Ewan v Miskin Hill CTS 29107
[2024] QSC 306
•13 December 2024
SUPREME COURT OF QUEENSLAND
CITATION: Ewan v Miskin Hill CTS 29107 & Anor [2024] QSC 306 PARTIES: KIM DENISE EWAN (applicant) v
MISKIN HILL CTS 29107
(ABN 50 939 557 584)(first respondent)
ANDAD BODY CORPORATE MANAGEMENT PTY LTD
TRADING AS A.D. BODY CORPORATE MANAGERS
& CONSULTANTS
(ABN 70 010 452 212)(second respondent) FILE NO: 14641 of 2024 DIVISION: Trial Division PROCEEDING: Application ORIGINATING Supreme Court at Brisbane COURT: DELIVERED ON: 13 December 2024 DELIVERED AT: Brisbane HEARING DATE: 12 November 2024 JUDGE: Sullivan J ORDER: The Court makes the following declarations:
1. Pursuant to s 13 of the Personal Injuries Proceedings Act 2002 (Qld), the respondent is conclusively presumed to be satisfied that the Part 1 notice of claim served by the applicant on 30 July 2024 is compliant; and
2. Pursuant to s 20(1)(b) of the Personal Injuries
Proceedings Act 2002 (Qld), the second respondent’s
response is to be provided on or before 30 January
2025.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – where the first respondent served a
contribution notice under the Personal Injuries Proceedings Act on the second respondent – where the applicant served a Part 1 notice on the second respondent under the Act – where
the second respondent submits that the contribution notice was served out of time – where the second respondent submits that, as a result, the applicant’s attempt to add the second respondent to the claim did not comply with the Act – where the time limitation for the applicant to commence personal injuries proceedings expires on 4 March 2025 - whether the second respondent has properly been made a respondent to the claim.
s 12, s 13, s 14, s 16, s 18, s 20
Personal Injuries Proceedings Act 2002 (Qld) s 4, s 9, s 10, r 7, r 8, r 9
COUNSEL: G Thomas for the applicant
D R McCulloch (sol) for the first respondent
R Varshney for the second respondentSOLICITORS: Smith’s Lawyers for the applicant HBM Lawyers for the first respondent
Herdlaw - The Body Corporate Lawyers for the secondrespondent
My approach to these reasons will be: first, to set out the relevant legislation;
secondly, to set out a chronology of facts; thirdly, to briefly set out the parties’
contentions; fourthly, to answer the real questions identified above; and fifthly, to
state my conclusion and the orders to be made.Relevant legislation and regulations
The following sections from the PIP Act are relevant:
“4 Main purpose
(1) The main purpose of this Act is to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury.
(2) The main purpose is to be achieved generally by—
(a)
providing a procedure for the speedy resolution of claims for damages for personal injury to which this Act applies; and
(b)
promoting settlement of claims at an early stage wherever possible; and
(c)
ensuring that a person may not start a proceeding in a court based on a claim without being fully prepared for resolution of the claim by settlement or trial; and
(d)
putting reasonable limits on awards of damages based on claims; and
(e) minimising the costs of claims; and (f) regulating inappropriate advertising and touting; and (g)
establishing measures directed at eliminating or reducing the practice of giving or receiving consideration for a claim referral or potential claim referral, or soliciting or inducing a claimant to make a claim, in contravention of this Act.
…
9 Notice of a claim
(1) Before starting a proceeding in a court based on a claim, a claimant must give written notice of the claim, in the approved form, to the person against whom the proceeding is proposed to be started.
(1A)The approved form must provide for the notice to be in 2 parts, namely part 1 and part 2.
(1B)The approved form may provide that some or all information included in the notice be verified by statutory declaration.
(2) The notice must—
(a)
contain a statement of the information required under a regulation; and
(b)
authorise each of the following to have access to records and sources of information relevant to the claim specified under
a regulation—
(i) the person; (ii) if the person is insured against the claim, the person’s insurer for the claim; and
(c) if a law practice is retained by the claimant to act in relation to the claim and section 9A does not apply in relation to the claim—be accompanied by—
(i)
a copy of the law practice certificate for the claim given under section 8C by the supervising principal of the law practice; and
(ii) if the claimant has received a copy of a law practice certificate for the claim under section 8F(2)(b)—the
copy of the certificate; and
(d) be accompanied by the documents required under a regulation.
(2A)A regulation may require information or other material to accompany a particular part of a notice of a claim.
(3) Part 1 of the notice must be given within the period ending on the earlier of the following days—
(a) the day 9 months after the day the incident giving rise to the personal injury happened or, if symptoms of the injury are not immediately apparent, the first appearance of symptoms of the injury; (b) the day 1 month after the day the claimant first instructs a law practice to act on the person’s behalf in seeking damages
for the personal injury and the person against whom the
proceeding is proposed to be started is identified.
…
(5) If part 1 of the notice is not given within the period prescribed under subsection (3) or section 9A(9)(b), the obligation to give the notice under subsection (1) continues and a reasonable excuse for the delay must be given in part 1 of the notice or by separate notice to the person against whom the proceeding is proposed to be started.
…
(7) If a proceeding based on a claim may be started against 2 or more persons, the person to whom part 1 of a notice of a claim is given must, within the period prescribed under a regulation or, if no
period is prescribed, within 1 month after receiving it—
(a)
give a copy of it to each other person known to the person who may be a person against whom a proceeding might be started by the claimant based on the claim; and
(b)
advise the claimant of each other person to whom a copy of it has been given and give the claimant a short statement of
the person’s reasons for considering the other person may be
a person against whom a proceeding might be started based
on the claim.
(7A)Subsection (7)(a) does not require the person (the first person) to whom part 1 of the notice is given by a claimant to give a copy of it to another person if the claimant has advised the first person in writing that the claimant has given, or will give, a copy of it to the other person.
…
10 Person to whom notice of a claim is given must give preliminary response to claimant
(1) A person to whom part 1 of a notice of a claim is given must, in writing and within the period prescribed under a regulation or, if no period is prescribed, within 1 month after receiving part 1 of
the notice—
(a) if the person considers that the person is a proper respondent to the claim, give notice to the claimant under section 12; or (b) if the person is unable to decide on the information contained in part 1 of the notice whether or not the person is a proper respondent to the claim, advise the claimant of the further information the person reasonably needs to decide whether the person is a proper respondent to the claim; or (c) if the person considers that the person is not a proper respondent to the claim, give the claimant, in writing—
(i)
reasons why the person considers the person is not a proper respondent to the claim; and
(ii)
any information the person has that may help the claimant to identify a proper respondent to the claim.
Maximum penalty—100 penalty units.
(2) If the claimant is advised of the need for further information under subsection (1)(b), the claimant must—
(a)
give the person the information the person reasonably needs to decide whether the person is a proper respondent to the claim; or
(b)
advise the person, in writing, that the claimant considers the person to be a proper respondent to the claim and require the person to give notice to the claimant under section 12.
(3) After being given information under subsection (2)(a), the person must, having regard to the information given to the person—
(a) if the person considers that the person is a proper respondent to the claim, give notice to the claimant under section 12; or (b) if the person considers that the person is not a proper respondent to the claim, give the claimant, in writing—
(i)
reasons why the person believes the person is not a proper respondent to the claim; and
(ii)
any information the person has that may help the claimant to identify a proper respondent to the claim.
Maximum penalty—100 penalty units.
(4) If the person advises the claimant that the person considers the person is not a proper respondent to the claim, the claimant must
advise the person, in writing, that—
(a) on the information available to the claimant, the claimant accepts the person is not a proper respondent to the claim; or (b) the claimant considers the person to be a proper respondent to the claim and requires the person to give notice to the claimant under section 12.
(5) Advice given to a person under subsection (4)(a) does not prevent the claimant from giving the person another part 1 of a notice of a claim under section 9 at a later time.
…
12 Respondent’s response to part 1 of a notice of a claim
(1) This section applies to a person (respondent) to whom part 1 of a notice of a claim is given under this division or purportedly under
this division and who—
(a) considers himself, herself or itself to be a proper respondent to the claim; or (b) is given notice under section 10(2)(b) or (4)(b) that the claimant considers the person to be a proper respondent to the claim.
(2) The respondent must, within the prescribed period, give the claimant written notice—
(a)
stating whether the respondent is satisfied that part 1 of the notice is a complying part 1 notice of claim; and
(b)
if the respondent is not satisfied, identifying the noncompliance and stating whether the respondent waives compliance with the requirements; and
(c)
if the respondent does not waive compliance with the requirements, allowing the claimant a reasonable period, of at least 1 month, specified in the notice either to satisfy the respondent that the claimant has in fact complied with the requirements or to take reasonable action specified in the notice to remedy the noncompliance.
(3) If the respondent is not prepared to waive compliance with the requirements in the first instance, the respondent must, within 1 month after the end of the period specified under subsection (2)(c),
give the claimant a written notice—
(a) stating that the respondent is satisfied the claimant has complied with the relevant requirements, is satisfied with the action taken by the claimant to remedy the noncompliance, or waives the noncompliance in any event; or (b) stating that the respondent is not satisfied that the claimant has taken reasonable action to remedy the noncompliance, and giving full particulars of the noncompliance and the claimant’s failure to remedy it.
…
13 Consequences for respondent of failure to respond to part 1 of a notice of a claim
If a claimant gives part 1 of a notice of a claim under this division or purportedly under this division to a person against whom a proceeding is proposed to be started, and the person does not respond to it under section 10 or 12 within the prescribed period under the section, the person is conclusively presumed to be satisfied it is a complying part 1 notice of claim.
14 Claimant may add other respondents
(1) A claimant may, within the time prescribed under a regulation, add someone else as a respondent by giving the person—
(a) part 1 of a notice of a claim mentioned in section 9; and (b)
copies of other documents given to or received from any other respondent under this Act.
(2) If the time prescribed under subsection (1) for adding a respondent
has ended, the claimant may add someone else as a respondent
only with the person’s agreement and the agreement of the parties
or with the court’s leave.
(3) If a claimant adds someone as a respondent under this section—
(a)
the person must respond to part 1 of the notice as if it were given under section 9; and
(b)
the claimant must notify each other party of the addition by written notice within the time prescribed under a regulation.
…
16 Respondent may add other person as contributor
(1) A respondent who receives a complying part 1 notice of claim may, within the time prescribed under a regulation, add someone else as a contributor for the purposes of this part by giving the
person a written notice (contribution notice)—
(a) claiming an indemnity from, or contribution towards, the respondent’s liability; and
(b)
stating the grounds on which the respondent holds the person liable; and
(c)
stating any other information that may be prescribed under a regulation; and
(d)
accompanied by copies of documents about the claim given to or received from any other party under this Act.
(2) If the time prescribed under subsection (1) for adding a contributor
has ended, a respondent may add someone else as a contributor
only with the person’s agreement and the agreement of the parties
or with the court’s leave.
(3) If a respondent adds someone as a contributor under this section, the respondent must give a copy of the contribution notice to each other party within the time prescribed under a regulation.
Maximum penalty for subsection (3)—50 penalty units.
…
18 Claimant’s failure to give part 1 of a notice of a claim
(1) A claimant’s failure to give a complying part 1 notice of claim prevents the claimant from proceeding further with the claim
unless—
(a) the respondent to whom part 1 of a notice of a claim was purportedly given—
(i) has stated that the respondent is satisfied part 1 of the notice has been given as required or the claimant has taken reasonable action to remedy the noncompliance; or (ii) is conclusively presumed to be satisfied it is a complying part 1 notice of claim under section 13; or (b) the respondent has waived compliance with the requirement; or (c) the court, on application by the claimant—
(i) declares that the claimant has remedied the noncompliance; or (ii) authorises the claimant to proceed further with the claim despite the noncompliance.
(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.
…
20 Respondent must attempt to resolve claim
(1) Within the period prescribed under a regulation or, if no period is prescribed, within 6 months after a respondent receives a
complying part 1 notice of claim, the respondent must—
(a) take reasonable steps to inform himself, herself or itself about the incident alleged to have given rise to the personal injury to which the claim relates; and (b) give the claimant written notice stating—
(i) whether liability is admitted or denied; and (ii) if contributory negligence is claimed, the degree of the contributory negligence expressed as a percentage; and (c) if the claimant made an offer of settlement in part 2 of the notice of a claim, inform the claimant whether the respondent accepts or rejects the offer, or if the claimant did not make an offer of settlement in part 2 of the notice, invite the claimant to make a written offer of settlement; and (d) make a fair and reasonable estimate of the damages to which the claimant would be entitled in a proceeding against the respondent; and (e) make a written offer, or counter offer, of settlement to the claimant setting out in detail the basis on which the offer is made, or settle the claim by accepting an offer made by the claimant.
(2) If part 1 of a notice of a claim is not a complying part 1 notice of claim, a respondent is taken to have been given a complying part 1
notice of claim when—
(a)
the respondent gives the claimant notice that the respondent waives compliance with the requirement that has not been complied with or is satisfied the claimant has taken reasonable action to remedy the noncompliance; or
(b)
the court makes a declaration that the claimant is taken to have remedied the noncompliance, or authorises the claimant to proceed further with the claim despite the noncompliance.
(3) An offer, or counter offer, of settlement must be accompanied by a copy of medical reports, assessments of cognitive, functional or vocational capacity and all other material, including documents
relevant to assessing economic loss, in the offerer’s possession
that may help the person to whom the offer is made make a proper
assessment of the offer.
(4) A respondent or claimant to whom a written offer, or counter offer, of settlement is made must, unless a response to the offer is to be made under subsection (1)(c), respond in writing to the offer within the period prescribed under a regulation or, if no period is prescribed, within 3 months after receiving it, indicating acceptance or rejection of the offer.
(5) An admission of liability by a respondent under this section—
(a)
is not binding on the respondent in relation to any other claim; and
(b)
is not binding on the respondent at all if it later appears the admission was induced by fraud.
…”
The PIP Regulation relevantly provides as follows:
“6 Notice of a claim—prescribed period for Act, s 9(7) For section 9(7) of the Act, the period prescribed is the period ending on the later of the following days—
(a) the day 1 month after the person receives part 1 of the notice of claim; (b) the day 7 days after the person identifies another person against whom a proceeding might be started by the claimant based on the claim. 7 Claimant may add other respondents—Act, s 14 (1) For section 14(1) of the Act, the time prescribed within which a claimant may add someone else as a respondent is the later of the
following days—
(a)
if applicable, the day by which part 1 of a notice of a claim must be given by the claimant under section 9(3) or 9A(9)(b) of the Act;
(b)
the day 1 month after the claimant receives information under section 10(1)(c)(ii) of the Act;
(c)
the day 1 month after the claimant receives a copy of a contribution notice given to the claimant under section 16(3) of the Act.
(2) For section 14(3)(b) of the Act, the time prescribed is 7 days.
8 Respondent may add other person as contributor—Act, s 16
(1) For section 16(1) of the Act, the time prescribed is the later of the following—
(a)
3 months after the respondent receives part 1 of the notice of a claim under section 9 of the Act;
(b)
7 days after the respondent identifies someone else as a contributor.
(2) For section 16(3) of the Act, the time prescribed is 7 days.
9 Contributor’s response—Act, s 17(1)(a)
For section 17(1)(a) of the Act, the contributor’s response must state the following—
(a) the contributor’s full name; (b) the contributor’s business address; (c) the contributor’s postal address; (d) the name and contact details of the contributor’s legal representatives, if appointed;
(e) the contributor’s ABN, if any; (f) if the contributor is a corporation—
(i) the corporation’s ACN; and (ii) the corporation’s registered office.”
Chronology of facts
On 4 March 2022, the applicant is said to have suffered the injury from a slip and fall.
On 13 September 2023, the applicant served a Part 1 Notice of Claim (“Part 1 notice”) on the first respondent.
On 15 July 2024, the first respondent served a contribution notice on the second respondent.
On 30 July 2024, the applicant served a Part 1 notice on the second respondent.
On 27 August 2024, the second respondent’s solicitors sent an email to the applicant’s solicitors and the first respondent’s solicitors stating that the contribution notice had been served out of time and therefore the applicant’s attempt to add the second
respondent was not in compliance with s 14(1) of the PIP Act.
On 29 August 2024, the applicant sent an email to the second respondent’s solicitors
stating that the Part 1 notice had been validly served under s 14(1) of the PIP Act.
On 30 August 2024, the second respondent’s solicitors sent an email to the applicant’s solicitors and the first respondent’s solicitors stating, amongst other things, that as the
second respondent had not been added as a respondent due to the invalid contribution notice, the second respondent would not be responding to the Part 1 notice which had been served on it.
On 4 March 2025, the time limit for the applicant to commence a personal injuries proceeding expires.
Contentions of the parties
(a) the applicant’s contentions
The applicant contends that the Part 1 notice had been validly served pursuant to s 14(1) of the PIP Act and r 7(1)(b) of the PIP Regulation, so as to make the second respondent a respondent, in addition to the first respondent.
This is said to be the case because the first respondent had served a contribution notice pursuant to s 16(1) within the statutory time limit provided for in r 8(1)(b), so that the applicant was then empowered under s 14 and r 7 to add the second respondent as a respondent.
In the alternative, the applicant contends that even if the contribution notice was served out of time by the first respondent, s 14(1) and r 7(1)(c) still empowered the applicant to add the second respondent as a respondent by the service of a Part 1 notice.
Finally, and as a second alternative position, the applicant contends that even if the second respondent had not been added as a respondent by way of s 14(1), the service of the Part 1 notice separately made the second respondent a respondent by way of ss 9(1) and 9(5). The applicant further contends that the second respondent then failed to make the response required under s 10. In the absence of such a response, the applicant submits that by operation of s 13, the second respondent is conclusively presumed to be satisfied that the Part 1 notice which has been served is a complying Part 1 notice.
The applicant submits that as a result of one of these three bases, the second
respondent is a respondent to a claim and the second respondent’s s 20 response is
therefore due on 30 January 2025.
(b) the second respondent’s contentions
The second respondent contends that the purported contribution notice served by the first respondent on the second respondent was served beyond the time limit provided for by s 16(1) of the PIP Act and r 8(1) of the PIP Regulations. This failure to serve in time was said to have resulted in the second respondent not becoming a contributor. As a result, the second respondent contended that the applicant had no power under s 14(1) of the PIP Act and r 7(1)(c) of the PIP Regulations to add it as another
respondent without first obtaining the second respondent’s agreement or the leave of the Court. As neither an agreement nor the Court’s leave has been obtained, the
second respondent submits that it has not been added as a respondent.
Further, the second respondent submits that the Part 1 Notice could not be treated as an operative Part 1 notice as it was served:
(a) beyond the time limit referred to in s 9(3) of the PIP Act; and (b)
without the statement required by s 9(5) of the PIP Act, either in the Part 1 notice or in another document.
(c) The first respondent’s contentions
The first respondent expressed no meaningful contentions of any nature at the hearing.
Did the first respondent issue a valid contribution notice, pursuant to s 16 of the
PIP Act so as to add the second respondent as a contributor?
I turn then to the first question.
The starting point for this question is a consideration of the first respondent’s conduct
in issuing a contribution notice.
Section 16 of the PIP Act allows for a respondent who has received a complying Part 1 notice to add someone as a contributor by way of the service of a contribution notice within the time prescribed under the regulations. Regulation 8 sets the time limit for the sending of the contribution notice. Relevantly, it is either three months after the date the respondent receives a Part 1 notice, or alternatively, seven days after the respondent identifies someone else as a contributor.
In this case, the first respondent’s contribution notice to the second respondent was
served well after the three month period. Accordingly, the contribution notice had to be served within seven days of the first respondent identifying the second respondent as a contributor.
I pause to note that the applicant brought this proceeding by way of an originating application and seeks final relief in the form of declarations. The hearing of the originating application was therefore a final hearing in which the applicant bears the onus of proof.
The applicant has not led any admissible evidence which could support a finding that the first respondent has served its contribution notice within seven days after the first respondent identified the second respondent as a contributor.
All that is before the Court is a piece of correspondence sent by the first respondent’s
solicitors that asserts as follows:
“…we confirm that your client was identified as a contributor in this
matter on 9 July 2024, when the Administration Agreement - Engagement of a Body Corporate Manager dated 1 July 2021 was produced. After obtaining instructions to add your client as a contributor, we served the notice pursuant to s 16 by registered post
on 15 July 2024.”
That correspondence is, of course, not admissible as to the truth of its content.
Further, the second respondent’s solicitors exhibited to a solicitor’s affidavit minutes
of the Annual General Meeting of the first respondent held on 30 June 2021. These minutes record the engagement of the second respondent pursuant to the 1 July 2021 agreement, a copy of which is attached to the exhibited minutes. That set of minutes was itself not proved in an orthodox fashion, but no objection was made to its receipt into evidence.
Neither the first respondent nor the applicant led any evidence at the hearing to deal with the submission made by the second respondent that the first respondent had knowledge and possession of the 1 July 2021 management agreement well before 9 July 2024 and, therefore, knew the identity of the second respondent as a potential contributor for some significant time before 9 July 2024.
Despite my pointing out to the legal representatives for the applicant and the first respondent that admissible evidence was required to support a finding that the contribution notice was served within time, neither of those parties sought to adduce such evidence or sought an adjournment of the hearing for the purpose of seeking to adduce such evidence.
Accordingly, on the evidence which was led in the proceeding, I am not satisfied that the contribution notice was delivered in the seven day timeframe required by s 16(1) of the PIP Act and r 8(1)(b) of the PIP Regulation.
Section 16(2) of the PIP Act makes plain that if the time prescribed under s 16(1) has ended, then the first respondent may only add someone else as a contributor with that
person’s agreement and the agreement of all other parties, or alternatively, with the
Court’s leave.
The agreement was not forthcoming from the second respondent and the leave of the Court had not been obtained.
Accordingly, I find that the applicant has not proved that the second respondent has
been validly added as a contributor and the answer to the first question is ‘no’.
Can the applicant, having received an invalid contribution notice, still make the second respondent a respondent pursuant to s 14(1) of the PIP Act and r 7(1)(b) of the PIP Regulation?
I turn next to the second question. Section 14(1) of the PIP Act empowers a claimant, within the time prescribed under regulations, to add someone else as a respondent, in addition to the original respondent or respondents. Regulation 7 of the PIP Regulation sets out the prescribed time limits for s 14(1).
Relevantly for this proceeding’s purposes, the time limits are the day by which a
notice of claim must be given under s 9(3)[1], or alternatively a day one month after the claimant receives a copy of a contribution notice given to the claimant under s 16(3).[2] There are two other time limits, however both are irrelevant to this proceeding and can be ignored.
[1] PIP Regulation 7(1)(a).
[2] PIP Regulation 7(1)(c).
There is no suggestion that the applicant served a Part 1 notice on the second respondent within the timeframe set by the first of those two alternatives.
In respect of the second of the alternatives, the reference to the receipt of a copy of a contribution notice should be construed as a reference to an operative contribution notice as contemplated by s 16(3). This is so for the following reasons.
First, s 16(1) only contemplates a contribution notice operating to add somebody else as a contributor if it is given within the prescribed time provided for in the regulations.
Secondly, s 16(2) implicitly operates on the premise that if the contribution notice is not given within the prescribed time, then it is not effective to add a person as a contributor. Section 16(2) provides that what is then needed to add a person as a
contributor is either all parties’ agreement (including that of the person to be added),
or the leave of the Court.
Sections 16(1) and 16(2) provide the only two processes by which an existing respondent can add another person as a contributor.
Thirdly, s 16(3) necessarily operates on the premise that the original respondent has validly added somebody as a contributor under s 16. It is only if that circumstance has occurred that the respondent becomes obliged to give a copy of the contribution notice to each other party within the time prescribed under the regulations.
Fourthly, s 14(1) provides a power for a claimant to add respondents by delivering certain documents, including a Part 1 notice, within certain time limits. These time limits are then found in r 7 of the PIP Regulation. Section 14(2) makes clear that if those documents are not delivered within the prescribed time, then they are not effective to add a person as a respondent pursuant to the s 14(1) power. Section 14(2)
provides that what is then needed to add a person as a respondent is either all parties’
agreement (including that of the person to be added as a respondent), or the leave of
the Court.
Fifthly, s 14(1), read with r 7(1)(c), provides that the time limit for a claimant to add
a party as a respondent to a claim is one month after the claimant “receives a copy of a contribution notice given to the claimant under s 16(3) of the PIP Act”.[3][3] Underlining added.
A contribution notice is only given under s 16(3) if the other person has been validly made a contributor under ss 16(1) or (2). Section 14, and r 7(1)(c) ought to be construed as providing no power to a claimant to add a person as respondent, if the other person has not been validly added as a contributor under s 16(1) or (2) so as to engage the operation of s 16(3).
As I am not satisfied that the first respondent validly added the second respondent as a contributor, I find the first respondent was not obliged by s 16(3) of the PIP Act to give a contribution notice to the applicant. As the contribution notice given to the
applicant was not thereby given “under s 16(3) of the PIP Act”, r 7(1)(c) was simply
not available to be engaged, and the applicant was not, therefore, empowered pursuant
to s 14(1) and r 7(1)(c) to add the second respondent as a respondent.
Accordingly, the answer to the second question is ‘no’.
Is the service of the Part 1 notice effective to make the second respondent a respondent to a claim by the operation of ss 9, 10 and 13 of the PIP Act?
I turn then to the third question.
The starting point is to observe that s 9(1) of the PIP Act does not expressly limit the number of written notices of claim which can be given to different people under that section. Whilst there may be a single written notice of claim given under s 9(1) of
the PIP Act, to which a claimant later adds another person as a “respondent”, s 9(1)
would also allow for two or more notices of claim to be given to various persons at different times. Construing s 9(1) to allow the giving of two or more notices of claim would be consistent with the purposes in s 4(2)(a), (b) and (c) by providing flexibility to claimants as to how the subsequent pre-proceeding processes are engaged with.[4] Flexibility is also important where the s 9(1) notice obligation is a road block to commencing court proceedings and the identity of potential respondents may emerge at a variety of different times and under a variety of different circumstances.
[4] Those pre-proceeding processes include provisions designed to operate so as to identify other potential respondents, and to encourage and facilitate attempts at settlement.
Section 9(1) provides that before a court proceeding can be started against an individual based on a claim, a claimant must give written notice of that claim to the relevant person against whom the proceeding is proposed to be started.
Section 9(3) sets an initial timeframe within which a Part 1 notice of claim must be given. In the circumstances of this case, that s 9(3) time period had expired prior to the service of a Part 1 notice by the applicant on the second respondent.
However, s 9(5) provides that if a Part 1 notice is not given within the s 9(3) timeframe, a claimant is still obliged to give a Part 1 notice. Section 9(3) goes on to provide that in addition to the continuing obligation to give the relevant Part 1 notice, a reasonable excuse for the delay must be given in the Part 1 notice, or by separate notice, to the person against whom the proceeding is proposed to be started.
Here, a Part 1 notice was given, but it was not accompanied by a written statement of a reasonable excuse, either in the Part 1 notice or by a separate document. In that respect, there was a non-compliance with the obligation contained in s 9(5) to give such a notice.
I have concluded that the Part 1 notice was not invalid merely because a statement of reasonable excuse was not given within the Part 1 notice or in a separate document. My reasoning for this is as follows.
First, s 9 of the PIP Act is a part of a suite of interconnecting provisions. Section 9 is followed by s 10, which imposes an obligation on a recipient of a Part 1 notice to identify:
(a) that a respondent regards itself as a proper respondent; (b)
that a respondent is unable to regard itself as a proper respondent because of a lack of information, and in that circumstance, to then make a request for further information to assist it in making the decision; and
(c)
that a respondent regards itself as not being a proper respondent, and in that circumstance, to then provide reasons as to why that is the case, together with the provision of information so as to help the claimant identify a proper respondent to the claim.
No express words are found in s 9(5), or indeed s 9 generally, which provide for the obligation found in s 10(1) to be suspended or to become inoperative if the reasonable excuse has not been provided in writing pursuant to s 9(5). There is, however, good reason why that s 10(1) obligation ought to be construed as continuing to be operative. This is because ss 9 and 10 of the PIP Act are part of a larger set of sections which are designed to assist a claimant to identify relevant respondents to a claim as part of seeking to facilitate the early and efficient resolution of the claim prior to the institution of court proceedings. The imposition of the obligation found in s 10, and its activation on receipt of a Part 1 notice, is of central importance to the promotion of the purposes of the PIP Act, as identified in ss 4(1), and 4(2)(a), (b) and (c). A suspension or cancellation of the operation of the response obligation in s 10(1) would be inconsistent with these purposes.
Secondly, this continued operation of the obligation of s 10(1) is reinforced by the content of s 12. Section 12 applies to a person who has received what is described as
a Part 1 notice given under the division or given “purportedly under this division”. The reference to the Part 1 notice being given “purportedly under the division” clearly
indicates that there will be Part 1 notices which are non-compliant with the requirements contained in the division. One such non-compliance would be non- compliance with s 9(5) of the PIP Act by failing to give, within the Part 1 notice itself or via a separate document, a written reasonable excuse for not having served the Part 1 notice within the s 9(3) time limit.
Thirdly, I note the second respondent’s submission that s 10(1) should be construed
as only operating in respect of a compliant Part 1 notice. That submission was made
on the basis that the words “given…purportedly under this division”, or words of
similar meaning, do not appear in s 10, in contrast to s 12.
This submission must be rejected.
It is clear that s 10(1) is also intended to operate in respect of a non-compliant Part 1 notice. This is because the Part 1 notices referred to in s 12 of the PIP Act (being ones which can either be compliant or non-compliant with the division) are one and the same Part 1 notices referred to in s 10. Section 12 has a sequential operation to s 10. Accordingly, s 10 must necessarily operate in respect of non-compliant Part 1 notices, which are then expressly the subject of the operation of the subsequent s 12.
As referred to above, s 12 expressly operates in respect of compliant and non- compliant Part 1 notices. It imposes an obligation on a person who has received a Part 1 notice, and who is within an identified sub-set of persons dealt with under s 10, to then respond in one of three ways, namely:
(a)
to state in writing that the respondent is satisfied the Part 1 notice is a complying Part 1 notice;
(b)
to state in writing that the respondent is not satisfied the Part 1 notice is a complying Part 1 notice, identifying the non-compliance and stating whether the respondent waives compliance with the requirements; or
(c)
if the respondent does not waive compliance with the requirements, to allow the claimant a reasonable period of at least one month to either satisfy the respondent that the claimant has, in fact, complied with the requirements, or to take reasonable action to remedy non-compliance.
Accordingly, in light of the above operations of the PIP Act, the service of the Part 1 notice on the second respondent imposed the s 10 response obligation on to the second respondent. This obligation was imposed, despite the Part 1 notice not complying with the division due to the failure of the applicant to state the reasonable excuse in the Part 1 notice or in another document, as required by s 9(5) of the PIP Act.
Here, having reviewed the evidence before me, I find the second respondent failed to respond in accordance with s 10(1) of the PIP Act.
The document which was relied by the second respondent in oral submissions as purportedly complying with the response obligation in s 10(1), was a 30 August 2024 email sent by the solicitors for the second respondent to the solicitors for the applicant. That email addressed the argument which had been previously made by the applicant that there had been valid service of the Part 1 notice because the contribution notice of the first respondent had been given within the requisite timeframe required by the PIP Act and PIP Regulation. The email re-stated the
second respondent’s position that there had been no valid contribution notice, and,
accordingly, the applicant was not entitled to serve a Part 1 notice on the second
respondent without its agreement or the leave of the Court. The email then stated:“…We can point out that we have examined your clients claim in the
Part 1 and we are of the view that the details of the alleged incident is at odds with the contemporaneous from your client. Given your client has sworn a statutory declaration she should be given the appropriate caution in this regard.
In the meantime until there has been compliance with the Act our client does not propose to respond to your clients Part 1 as the service
of same is not compliance [sic] with the Act…”
None of those statements in the email constituted the response obligated to be made by s 10(1) of the PIP Act. Indeed, the last statement in the email expressly recorded that the second respondent proposed not to respond to the Part 1 notice.
Having failed to respond under s 10 of the PIP Act, s 13 of the PIP Act creates a conclusive presumption to the effect that the second respondent is satisfied that the Part 1 notice is a complying Part 1 notice of claim.
On that basis, the answer to the third question is in the affirmative.
Conclusion and relief
The consequence of answering the third question in the affirmative is that the second respondent will be a respondent to the claim as articulated in the Part 1 notice received by it on 30 July 2024.
The applicant is entitled to the following declarations which it sought:
1.
Pursuant to s 13 of the Personal Injuries Proceedings Act 2002 (Qld), the respondent is conclusively presumed to be satisfied that the Part 1 notice of claim served by the applicant on 30 July 2024 is compliant; and
2. Pursuant to s 20(1)(b) of the Personal Injuries Proceedings Act 2002 (Qld), the second respondent’s response is to be provided on or before 30 January 2025.
I will make those declarations.
I will hear the parties as to costs.
Introduction
The applicant owned a unit in Miskin Street, Toowong. The first respondent is the Community Titles Scheme established for the unit block property. The second respondent is the body corporate management company which had been engaged by the first respondent, via a written agreement dated 1 July 2021.
On 4 March 2022, it is said that the applicant suffered a slip and fall accident in the common area within the unit block. The dispute in this proceeding centres around the claims procedures established in Part 1 Division 1 of the Personal Injuries
Proceedings Act 2002 (Qld) (“PIP Act”). More particularly, the dispute is whether
by way of one or more of the notice provisions in that division, the second respondent
has properly been made a respondent to a claim.
The first question to be asked is, “did the first respondent issue a valid contribution
notice pursuant to s 16 of the PIP Act so as to add the second respondent as a
contributor?”.
If the answer to the first question is ‘no’, then the second question is, “can the
applicant, having received an invalid contribution notice, still make the second respondent a respondent pursuant to s 14(1) of the PIP Act and r 7(1)(b) of the
Personal Injuries Proceedings Regulation 2014 (Qld) (“PIP Regulation”)?”.
If the answer to the second question is ‘no’, then the third question is, “is the service
of the Part 1 notice effective to make the second respondent a respondent to a claim
by the operation of ss 9, 10 and 13 of the PIP Act?”.
If the answer to the third question is ‘no’, then the fourth question is, “is there any
other relief available to make the second respondent a respondent to the claim?”.
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