Goff v Permenant Trustee Australia Ltd

[2010] QDC 438

[2010] QDC 438

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 4144 of 2004

ANGELA GEORGINA GOFF	Plaintiff
and
PERMANENT TRUSTEE AUSTRALIA LIMITED	Defendant

BRISBANE

..DATE 29/10/2010

ORDER

Catchwords

Personal Injuries Proceedings Act 2002, s 9(2)(b), s 16(2), s 18(1)(c)(ii), s 43, s 59(2)(b) Transport Operations (Marine Safety) Act 1994, s 9(2)(1), s 43 Uniform Civil Procedure Rules, r 69(1)(b), r 171, r 293, r 376, r 377, r
389(2)

Plaintiff (a tourist from overseas) injured in collision between a catamaran on which she was a passenger and a ferry - official inquiry held ferry primarily responsible - Part 1 notice of claim sent to ferry operator - claim (stayed) commenced by leave of court against owner of ferry with its consent - defendant never given Part 1 notice, but requested Part 2 notice - plaintiff authorised to proceed further against it, despite non-compliance - plaintiff given leave to proceed against ferry operator, added as a defendant - it and owner now have common representation - prejudice to respondents asserted from apparent changes in plaintiff's medical and economic circumstances as delay unfolded and the respondents' being out of time to proceed against the catarmaran

HIS HONOUR:  The court is asked by the plaintiff for orders
under the Personal Injuries Proceedings Act 2002 (PIPA) to regularise a situation which at present is untidy. The first relief is sought under section 18(1)(c)(ii) in terms that the plaintiff be authorised to proceed further with the claim against the defendant despite her failure to give a complying notice of claim. The secondary relief sought is pursuant to section 59(2)(b) seeking that she be granted leave to commence a proceeding against Mulpha Hotel Pty Ltd trading as Hayman
Island Resort.

Further relief is sought which seems to me essentially to
follow the relief already identified.  Thus it's sought
pursuant to rule 69(1)(b)(i) and (ii) of the UCPR that Mulpha be joined as a party in this proceeding which was commenced as
long ago as 2004 on the eve of expiration of the limitation
period pursuant to arrangements under section 43 of PIPA.  It's understandable that the view is taken that it's better to have Mulpha in this proceeding than as a defendant in its own separate claim.

Next, leave is sought pursuant to rules 376 and 377 to amend
the claimant's statement of claim to include Mulpha.  Other
arrangements are envisaged in the application which would
coordinate what happens in the proceeding with out-of-court
steps which would ordinarily be pursued under the PIPA.

Mr O'Sullivan for the plaintiff has indicated that, although
not sought in the application, authorisation of the court to
proceed under rule 389(2) is required given the dimensions of
delay, no step having been taken in the last two years.

The plaintiff was in Australia as a tourist and injured in a
collision in the Whitsundays between a catamaran called the
“Pride of Airlie" on which she was taking a cruise and the “Sun Paradise”, which was a ferry whose chief use was to transport passengers to and from Hayman Island.  A Maritime Safety Queensland Board of Inquiry report, which appears to have been issued around November 2003, cast primary responsibility for the incident upon the Sun Paradise while noting that the master of the other vessel ought not to have simply relied on his entitlement under the relevant rules to sail straight ahead but ought under a more general principle to have at least considered taking other steps to avoid a collision.

The defendant in the proceeding turns out to be the registered
owner of the Sun Paradise but was not the operator, that being
Mulpha.  Both companies are represented today by the same
Counsel, Ms Feeney and the same firm of solicitors, although
its engagement by Mulpha on the 1st of February this year
preceded its engagement by the defendant on the 2nd of
September.  The solicitors formerly involved had some
difficulty in identifying who might be responsible for the
operation of the ferry.  At one stage the view was taken that
it was Hayman Island Resort Pty Ltd which turned out not to be
a registered company.  The operator of the resort, and it
would seem the most appropriate defendant to the plaintiff's
claim for damages for personal injuries causing the collision,
is Mulpha.  It was to Mulpha that the Part 1 notice of claim provided for in the PIPA (section 9), was directed.  It is not entirely clear that or how the decision was reached by predecessors of the firm instructing Mr O'Sullivan who appears for the plaintiff today, to commence this proceeding against the defendant.

The present defendant apparently consented to the section 43
order which authorised commencement of the proceeding
notwithstanding that the steps the PIPA required to occur before action had not been completed. It hardly matters today, but Mr O'Sullivan has referred the court to the Transport Operations (Marine Safety) Act 1994 (TOMSA) which to the extent that the Act governs matters, provides an indication that, although not actively involved in the operation of the vessel, the owner as the defendant as a matter of record continues to be an owner for the purposes of that Act. (See in particular the examples given under the definition of owner in section 9(2)(1).)

Section 43 of TOMSA provides a general obligation on a person involved with a ship's operation "including the owner" not to cause the ship to be operated unsafely.  I think Mr O'Sullivan is correct that in a cooperative attitude - which may have been procedurally untidy and not fully understood - the plaintiff and her lawyers and the defendant and Mulpha and theirs accepted that matters were proceeding at however leisurely a pace in an appropriate way for purposes of the PIPA and of this proceeding.  Thus the solicitors then acting for the defendant on the 20th of October 2009 formally requested the plaintiff's Part 2 notice of claim, which carries the implication that they had the Part 1 notice which, of course, was directed to Mulpha.

Following the new solicitors’ involvement on the 9th of
February 2010, when the court was told they were acting for
Mulpha, in a letter perhaps ambiguously entitled "Hayman Island Resort ats "Angela Georgina Goff" they made a request for further and better particulars in the context of "the matter being in a position to proceed to a compulsory conference pursuant to section 22 of the PIPA".  To the extent that Ms Feeney's clients may not have known that the plaintiff's present solicitors, who have been in the matter since June 2005, were acting as town agents for a UK firm who are the Principals - given that Ms Goff has returned to the UK to live - they were alerted to that by a letter of the 14th of
May 2010.  This complicating feature for the expeditious
conduct of the matter may explain some of the delay which
doesn't particularly appear to have concerned anyone until the
last month or so.  It also explains unusual features such as
the plaintiff estimating her damages in Pounds Sterling.  Ms
Feeney has made a point of the quite dramatic escalation in
the Sterling amounts indicated by the plaintiff as
appropriate.  She submits that that is an illustration of the
unfortunate consequences of delay in a context where there's
been no medical examination of the plaintiff for years and
their information regarding earnings and the like also relates
for the moment solely, it seems, to years long in the past.

The more important consequence of delay, which Ms Feeney
points to, is the apparent immunity which the operators of the
Pride of Airlie now have, given the effluxion of time.  It
appears to be accepted at both ends of the Bar table that it
would not be possible now for the operators of the Pride of
Airlie to be brought in either as a defendant or in third
party proceedings by the present defendant, or by Mulpha, if it's added as a defendant.  Mulpha has had possibilities of sending a contribution notice under PIPA to those representing the Pride of Airlie.  Although things could have been done in that regard, and indeed consideration was given to it, nothing was done, so that under PIPA as well as under the general law the Pride of Airlie would appear to be in the clear.

Section 16 of the PIPA deals with contribution notices.
Subsection (2) contemplates the agreement of present parties to the late giving of a contribution notice.  Correspondence,
which Mr O'Sullivan pointed to, indicates the plaintiff's
offer of her assistance in the bringing in of any additional
party, including support in any application to the court that
might be required in the likely event that the person proposed
to be brought in late would not be agreeable.

Whether the Pride of Airlie could successfully be brought in
as a contributor seems to me somewhat speculative in the
circumstances.  Mr O'Sullivan, I understood to accept, that
should it be established that it's the plaintiff's
responsibility that the Pride of Airlie avoids contribution
which would otherwise be appropriate, then the extent of her
recovery against the defendant and/or Mulpha could be
discounted.  The principal authority relied on by Ms Feeney in
respect of the matters for consideration in the section 18
application is Cousins v Mount Isa Mines Ltd [2006]
2 Qd R 343, especially at paragraphs [6] to [8]. Mr O'Sullivan has referred me to Moore v Australian National Car Parks Pty Ltd [2009] QDC 374, a decision of my own in relation to section 59(2)(b).

The prejudice which the respondents rely on has been
identified above.  There's no assertion of other prejudice, for example, in the disappearance of potential witnesses.
Difficulties to do with the plaintiff's medical condition
related to the long delay have been accepted by the
respondents, it seems, to date.  Things changed last September
when the respondents had achieved the common representation
they now have and an application was foreshadowed which the
fellow clients have now filed, seeking relief from the stay which presently controls the proceeding for the purposes of the present respondents having an application heard which would strike out the statement of claim under rule 171 or lead to their obtaining summary judgment under rule 293.  It's not
intended to proceed with that application today.  It's to be
adjourned.

In the circumstances the appropriate exercises of discretion
are ones in favour of granting the relief the plaintiff seeks.
I indicate that that's what will occur.  An appropriate draft order will be initialled.

To the extent necessary the plaintiff should have leave to prosecute her application for purposes of rule 389(2).

...

HIS HONOUR:  By way of directions I make a further order in
terms of the initialled draft which contains 12 paragraphs.

Adjourned to a date to be fixed in three business days' notice.

Costs reserved.

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