Hanlon v Woolworths Limited

[2007] QDC 333

DISTRICT COURT OF QUEENSLAND

CITATION:

Hanlon v. Woolworths Limited [2007] QDC 333

PARTIES:

MICHELLE ANN HANLON
Applicant
v
WOOLWORTHS LIMITED
Respondent

FILE NO:

3381 of 2007

DIVISION:

Civil

PROCEEDING:

ORIGINATING COURT:

DELIVERED ON:

7 December 2007

DELIVERED AT:

Brisbane

HEARING DATE:

5 December 2007

JUDGE:

Skoien SJDC

ORDER:

Respondent to pay applicant’s costs of application

CATCHWORDS:

COUNSEL:

Mr R Green for applicant

Mr R Morton for respondent

SOLICITORS:

Bennett & Philp solicitors for applicant

McInnis Wilson solicitors for respondent

1. This is an application by a claimant for damages for personal injury for an order under s.59(2)(b) of the Personal Injuries Proceedings Act 2002 (“PIPA”) for leave to commence proceedings by one of three future dates fixed by the occurrence of possible future events. It is brought because the parties have not been able to hold the compulsory conference provided for by PIPA nor will they be able to until after the expiration of the limitation period on 24 December 2007.

1. In the upshot, the parties have agreed on a consent order for the substantive relief sought in the application and the only question for me is that of the costs of the application.

1. It is true that progress in the pre-litigation procedure on the part of the claimant has been lethargic. Then, in my opinion, when it was realised that the compulsory conference was not able to be held to allow proceedings to be commenced within the limitation period the respondent’s solicitor was justified in declining to take steps to assist the claimant which might have constituted professional misconduct (see PIPA s.37(3)). However, neither of those matters seem to me to be determinative of the matter.

1. The solicitors for the claimant asked the solicitors for the respondent to let the litigation commence and to agree not to raise a limitation plea to allow the pre-court procedures to be dealt with. I gather that this course is sometimes adopted in circumstances such as these. While it is admirable that some insurers are prepared to offer such an indulgence to claimants who have failed to negotiate the minefield of PIPA in time, I do not feel I should punish by a costs order an insurer simply on the basis that it was unwilling to depart from the PIPA structure. As I have noted, in this case that could run the respondent’s solicitor foul of s.37(3).

1. PIPA lays down two alternatives for a late claimant; that set out in s.43 and that set out in s.59. It is sufficient to summarise the advantages and disadvantages of each.

1. Each allows the claimant to avoid the consequences of a plea by the proposed defendant under the Limitation Act. However while s.43 allows the claimant to obtain leave to start court proceedings despite non-compliance with pre-litigation requirements of PIPA where there is urgency (the proceedings then being stayed pending compliance) that necessarily involves incurring substantial costs. Section 59, on the other hand, allows the claimant to start court proceedings after the expiration of the limitation period and after compliance has been achieved. In that case the incurring of the substantial costs is deferred and if in the interim the intended claim should settle, they will never be incurred.

1. In this case the claimant will be able to comply with the compulsory conference requirements of PIPA within a short period. In those circumstances the s.59 procedure is the one which most closely promotes the aims of PIPA as set out in s.2, particularly the promotion of early settlement and the minimising of costs.

1. The claimant’s solicitors asked the respondent’s solicitors to agree to the s.59 approach.  The respondent’s solicitors refused that and offered the s.43 approach.  Shortly before the hearing of this application they indicated their agreement to the s.59 approach.  But by then the claimant had incurred quite substantial costs in preparing the application.  Had the respondent’s solicitors agreed to the s.59 procedure in the first place instead of belatedly, most of those costs would have been avoided.

1. I order the respondent to pay to the applicant the costs of this application beyond those which would have been necessarily incurred to obtain a consent order, to be agreed or assessed on the standard basis.