Dale Erwin-Jones v Latitude Underwriting Pty Limited
[2016] NSWDC 34
•18 February 2016
District Court
New South Wales
Medium Neutral Citation: Dale Erwin-Jones v Latitude Underwriting Pty Limited [2016] NSWDC 34 Hearing dates: 15 February 2016 Decision date: 18 February 2016 Jurisdiction: Civil Before: Mahony SC DCJ Decision: Leave granted to extend time for the plaintiff to commence proceedings, nunc pro tunc
Catchwords: Extension of limitation period; substantive law of place of tort applied. Legislation Cited: Judiciary Act 1903 (Cth)
Limitation of Actions Act 1974 (QLD)
Motor Accident Insurance Act 1994 (QLD)
Personal Injuries Proceedings Act 2001 (QLD)
Trade Practices Act 1974 (Cth)Cases Cited: Haley v Roma Town Council [2005] QCA 3
Hamilton v Merck & Co Inc [2006] NSWCA 55
John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503
Kash v SM & TJ Cedergren Builders & Ors [2003] QSC 426
McKain v RW Miller & Co (SA) Pty Ltd [1991] 174 CLR 1
Patterson v Leigh & Anor [2008] QSC 277Category: Procedural and other rulings Parties: Dale Erwin-Jones (Plaintiff)
Latitude Underwriting Pty Limited (Defendant)Representation: Counsel:
Solicitors:
R Foord (Plaintiff/Applicant)
S McCarthy (Defendant/Respondent)
Denniston & Day Lawyers
Clyde & Co
File Number(s): 14/215213 Publication restriction: Nil
Judgment ON MOTION
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By Notice of Motion filed on 6 November 2015, the plaintiff seeks the following relief:
The plaintiff be granted leave to commence proceedings after the expiration of the limitation period pursuant to s 59(2) of the Personal Injuries Proceedings Act 2002 (QLD) (“PIPA”) nunc pro tunc.
Alternatively, that leave to proceed be granted to the plaintiff pursuant to s 31 of the Limitation of Actions Act 1974 (QLD) (“LAA”).
Such other or further order.
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In support of the Notice of Motion, the plaintiff relied on an affidavit sworn by Phillip Day of 3 July 2015. The defendant relied on affidavits affirmed by Ryan James Francis on 12 October 2015, and Edwina Catherine Hamilton‑Scott sworn on 6 October 2015, together with a further affidavit sworn by Elizabeth Herbert on 7 October 2015.
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Those affidavits were not formally read on the application after the legal representatives of the parties reached an agreement which was read to the court as follows:
“The solicitors involved on both sides of the matter have sworn affidavits with respect to the issue of the limitation period but after discussion between the parties, will not be cross-examined upon them on the basis that it is accepted that there was a misunderstanding on the part of the plaintiff’s solicitor as to whether the defendant intended to raise a limitation defence.”
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The matter then proceeded on the basis of an agreed chronology (as amended) which became Ex A in the proceedings and which is annexed to this judgment. It is common ground that the proceedings relate to a claim for damages arising out of a slip accident which occurred on 24 August 2010 in the State of Queensland.
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The plaintiff instructed her solicitors on 11 July 2011 and the procedural provisions pursuant to the PIPA were complied with as follows:
19 September 2011 – Notice of claim Pt 1 served on Respondent
10 January 2013 – Notice of Claim Pt 2 served on Respondent
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The chronology (Ex A) sets out the various correspondence and communications between the solicitors which gave rise to the agreement set out above. On 14 July 2014, the Statement of Claim was filed at the Lismore Registry of the District Court. It was 10 months out of time. The limitation period proscribed by s 11 of LAA is three years from the date on which the cause of action arose.
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The plaintiff based his application on s 59 of the PIPA, which provides as follows:
“59 Alteration of the period of limitation
“(1) If a complying part 1 notice of claim is given before the end of the period of limitation applying to the claim, the claimant may start a proceeding in a court based on the claim even though the period of limitation has ended.
(2) However, the proceeding may be started after the end of the period of limitation only if it is started within-
(a) 6 months after the complying Pt 1 notice is given or leave to start the proceeding is granted; or
(b) a longer period allowed by the court.
(3) Also, if a proceeding is started under subsection (2) without the claimant having complied with Pt 1, the proceeding is stayed until the claimant complies with the part or the proceeding otherwise ends.
(4) If a period of limitation is extended under the Limitation of Actions Act 1974, Pt 3, this section applies to the period of limitation as extended under that part.”
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The plaintiff relies on s 59(2)(b) for the relief she seeks.
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The defendant has opposed the application on the basis that s 11 of the LAA applies. The defendant contends that s 11 is a substantive law of Queensland which must be applied by this court, and further, that s 59 of PIPA is a procedural provision which has not application in the present proceedings. Therefore, the defendant submits the proceedings are statute barred.
The plaintiff’s submissions
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Learned counsel for the plaintiff relied on a succinct outline of written submissions. It was submitted that the legislative framework in Queensland provided for two pathways for the limitations provisions in Queensland to operate. It was submitted that both s 11 of the LAA and s 59 of the PIPA are substantive provisions and therefore applicable to the proceedings, relying John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503.
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It was submitted that the s 59 “pathway” is available to the plaintiff as she complied with the procedural provisions of PIPA for making a claim, namely, by service of Pt 1 and Pt 2, the Notice of Claim.
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Section 7 of the PIPA provides as follows:
“7 Provisions of this Act are provisions of substantive law.
(1) Provisions of this Act that provide for the kinds of damage, and the amounts of damages, that may be recovered by a person, and the provisions of chapter 2, part 1, divisions 1, 1A, 2 and 4, are provisions of substantive, as opposed to procedural, laws.”
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Section 59 lies within Chapter 2 of the PIPA, but within Division 5, Pt 3, and is therefore not caught by the characterisation as substantive law as set out in s 7(1) above.
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It was submitted that the delay was fully explained and that both parties had contributed to it. It was further submitted, that s 59 was “clearly explicable on the basis that the legislature envisioned that the claimants’ may experience significant delay in complying with its regime and in doing so may fall outside the three year limitation period”, relying on Haley v Roma Town Council [2005] QCA 3. It was submitted that the language of s 59 picks up the language of the LAA, and the heading, “Alteration of limitation period” is a clear recognition that the legislature intended the section to be used to alter a limitation period (i.e. extend it).
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Counsel for the plaintiff submitted that the construction contended for by the respondent would leave s 59 with little work to do, and it is contrary to numerous Queensland decisions where the s 59 “pathway” has been used by plaintiffs in similar circumstances.
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It was submitted that the PIPA, having been passed after the LAA, covers the field for procedural and substantive law relating to claims for personal injury, and institution of court proceedings in relation to such claims. Section 59, it was submitted, was excluded from s 7 because it is a truly substantive provision and should be applied to these proceedings.
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In oral submissions, Counsel relied on Patterson v Leigh & Anor [2008] QSC 277. In that case, McMeekin J referred to a number of appellant decisions concerning the extension of limitation periods in personal injury actions in Queensland, in the context of an application to extend time. His Honour said;
“8 The principles that seem to need to emerge from these cases are:
(a) The discretion to be exercised in respect of an application pursuant to s 57(2)(b) of the Act is unfettered;
(b) The onus lies on the applicant to show good reason why the discretion ought be exercised in his or her favour;
(c) Where an applicant is able to show the delay which has occurred was occasioned by ‘conscientious effort to comply’ with the Act, then that would normally be good reason for the favourable exercise of the discretion, but is not a ‘dominating consideration’. Conversely, claimants who ignore the obligations imposed on them by the Act or who make no conscientious effort to comply with them may have difficulty obtaining a favourable exercise of the discretion;
(d) Where an applicant is not able to show that the delay was occasioned by a ‘conscientious effort to comply’ with the Act that is not fatal to the application;
(e) Any delay on the part of the claimant in complying with the Act’s requirements when applying for an extension of time will be relevant to the exercise of the discretion;
(f) The length of the delay is important and possible prejudice to the defendant is relevant;
(h) Depriving a defendant of the complete defence afforded by the statutory time bar is an important matter;
(i) The interests of justice are of course the overriding consideration and in that regard the question of whether a fair trial of the proceedings is unlikely is an important consideration;
(j) The giving of a notice of claim before the expiry of the limitation period and compliance by a claimant with the provisions of the Act that it provide any information sought by the insurer are both relevant factors.”
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His Honour was referring to s 57 of the Motor Accident Insurance Act 1994 (QLD) which was in the same terms as s 59 of the PIPA.
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The plaintiff also relied on the decision of McMurdo J (as she then was) in Kash v SM & TJ Cedergren Builders & Ors [2003] QSC 426. In that case, the respondents argued that s 59 had no application unless the application to extend the period of limitation was made within the limitation period, or (if later), within the period for which the proceedings could be commenced without leave according to s 59(2)(a). Her Honour held at [21] that the interpretation advanced by the respondents would leave the power under s 59 “so limited that it would be difficult to see much purpose for its existence”. Her Honour went on to hold at [23] that in so interpreting s 59, it did not effectively deny the defendants the benefit of a period of limitation, because “the scope for the operation of s 59 is limited by the requirements for a complying notice within the period and for the court’s discretion to be exercised judicially by due consideration of the relevant circumstances, including any relevant prejudice to the defendant”.
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The plaintiff abandoned her claim for relief pursuant to s 31 of the LAA as set out in [2] of the Notice of Motion.
The defendant’s submissions
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Learned counsel for the defendant relied on a thorough outline of written submissions which included the plaintiff’s reliance on s 31, which, following the plaintiff’s abandonment of that relief, is no longer relevant.
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The defendant submits that s 59, and in particular, s 59(2) is not engaged in the present circumstances. The defendant submitted that s 59(2)(b) is a procedural provision of Queensland law, and is therefore not applicable in the forum chosen by the plaintiff to commence her proceedings, namely, New South Wales. It is therefore the defendant’s submission that s 59 is not engaged is these proceedings.
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The defendant further submitted that even if s 59 had some application to the present proceedings, it could not defeat s 11 of the LAA, which is a substantive provision of Queensland law. That section relevantly provides as follows:
“11(1) Notwithstanding any other Act or law or rule of law … shall not be brought after the expiration of three years from the date on which the cause of action arose.”
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It was submitted that s 11 assumes primacy over “any other Act or law”, which must include s 59 of the PIPA.
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It was common ground that legislative provisions concerning limitation periods are substantive law. This is so, because they affect the “existence, extent or enforceability of the rights or duties of the parties to an action” – see John Pfeiffer, supra, at [99]. However, the defendant submitted that the provision of s 7 of the PIPA meant that the Queensland legislature had been very careful in setting out which provisions of the PIPA are to be characterised as procedural and which are to be characterised as substantive. As s 59 appeared in Pt 3, which was excluded from the definition of substantive provisions contained in s 7(1), it was submitted that s 59 is a procedural provision.
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It was further submitted that other provisions in PIPA specifically deal with the LAA, for example, s 42(6), which states:
“To remove any doubt, it is declared that s 5 has effect despite the LAA.”
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Section 20A contained a similar provision, albeit, one operating in reverse.
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With respect to the plaintiff’s reliance on Queensland authorities such Haley v Roma Town City, supra, it was submitted that none of those authorities involved a separate “lex fori” question, which arose here because the proceedings were brought in New South Wales.
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Put simply, the defendant’s position may be summarised as follows. Because s 59(2) of the PIPA is procedural, it has no application to proceedings brought in New South Wales. The plaintiff’s case is therefore statute barred pursuant to s 11 of the LAA and there is no entitlement to maintain these proceedings.
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In oral submissions, learned counsel, on behalf of the defendant, submitted that the New South Wales Court of Appeal decision in Hamilton v Merck & Co Inc [2006] NSWCA 55, provided no safe harbour for the plaintiff. It was submitted that Spigelman CJ at [95] to [104], explained why s 59 was not a substantive law on the basis that it could not be characterised as the type of extensions or exclusions to the LAA upheld as substantive laws in John Pfeiffer v Rogerson. It was therefore submitted that s 59 was procedural, and had no application to New South Wales proceedings. The defendant therefore submitted that the plaintiff’s case was statute barred and there was no mechanism to allow an extension of time.
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If the court did not accept those submissions, learned Counsel for the defendant properly conceded that the defendant relied on no point of prejudice in terms of the court’s discretion to extend time if it was otherwise empowered to do so.
Determination
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Section 59 of the PIPA is contained in Division 5, Pt 3 of the Act. There is no issue that a complying Pt 1 Notice of Claim was given by the plaintiff to the defendant before the end of the three year limitation period, applying to the claim pursuant to s 11 of the LAA. Section 59(1) provides in those circumstances that a claimant may commence proceedings even though such limitation period has expired.
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Section 59(2) goes on to provide that such proceedings may only be commenced in two circumstances, namely, within:
“(a) Six months after the complying part 1 notice is given or leave to start the proceeding is granted; or
(b) A longer period allowed by the court.”
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It is common ground that a law relating to an extension of a limitation period is a substantive law (see John Pfeiffer, supra). The defendant relies on the Court of Appeal’s decision in Hamilton v Merck, supra, to submit that s 59 has been held to be procedural rather than a substantive law of Queensland. That case concerned representative proceedings under the Trade Practices Act 1974 (Cth) and in negligence on behalf of claimants from New South Wales and Queensland, who had been injured through their ingestion of a drug imported, formulated and manufactured in the United States of America by the defendant. The first question resolved by the Court of Appeal on a reference related to the application of Divs 1, 2 and 4 of Pt 2 of the PIPA, was in the following terms:
“In a claim commenced in the New South Wales Supreme Court seeking remedies in negligence and under the Trade Practices Act 1974 (Cth), for which the “lex loci delicti” is the law of Queensland, do the PIPA Provisions form part of the law which must be applied by the New South Wales Court?”
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The issue in respect of that question turned on whether those provisions identified are substantive or procedural. The court answered ‘No’, finding the provisions to be procedural. There had been no compliance by the Queensland claimants with the notice before action and compulsory conference provisions of PIPA. The Court considered the legislative characterisation pursuant to s 7 of the PIPA as substantive. The characterisation of those provisions was determined by the Court in accordance with ss 79 and 80 of the Judiciary Act 1903 (Cth), and the Court held it was not foreclosed by s 7 of the PIPA, and held that the provisions were procedural.
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The defendant relied on Spigelman CJ’s reasoning set out in [100] to [104] to submit that s 59 was held to be a procedural law. The Chief Justice was within those paragraphs considering the powers conferred on the court by ss 18 and 59 of the PIPA, in circumstances where the claimants in that case had not complied with any of the procedural mechanisms contained in PIPA. The Chief Justice concluded in those circumstances that the provisions contained in Divs 1 and 4 of the PIPA did not concern “enforceability” in the sense that that term was used in John Pfeiffer (see [104]). In so holding, the Chief Justice was not referring to s 59, which is within Div 5 of the PIPA. On that basis, and on the facts in Hamilton v Merck, supra, that case can be distinguished from the present claim where the plaintiff has complied with the procedural provisions of PIPA by serving her Notice of Claim. Whilst Handley JA agreed with the additional reasons set out in the judgment of Spigelman CJ, and Tobias JA agreed with the judgments of both the Chief Justice and of Handley JA, the reasoning of Spigelman CJ must, in the circumstances, be confined to the question that was being addressed by the Court of Appeal in that case, and the factual matrix behind that question.
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Handley JA also referred to Pfeiffer v Rogerson and at [126] his Honour extracted the following passage from that decision:
“Two guiding principles should be seen as lying behind the need to distinguish between substantive and procedural issues. First, litigants who resort to a court to obtain relief must take the court as they find it … Secondly, matters that effect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance, not with issues of procedure. Or to adopt the formulation put forward by Mason CJ in McKain [1991] 174 CLR 1, 26 – 27 ‘rules which are directed to governing or regulating the mode or conduct of court proceedings’ are procedural and all other … rules are to be classified as substantive … laws that bear upon the existence, extent or enforceability of remedies, rights and obligations should be characterised as substantive and not as procedural laws.’”
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Handley JA went on to say at [130]:
“130 The only further guidance provided by the joint judgment was the direction that ‘any limitation provision, whether barring the remedy or extinguishing the right, would be taken to be a question of substance not procedure’ because ‘all limitation provisions can effect whether a plaintiff recovers’. Accordingly the limitation provisions of the law of the place of the tort apply to an action brought anywhere in Australia for a tort committed in Australia.”
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Section 59 bears upon the existence, extent and enforceability of the plaintiff’s remedy. I therefore reject the defendant’s submission that s 59 is a procedural provision.
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In construing s 59, McMurdo P (with whom Jerrard JA and Mullins J agreed) said in Haley v Roma Town Council, supra, at [28] – [29]:
“28 The ordinary meaning of the words of s 59(2)(a) is that claimants within s 59(1) (of the Act), … may bring proceedings in court as a right within six months of the notice being given or leave being granted. This will generally not be useful to a claimant unless the respondent completes the obligations under the Act more quickly than the Act requires. Ordinarily, it can be expected that the many steps necessary for parties to comply with the Act will take more than six months from the date the claimant gives the notice of claim.
29 The plain meaning of the words in s 59(2)(b) of the Act gives a court a general discretion to extend the necessary time for a claimant, who is within s 59(1), but who is not assisted by s 59(2)(a), to bring a proceeding in court after the expiration of the limitation period.”
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At [30] her Honour went on to state:
“30 Before the Act came into force a claimant was entitled to start proceedings in court within the limitation period. Once the Act commenced, claimants were prevented from commencing litigation before complying with its provisions. It makes sense that in enacting s 59, the legislature intended to empower courts with a wide discretion to make orders to prevent injustice by enabling a claimant who has given a complying notice of claim to the respondent within the limitation period to commence proceedings outside the limitation period. In exercising that discretion, a court must be cognisant of the purpose of the Act and of the general considerations apposite to any extension of the limitation period as discussed by McHugh J in Brisbane South Regional Health Authority v Taylor.”
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Having regard to the interpretation of s 59 as outlined above, there is no inconsistency between s 59 and s 11 of the LAA. The references to the LAA in ss 20A and 42, do not create an inconsistency between s 59 and s 11. Rather, to avoid injustice, s 59 has effect to enable a claimant who has complied with procedural provisions of the PIPA by providing a Pt 1 Notice of Claim, to obtain leave of the court after the expiration of the limitation period, provided for in s 11 of the LAA. The two sections work together. Indeed, s 59(4) provides that s 59 applies to a limitation period extended under the LAA.
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In my view, the plaintiff here is not limited to s 59(2)(b) as advocated by her Counsel. The reason for that is the alternative provided for in s 59(2)(a), namely, “or leave to start the proceeding is granted”.
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I therefore find that s 59 is a substantive law of Queensland which applies to the present proceedings. As the defendant has relied on no issue of presumptive or actual prejudice, and none could be demonstrated, I therefore grant the relief sought by the plaintiff to exercise the court’s discretion to grant leave to the plaintiff to commence her proceedings nunc pro tunc by filing the Statement of Claim on 14 July 2014.
Orders
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I make the following orders:
The plaintiff is granted leave to commence proceedings after the expiration of the three year limitation period pursuant to s 59(2) of the Personal Injuries Proceedings Act 2002 (QLD), nunc pro tunc, by filing her Statement of Claim on 14 July 2014.
The costs of the Notice of Motion be the plaintiff’s costs in the cause.
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Decision last updated: 04 April 2016
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