Parfitt v Pacific Coal Pty Ltd

[2003] QDC 414

DISTRICT COURT

[2003] QDC 414

CIVIL JURISDICTION

JUDGE BOYCE QC

No BD3501 of 2003

JOEL ANDREW PARFITT	Applicant
and
PACIFIC COAL PTY LIMITED	Respondent
(ACN 010 542 140) No BD3500 of 2003 JOEL ANDREW PARFITT	Applicant
and
HASTINGS DEERING (AUSTRALIA) LTD	Respondent
(ACN 054 094 647)
BRISBANE ..DATE 22/10/2003
ORDER

22102003 T11/CGC29 M/T CMS112/2003 (Boyce DCJ)

HIS HONOUR: These are two applications under the Personal	1
Injuries Proceedings Act 2002. I propose to give reasons for judgment ex tempore. I reserve the right to revise these reasons for judgment in due course. I deal first with the matter of Parfitt against Pacific Coal Pty Ltd.

10

The applicant suffered personal injuries in a workplace accident that occurred on the 19th of April 2000. The result is that the limitation period would expire in the ordinary course of events on the 19th of April 2003. At the time, the

20

applicant was employed by Mackay Regional Apprentice whilst working for Blair Athol Coal Pty Limited as host employer. And on the 27th of November 2001, the applicant instructed his solicitors to act on his behalf in an action

30

for damages for personal injury.

On the 17th of June 2002, the applicant's solicitors commenced an action against Blair Athol Coal Pty Ltd seeking to recover such damages. Those proceedings were served on the 28th of

40

November 2002. On the 28th of October 2002, the solicitors for the applicant gave a notice of claim for damages to the applicant's employer, Mackay Regional Apprentice Employment,
and to Workcover Queensland. Solicitors acting on behalf of

Workcover Queensland advised that the notice of claim for

50

damages was compliant on 26th November 2002.

On the 20th of February 2003, solicitors acting on behalf of
Pacific Coal Pty Ltd advised the solicitors for the applicant
22102003 T11/CGC29 M/T CMS112/2003 (Boyce DCJ) 2 ORDER 60

that its client rather than Blair Athol Coal Pty Ltd was the	1
host employer for the applicant at the time of his accident. in force. The solicitors for Pacific Coal Pty Ltd suggested the appropriate procedure was for the applicant to give notice

10

of claim to Pacific Coal Pty Ltd in accordance with the
provisions of section 9 of that Act.

As a result, the solicitors for the applicant gave a notice of claim under the Act to Pacific Coal Pty Ltd on the 1st April

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2003. On the 10th of April 2003, solicitors for Pacific Coal facilitate the progress of the claim by the applicant. That material was provided by solicitors for the applicant on the 10th of July 2003, although the notice of claim had not been

30

declared compliant. By letter of the 4th of June 2003 the within the time prescribed by the Act, the notice of claim was deemed to be compliant. In my opinion, that assertion was
solicitors for the applicant wrote to the solicitors for

40

incorrect.

Section 12 of the Act covers the response by a respondent to

Part I of a notice of claim and Section 12(2) states that:

"The respondent must within the prescribed period give

the claimant written notice:	50
(a) stating whether the respondent is satisfied that claim; and
(b) if the respondent is not satisfied identifying the non-compliance and stating whether the respondent waives compliance with the requirements."

3 ORDER 60

22102003 T11/CGC29 M/T CMS112/2003 (Boyce DCJ)

Section 13 provides that:  1

"If a claimant gives Part I of a notice of claim under section, the person is conclusively presumed to be satisfied it is a complying Part I notice of claim."
this division or purportedly under this division to a
person against whom a proceeding is proposed to be
started and the person does not respond to it under

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The submission made on behalf of Pacific Coal Pty Ltd is that the notice was deemed compliant on 1 April 2003. I do not accept that that is correct. The solicitors for Pacific Coal Pty Ltd by a letter dated 10 April 2003 to the solicitors for

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the applicant said:

"We refer to the notice of claim pursuant to the Personal recently. We are seeking our client's instructions with respect to compliance and will revert to you in that respect shortly."

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The letter then goes on to ask for further information of the applicant. In my opinion, the letter should be deemed to indicate that the respondent was not satisfied with the Part I notice of claim and was identifying non-compliance. The letter, it seems to me, does not have to set out the exact

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terminology of Section 12. A letter in response pursuant to deed although solicitors should pay careful attention to the requirements of Section 12.

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In the circumstances, I am of the view that the notice is not deemed to be compliant on 1 April 2003. There is, however, a more fundamental problem in the matter and that is whether the

4 ORDER 60

22102003 T11/CGC29 M/T CMS112/2003 (Boyce DCJ)

Act applies at all to the current litigation. Section 6(3)(a)	1
of the Act provides:

This Act does not apply to personal injury in relation to
which a proceeding was started in a Court including in a
Court outside Queensland or Australia before 18 June
2002.

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I consider the Act does not apply in relation to the personal
injury suffered by the plaintiff which is the subject of the
existing proceeding both in Pacific Coal Pty Ltd and in
Hastings Deering (Australia) Ltd. I consider that when the

legislature was deliberately providing that this Act had a	20
retrospective operation, some provision had to be made to
accommodate the fact that that was inconsistent with the
position of existing proceedings because existing proceedings
almost certainly would not have complied with the requirements
of the Act. The legislature has chosen to do that in relation	30
to existing proceedings but not by reference to the existing proceedings but by reference to a particular injury.
The Act is not made inapplicable to the proceeding but made
inapplicable to the injury provided there is an injury in	40
relation to which a proceeding was started in a Court before 18 June 2002.
Now, that is what has happened in the present case: that, as
I have indicated, on 17 June 2002 the solicitors for the	50

applicant commenced an action against Blair Athol Coal Pty
Limited seeking to recover damages on behalf of the applicant.
It is suggested that in effect the plaintiff in ignorance of
22102003 T11/CGC29 M/T CMS112/2003 (Boyce DCJ) 5 ORDER 60

the true position may have started the action against the	1
wrong defendant. That is not uncommon in work injuries where there may be much difficulty in identifying the employer at the date of the accident.

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There is, however, a proceeding started in a Court before 18 June 2002 in relation to the particular injury for which the applicant is claiming damages. In my opinion, the Act does
not apply to this injury. One must observe that various

sections of this Act are badly drafted and will continue for

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quite some time to cause considerable problems for Judges who correct, and that is that the Act does not apply in relation
have to ascertain what the legislation means in a particular
situation. But I am of the opinion in the matter of Pacific

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to the personal injury for which the plaintiff seeks to
recover damages.

Accordingly, I am of the view that the application must be dismissed as against Pacific Coal Pty Ltd. I should say

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before leaving that matter that I have been greatly assisted by the observations of his Honour, Judge McGill, in the case of Inglis v. Connell (2003) QDC 029, judgment delivered on 4 April 2003, and I have followed the view taken by his Honour in that decision.

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I had in fact reached the same conclusion myself in an earlier unreported judgment in Legnoverde v. Lenard's Kenmore (No 2635 of 2002), judgment delivered on 7th March 2003.

6 ORDER 60

22102003 T11/CGC29 M/T CMS112/2003 (Boyce DCJ)

I turn now to the application against Hastings Deering	1
(Australia) Ltd. For the reasons that I have already given in the application against Pacific Coal Pty Ltd I am of the opinion that the Act does not apply and that I must dismiss the application brought against Hastings Deering (Australia)

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Ltd.

I should, however, make some other observations in case I am
held to be incorrect in the view that I have taken that the

Act does not apply. The solicitors for Hastings Deering

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submit that in the situation that has arisen the applicant
would in any event have to establish a reasonable excuse.

There is a letter from the solicitors for the applicant dated the 17th of October 2003 which sets out the reasons for the

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late delivery of the notice of claim on behalf of the
applicant and these matters are said to be a reasonable excuse

for delay pursuant to section 9 subsection 5 of the Act.

The letter sets out the following matters. On the 27th of

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November 2001 the solicitors for the applicant received instructions from the applicant to act in relation to the workplace incident on the 19th of April 2000.

On the 28th of October 2002 solicitors for the applicant

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served a notice of claim upon WorkCover Queensland and MRAEL
in accordance with section 280 of the WorkCover Queensland Act

1996.

7 ORDER 60

22102003 T11/CGC29 M/T CMS112/2003 (Boyce DCJ)

On the 17th of June 2002 solicitors for the applicant	1
instituted proceedings against Blair Athol Coal Pty Ltd seeking damages in respect of the incident on the basis that that company was the host employer of the applicant.

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On the 20th of February 2003 solicitors for Blair Athol Coal Pty Ltd advised that their client was not the entity responsible and advised that Pacific Coal Pty Ltd was the correct entity. On the 1st of April 2003 solicitors for the applicant served a notice of claim form 1 pursuant to the

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Personal Injuries Proceedings Act 2002 upon Pacific Coal Pty
Ltd.

On the 10th of April 2003 the solicitors for Pacific Coal advised that the applicant was under the direct supervision of

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an employee of Hastings Deering Australia Ltd when the
incident occurred. As a result of that advice the solicitors
for the applicant on the 22nd of April 2003 served a notice of
claim form 1 upon Hastings Deering (Australia) Ltd. That

notice was served very promptly and, in fact, within 10 days

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of receiving advice from the solicitors acting on behalf of
Pacific Coal Pty Ltd.

As I have already observed it is quite common in workplace incidents for there to be difficulty in ascertaining who was

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employing the injured person at the time of the particular
incident. If the Act applied then the Court is given a
discretion when considering whether there is a reasonable
excuse for failure to give notice in time.
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The matter has been considered in three decisions that I will	1
refer to. I refer first to the decision of Cuthbert v. Adams 2003 QSC 320, an unreported decision of Mr Justice McMurdo delivered on the 22nd of September 2003.

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His Honour was dealing with a situation arising under section 18 of the Act where the Court on application by the claimant may authorise the claimant to proceed further with the claim despite non-compliance. His Honour referred to the decision of the Court of Appeal in relation to the Motor Accident

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Insurance Act 1994 in Thomas v. Trans Pacific Industries Pty
Ltd (2003) 1 Queensland Reports 328.

In that case the Court of Appeal referred inter alia to the relevant factors as including the extent of the delay, any

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prejudice to the respondent and the prejudice to the applicant
by being permanently shut out of the proceeding having regard

to the strength or otherwise of the applicant's case.

His Honour noted in that particular case that there was no

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particular prejudice asserted by the respondent.

His Honour considered in that case that the delay was satisfactorily explained although his Honour observed that it is not a pre-condition to the exercise of the powers that the

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delay be satisfactorily explained; it is but one factor to be
weighed in the exercise of the Court's discretion.
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Accordingly, his Honour in that case concluded that the	1
applicant should be given the orders he sought, both under
section 18(1)(c)(xi) as well as pursuant to section 77D of the
Act.

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The matter was also considered by his Honour Judge Robin in Nicol v. Caboolture Shire Council (2003) QDC 033, an unreported judgment delivered on the 15th of April 2003. In that particular case his Honour observed that:

"On reflection it is hardly surprising that the

legislature in introducing further radical new restraints	20
upon personal injury claims thought it appropriate to
entrust the Courts with a wide discretion to ensure that
in appropriate cases the Act would not shut out claimants
who ought to have their day in Court. Here, the Council
has known of the claim and had the ability to investigate
it since early February 2002. Essentially, apart from
being late the notice of claim under the Act which it has
received is compliant; it (the Council) asserts no
prejudice. I see no injustice in permitting the	30
applicant to proceed."

The matter was also considered by his Honour Judge Wilson at the District Court in Stanton v. DMK Forest Products Pty Ltd (2003) QDC, an unreported judgment on the 16th of May 2003.

His Honour observed that, in considering whether an applicant	40
has acted reasonably in the context of the Limitation of
Actions Act 1974, where a person is seeking an extension of
time to bring proceedings, the question is whether the person
seeking an extension of time had taken reasonable steps to
ascertain a "material" fact under section 30(d).	50

His Honour noted that in considering whether an applicant had
acted reasonably in the context of that legislation the Courts
22102003 T08/BAT35 M/T CMS12/2003 (Boyce DCJ) 10 ORDER 60

have held that placing the matter in the hands of apparently	1
competent solicitors with adequate instructions ordinarily amounts to the taking of reasonable steps provided the applicant exercise his or her best endeavours to ensure the solicitors did not delay in the prosecution of the action.

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His Honour then observed:

"On its face P.I.P.A. is to be construed so that the
excuse should exculpate not only the applicant but also
an agent, including a solicitor, retained to act on the

applicant's behalf.

The contrary involves a logical inconsistency: an

applicant who engages an incompetent or negligent	20
solicitor might legitimately be excused more delay than one whose legal representative complied with the legislation - thwarting the obvious purpose of P.I.P.A."

His Honour considered that the meaning of the term "reasonable excuse" would vary and depend not only on the circumstances of the individual case but also on the purpose of the provision	30
in which it was contained. His Honour then observed, "The
question which then arises is whether the residual discretion
vested in the Court under section 18(1)(c)(xi) to allow the
claimant to proceed with his claim notwithstanding non
compliance should be exercised in his favour. The	40
jurisdiction is to be exercised in a way which acknowledges
the claimant is seeking an indulgence and has an obligation to
demonstrate to the Court why he should be allowed to proceed
with his claim; whilst not forgetting that as Connolly J. said
in Dempsey v. Dorber (1990) 1 Queensland Reports 418 at 422:	50

"These jurisdictions are not exercised on a punitive or
even on a cautionary basis. The essential question is

whether there is good reason for making these orders."

11 ORDER 60

22102003 T08/BAT35 M/T CMS12/2003 (Boyce DCJ)

His Honour referred to observations by McMurdo P in Thomas v.	1
Trans Pacific Industries Pty Ltd (2003) 1 Qd.R 328. That case dealt with somewhat similar requirements for notices under the Motor Accident Insurance Act 1994 (Section 37). The President observed in that case that explanation for delay is a relevant

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factor but it is only one factor for the Court's consideration
in exercising its discretion to give leave to bring the
proceeding under section 39(5) of the Act. McMurdo P further
observed that to refuse the application was to forever shut

the applicant out of his cause of action against the

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respondent.

It seems to me on the material before me that a reasonable excuse has been shown by the applicant for the discretion being exercised in his favour to give him leave to proceed if

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the Act does apply. Apart from late notification of the claim
it does not seem to me that the respondent can point to any

prejudice in the matter.

For the reasons given by Davies JA in Thomas v. Trans Pacific

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Industries Pty Ltd I do not think it is necessary in an application of this kind for the applicant to show that he has a prima facie case. In all the circumstances, if the Act applies, I consider that the claimant should be authorised to proceed further with his claim despite non-compliance.

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So, if I were satisfied that the Act applied, I would make the
following orders:
22102003 T08/BAT35 M/T CMS12/2003 (Boyce DCJ) 12 ORDER 60

(1) Pursuant to section 77D of the Personal Injuries 1

Proceedings Act 2002 the applicant has leave to start a proceeding in this Court in respect of the matters set out in his notice of claim by 18 December 2003; and

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(2) further pursuant to section 18(1)(c)(ii) of the Personal

Injuries Proceedings Act 2002 the applicant is authorised to proceed further with the claim despite non-compliance with section 9.

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However, for the reasons that I have already given I have appropriate that I should make any order in either matter.
reached the conclusion in both matters - that is, the Pacific
Coal Pty Ltd matter and the Hastings Deering matter - that the

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Accordingly, in each case I dismiss the application.

...

HIS HONOUR: In the case of Pacific Coal Pty Ltd there will be

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no order as to costs. In the case of Hastings Deering I will
order the applicant to pay the respondent's costs of the

application to be assessed.

...

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13 ORDER 60