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

1. 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 and mandatory final offers being exchanged in accordance with s 39(1) of PIPA; or

   (b)The date of the agreement, if the parties dispense with the compulsory conference by agreement pursuant to s 36(4) of PIPA; or

   (c)An order by the court pursuant to s 36(5) of PIPA, dispensing of the compulsory conference.

   [1]A previous notice having been provided to the wrong party who had the same insurer with some delay by the insurer in notifying the applicant that the notice had been provided to the wrong party and who the correct party was.

2. The application is opposed by both respondents.

   Legal Principles

3. 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.”

4. Whether or not leave is granted depends upon the exercise of the discretion of the Court.

5. 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].

6. 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.

7. The decision of McMeekin J in Paterson v Leigh,[4] also in relation to s 57 of the Motor Accident Insurance Act 1994 (Qld), conveniently summarises the relevant principles which apply to the exercise of the discretion on an application such as this:[5]

   [4][2008] QSC 277.

   [5]Referred to with approval in Singh v Hill [2019] QCA 227 at [55] per Flanagan J, Sofronoff P and Gotterson JA agreeing, and recently by Bowskill J in Folwell v Mayer [2020] QSC 162 at [4].

   “(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 to be exercised in his or her favour;

   (c)Where an applicant is able to show that the delay which has occurred was occasioned by a ‘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 a claimant in complying with the Act’s requirements or in applying for an extension of time will be relevant to the exercise of the discretion;

   (f)The length of any 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.”[6] (footnotes omitted)

   [6][2008] QSC 277 at [8].

8. The first respondent opposes the application on the basis that the applicant has not provided evidence upon which the court could conclude it should exercise its discretion in favour of such an extension. In particular it contends that the applicant cannot show that the delays were occasioned by a conscientious effort to comply with the pre-court proceedings under PIPA, for which there is no explanation from the applicant himself. The second respondent adopts a similar approach.

9. Keane JA in Winters v Doyle[7] in relation to the equivalent provision to s 59 of PIPA stated in relation to the applicant providing evidence himself that:[8]

   “It must be borne in mind that the plaintiff is seeking to persuade the court to override a defence otherwise available to the defendant. That is a serious matter. A plaintiff should not shy away from offering his or her own explanation for the delay and allowing that explanation to be scrutinised. It is relevant for the plaintiff to show that the delay which has led to the failure to commence proceedings in time is indeed due to the error of the solicitor upon whom the plaintiff was reliant, and not to the plaintiff's own lack of interest, especially where there are long periods during which, from a respondent's point of view, the action might seem to have "gone to sleep". To that end, it will often be the case that the nature and extent of a client's reliance upon his or her solicitor, and the plaintiff's lack of personal responsibility for the delay which has occurred, can be satisfactorily explained only if the evidence includes an affidavit from the client.”

   [7][2006] 2 Qd R 285.

   [8]At [34].

10. However even if established to be the case that is only one factor to be considered by the Court and does not necessarily mean the applicant fails. In that regard Keane JA in Winters v Doyle also stated that:[9]

    “In the present case, the absence of evidence from the plaintiff himself is an unsatisfactory aspect of the case made in support of the plaintiff's application; but it might not have been fatal. The more serious problem for the plaintiff, it seems to me, is that the explanation for the delay which was given did not identify any significant connection between the requirements of the MAI Act and the delay which occurred. It is to be emphasised that the issue here is not whether the plaintiff may reasonably be excused for having relied upon his solicitor to comply with the requirements of the MAI Act. The issue is whether the delay which occurred was related to compliance with the MAI Act.” (emphasis added)

    [9]At [35].

11. In the present case the applicant’s case is not yet statute barred due to the informal agreement of the parties. The application was brought prior to the expiry of 30 October 2020 which was the informal date agreed between the parties to extend the limitation period. The applicant’s Counsel has quite properly conceded that the applicant has not been diligent in the pursuit of his claim and has caused some delay that is not arising from a conscientious effort to comply with PIPA. However, he contends that other factors favour the Court’s exercise of the discretion sufficient for the applicant to discharge the onus upon. In particular, that there has been delay by the respondents themselves in carrying out steps which they were obliged to carry out under PIPA, there has been significant delay by the Queensland Police Service (QPS) to disclose the their  file in relation to the incident and there is no real prejudice suffered by the respondents.

    Factual circumstances

12. The applicant’s claim arises out of an incident which occurred at the Park Ridge Tavern on 3 March 2017. The applicant claims to have observed some offensive behaviour on the part of other hotel patrons who were sitting at a table not far away from the applicant’s table at about 7.00pm. He claims he moved away from that patrons as he became concerned about the demeanour of the group. There was a verbal exchange between the parties and the applicant claims that one of the males ran at him and struck him before the others from the group started assaulting him. That occurred at approximately 7.45pm. He alleges that an altercation resulted in personal injuries.

13. The first respondent was engaged to provide security services at the licences premises and the second respondent is the proprietor of the licenced premises where the incident occurred. In simple terms, the applicant’s claim against the respondents is that they failed to discharge the duty of care they owed the applicant whilst he was a lawful patron at the licenced premises by failing to provide and deliver effective security services to either avert or contain the incident which precipitated the applicant’s injuries.

14. The applicant attended Logan Hospital that night to receive treatment and diagnosis of his injuries. He suffered a number of injuries including an orbital floor fracture.

15. On 6 March 2017, the attended his general practitioner who noted:

    “Orbital blowout #after altercation … saw Logan … pain shooting L cheek… sees surgeons Wed PAH… says been doing really well… no meds… not seen psych in 6/12… new partner… limits drinking somewhat – has reduced… doing some part time landscaping… looking at moving in with partner.”[10]

    [10]Affidavit of S L Berklin at exhibit SLB13 at [38].

16. The applicant was subsequently referred to the Princess Alexandra Hospital Oral and Maxillofacial outpatient team for review. He attended three appointments in March 2017 and was discharged on 29 March 2017 without surgery being required.

17. The Part 1 Notice of Claim form states that as a result of the incident, the applicant sustained the following injuries:

    (a)Head injury including concussion, loss of consciousness, memory loss, headaches, cognitive deficits;

    (b)Fractured left eye socket;

    (c)Facial nerve damage and numbness;

    (d)Damage to the left eye and double vision;

    (e)Multiple soft tissues injuries, swelling and bruising to the head, face, neck, back, teeth and body;

    (f)Multiple lacerations requiring stitching;

    (g)Psychological symptoms.

    Steps taken in respect of the claim

18. According to the affidavit of Ms Wood, the applicant first contacted Shine Lawyers on or around March 2017, and instructed them to commence a claim for personal injuries in respect of the incident.

19. An unsigned notice of claim was served on Tru Logistics, the security company on or about 19 May 2017. An executed Part 1 Notice of Claim was served on Tru Logistics by a letter dated on or about 22 June 2017. Pursuant to s 13 of the PIPA, there was deemed compliance.

20. On or about 11 October 2017, Proclaim, as claims manager for the public liability insurer of Tru Logistics, acknowledged receipt of the applicant’s Part 1 Notice of Claim form addressed to Tru Logistics. Proclaim advised that Tru Logistics were not a proper respondent to the applicant’s claim and advised that the proper respondent was Hensec Pty Ltd trading as Tru Security. Subsequently on 24 January 2018, a Part 1 Notice of Claim dated 23 January 2018 was served on the first respondent.

21. On or about 8 March 2018, the first respondent confirmed that their insured was the proper respondent to the applicant’s claim and confirmed compliance of the Part 1 Notice of Claim form. On 1 June 2018, the first respondent’s solicitor provided a copy of a s 16 PIPA contribution notice issued against the second respondent. After seeking further information from Proclaim in relation to the incident, Shine Lawyers obtained the applicant’s instructions on or about 29 November 2018 to issue a Part 1 Notice of Claim form on the second respondent.

22. In or around December 2018, Shine Lawyers booked medico-legal appointments for the applicant with: Dr Tomlinson, neurosurgeon; Dr Erzetic, oral and maxillofacial surgeon; and Dr Marianna, neuropsychologist. Shine Lawyers advised the first respondent of the medico-legal appointments that had been booked. Shine Lawyers were, however, unable to contact the applicant to determine his availability to attend the medico-legal appointments and as a result, the appointments were cancelled in or about January 2019.

23. On or about 5 February 2019, Shine Lawyers received the signed Part 1 Notice of Claim form addressed to the second respondent from the applicant and accordingly served it on the second respondent on or about 6 February 2019.

24. On or about 27 February 2019, the second respondent, via their instructed solicitors, Clyde & Co, confirmed that their client was the proper respondent to the applicant’s claim and confirmed compliance with the Part 1 Notice of Claim.

25. On or about 27 February 2019, the second respondent requested copies of documents pursuant to s 22 of PIPA. On or about 3 May 2019, the applicant’s lawyers confirmed that they were sending the disclosure by email.

26. The second respondent gave a contribution notice to the first respondent dated 17 May 2019. Proclaim on behalf of the first respondent issued a contributors response pursuant to s 17(2) of the PIPA by email dated 24 May 2019. On or about 3 July 2019, Clyde & Co on behalf of the second respondent denied liability in respect of the claim and alleged that the applicant was, in any event, 100 percent liable due to contributory negligence.

27. In July 2019, the applicant’s solicitors informed the second respondent that the disclosure required pursuant to s 17 of the PIPA was overdue. On 15 August 2019, the second respondent’s solicitors sent a list of documents to the applicant’s solicitors. The second respondent’s solicitors provided the documents requested by the applicant’s solicitors pursuant to s 27 of the PIPA on 26 November 2019. Further disclosure was requested by the applicant’s lawyers on 3 February 2020.

28. The applicant’s lawyers on 3 February 2020 sought an extension of the limitation period which was due to expire on 3 March 2020. Both respondents agreed to an extension of the limitation period until 30 June 2020.

29. On 30 April 2020, the second respondent’s solicitors sought disclosure from the applicant pursuant to s 22 of the PIPA relating to pensions received by the applicant and further advised the applicant’s solicitors that the second respondent had no further documentation or information to disclose.

30. On 12 May 2020, the applicant’s solicitors requested that the respondents agree to an extension of the limitation period to 30 March 2021. In response to a query from the second respondent’s solicitors as to the need to extend the limitation period, the applicant’s solicitors advised they did not consider the applicant would be in a position to participate in a compulsory conference prior to 30 June 2020 and that the applicant had not been medico-legally assessed. In response to further queries on 27 May 2020 as to why the applicant had not been medico-legally assessed, the applicant’s solicitors by email dated 27 May 2020 advised the applicant had not been assessed as their liability investigations were continuing and upon the finalisation of the same, they would arrange medico-legal assessments of the applicant, although they noted delays due to COVID-19. That was despite the fact that the applicant’s solicitors had previously made medical appointments for the applicant in December 2019. The applicant’s solicitors noted they had requested further material including full records from QPS, which had not yet arrived, and they had received a request from QPS for an extension to provide the relevant material.

1. On 29 May 2020, the second respondent’s solicitors asked why the applicant was only seeking records from the QPS at that stage and how did the liability investigations have any impact on medico-legal assessments, and suggested that they had no bearing on the ability of the applicant to be assessed.

2. On 2 June 2020, the applicant’s solicitors sent a request for consent and draft order for an extension of time, pursuant to s 59(2)(b) of the PIPA.

3. On 2 June 2020, the second respondent advised that it would consent to an order for an informal extension of the limitation period until 30 October 2020, noting the period proposed ought to be sufficient time in which to complete investigations, undertake medico-legal assessments and arrange a compulsory conference. The first respondent also advised that they were agreeable to the extension of time, and the applicant’s solicitors confirmed agreement of an informal extension until 30 October 2020 on 4 June 2020.

4. On 2 July 2020 the first respondent appointed Carter Newell to act on its behalf.

5. The second respondent’s solicitors sought a response to the question of a medico-legal assessment raised on 30 April 2020, notwithstanding the extension of time agreed on a number of occasions. In particular, on 27 July 2020, they stated they looked forward to receiving confirmation of the claimant’s medico-legal assessments to allow the respondents to make their own arrangements.

6. On 10 September 2020 the second respondent’s solicitors again wrote to the applicant’s solicitors noting their outstanding queries, asking if the applicant had been medico-legally assessed and what steps had been taken to progress the claim. In particular, they noted that the extension of the applicant’s limitation period was due to expire on 30 October 2020. They stated they required that above information before obtaining instructions from their client in relation to any potential requests for any further extension.

7. On 11 September 2020, the applicant’s solicitors sent the respondents documentation with respect to a further extension and asked the respondents to consent.

8. The solicitors engaged on behalf of the first respondent, responded to the applicant’s solicitors on 16 September 2020 complaining an open ended extension would not provide the respondents with any certainty as to the likely progress in the matter and asked the applicant’s solicitors to give consideration to a timetable for future progression of the matter.

9. On 18 September 2020, the second respondent’s solicitors also wrote to the applicant’s solicitors asking whether they had instructions to seek the extension. They further stated that any extension of time must have a defined expiration date. The second respondent’s solicitors asked for the applicant’s response to their request pursuant to s 22 of PIPA dated 30 April 2020, a response to queries dated 29 May 2020, an affidavit of the applicant detailing instructions provided by him to progress the matter since the service of the Part 1 Notice of Claim, as well as an affidavit of the solicitor with the carriage of the matter detailing the steps taken to progress the claim since the service of the Part 1 Notice of Claim, and a copy of any response to Carter Newell’s letter dated 16 September 2020. A response was requested by 30 September 2020. The applicant’s solicitors did not respond to either of the letters of the first or second respondents’ solicitors.

10. On 9 October 2020, the applicant’s solicitors served a copy of the application returnable 23 October 2020 together with a supporting affidavit of Ms Wood, the solicitor with the carriage of the matter on behalf of the applicant’s solicitors and a request for a consent order.

11. On 19 October 2020, Carter Newell, on behalf of the first respondent sent a letter, again complaining an open ended extension created uncertainty as to likely progress of the matter and did not accord with the main purpose of PIPA to promote the speedy resolution of the claims and that the first respondent would opposed the applicant. It noted that they had made genuine attempts to resolve the matter informally and that they had received no response to their request for a timetable to be provided for the progress of the matter.

12. The applicant’s solicitor, Ms Wood, did respond to the first respondent’s solicitors by way of a letter of 20 October 2020 and forwarded a letter to both the first and second respondents’ solicitors on 21 October 2020 where she noted that the future steps to be undertaken involved:

    (a)Obtaining a copy of the QPS records;

    (b)Instructing a maxillofacial expert;

    (c)Instructing a neurosurgeon;

    (d)Instructing a neuropsychologist consequential upon the other reports;

    (e)Instructing an occupational therapist;

    (f)Assessment by any respondents’ medical experts;

    (g)Assessment of the evidence by both parties;

    (h)Compulsory conference.

13. The applicant’s solicitors stated that they were not in a position to be certain as to how long the steps would take, noting there are a number of factors which would affect the timing including when they received documentation from the QPS, the timing of any medical appointments and the time taken by experts to prepare their reports, as well as the uncertainty arising out of COVID-19 and the Christmas period. They therefore proposed that the compulsory conference be convened on or before 23 October 2021.

14. In a letter of 21 October 2020, the first respondent’s solicitors noted that they had delayed in providing their client’s list of documents and enclosed that accordingly, although they noted that all documents had been provided previously. Further, they stated that the provision of information requested pursuant to s 27 of PIPA was addressed in an email of 10 September 2020 stating that the request had been answered by their client on 29 August 2019 and 23 November 2019.

15. Ms Wood in her supporting affidavit noted that copies of records held by QPS in relation to the incident had first been requested on 11 July 2018 and had been delayed, but they had been informed by QPS that investigations were still ongoing when they followed them up in late 2018. In March 2020, the applicant’s solicitors contacted QPS who confirmed they concluded their investigations and prosecutions and accordingly the applicant’s solicitors lodged a right to information request. However, notwithstanding repeated requests, QPS did not provide the records and on 12 August 2020, were advised that QPS had requested a further extension until 9 September 2020. On 10 September 2020, the Office of Information Commission confirmed they would commence and progress an external review of their application.

16. Prior to the matter being able to proceed a number of steps remain outstanding including:

    (a)The provision of a part 2 Notice of Claim to the Respondents which is two years and seven months overdue;

    (b)Provision by the second respondent of its notice under s 20 which is similarly considerably overdue;

    (c)Provision to the first and second respondent of information requested under PIPA ( s 21 and s 22 PIPA);

    (d)Medico Legal assessments of the applicant and provision of any associated medical and liability reports; and

    (e)A compulsory conference.

    Contact with the applicant

17. Ms Wood also deposes as to her contact with the applicant. She noted that the applicant had separated from his partner prior to 29 November 2018 and was looking for a place to live. Shine Lawyers then chased the applicant for instructions by various means throughout 2019 and in early 2020. After not being able to successfully contact the applicant Ms Wood tried to contact him via his ex-partner. The applicant finally contacted her on 19 March 2020. According to Ms Wood he provided updated instructions in relation to his ongoing symptoms and instructed her to proceed with a formal application to extend a limitation period should it be required. The applicant also provided instructions that he was available to attend medical appointments once Shine lawyers received his updated medical records. Those records were requested on or about 25 March 2020 and Shine Lawyers were advised by the medical centre on 1 April 2020 that there were no updated records. Ms Wood again tried to contact the applicant on 14 May 2020 and on 2 June 2020, 10 July 2020. On 12 August 2020 contacted his ex-partner who confirmed that she would asked the applicant to contact Shine Lawyers.

18. Ms Wood at the time of swearing her first affidavit sworn on 8 October 2020 had not had further contact with the applicant. According to Ms Wood, the applicant sustained serious injuries in the assault in March 2017 including a head injury resulting in cognitive deficits and also an exacerbation of his post-traumatic stress disorder (PTSD) arising out of his time in the military and on tour in Afghanistan. She noted from his medical records, the applicant has a history of being difficult to contact in times when he is stressed or anxious and has a history of communication problems. She relies on a report from Ms Copley to Dr Hales dated 24 February 2016. While that report refers to Mr Faram’s lack of attendance of appointments and lack of cooperation with his treatment program, the basis of that conduct is not clearly identified. Reference is made to his dissatisfaction with his treatment by DVA as well as relationship difficulties. On its face the report does not link his conduct to his PTSD.

19. There are no medical records reflecting the applicant having received any treatment for injuries the subject of his claim since 29 March 2017. Nor are there any records suggesting a recurrence of his symptoms of PTSD after March 2017.

20. Ms Wood swore a subsequent affidavit on 23 October 2020 deposing that she had identified that there was no response pursuant to s 20 of PIPA by the first respondent. She stated that she did not have a copy of the QPS material that was disclosed by the second respondent’s solicitors on 26 November 2019.

21. Ms Wood further attached the applicant’s general practitioner records which support the fact that the applicant suffered from PTSD in 2013 and that he was medically discharged from the army in 2013. A report of Greenslopes Hospital of 21 April 2014 noted the injuries that Mr Faram had suffered while serving in Afghanistan and that he had PTSD and was suffering problems which were quite severe and disabling. A later report of Greenslopes Hospital dated 27 June 2014 estimated that it would be some two plus years before he would be fit for any kind of employment. The 2016 reports of Ms Copley indicate a lack of preparedness to engage at all in respect to his injury treatment since on or about April 2016 while his GP’s notes of March 2017 suggest that he was in a good state and had not seen a psychiatrist for some time.

22. Ms Wood went to extraordinary lengths to contact the applicant prior to this application by personally attending his last known address on 20 October 2020 where she spoke to his brother. His brother contacted the applicant by telephone and Ms Wood then spoke to the applicant about the fact that an application to extend the limitation period had been made in accordance with his previous instructions and asked whether there had been any reason he was not in contact with Shine Lawyers since March 2020. He stated that the aggressive nature of the assault and the claims process triggered his prior diagnosis of PTSD and that the claims process had been overwhelming and difficult, but that he did want to continue with the claim. He stated that he was prepared to commit to a timetable and attend medico-legal examinations.

    Consideration

23. As stated above, a number of matters were identified as relevant for consideration by McMeekin J in Paterson v Leigh[11] in the exercise of the Court’s discretion, albeit that the discretion is unfettered.

    [11][2008] QSC 277 at [8].

24. In the present case the applicant is unable to show that the delay which has occurred was occasioned by a ‘conscientious effort to comply’ with PIPA.

25. The applicant’s counsel, as stated above, quite properly concedes that the applicant has not been diligent in the pursuit of his claim and has caused some delay that does not arise from a conscientious effort to comply with PIPA. It is difficult to draw any conclusion other than that the applicant has little interest in pursuing his claim on the basis of his conduct, notwithstanding his explanation to Ms Wood on 20 October 2020.

26. The Applicant failed to make contact with his solicitors despite his solicitors attempting to seek instructions from him on some 18 occasions between 20 December 2018 and 14 February 2020. When finally contact was made in March 2020, while he confirmed instructions to proceed with an application to extend the time limitation if necessary and stated that he would attend medical appointments, yet he took no steps to do so. He again did not make contact with his solicitors despite their efforts to contact him notwithstanding that he was aware that an extension of the limitation period had been necessary. Ms Wood had to go to his last known address and have his brother make contact with him by phone on 20 October 2020 to obtain instructions in relation to this application.

27. Despite the fact that the applicant stated to his solicitor that he believed the March 2017 incident triggered his PTSD symptoms and that the claim had caused him angst and brought up memories about his service and that the process was overwhelming and difficult for him, no affidavit was provided by him deposing to those facts was forthcoming in this application. That was despite the fact that the second respondents’ solicitor specifically stated that an explanation for the delay was required from the applicant when the further extension was requested.  More significantly, the applicant’s assertions were unsupported by other evidence. 

28. Notwithstanding the applicant’s explanation to Ms Wood for his failure to contact her, there is no medical evidence post the incident to support the assertions made by the applicant to his solicitor that he had a recurrence of his PTSD symptoms or anxiety. While counsel for the applicant submits that such avoidant behaviour as observed with the applicant is relatively common for a person with PTSD and that it is possibly correct, there was no evidence before the Court to support that being the case. The entry in the applicant’s general practitioner’s records shortly after the incident on 6 March 2017 suggests that, at that time, he was not experiencing any symptoms of PTSD nor taking any medication nor engaging in any ongoing treatment. Further, the evidence before me militates against such an inference given his entries on Facebook suggest that he has been engaging with people and that he has been active in the community. Both of the respondents’ solicitors attach excerpts from the applicant’s social media profiles in 2018 and 2020 which show him to be engaged with people, undertaking a 2,225 kilometre kayaking trip, and his taking kayaking tours.  That information indicates at least that the applicant was capable of contacting his solicitors and giving instructions.

29. In those circumstances, I cannot infer that the explanation for the applicant’s failure to prosecute his claim is due to a recurrence of his PTSD symptoms or that he has made any conscientious effort to comply with PIPA since 2018. It cannot be said that the applicant’s attempts to comply with PIPA in relation to his claim afford a reason for the favourable exercise of the discretion in s 59(2) PIPA.

30. In terms of delay with complying with PIPA, it is now some three and a half years since the incident. The respondents’ had the benefit of the Part 1 Notice of Claim being provided during the limitation period and it is two years and nine months since the Part 1 Notice of Claim was served on the first respondent and one year eight months since the Part 1 Notice of Claim was served on the second respondent.

31. The length of the delay is not insignificant.  There is limited evidence of any real prejudice being suffered by either respondents, save for the first respondent submitting that there is prejudice in terms of security staff’s fading recollections of the incident and that medical evidence being obtained now is somewhat remote from that date of the incident. The latter of course is potentially as prejudicial to the applicant as it may be to the respondents. There is, however, prejudice that will be suffered by the respondents insofar as if the extension is granted the respondents will be deprived of a complete defence afforded by the statutory time bar.[12] That is in the context of the respondents having given informal extensions beyond the limitation period to comply with PIPA.

    [12]Kash v SM & TJ Cedergren Builders [2004] 1 Qd R 643.

32. The evidence does not suggest a fair trial cannot occur in these proceedings.

33. As to the interests of justice, it is finely balanced insofar as the respondents will be deprived of a full defence by the granting of the application, whereas the applicant will be deprived of being able to pursue his claim if it is refused.

34. The respondents’ delay in complying with PIPA is also relevant to take into account in the exercise of the Court’s discretion. There has been delay by both respondents in complying with the requirements of PIPA. As was noted by White J in Gitsham v Suncorp Metway Insurance Ltd[13] an insurer is not permitted to stand by and be reactive to a claim.

    [13][2002] QCA 310 (Davies and Williams JJA agreeing).

35. The first respondent’s insurer did delay providing its s 10 response, being a delay of almost three months which resulted in it identifying the fact that Tru Logistics was not the proper respondent, but rather that Hensec Pty Ltd was the relevant entity providing the security services for which Proclaim also acted as insurer. There was then a delay of a further three months on behalf of the applicant in sending the amended Part 1 Notice of Claim to the proper respondent.

36. The applicant contends that the delay of the first respondent in identifying why the second respondent should be included in the proceeding explains why the first 18 months of delay could be attributed to the insurer of the first respondent. That however overstates the position.

37. The first respondent stated that they were continuing their investigations in relation to liability in an email of 8 March 2018. On 1 June 2018, they forwarded an email stating that they provided, in accordance with the disclosure requirements, unsigned statements of security guards and their investigation report and advised the applicant’s solicitors that the applicant should join Park Ridge Tavern as a respondent. The first respondent provided information as to why the second respondent should be made a party on 29 August 2018 after the applicant’s solicitors sought information on 29 June 2018. There was however further delay by the applicant in giving a Part 1 Notice of Claim to the second respondent which occurred on 1 February 2019.

38. More relevantly the first respondent did not comply with s 20 PIPA and still had not at the time of the application. It had not provided written notice stating whether liability was admitted or denied and if contributory negligence was claimed the degree of contributory negligence. Insofar as s 20 obliged the first respondent to take reasonable steps to inform itself about the incident, it did appear to do so insofar as it commissioned an investigation report. That report was not before me and it was not evident whether that report suggested what the first respondent’s position was in respect of liability, although it had denied any liability in its response to the second respondent’s contribution notice and it appeared uncontroversial that was its position. No offer was made to settle the claim.

1. The first respondent’s actual list of documents was also not provided until the day before the application, although it had provided documents earlier.

2. The second respondent was not given notice by the plaintiff until 6 February 2019. The second respondent did comply with s 20 on 3 July 2019.

3. The second respondent was also guilty of some delay insofar as it did not comply with its duties under s 27 of PIPA insofar as their disclosure came eight months after “numerous” requests by the applicant’s solicitors. The second respondent’s delay is not significant in the context of the advancement of the claim and it has generally been diligent in seeking to progress the claim, but has been frustrated by the lack of provision of information requested from the applicant’s solicitors.

4. While there has been some delay by the respondents, more so by the first respondent, that delay does not have the same significance that it may otherwise have had given that little of the respondents’ delay interfered with or contributed to the applicant’s delay to progress the matter and comply with PIPA. Since the granting of the two extensions of time for the limitation period and the appointment of solicitors the first respondent has been more proactive and diligent since the informal extensions of time were granted.

5. The applicant’s solicitors have generally tried to progress the matter the best they can by requiring the respondents to comply with PIPA and obtaining records from QPS and medical records, but could do little more given the complete absence of instructions and co-operation of the applicant to take the steps required of him to be able satisfy the requirements of PIPA and commence proceedings within the limitation period or the extended times for compliance. Critically, the applicant failed to attend medical appointments for medico-legal assessments to enable compliance with PIPA and progress the matter to the compulsory conference. That has largely resulted in the applicant’s legal representatives seeking a 12 month extension for the compulsory conference to occur in this application in order to instruct health practitioners’ and for reports to be obtained.

6. It is submitted by the applicant’s counsel that even if the applicant had taken the steps required of him, the applicant would still not have been in a position to comply with PIPA given the delay by QPS in providing its records relevant to the incident. That of itself would prevent the provision of a signed certificate of readiness pursuant to s 37(1)(d) of PIPA in order to conclude pre-court steps under PIPA, which includes stating the matters in s 37(2). While the QPS file is unlikely to contain admissible evidence it could be characterised as investigative material potentially required by the applicant for the trial. The first respondent in correspondence requested that the applicant identify why the QPS file impacted on the applicant’s ability to provide his Part 2 Notice of Claim as well as other outstanding matters which was not responded to by the applicant’s solicitors. In submissions, counsel contended that the QPS file could identify other witnesses to the incident and result in the production of their statements. That much may be accepted.

7. I accept that notwithstanding that the second respondent managed to obtain and disclose material it had obtained from the QPS in its list of documents on 15 August 2019, the applicant’s solicitor has not enjoyed the same success, albeit that the QPS records disclosed by the second respondent have not been reviewed by the applicant’s solicitors.

8. The QPS’s delay in relation to the provision of the file is inexplicable and a matter beyond the applicant’s control, however there was a delay of some 15 months between the last telephone conversation with QPS where it advised that investigations were still ongoing and the prosecution continuing to trial in approximately 2019 and when the applicant’s solicitors contacted QPS on 25 March 2020. The applicant’s solicitor has diligently pursued the matter since that time to try and obtain the file, although to no avail.

9. There is some substance in the applicant’s contention that it would not be in a position to sign the certificate of readiness as required by s 37 of PIPA even if all other steps had been undertaken by the applicant due to the non-production of the QPS file. However, while the QPS file could provide a basis for further factual inquiries being made in this matter, the lack of the provision of the file does not prevent the applicant being able to make its own investigations to advance the claim. The failure to obtain the QPS file has no causative connection to the failure of the applicant to take the steps required of him in relation to the progress of his claim.

10. While there has not, relatively, been an overly lengthy delay between the incident and the making of the application, there have been two extensions of time agreed by the respondents to allow the applicant to comply with PIPA. There have however been no significant steps taken since the expiry of the limitation period on behalf of the applicant to advance his position, other than by his solicitors to renew efforts to obtain the QPS file. This is a case where despite the efforts of the applicant’s solicitors, there has been a complete lack of attention to the claim by the applicant since the end of 2018. This has continued notwithstanding he was informed of the need to extend the limitation period in March 2020 and he stated that he would attend medical appointments. While he did indicate to Ms Wood that he felt the incident triggered his PTSD symptoms and he was overwhelmed by the process, unlike the case of Paterson there is no independent evidence to support that fact in relation to the incident in this case. In fact, the evidence suggests otherwise. His lack of attention to the claim in this case calls for an explanation from him that has not been provided, notwithstanding that the applicant’s solicitors were requested to obtain such evidence by the second respondent. Even after Ms Wood spoke to the applicant on 20 October 2020 the applicant’s solicitors are still not able to commit to a timetable for complying with PIPA.

11. This is not a case where the applicant’s lack of attention to his claim can be attributed to his solicitors.

12. The delay and failure to be able to institute proceedings within the limitation period is not materially affected by the need to comply with the procedural requirements of PIPA or any mistake by the applicant or his solicitors in that regard. While not granting the extension will deprive the applicant of his claim and the respondents had notice of the claim well within the time period for bringing the action, the granting of the application deprives the respondents of a full defence that the action is statute barred. Even when all factors favouring the extension are considered, the present case is one where the applicant has failed to explain his lack of attention to the claim for almost two years and to demonstrate that he intends to advance his claim and comply with PIPA, notwithstanding informal extensions from the respondents to allow him to do so. In those circumstances the delay of the respondents and the provision of the QPS file carry little weight. In all of the circumstances I do not find that the applicant has discharged the onus upon him to persuade the Court that it should exercise the discretion in his favour.

13. Accordingly the application is dismissed and costs should follow the event.

    Orders

14. I therefore order that:

    1.The application is dismissed.

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