Hickson v Hail Creek Coal Pty Ltd

[2023] QSC 196

SUPREME COURT OF QUEENSLAND

CITATION:

Hickson v Hail Creek Coal Pty Ltd [2023] QSC 196

PARTIES:

CRAIG THOMAS HICKSON

(plaintiff)

v
HAIL CREEK COAL PTY LTD
ACN 080 002 008

(defendant)

FILE NO/S:

No 6280 of 21

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 August 2023

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Brown J

ORDER:

Pursuant to r 24(2) of the Uniform Civil Procedure Rules 1999 (Qld), the Court renew the claim filed on 2 June 2021.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COMMENCING PROCEEDINGS – TIME FOR SERVICE OF ORIGINATING PROCESS AND RENEWAL – where the plaintiff seeks an order to renew its claim filed 2 June 2021 – where the period of renewal is greater than the one-year period contemplated by s 24 of the Uniform Civil Procedure Rules 1999 (Qld) – where the proceedings were filed with the defendant’s agreement – where the proceedings were stayed by agreement until the plaintiff complied with Chapter 2 Part 1 of the Personal Injuries Proceedings Act 2002 (Qld) – whether the claim should be renewed

Uniform Civil Procedure Rules 1999 (Qld)
Personal Injuries Proceedings Act 2002 (Qld)

Babcock & Brown Pty Ltd v Arthur Anderson [2010] QSC 287
Gillies v Dibbetts [2001] 1 Qd R 596

SOLICITORS:

Butler McDermott Lawyers for the plaintiff

1. The plaintiff seeks an order to renew the claim filed on 2 June 2021. The period of renewal is greater than the one-year period contemplated by r 24 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). However, the Court may renew a claim for a greater period in exercise of its general power to extend a time set under r 7 of the UCPR.[1]

   [1]Gillies v Dibbetts [2001] 1 Qd R 596 at [21].

2. Relevant to this application, the plaintiff must satisfy the Court that there is good reason to renew the claim. Prejudice to a defendant as a result of the delay is a relevant consideration in determining whether there is a good reason for renewal,[2] at least in circumstances where the plaintiff does not seek to establish that reasonable efforts have been made to serve the defendant.[3] The plaintiff does not seek to establish it made such efforts.

   [2]Gillies v Dibbetts [2001] 1 Qd R 596 at [23] per Wilson J.

   [3]Gillies v Dibbetts [2001] 1 Qd R 596 at [22] per Wilson J.

3. In the present case, the proceedings were filed after the defendant agreed to the commencement of the proceedings pursuant to s 44 of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA).[4] By the agreement reached between the parties in May 2021, the proceedings were stayed until the plaintiff complied with Chapter 2 Part 1 of PIPA unless the proceeding is discontinued or otherwise ends.[5]  A notice of claim sworn 19 February 2021 had been forwarded to the defendant’s solicitor by the plaintiff’s solicitor on or about 31 March 2021.

   [4]Exhibit GBC-1 to the Affidavit of George Benn Cowan (CFI 2).

   [5]Exhibit GBC-1 to the Affidavit of George Benn Cowan (CFI 2).

4. The claim and statement of claim were filed on 2 June 2021. No steps were taken to renew the claim nor to serve it. The plaintiff served its Part 2 notice of claim pursuant to PIPA on 6 March 2023. On 17 July 2023, the plaintiff participated in a compulsory conference with the defendant pursuant to s 36 of PIPA and the plaintiff’s employer, Colecare Pty Ltd, pursuant to s 289 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld), having commenced a concurrent damages claim against his employer.

5. The matter did not settle at the conference. Mandatory offers were exchanged pursuant to s 39 of PIPA and those offers have lapsed. The plaintiff is now entitled to prosecute the proceedings against the defendant, having complied with the provisions of Chapter 2 Part 1 of PIPA, and thus seeks to serve its claim and statement of claim.

6. Notwithstanding that the proceedings were stayed under PIPA, plaintiffs should ensure that claims and statement of claims are renewed in accordance with r 24 of the UCPR. 

7. There is, however, evidence that the defendant was aware of the claim since March 2021, entered into an agreement pursuant to s 44 of PIPA so that the claim and statement of claim could be filed to preserve time, and then engaged in the steps required under PIPA in 2023.  In those circumstances, I am satisfied that the renewal does not cause significant prejudice to the defendant.

8. The application has been made ex parte, as permitted by the UCPR. The defendant may however apply to the Court to have the renewal set aside.[6]

   [6]See Babcock & Brown Pty Ltd v Arthur Anderson [2010] QSC 287 at [54]–[55].

9. In all of the circumstances, I am satisfied notwithstanding that almost two years have passed since the filing of the proceedings that the claim should be renewed pursuant to s 24(2) of the UCPR. I will make the order in accordance with the draft.