Dunbabin v Camilleri - [2021] QCA 144

[2021] QCA 144

COURT OF APPEAL

SOFRONOFF P
MULLINS JA
BROWN J

Appeal No 2022 of 2021
DC No 134 of 2020

BRIAN DUNBABIN Appellant

TED CAMILLERI Respondent

BRISBANE

MONDAY, 19 JULY 2021

JUDGMENT

SOFRONOFF P: On 2 November 2017, the respondent pleaded guilty to a charge of assault occasioning bodily harm. His victim was the appellant. The respondent was sentenced to a term of imprisonment for three months which was wholly suspended for 12 months. According to the victim impact statement tendered at the respondent’s sentencing, the respondent so injured the appellant’s right-arm that he required the surgical insertion of two metal plates into his arm. The appellant is a carpenter, and his livelihood has been affected and will be affected into the future. He was hospitalised for a week. He required physiotherapy treatment after his discharge from hospital, and he has still not regained the full use of his arm.
The assault happened on 21 October 2016. The appellant was minded to sue the respondent for damages for assault, so on 4 September 2017, he consulted a solicitor who advised him to await the conclusion of the criminal proceedings that had been brought against the respondent before taking action. This was sensible advice. Two months later on 2 November, the respondent was convicted on his plea of guilty. The appellant learned of this on the next day and told his solicitor immediately. Any proceedings that the appellant was to bring would be governed by the Personal Injuries Proceedings Act 2002 (Qld) “the Act”.
Section 9 of the Act requires the appellant before commencing proceedings to give written notice of his claim to the respondent. Relevantly, such a notice had to be given nine months after the assault on 21 October 2016. The appellant signed a claim form on 9 January 2018. He then left it to his solicitor to progress the matter. For some reason, the notice was not served on the respondent until 26 June 2018. In accordance with the Act, the notice described the incident, and it identified the sources of the appellant’s medical treatment.
Section 10 of the Act requires a person served with such a claim to respond to it within a month of receiving it, and, in that response, to signify whether he or she is the “proper respondent”. The respondent retained solicitors to act for him on 3 August 2018, and on 15 August, those solicitors wrote to the appellant’s solicitors and told them that the respondent was the proper respondent, and that they were taking the respondent’s instructions. Otherwise, they did nothing further.
Section 12 of the Act required the respondent, also within a month of receipt of the notice of claim, to signify whether the notice of claim was a notice that complied with the Act. The respondent’s acceptance that he was the proper respondent was late, and he never gave notice of compliance. The effect of those failures was that, pursuant to s 13, the respondent was “conclusively presumed to be satisfied”, but the notice of claim is the complying part 1 notice of claim. It follows that the appellant’s failure to deliver his notice of claim within the statutory time limit did not affect its validity.
Section 9(3A) of the Act required part 2 of the notice of claim to be delivered to the respondent within two months of the arising of the presumption under s 13, that is, 26 August 2018. In fact, part 2 was served on 4 September 2019. Section 22 of the Act required the appellant to give the respondent certain documents within one month after giving notice of claim. In the case of documents coming into the appellant’s possession later, such documents had to be given within seven days after coming into the appellant’s possession.
Section 27 required the respondent, likewise, to deliver such documents to the appellant and within the same period. In the appellant’s case, such documents were served on various dates from 26 July 2019 onwards. The service of those documents appears in each case to have been made promptly and within the seven day period stipulated. The respondent has not delivered any documents.
Section 20 of the Act required the respondent to take certain steps within six months of receipt of the notice of claim. These include taking reasonable steps to inform himself about the incident that gave rise to the claim, to give notice whether the claim is admitted or denied, to make a fair and reasonable estimate of damages to which the claimant would be entitled, and to make a written offer of settlement. On 17 January 2019, the respondent’s solicitors wrote to say that the respondent denied liability, but their client did not comply with any of the other obligations imposed by s 20. On 9 October 2019, the respondent’s solicitors informed the appellant’s solicitors that they no longer had instructions to act. By 19 December 2019, the respondent had been given the appellant’s Centrelink file, his tax documents, hospital records, the records of his treating doctor, and the report of an orthopaedic surgeon and of a psychiatrist.
Section 36 of the Act requires the parties to have a conference to attempt to settle the claim. Such a conference is a pre-condition for the appellant’s right to commence proceedings. Section 42 provides that such a proceeding “should be started” within 60 days after the conclusion of the compulsory conference. The Court has power to dispense with the holding of a conference and, if it does so, a proceeding should be started within 60 days of that dispensation. Section 42(4) provides that the expiry of the time limit for commencing proceedings does not prevent the claimant from doing so. However, there may be cost consequences and, in addition, the respondent can seek an order fixing a further time limit.
Section 59 is at the heart of this appeal. It provides that if a complying notice of claim has been given before the expiry of the relevant limitation period, as it has in this case, the claimant may start a proceeding even though the period has since expired; relevantly, however, in this case, such a claim may be started only with the Court’s leave. The limitation period in this case ended on 20 October 2019.
On 4 August 2020, the appellant filed an application in the District Court seeking dispensation from holding a compulsory conference and seeking leave to commence proceedings within 60 days of the Court’s order. Judge Long heard the application on 21 August 2020 and dismissed it on 29 January 2021. The appellant now appeals against that order. Judge Long noted that the delay in this case was largely due to inaction on the part of the appellant. That was correct. His Honour also noted the absence of any evidence of prejudice being occasioned to the respondent by reason of the delay. His Honour observed that the denial to the respondent of “his otherwise accrued entitlement to rely on a limitation defence” was an important and weighty consideration. In this connection, his Honour cited Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 and, in particular, the reasons of Justice McHugh about the rationales that underly the establishment of periods of limitation.
These were: (a) the likelihood that evidence will be lost, (b) the sense of oppression of a defendant in allowing an action to be brought long after the circumstances giving rise to it, (c) the desirability of persons being able to arrange their affairs and utilise their resources on the basis that claims may no longer be made, (d) that the public interest requires disputes to be settled as soon as possible.[1] Judge Long concluded that the delay attributable to the appellant and the fact that the respondent was uninsured rendered the respondent’s reliance on the limitation defendant a most weighty factor. Accordingly, his Honour refused relief.
[1]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 552 - 553 per McHugh J.
In my respectful opinion, the reasoning in Brisbane South Regional Health Authority v Taylor is of limited relevance to this application. That case concerned an application for an extension of a limitation period under s 31(2) of the Limitation of Actions Act 1974 (Qld). The respondent, who sought an extension of time, wanted to sue a doctor for damages for negligence in advising that she undergo an operation that had taken place 17 years previously. Liability would largely turn upon the content of conversations between the respondent and the surgeon. At the time, there was no statutory regime of the kind imposed now by the Personal Injuries Proceedings Act 2002 (Qld).
That case, like most cases about s 31 of the Limitation of Actions Act 1974 (Qld), concerned a proceeding that would be commenced long after the limitation period had expired and in circumstances in which the proposed defendant had no reason during the intervening years to suspect that an action would be brought. It is in the context of such a case that Justice McHugh referred to the likelihood of loss of evidence, the sense of oppression that an intended defendant might experience, and the expected arrangement of person’s affairs upon the reasonable assumption that no claims will be made.
The position of an applicant under s 59 of the Act is usually different. Section 59(2) already creates an extension of time in the case of a person who delivers a notice of claim within a period of limitation. This is an automatic extension of, at most, six months after the expiry of the period of limitation. Otherwise, the section confers a general discretion on the Court to extend time. That discretion had been conferred in the context of a statute which creates a regime under which the parties are enjoined to engage in a prompt and comprehensive exchange of all pertinent information. This is very different from the regime under which, in the past, extensions of time have been sought under s 31 of the Limitation of Actions Act 1974 (Qld).
The present case is a paradigmatic example. The allegations of fact concerning the assault which give rise to the claim have all been documented. As it happens, that documentation was to the standard demanded by criminal proceedings. The respondent has admitted the elements of the cause of action in the most solemn way possible by a plea of guilty. The transcript of the sentencing proceedings will probably show that he has also admitted the whole facts of the case concerning liability. The appellant has disclosed all of the relevant materials concerning liability, or at least those which existed before he made the application for an extension of time.
By the terms of the statutory regime, the respondent has been offered the opportunity, which he did not take up, to examine the facts relating to the appellant’s injuries. No more seems left to be done on that score.
In Brisbane South Regional Health Authority v Taylor, Justice McHugh spoke of the effect of delay as causing the “whole quality of justice” to deteriorate.[2] He observed that this deterioration is sometimes palpable, but at other times is not recognisable even by the parties. The imposition of a limitation period is, in this context, a legislative judgment that after the passing of the period, the chance of an unfair trial is sufficiently great to require the termination of the right to sue. Justice McHugh said that it followed that it was for an applicant to show that the justice of the case will best be served by granting an extension. Justice Dawson agreed with Justice McHugh. His Honour said that an applicant for an extension of time must establish that the commencement of an action would not result in a significant prejudice to the proposed defendant. Likewise, Justices Toohey and Gummow said the most important consideration in most cases would be whether a fair trial is possible. Not all applications under s 59 will be made, as in this case, after a comprehensive exchange of information, and in circumstances in which there is apparently no defence to the claim apart from a limitation point.
[2]Brisbane South Regional Health Authority, supra, at 551.
In the present case, the factors which were emphasised by Justice McHugh and which were relied upon by Judge Long are not present. There is no chance that evidence has been lost. The respondent could not reasonably feel any sense of oppression caused by an action being enlivened after he thought that the matter was at an end. Nor could he be taken to have so ordered his affairs in the belief that no claim would be brought against him. In his affidavit in this application, he did not raise any of these factors, but restricted himself to pointing out that he would not have the means to meet the claim. If that is true, it is of little significance. The appellant will have to take his chances on that.
The learned Judge observed that the potential for the appellant to recover damages for negligence from his solicitors was not a matter worthy of speculation. However, his Honour said that the possibility that the appellant could bring such a claim helped in “understanding that absence of the involvement of an insurer for the respondent”. In my respectful opinion, whether or not the appellant could sue his solicitor if an extension of time was refused is entirely irrelevant. The issue is whether it is or is not unfair to the defendant to grant relief. The onus is on the applicant to show that it would not be unfair. The possible liability of a solicitor under a different claim will rarely affect that question.[3]
[3]See Perdis v Nominal Defendant [2004] 2 Qd R 64 at [39] per Mackenzie J.
Further, the insurance position of the proposed defendant is also irrelevant. Whether the damages, if recoverable, are to be borne by the actual defendant or by another party who will indemnify the defendant cannot bear upon the discretion. Either way, somebody loses, who, but for the exercise of the discretion, would not have lost. In this case, the question of insurance was, in my respectful opinion, a red herring anyway because absent proof, I would not accept that insurance would be available to a person to indemnify against a loss caused by the commission of a wilful assault.
In this case, his Honour recognised, in paragraph 22 of his reasons, that there was no relevant prejudice suffered by the respondent and that a fair trial could take place. While his Honour found that a conscientious effort to comply with the Act by the appellant had not been established and that the explanation for delay was somewhat wanting, the evidence supports the conclusion that the appellant had relied on his solicitors and had cooperated with his solicitors to produce the information required by the statute. It follows that any omissions by the appellant’s solicitors should not be visited upon the appellant.
The ground of error in the exercise of discretion has been established and that a substantial injustice will be occasioned to the appellant if relief is not granted.
I will announce the orders:
1.Grant leave to appeal.
2.Appeal allowed.
3.Order 1 of the District Court made on 29 January 2021 be set aside.
4.In respect of the claim by the appellant based upon injuries suffered by him on 21 October 2016, pursuant to section 59(2) of the Personal Injuries Proceedings Act 2002 (“PIPA”), the appellant is permitted to start a proceeding, within 60 days of one of the following events occurring:
(a)The conference being held pursuant to section 36 of the Act and mandatory final offers being exchanged in accordance with section 39 of PIPA; or
(b)In the event of the parties agreeing to dispense with the holding of the conference pursuant to section 36 of PIPA, the date of such agreement; or
(c)In the event of the Court making an order dispensing with the holding of a compulsory conference pursuant to section 36(5)(b) of PIPA, the date of such order.
5.There be no order as to costs.
MULLINS JA: I agree with the President.
BROWN J: I also agree.