Mutze v Townsville City Council

[2003] QDC 448

[2003] QDC 448

DISTRICT COURT

CIVIL JURISDICTION

JUDGE MCGILL SC

No BD4178 of 2003

ANTHONY MUTZE	Applicant
and
TOWNSVILLE CITY COUNCIL	Respondent

BRISBANE

..DATE 11/12/2003

ORDER

HIS HONOUR: This is an application which has now become one for authorisation under Section 18(C)(ii) for the applicant to proceed with a claim notwithstanding non-compliance with the Personal Injuries Proceedings Act 2002 and for leave to start a proceeding in respect of the claim pursuant to 77D(2)(b) of the Act.

The applicant claims to have been injured at some time between January and August 2000.  The applicant was living in a house in Townsville during that period which was subject to repeated flooding, as a result of which the applicant claims that raw sewerage came out of the sewerage system in the vicinity of the applicant's house and accumulated under and around the applicant's house, as a result of which the applicant suffered psychiatric injury and contracted Giardia.

The applicant claims that the presence of the sewerage discharge during the flooding was a result of negligence on the part of the respondent in relation to the sewerage system.

I dare say that in a general way the respondent would be responsible for sewerage systems in Townsville.

The applicant consulted a solicitor during 2000 in relation to the matter. At that stage of course there was no Personal Injuries Proceedings Act and the applicant was in a position simply to issue an appropriate proceeding to claim damages with respect of any injury suffered within three years of the date when the cause of action arose.

Subsequently the Personal Injuries Proceedings Act was passed and came into operation on 18 June 2002 but at that stage the requirements for Notice of Claim were not retrospective and so did not apply to the claim by the applicant. However later in 2002, the Act was amended so that notice requirements were imposed retrospectively on someone in the position of the applicant who had not then commenced a claim.

There were special transitional provisions in Section 77A which specified the times within which notices were to be given, otherwise the times limited by Section 9 would have been unrealistic and would already have expired.  A Notice of Claim was given on 12 December 2002 on behalf of the application within the time extended by Section 77A, but it was not a Compliant Notice of Claim.

It followed that under Section 18 the failure to give a Complying Notice of Claim prevented the claimant from proceeding further with the claim unless one of the three things specified in Section 18 occurred.  None of those have yet occurred.

There was in the earlier part of 2003 some correspondence about non-compliance and it does not seem to me that the matters finally identified on behalf of the respondent as areas of non-compliance, are very serious or substantial, however it is common ground that the Notice of Claim was not compliant and that none of the matters in Section 18.1 have yet occurred.

However, if an order is now made authorising the claimant to proceed with the claim despite non-compliance, pursuant to 18(1)(C)(ii), then a Complying Notice of Claim will be taken to have been given today, pursuant to 20(2)(b) of the Act.

It was conceded on behalf of the respondent that Section 77D(1) covered this claim and that appears to be correct.   Accordingly the effect of subsection (2) was that the applicant was entitled to start a proceeding in a Court based on the claim without any order from the Court if a Complying Notice of Claim had been given before 18 June 2003.  That is to say the proceeding could have been started without leave on or before that date provided that there had been before that date a Complying Notice of Claim given.

If any of the steps identified in Section 18.1 had been taken before that date, then a Complying Notice of Claim would be taken to have been given and it would have been in order for the claimant to proceed.

It was however submitted that on the true construction of Section 77D(2) it was not open now for me to make an order under 77D(2)(b) because a Complying Notice of Claim was not given before 18 June 2003.

Subsection (2) in its form as inserted by the original Amending Act, provided:

"If the period of limitation is ended, the claimant may start a proceeding in a Court based on the claim -

(a)  if a Complying Notice of Claim is given before

18 June 2003; or

(b)at a later time, not more than six months after the Complying Notice of Claim is given and not later than the end of 18 December 2003, with the Court's leave."

As I pointed out in Lamb v State of Queensland [2003] QDC 3, the section was not clearly drafted and paragraph (a) was ambiguous, but ought to be interpreted as if there was a comma after the word "given".

After that judgment had been delivered, Section 77D was amended and paragraph (2)(a) was amended to read:

"If a Complying Notice of Claim is given before 18 June 2003 - before or on 18 June 2003."

I interpret the amendment as in effect verification of the interpretation that I had given to paragraph (a) in Lamb v. State of Queensland, although the legislature did not simply insert the comma after the word "given".  I suspect this had more to do with a reluctance on the part of the Office of Parliamentary Council to admit that it had mucked up the drafting in the first place.  I think that the effect of the amendment was simply to verify that my interpretation was the one intended by the Parliament.

However, the interpretation sought to be advanced on behalf of the respondent involves the proposition that the introductory words of (b) "at a later time" pick up the wording in paragraph (a) so that the words "If a Complying Notice of Claim is given before 18 June 2003" do not apply only to paragraph (a), but apply also to paragraph (b).

The wording of paragraph (a) would suggest that paragraph (b) would rather as the alternative to paragraph (a) apply in circumstances where a Complying Notice of Claim was not given before 18 June 2003, but plainly that is not the intention, otherwise difficulties might arise if a Complying Notice of Claim was given or was taken to have been given immediately before 18 June 2003.

I think that it is correct to say that the reference to a later time means a time later than the time specified in paragraph (a), but I do not think it necessarily follows that the restriction that there be a Complying Notice of Claim given before 18 June 2003 is picked up.

It was submitted on behalf of the respondent that the justification for this construction could be found in a consideration of the whole scheme of the legislation, and the fact that the disadvantage to those who came to be caught for the first time by the introduction of the retrospective provisions had been adequately met by the transitional provisions in Section 77A in relation to the giving of the notice which was achieved by fixing notion or dates of injury by reference to which time limits for the giving of the notice of claim were fixed.

In addition, the extension in Section 77D would operate to provide adequate protection for such claimants if they were required in that it provided a sufficient time for them to give a Complying Notice of Claim before 18 June 2003, in which case they could either start the proceedings without leave on or before that date, or with leave after that date, but not more than six months after the Complying Notice of Claim was given.

In view of the existence of Section 77A, such claimants were required to give a Notice of Claim and there was an obligation therefore to give a Complying Notice of Claim.  A proceeding could not be commenced without a Complying Notice of Claim because of Section 9 and Section 18.  The scheme of the Act would work effectively if the power in Section 77D(ii)(b) was restricted to a situation where there had been  a Complying Notice of Claim given before 18 June 2003.

Indeed it was submitted that it would work more effectively than the contrary interpretation under which a person would be better off not having given a Notice of Claim or indeed a Complying Notice of Claim but waiting until shortly before the end of 18 December 2003 before making an application.

I do not criticise the general analysis of the scheme of the Act on the part of counsel for the respondent, although it seems to me that it leads rather to the conclusion that it would have been logical and reasonable for Section 77D(ii) to provide something other than what it does provide.  That is to say, the legislature could have done a better job when formulating Section 77D(ii). 

It could certainly have done a better job of drafting - I would not argue with that.  However, it seems to me that the answer really is that, even if it would have been sensible and consistent with the scheme of the Act for the legislature to have provided a power restricted in the manner contended for, the legislature has not imposed that restriction in relation to subsection (2) paragraph (b).

There are, I think, two reasons based on the actual wording used in subsection (2) as to why that interpretation could not be advanced.  The first is that if the argument is correct then the words "and not later than the end of 18 December 2003" in paragraph (b) would be unnecessary. 

If the power existed to give leave only in circumstances where a Complying Notice of Claim had been given before 18 June 2003 the restriction that the proceeding be commenced not more than six months after the Complying Notice of Claim was given would necessarily ensure that any proceeding was started not later than the end of 18 December 2003.

The presence of that restriction seems to contemplate that it must operate in circumstances where there is a Complying Notice of Claim given after 18 June 2003.

There is also the consideration on the basis of the Act in its amended form that if the legislature had intended that the restriction "If a Complying Notice of Claim is given before 18 June 2003" applied both to paragraph (a) and paragraph (b) of subsection (2) the appropriate place to insert that restriction was in the introductory words to subsection (2) rather than in paragraph (a).

The ordinary process of interpretation of a statute would suggest that where a restriction is inserted in one paragraph of a subsection the restriction applies only to that paragraph and not to another paragraph of the subsection.

It seems to me to follow from the way in which that amendment was made that the legislature was really intending to impose the restriction only in relation to paragraph (a) rather than in relation to the whole of subsection (2).

I therefore would not adopt the interpretation contended for on behalf of the respondent, and in my opinion I have power subject to an order being made under Section 18(1)(c)(ii) to give leave under Section 77D(2)(b) in the present case, notwithstanding that a Complying Notice of Claim has not yet been given.

Once an order is made under Section 18(1)(c)(ii), there is taken to be a Complying Notice of Claim given at that time under Section 20(2)(b) and at that point the power to give leave under Section 77D(2)(b) arises. I would note that in Cuthbert v Adams [2003] QSC 3 20, McMurdo J gave leave under 77D in circumstances where a Notice of Claim was given after 18 June 2003 and indeed in circumstances where an order was made under 18(1)(c)(ii) at the same time. That decision I think is consistent with my analysis.

There is a difference in that case but I do not think it is a difference which particularly effects the analysis that I have adopted.  I think it is fair to say that the particular argument advanced in this case was not advanced in that case but I think the decision is consistent with the general analysis of the provisions that I would adopt.  So, I think there is a discretion.  Cuthbert's case also provides some guidance as to the correct approach of the exercise of the discretion.

In relation to that there is really no explanation for the failure to progress the matter beyond the early part of this year at which time it did not seem that there was very much more that had to be done in order to remedy the non-compliance in the Notice of Claim.

That is not covered by the material but I think the appropriate course in the circumstances is to adjourn the application in order to enable that deficiency to be remedied if possible and for that reason I will adjourn the application until Monday, the 15th of December.  I will reserve the costs.

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