a proceeding granted in general terms by the Supreme Court.) [19] I would take this opportunity to make some observations regarding the applicant’s request that her application “be treated as an action commenced by claim and the said proceedings be treated as a continuation of this action.” Ms Phillipson’s submission was that the applicant should obtain no relief at all. She raised no particular point about this particular aspect. While I find the way in which it is expressed in the application awkward, it exemplifies orders of a similar kind which I understand have been made in considerable numbers in the Supreme Court and in the District Court. I have made such orders myself, where there is “consent” or no opposition. Usually, those would state that the proceeding authorised to be started might be started in the application by the filing of a Statement of Claim, part of which must satisfy the requirement of a claim by showing the relief sought, whereupon the matter might proceed as a claim, subject to any stay ordered. It has recently come to my attention that misgivings are held in some quarters as to the -- 11 of 12 -- 12 efficacy of a proceeding “started” in that way, in an application which might be regarded as spent, in the sense that the claim for relief contained in it had been fully determined. There may be problems if the proceeding into which the application is transformed could be regarded as invalid, because when it was started, that occurred in breach of the PIPA or similar legislation. There has been no opportunity for me to invite submissions from counsel or solicitors. I have tentatively formed the view that rules 366 and 367 of the UCPR, especially when read with rule 5, may support the orders, whose usefulness to the parties from such standpoints as simplifying requirements for future service and avoiding payment of multiple filing fees is obvious. My tentative thought is that, where the court authorises a proceeding to be commenced, it may give directions as to how that can be done, notwithstanding that those directions may seem unorthodox. I make these comments because practitioners, on reflection, may prefer to start authorised proceedings in an orthodox way, and not subject their clients to a risk of the proceeding being held to be useless, when the limitation period may have expired, just for the sake of some modest savings. [20] The present application ought to be dismissed, and with costs to be assessed, but no order will be formally made in court without the parties having an opportunity to indicate to my associate that they seek different orders. -- 12 of 12 --