Hoogendoorn v State of Queensland

[2022] QSC 43

SUPREME COURT OF QUEENSLAND

CITATION:

Hoogendoorn v State of Queensland & Ors [2022] QSC 43

PARTIES:

MICHAEL JOHN HOOGENDOORN

(applicant)

AND

STATE OF QUEENSLAND

(first respondent)

AND

QUEENSLAND CORRECTIVE SERVICES

(second respondent)

AND

SERCO ASIA PACIFIC PTY LTD (ABN 55-061-889-763)

(second respondent)

FILE NO:

BS 12967 of 2021

DIVISION:

Trial Division

PROCEEDING:

Originating application filed 3 November 2021

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

1 February 2022 and 4 April 2022.

JUDGE:

Jackson J

ORDER:

The order of the court is:

1 On the claims identified in the reasons for this order as the Ninth Claim, Eleventh Claim, Twelfth Claim, Fifteenth Claim and Sixteenth Claim the court authorises the applicant to proceed further with the claim to the extent that the applicant failed to give a complying notice of claim under Chapter 2 Part 1 of the Personal Injuries Proceedings Act 2002 (Qld) because the notice was not given within the period of 9 months after the day the incident giving rise to the personal injury happened or, if the symptoms of the injury were not immediately apparent, the first appearance of symptoms of the injury.

2        Otherwise the application is dismissed.

3        The applicant pay the second respondent’s costs of the application to be assessed on the standard basis.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – GENERALLY – where the applicant did not comply with Chapter 2 Part 1 of the Personal Injuries Proceedings Act 2002 (Qld) – where the applicant sought to start a proceeding in the court for damages based on a liability for personal injury despite that non-compliance on the basis that there was an urgent need to start the proceeding – where the applicant alleged that material facts of a decisive character were not in his means of knowledge until a date after the commencement of the year last preceding the expiration of the limitation period – where the applicant alleged certain rights of action were concealed by the fraud of the defendant or the defendant’s agent – whether the applicant had arguable causes of action – whether allowing the application for leave would be futile – whether certain claims were maintainable despite no evidence the applicant suffered a recognisable psychiatric injury

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – GENERALLY – where the applicant failed to give a complying notice of claim under Chapter 2 Part 1 of the Personal Injuries Proceedings Act 2002 (Qld) – where the applicant served a term of imprisonment – where the applicant alleged that the failure to provide a compliant notice of claim within the 9 month period prescribed in s 9(3)(a) of the Personal Injuries Proceedings Act 2002 (Qld) was due to difficulties communicating to the world outside whilst in prison – whether the applicant should be authorised to proceed further with certain claims to the extent the applicant failed to give a complying notice of claim under Chapter 2 Part 1 of the Personal Injuries Proceedings Act 2002 (Qld)

Davison v State of Queensland (2006) 226 CLR 234, applied
Lewis v Australian Capital Territory (2020) 381 ALR 375, applied
New South Wales v Bujdoso (2005) 227 CLR 1, cited
Northern Territory v Mengel (1995) 185 CLR 307, cited
Rogers v Whittaker (1992) 175 CLR 479, cited
Sanders v Snell (1998) 196 CLR 329, cited
Stuart v Kirkland-Veenstra (2009) 237 CLR 215, considered
Sullivan v Moody (2001) 207 CLR 562, considered
Tame v New South Wales (2002) 211 CLR 317, cited

Corrective Services Act 2006 (Qld)
Limitation of Actions Act 1974 (Qld) s 11, s 31, s 38

Personal Injuries Proceedings Act 2002 (Qld) s 9, s 18, s 43

COUNSEL:

Applicant in person
C Fitzpatrick for the first respondent
B Heath (solicitor) for the second respondent

SOLICITORS:

Applicant in person
Crown Law for the first respondent
Carter Newell Lawyers for the second respondent

JACKSON J:

1. This is an application for orders under s 43 of the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”) for leave to start a proceeding for damages based on a liability for personal injury despite noncompliance with Chapter 2 Part 1 in respect of a number of claims, or for orders under s 18(1)(c)(ii) of PIPA authorising the applicant to proceed further with a number of claims despite failure to give a complying Part 1 Notice of Claim under s 9 of PIPA.

2. From 13 December 2011 until 6 December 2021 the applicant served a term of imprisonment in correctional centres under the provisions of the Corrective Services Act 2006 (Qld) (“CSA”). For part of that period, he was imprisoned in the Southern Queensland Correctional Centre (“SQCC”), which was managed and operated by the second respondent. For the balance of the applicant’s period of imprisonment he was imprisoned in other correctional centres managed and operated by Queensland Corrective Services (“QCS”). On 14 March 2013 he was transferred from Brisbane Correctional Centre (“BCC”) to SQCC. On 9 March 2017, he was transferred from SQCC to Palen Creek Correctional Centre (“PCCC”).

3. Between 24 October 2016 and 16 February 2020, whilst imprisoned, the applicant alleges he suffered personal injuries as a result of civil wrongs by various prison officers or employees.  In all, there are sixteen claims he makes and which he proposes to include in a proceeding he seeks leave to start.  The first claim and third claim relate to events the applicant alleges occurred whilst imprisoned at SQCC and concern the second respondent (“Serco”).  The second claim and the fourth claim to sixteenth claim concern events the applicant alleges occurred whilst at correctional centres operated by QCS.  Although named as first respondent, QCS is not a legal entity.  Accordingly, an order was made that it be deleted as a named respondent.   The now first respondent (“State”) is the proper respondent for any liability of the State.

4. The applicant wants to make a claim against Serco as the employer of the relevant officers or staff at SQCC.  He wants to make a claim against the State on the basis that Serco was the agent of the State or the State is otherwise vicariously liable for the first and third claims.  Otherwise, he wants to make a claim against the State as the employer of the corrective services officers or other employees involved in the events relating to the second claim and the fourth claim to the sixteenth claim.

5. Although the originating application did not seek any relief authorising the applicant to proceed further with any of the claims despite noncompliance with PIPA by the applicant’s failure to give a complying Part 1 Notice of Claim, he sought that relief under s 18 of PIPA by his third affidavit in the proceeding and orally at the hearing of the application for some of the claims.

6. The respondents oppose the application and submit no order should be made to give leave to the applicant under s 43 of PIPA to start a proceeding for damages based on any alleged liability for personal injuries, on various grounds.

   First Claim

7. On 24 October 2016, when the respondent was imprisoned at SQCC he was not enrolled, or was excluded from enrolment, in a Certificate III course in hospitality.  The applicant alleges he was told the course was not available to him but later found out through a right to information application that seven students from SQCC were enrolled in the course, and alleges that he was able to and ought to have been enrolled in the course and would have been able to complete it before his transfer from SQCC to PCCC on 9 March 2017.

8. The applicant alleges that his non-enrolment involved corrupt misconduct depriving him of education for his rehabilitation goals.  As the basis of his proposed personal injuries claim, the applicant alleges that he suffered stress and frustration, increased anxiety, loss of enjoyment of the day, was demoralised, humiliated, degraded, traumatised, had sleep deprivation, and suffered depression.

9. The applicant submitted that from information received by him as a result of right to information requests on 5 March 2021 he became aware that the course had proceeded and that a Ms Aran, an employee of Serco, had subsequently explained the applicant’s non-enrolment as caused by postponement of the course and the applicant’s transfer from SQCC to PCCC before the course was ready to accept enrolments.  The applicant submits that was erroneous.

10. Serco submitted that the alleged claim is not a claim based on a liability for personal injuries and that the applicant has filed no admissible evidence to support the allegation that he suffered a personal injury referrable to non-participation in the course.  That submission relied on the distinction between emotional distress and a recognisable psychiatric illness that limits the scope of liability for mental harm in the tort of negligence.[1]

    [1]Tame v New South Wales (2002) 211 CLR 317, 382 [193]-[194].

11. The actual reason why the applicant was not enrolled in the course (accepting for present purposes his allegation that the course was in fact available and he could have completed it before his transfer) was not the subject of any evidence at the hearing.[2]  If the subsequent explanation given by Ms Aran was wrong, that does not identify what cause of action, if any, the applicant might have because of the failure to enrol him in the course in or from October 2016.

    [2]After considerable time during the hearing the applicant applied to add to the evidence, which would have required adjournment and loss of the time then spent in hearing the application.  The application was refused.  After the application was reserved with directions to give the applicant the opportunity to make further submissions in writing limited to 10 pages in response to the State’s written submissions served on the day of the hearing, the applicant again applied to reopen his case to add further evidence.  The second application to add to the evidence was allowed.

12. The applicant’s allegation of corrupt misconduct in not enrolling him is not supported by evidence of corruption at the time he was not enrolled.  It is based on his allegation that the subsequent explanation offered by Ms Aran was erroneous.

13. If the applicant could adduce some evidence of misconduct by a relevant officer or employee, that would not identify a cause of action for an intentional tort against the State.  Misfeasance in public office is a recognised intentional tort for which damages are recoverable.[3]  But such a claim is one against the relevant officer personally and neither Serco as employer nor the State, as principal or otherwise, would be vicariously liable.[4]

    [3]Northern Territory v Mengel (1995) 185 CLR 307, 345-347.

    [4]Sanders v Snell (1998) 196 CLR 329, 346-347 [42]-[44]; Northern Territory v Mengel (1995) 185 CLR 307, 347.

14. It is not controversial that the manager and operator of a correctional facility under the CSA, through its officers and employees, owes a duty of care in negligence to a prisoner, founded principally in the control of the prison and prisoners. In particular, the recognised scope of the duty of care in negligence relates to the safety of prisoners. Such a duty has been accepted as settled law for many years.[5]

    [5]New South Wales v Bujdoso (2005) 227 CLR 1, 9 [32].

15. It is another thing to postulate a duty of care in negligence as to the enrolment or non-enrolment of a prisoner in a vocational educational program that is offered to prisoners in a correctional centre to assist with prisoners’ rehabilitation, on the basis that it is reasonably foreseeable that a prisoner denied enrolment may suffer a recognisable psychiatric illness.[6]

    [6]Compare Stuart v Kirkland-Veenstra (2009) 237 CLR 215, 247-256; Sullivan v Moody (2001) 207 CLR 562.

16. There is no evidence by any qualified person that the applicant suffered a recognisable psychiatric illness or other psychological condition that is or may be compensable as personal injury in respect of the first claim (or any of the other claims).  The applicant says that his emotional distress amounted to depression.  But that is as far as the evidence goes.

17. Assuming there is an arguable cause of action that the applicant suffered a compensable recognisable psychiatric condition from late 2016 or early 2017 when he was not enrolled in the course, the limitation period for that personal injury expired in late 2019 or early 2020, after three years.[7]

    [7]Limitation of Actions Act 1974 (Qld) s 11.

18. The applicant alleges that he did not learn of the alleged erroneous explanation for his non-enrolment until 15 March 2021. He submitted that the expiry of the limitation period may be extended under s 31 of the Limitation of Actions Act 1974 (Qld) (“LAA”). If the alleged erroneous explanation for his non-enrolment in the course could be treated as a material fact of a decisive character relating to his right of action that was not within his means of knowledge until a date after the commencement of the last year preceding the expiration of the period of limitation, on the footing that the applicant did not know that fact until 15 March 2021, an order under s 31 may only extend the period of limitation by one year from that date, which expired on 15 March 2022. Accordingly, s 31 of the LAA could not form a basis for extending the limitation period. For ease of reference, I will refer to this point as the “one year maximum extension under s 31” where a similar question is raised in relation to other claims.

19. In any event, there is no arguable right of action against Serco that would be required before an order could be made under s 31,[8] with the consequence that an application for leave under s 43 of PIPA should be refused as futile.[9]

    [8]Limitation of Actions Act 1974 (Qld) s 31(2)(b).

    [9]Davison v State of Queensland (2006) 226 CLR 234, 241 [10].

20. Aware of the first of those these difficulties under s 31, the applicant submitted that the limitation period did not run against him because his right of action was concealed by the fraud of Serco’s agent by the erroneous explanation given for the applicant’s non-enrolment, so that s 38(1)(b) of the LAA applies. However, even if the erroneous explanation could amount to concealment of a right of action (which I doubt), there was no evidence tendered at the hearing to support the applicant’s allegation that the erroneous explanation was fraudulent.

21. In any event, that there is no arguable cause of action against Serco leads to the conclusion that an application for leave under s 43 of PIPA should be refused as futile.[10]

    [10]Davison v State of Queensland (2006) 226 CLR 234, 241 [10].

    Second Claim

22. On 8 June 2017, the applicant was transferred from PCCC to BCC.

23. The applicant alleges that on 8 June 2017, officers of the BCC failed to provide him with incontinence pads and decided to accommodate him in observation unit S3 where he was held on 8 and 9 June 2017.

24. The applicant submitted that the reason he was accommodated in the observation unit was because officers had not obtained incontinence pads for him.  Assuming that additional fact, the alleged cause of action seems to be for breach of a duty of care in negligence in failing to provide the applicant with a known required aid for a medical condition or breach of a duty of care otherwise not to accommodate or locate the applicant in observation unit S3.

25. He alleges that he suffered aggravation, stress and frustration, increased anxiety, loss of enjoyment of the day, was demoralised, humiliated, degraded, traumatised, deprived sleep and suffered depression.

26. In either case, the postulated duty entails that it was a foreseeable risk that the applicant would suffer a recognisable psychiatric injury or compensable psychological condition.  The State submits that there is no admissible evidence that the applicant suffered any recognisable psychiatric injury as a result of being accommodated or located in observation unit S3 on 8 and 9 June 2017.

27. Even if there were an arguable cause of action, the State submitted that the limitation period for injury first suffered on or about 9 June 2017 expired three years after that.[11]

    [11]Limitation of Actions Act 1974 (Qld) s 11.

28. The applicant submitted that an unknown BCC officer or employee as agent stated that his accommodation or location in observation unit S3 was made because of his late arrival at the centre or because he was to be seen by a psychologist before further transition into the BCC.

29. The applicant says that in September 2020 he became aware that the real reason why he was placed in observation unit S3 was the unavailability of incontinence pads for him. However, the State submits that even if the alleged erroneous explanation for his accommodation in observation unit S3 could be treated as a material fact of a decisive character relating to his right of action that was not within his means of knowledge until September 2020, the one year maximum extension under s 31 expired in September 2021.

30. The applicant submitted that under s 38 of the LAA the limitation period for this claim did not run against him because his right of action was concealed by the fraud of the State’s agent, being the relevant officer or employee. The applicant alleges the explanations given for his location or accommodation in observation unit S3 were erroneous explanations that concealed his right of action.

31. He submitted they were made fraudulently.  There is no evidence as to the alleged fraud.

32. In any event, the applicant was always aware that he had not been provided with the incontinence pads.  Accordingly, any breach of a duty of care in failing to provide them was not a right of action concealed from him. 

33. I am not satisfied that there is an arguable case of fraudulent concealment of a right of action for damages for negligence for accommodating or locating the applicant in observation unit S3.

34. That there is no arguable basis for s 38 to apply leads to the conclusion that an application for leave under s 43 of PIPA should be refused as futile.[12]

    [12]Davison v State of Queensland (2006) 226 CLR 234, 241 [10].

    Third Claim

35. The applicant has what may be chronic difficulty breathing through his nose because of obstruction of his nasal passages.  He said at the hearing that his nose has been broken and he has had previous surgery intended to alleviate the obstruction that did not work.  He could not better describe what was the cause of the obstruction or the surgical procedure he had.  In 2016, he said he was booked or wait listed for a further operation on his nose that he could not describe in any detail.

36. On 19 May 2016, a visiting medical officer (“VMO”) at SQCC sent a facsimile transmission of a referral form to the Princess Alexandra Hospital (“PAH”).  On 6 June 2016, PAH responded to SQCC, advising that the applicant had been booked as a Category 3 surgery.

37. On 17 January 2017, PAH sent a request to the VMO at SQCC as to the status of the applicant as part of the hospital’s review of the Ear Nose and Throat (“ENT”) wait list in the secure facility of the hospital.

38. On 17 February 2017, the applicant said he consulted a VMO at SQCC.  On that day he signed a medical referral by the VMO for the further operation to be performed at PAH.  The applicant said that the VMO sent a facsimile transmission of the referral form to the hospital.

39. As mentioned in relation to claim 1, on 9 March 2017 the applicant was transferred from SQCC to PCCC.  After that, the proposed operation did not take place.  The applicant subsequently obtained right to information access to medical information from his file at the hospital.  He said at the hearing that there is no record on the file of the 17 February 2017 referral having been received.  In any event, the operation did not proceed.  The applicant alleges it was cancelled by the hospital.

1. Again, neither of the parties directed any attention to the alleged cause of action raised by these facts, but it may be assumed to be a claim for a breach of a duty of care in negligence in failing to confirm that the referral form had been received.

2. If it is further assumed that the applicant had a place on a hospital waiting list and that place was cancelled because the referral was not received, the applicant alleges that as a result he suffered sleep deprivation, stress and frustration, increased anxiety, loss of enjoyment of the day, shortness of breath and being demoralised.  In oral argument at the hearing he said that after he was transferred from SQCC he waited until 2019 before making inquiries about what had happened to the proposed operation.

3. Assuming there was some personal injury suffered in 2017 or 2018 as a result of the alleged cancellation, in any event, the three year limitation period for a proceeding upon this claim expired before the end of 2021.

4. The applicant submitted that it was not until 12 December 2019 that he became aware that the referral form had not been received by the hospital and accordingly he did not know a material fact of a decisive character for the alleged cause of action until that date and he may be entitled to an extension of the limitation period under s 31 of the LAA.

5. It may be assumed that 12 December 2019 was a date after the commencement of the last year of the limitation period, so s 31 might apply. However, the one year maximum extension under s 31 expired on 12 December 2020.

6. The applicant also submitted that the limitation period for this cause of action did not run because his right of action was fraudulently concealed.  For a claim against Serco, any fraudulent concealment must be by Serco or its agent.  The further evidence on which the applicant was given leave to rely on 4 April 2022 contained reference to the request sent by PAH to the VMO at SQCC on 17 January 2017 as to the status of the applicant as part of the review of the ENT wait list in the secure facility of the hospital.  But no fact arguably raising concealment of the alleged cause of action by Serco or its agent is in evidence, let alone fraudulent concealment.

7. That there is no arguable basis for s 38 to apply leads to the conclusion that an application for leave under s 43 of PIPA should be refused as futile.[13]

   [13]Davison v State of Queensland (2006) 226 CLR 234, 241 [10].

   Fourth claim

8. On or about 13 March 2017, the applicant was attended by a VMO at PCCC.  At that time or afterwards, the applicant was treated with Ibuprofen for some medical complaint or condition, presumably for pain relief.

9. The applicant alleges that the VMO did not advise him that he should not take Ibuprofen during a flare up of his colitis.

10. Neither of the parties paid any attention to the alleged cause of action raised by these facts against the State. It may be assumed it is that the VMO breached a duty of care in negligence in failing to meet the standard of care of an ordinary skilled person exercising and professing to have the skill of a medical practitioner in the circumstances,[14] and that the State is vicariously liable for the VMO’s negligence.

    [14]Rogers v Whittaker (1992) 175 CLR 479, 483.

11. There is no particular evidence about any personal injury suffered by the applicant caused by any alleged negligence for this claim.   The applicant alleges that his colitis was worsened or longer in duration but that is not supported by any medical evidence.

12. On 13 May 2019, Flanagan J ordered, inter alia, that the applicant be given leave under s 43 of PIPA to start a proceeding for a claim described as “[a]bdominal injury, colitis and polyps (notice of claim unexecuted dated 25 December 2018, and notices of claim executed 1 March 2019 and 11 March 2019)”.

13. The State submitted that an order under s 43 of PIPA for the present claim is unnecessary as leave to start a proceeding was given by Flanagan J’s order. The applicant submitted that the claims for which leave was given in respect of colitis previously do not include being negligently treated with Ibuprofen.

14. At least two notices of claim referred to in Flanagan J’s order do not appear to be in evidence.  Accordingly, I do not consider that I should conclude that the present fourth claim based on negligent treatment with Ibuprofen was included in them.

15. The State submitted that in any event the limitation period for this claim expired after three years from about March 2017.[15] 

    [15]Limitation of Actions Act 1974 (Qld), s 11.

16. The applicant submitted that until sometime in 2020 that was shortly before 28 July 2020 he did not know the decisive fact that he should not have used Ibuprofen during a flare up of his colitis. The State submitted that, accordingly, there could be no extension of the limitation period for the cause of action for this alleged injury under s 31 of the LAA because the one year maximum extension under s 31 expired about 28 July 2021.

17. If no order can now be made under s 31,[16] an application for leave under s 43 of PIPA for this claim should be refused as futile.[17]

    [16]Limitation of Actions Act 1974 (Qld) s 31(2)(b).

    [17]Davison v State of Queensland (2006) 226 CLR 234, 241 [10].

    Fifth claim to eighth claim and thirteenth claim

18. By the fifth claim, the applicant alleges that on a date in September 2017, the acting general manager of PCCC refused to allow the applicant to be placed or accommodated in a work camp.

19. The applicant’s affidavits detail a protracted dispute or disputes between him and relevant decision makers as to whether the decision not to allow him to go to a work camp was reasonable and whether the reasons given for it when he challenged the decision were truthful.

20. The applicant designates the refusal as a personal injuries claim.  He alleges that the refusal and the following disputes resulted in trauma, humiliation, being demoralising, stress, frustration, loss of income and increased anxiety and depression, and deprived him of rehabilitation and hobbies.  Apart from his say so, there is no evidence of any of those alleged injuries. 

21. The parties directed no attention to the possible cause of action.  For the reasons discussed in relation to misfeasance in public office in relation to the first claim, it does not seem to me that there is any arguable cause of action against the State for an intentional tort by any of the relevant officers or employees.  Equally, it seems to me that a duty of care in deciding whether to approve placement in a work camp against a risk of a recognisable psychiatric injury or financial loss from earnings while placed in the work camp is farfetched.

22. By the sixth claim, the applicant alleges that on 19 June 2018 the acting general manager of PCCC threatened him that if he did not stop all his legal challenges he would be transferred from PCCC.  The applicant submitted that this was perverting the course of justice and reprisal.  The applicant alleges that he suffered stress and frustration, increased anxiety, depression, loss of enjoyment of the day, and that he was demoralised and traumatised from this conduct.

23. No attention was given by the parties to the basis for this conduct as a cause of action against the State.  In relation to the basis for this conduct as a cause of action against the State, the applicant alleges a breach of duty, but there is no basis for a claim for negligence raised by the alleged facts.  So far as the threat may have been an intentional tort by the acting general manager, I again refer to the discussion of the State’s liability for misfeasance in public office in relation to the first claim. 

24. By the seventh claim, the applicant alleges that between October 2018 and about June 2021 his mail was tampered with on unparticularised occasions by unknown persons. 

25. He alleges that these incidents have resulted in increased anxiety, demoralisation from loss of faith in the system of rehabilitation and loss of enjoyment of the day as he has had to send the same mail more than once.

26. No attention was given by the parties to the basis of this conduct as a cause of action against the State.

27. By the eighth claim, the applicant alleges that in February 2019 he was required to endure exposure to gas and smells emanating from his cellmate.

28. The applicant alleges that this has resulted in degradation, aggravation, stress and frustration, increased anxiety, humiliation, loss of enjoyment of the day and demoralisation and depression.

29. No attention was given by the parties to the basis of this conduct as a cause of action against the State.

30. By the thirteenth claim, the applicant alleges that in April 2019, the general manager of Borallon Training and Correctional Centre (“BTCC”), in relation to a matter of complaint by the applicant, said that the applicant had abused threatened and upset a Justice of the Peace.

31. The applicant alleges that this resulted in aggravation, stress, frustration, increased anxiety, depression, degradation, being disrespected and demoralised and loss of enjoyment of the day.  

32. No attention was given by the parties to the basis of this conduct as a cause of action against the State.

33. The State submitted that each of these claims is not maintainable because the damage alleged is not a recognisable psychiatric injury and does not constitute compensable loss as personal injury.

34. Except for the possibility that the applicant’s statements that the result of any of the injuries was anxiety or depression, if the anxiety or depression amounted to a medically diagnosable condition or recognisable psychiatric injury, I agree.

35. In the result, in my view, no order should be made under s 43 of PIPA for these claims because the applicant’s prospects of success in the proposed proceeding are too slim or shadowy to be arguable.

36. The application for leave under s 43 of PIPA for these claims should be refused as futile.[18]

    [18]Davison v State of Queensland (2006) 226 CLR 234, 241 [10].

    Ninth Claim, Eleventh Claim, Twelfth Claim, Fifteenth Claim and Sixteenth Claim

37. By the ninth claim, the applicant alleges that on 17 May 2019 he was locked in his cell for 37.5 hours without recreation because prison officers or employees went on strike.

38. The applicant alleges that this resulted in aggravation, stress and frustration, increased anxiety and demoralisation and loss of enjoyment of the day.

39. No attention was given by the parties to the basis of this conduct as a cause of action against the State.

40. By the eleventh claim, the applicant alleges that on 20 May 2019 he was accommodated in the same cell as a prisoner who was sick.

41. The applicant alleges that as a result he became sick and was sick for three months.

42. No attention was given by the parties to the basis of this conduct as a cause of action against the State.  As discussed previously, the safety of a prisoner of suffering injury from other prisoners is a recognised duty of care upon a manager and operator of a prison.  It seems reasonably arguable that there could be breach of the duty if a prisoner were co-located in a cell with an infectious cellmate, if the prison officers or employees failed to exercise reasonable care in not removing the applicant from the source of possible infection.

43. By the twelfth claim the applicant alleges that on or before 31 May 2019 the BTCC had failed to provide him with a therapeutic device being a spiky massage ball to massage his left shoulder.

44. The applicant alleges that this resulted in pain and restricted movement in his shoulder at that time that continued until June 2021.

45. No attention was given by the parties to the basis of this conduct as a cause of action against the State. 

46. By the fifteenth claim, the applicant alleges that on 25 August 2020 he was assaulted by another prisoner while in unit C4.  The basis of claim appears to be that the applicant was moved from unit C12 to unit C4 by prison management.  The applicant alleges that was not done for good reason. 

47. The applicant does not identify any personal injury that resulted from the assault.  However, he alleges that the assault and the unjustifiable reasons for transferring him from C12 to C4 also caused him humiliation, aggravation, stress, frustration, increased anxiety, depression, moderate mental disorder, demoralisation and to feel antagonised, degraded, traumatised, threatened and tormented.

48. No attention was given by the parties to the basis of the alleged conduct as a cause of action against the State.  The reasoning for the first claim explains the recognised duty of care for the safety of a prisoner against assault from other prisoners.  Whether the circumstances of the assault for the fifteenth claim arguably show a breach of duty is not revealed by the evidence.

49. By the sixteenth claim, the applicant alleges that on 16 February 2020 he was removed from a “PAC” meeting at prison for false reasons.

50. The applicant alleges that the result was that he was not able to be a PAC member that week and was locked in his cell on 16 February 2020. 

51. No attention was given by the parties to the basis of this conduct as a cause of action or the basis of the alleged loss as personal injury.

52. The State submitted that it is not necessary to make any order for any these claims under s 43 of PIPA, because none of the limitation periods has expired or is so proximate that the applicant (who was released from prison on 6 December 2021 after the present application was filed on 1 November 2021) is unable to comply with Chapter 2 Part 1 of PIPA. Accordingly, the State submitted that the application in respect of these claims is not based on an urgent need to start a proceeding.

53. The applicant did not dispute that submission. Instead, he relied on his third affidavit as showing his amendment of the orders sought for these claims. He submitted that he has given a Part 1 Notice of Claim for each of these claims but the notice is non-compliant because it was given more than nine months after the damage was suffered in breach of s 9(3)(a) of PIPA. Accordingly, he applied for an order under s 18(1)(c)(ii) of PIPA that he should be authorised to proceed further with each of his claims notwithstanding non-compliance with s 9(3)(a).

54. The applicant submitted that there are various reasons why a Part 1 Notice of Claim was not given by him within nine months for many of his claims but that in all cases he has been under the difficulty of trying to manage and give notice of his claims while in prison where it is difficult to prepare and send a notice of claim to the world outside.

55. Generally speaking, I accept that contention. It does not seem to me that the State has suffered any prejudice because any of the applicant’s Part 1 Notice of Claims have been given late.[19] I consider that I should make an order authorising the applicant to proceed further with the claim to the extent that the applicant failed to give a complying Part 1 Notice of Claim because the notice was not given within the period of 9 months after the day the incident giving rise to the personal injury happened or, if the symptoms of the injury were not immediately apparent, the first appearance of symptoms of injury.

    [19]I note that at the hearing the only question raised by the applicant about an order under s 18(1)(c)(ii) was that the relevant notices of claim were given outside the nine month period required under s 9(3)(a) of PIPA. At the conclusion of the hearing the State requested leave to respond to that limited application in writing. However, instead of responding to the limited question raised in argument the State served a 7 page written submission raising numerous other matters. It included the thirteenth claim and did not include the sixteenth claim. But more objectionably, without indicating that it was seeking to raise any point of this kind when asking for leave to respond in writing to the limited application made in reliance on non-compliance with s 9(3)(a) the State made detailed further submissions going to the nature of the damages claimed and the strength of the case and did not deal with the issue of non-compliance with s 9(3)(a) at all. In the circumstances, I do not propose to decide any questions raised by those further submissions in deciding this application It is not necessary to do so to deal with the applicant’s limited application for relief from non-compliance with s 9(3)(a).

    Tenth claim

56. The applicant alleges that sometime before February 2018 he was treated at the PAH for colitis.  After that, he alleges he was returned to PCCC, which resulted in him missing a follow up appointment at the IBD Clinic and a delay of about three months in him being prescribed medication, and that he was prescribed medication to which he was allergic when he underwent a colonoscopy in approximately February 2018.

57. He alleges that from February 2018 this resulted in a moderate abdominal injury.

58. On 5 September 2019, the applicant made an application for leave to start a proceeding under s 43 of PIPA. By consent the application was dismissed. At that time the limitation had not expired and was not due to expire until February 2021. The application was not one where it was urgent to start a proceeding.

59. However, since then the applicant has allowed the limitation period to expire, in February 2021.

60. The State submitted that no order should be made under s 43 of PIPA for this claim because the limitation period has already expired and the claim is time barred.[20] I agree. The application for leave under s 43 of PIPA for this claim should be refused as futile.[21]

    [20]The State also submitted that this claim was one that was within the terms of the leave to start a proceeding given by Flanagan J on 13 May 2019.  I have not found it necessary to decide this question.

    [21]Davison v State of Queensland (2006) 226 CLR 234, 241 [10].

    Fourteenth claim

61. On 20 January 2019, the applicant’s cell was searched.  The applicant alleges that two officers searched his legal paperwork.  The applicant says that he said to them: “I’ll see you on the outside with the other officers in court”.  That was an implied threat to sue the officers. 

62. The applicant alleges that as a result he was breached for making an implied threat to a prison officer and placed in a detention unit for seven days.  He alleges that resulted in aggravation, stress, frustration, increased anxiety, humiliation, loss of enjoyment of the day, demoralisation and moderate mental disorder.

63. No attention was given by the parties to the basis of this conduct as a cause of action against the State or whether the alleged loss is compensable.  There is no general right to damages in tort for a wrongly made placement in detention[22] and any such damages are not for personal injury.

    [22]Lewis v Australian Capital Territory (2020) 381 ALR 375, 397-398 [95]-[98].

64. The State submitted that the limitation period for a proceeding for personal injuries expired three years after 20 January 2019.

65. Accordingly, the State submitted that no order should be made under s 43 of PIPA because the limitation period has already expired and the claim is time barred. I agree. The application for leave under s 43 of PIPA for this claim should be refused as futile.[23]

    [23]Davison v State of Queensland (2006) 226 CLR 234, 241 [10].

    Conclusion

66. It follows from the findings made in respect of the particular claims that the applicant succeeds only in respect of the narrow question of an order under s 18(1)(c)(ii) of PIPA in relation to non-compliance with s 9(3)(a) of PIPA.

67. Otherwise the application should be dismissed.