Faram v Hensec Pty Limited - [2020] QSC 327

SUPREME COURT OF QUEENSLAND

CITATION:

Faram v Hensec Pty Limited [2020] QSC 327

PARTIES:

KYLE KENNETH FARAM

(Applicant)

v
HENSEC PTY LIMITED TRADING AS TRU SECURITY (ABN 85 601 272 851)

(First Respondent)

AND

KARRAMERE PTY LIMITED TRADING AS PARK RIDGE TAVERN (ABN 68 074 648 936)

(Second Respondent)

FILE NO/S:

BS 10794 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

23 October 2020

JUDGE:

Brown J

ORDER:

The order of the Court is that:

1. The application is dismissed.

2. The applicant pay the respondents’ costs of and incidental to the application.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – where applicant claims to suffer injury as a result of an incident in 2017 – where applicant issues compliant notices of claim within limitation period – where applicant has failed to comply with pre-court procedures under Personal Injuries Proceedings Act 2002 (Qld) – where delay also attributable to respondents – where informal extensions previously granted – whether leave should be granted to extend the limitation period

Personal Injuries Proceedings Act 2002 (Qld), s 59

Folwell v Mayer [2020] QSC 162, cited
Paterson v Leigh[2008] QSC 277, considered
Singh v Hill [2019] QCA 227, cited
Spencer v Nominal Defendant [2008] 2 Qd R 64; [2007] QCA 254, cited

Winters v Doyle [2006] 2 Qd R 285; [2006] QCA 110, considered

COUNSEL:

H Trotter on behalf of the Applicant
B Heath on behalf of the First Respondent

R Myers on behalf of the Second Respondent

SOLICITORS:

Shine Lawyers on behalf of the Applicant
Cartner Newell on behalf of the First Respondent
Clyde & Co on behalf of the Second Respondent

Introduction

Mr Kyle Faram, the applicant, applies for an order pursuant to s 59(2)(b) of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) for leave to commence proceedings in relation to a claim for damages for personal injuries arising out of an incident that occurred on 3 March 2017. The applicant gave the Part 1 Notice of Claim to the first respondent in January 2018[1] and the second respondent in February 2019. The statutory limitation period for bringing an action for damages for personal injuries expired on 3 March 2020. The limitation period has been informally extended by the parties as a result of agreements between the parties on two occasions. On the last occasion, it was agreed to extend the limitation period until 30 October 2020. As a result of the parties not being able to reach a further agreement to informally extend time, the applicant filed an application seeking an order whereby the applicant will be given leave to commence proceedings in relation to the claim to occur within 60 days of one of the following events occurring, namely:
(a)A conference being held on or before 23 October 2021 pursuant to s36(1) of PIPA…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Faram v Hensec Pty Limited

Details

AGLC: Faram v Hensec Pty Limited [2020] QSC 327
Case: [2020] QSC 327
Decision Date: 29 October 2020

CaseChat Overview and Summary

The case of Faram v Hensec Pty Limited involved an applicant who claimed to have suffered injury as a result of an incident that occurred in 2017. The applicant issued compliant notices of claim within the limitation period, but had failed to comply with pre-court procedures under the Personal Injuries Proceedings Act 2002 (Qld). The delay in complying with these procedures was also attributable to the respondents, and the applicant had previously been granted informal extensions. The court was required to decide whether leave should be granted to extend the limitation period under section 59 of the Personal Injuries Proceedings Act 2002.

The court considered the purpose of section 59, which was to ensure that claimants with good cases could have their claims fairly tried, despite the need to comply with the Act. The court noted that the reason for delay was an important consideration, but not the only consideration, in deciding whether to grant an extension of time. Other relevant factors included the length of delay, lack of diligence in prosecuting the claim, diminished prospects of a fair trial, and the potential denial of a complete defence to the respondent. The court held that the applicant had not shown good reason for the delay, and therefore dismissed the application and ordered the applicant to pay the respondents' costs of and incidental to the application.

In summary, the court considered the purpose of section 59 of the Personal Injuries Proceedings Act 2002, which was to ensure that claimants with good cases could have their claims fairly tried, despite the need to comply with the Act. The court noted that the reason for delay was an important consideration, but not the only consideration, in deciding whether to grant an extension of time. The court held that the applicant had not shown good reason for the delay, and therefore dismissed the application and ordered the applicant to pay the respondents' costs of and incidental to the application.

Orders

Orders of the court

The order of the Court is that:

1. The application is dismissed.

2. The applicant pay the respondents’ costs of and incidental to the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Section 59 of PIPA provides as follows: “59 Alteration of 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 part 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 part 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, part 3, this section applies to the period of limitation as extended under that part.” Whether or not leave is granted depends upon the exercise of the discretion of the Court. Keane JA in Spencer v Nominal Defendant[2] stated in relation to the equivalent provision in s 57 of the Motor Accident Insurance Act 1994 (Qld) which is the equivalent provision to s 59 PIPA that[3]:“This Court's decision in Winters v Doyle & Anor6 confirmed the view in Morrison-Gardiner v Car Choice Pty Ltd & Anor7 that the discretion conferred by s 57(2)(b) was created to ameliorate the position for claimants who experience difficulty in complying with the technical requirements of the Act within the limitation period prescribed by the Limitation of Actions Act so that claims can be determined fairly on their merits. Section 57(2)(b) of the Act cannot be regarded as standing free of the considerations which explain its presence in the Act. These considerations serve to inform the proper exercise of the discretion. If a person who seeks the exercise of the discretion conferred by s 57(2)(b) of the Act were not required to show good reason why that should occur in terms of the exigencies of the Act, the limitations upon the grant of an extension of the limitation period contained in Pt 3 of the Limitation of Actions Act would be written out of the law in any case of a motor vehicle claim where a notice of claim was given under the Act. That is not an intention which can sensibly be attributed to the legislature.”[2][2007] QCA 254.[3]At [11]. However Keane JA also stated that:“As the decisions of this Court confirm, the reason for delay is one, albeit an important one, of the considerations bearing upon the determination of whether good reason has been shown to exercise the discretion conferred by s 57(2)(b) in favour of the grant of an extension of time. That discretion is conferred to ensure that the need to comply with the Act does not prevent a claimant with a good case from having that case fairly tried. In the light of this appreciation of the purpose of s 57(2)(b), the considerations which bear upon the proper exercise of the discretion can be fairly readily discerned. Considerations other than the need to comply with the Act which will usually be relevant in this regard are the length of delay, whether there has been a general lack of diligence in the prosecution of the claim, whether the prospects of a fair trial of the claim have been diminished, and the circumstance that the exercise of the discretion is apt to deny the respondent a complete defence to the claim. The weight to be accorded to these considerations in any particular case is a matter for discretionary assessment.

CITATION:	Faram v Hensec Pty Limited [2020] QSC 327
PARTIES:	KYLE KENNETH FARAM (Applicant) v HENSEC PTY LIMITED TRADING AS TRU SECURITY (ABN 85 601 272 851) (First Respondent) AND KARRAMERE PTY LIMITED TRADING AS PARK RIDGE TAVERN (ABN 68 074 648 936) (Second Respondent)
FILE NO/S:	BS 10794 of 2020
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	29 October 2020
DELIVERED AT:	Brisbane
HEARING DATE:	23 October 2020
JUDGE:	Brown J
ORDER:	The order of the Court is that: 1. The application is dismissed. 2. The applicant pay the respondents’ costs of and incidental to the application.
CATCHWORDS:	LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – where applicant claims to suffer injury as a result of an incident in 2017 – where applicant issues compliant notices of claim within limitation period – where applicant has failed to comply with pre-court procedures under Personal Injuries Proceedings Act 2002 (Qld) – where delay also attributable to respondents – where informal extensions previously granted – whether leave should be granted to extend the limitation period Personal Injuries Proceedings Act 2002 (Qld), s 59 Folwell v Mayer [2020] QSC 162, cited Paterson v Leigh[2008] QSC 277, considered Singh v Hill [2019] QCA 227, cited Spencer v Nominal Defendant [2008] 2 Qd R 64; [2007] QCA 254, cited Winters v Doyle [2006] 2 Qd R 285; [2006] QCA 110, considered
COUNSEL:	H Trotter on behalf of the Applicant B Heath on behalf of the First Respondent R Myers on behalf of the Second Respondent
SOLICITORS:	Shine Lawyers on behalf of the Applicant Cartner Newell on behalf of the First Respondent Clyde & Co on behalf of the Second Respondent