John v Millenium Hi-Tech Group Pty Ltd [2025] QDC 33

John v Millenium Hi-Tech Group Pty Ltd [2025] QDC 33 | Case summary | Zoe

[3] As the factual background is complicated by some dispute, it is desirable to set it out in some detail.
[4] While not legally represented in September 2021, the applicant served a Notice of Claim pursuant to s. 9 of PIPA on the owner of the premises, QIC Active Retail Property Fund ("QIC"). On 20 October 2021, QIC's claims manager confirmed that the Notice was compliant and also identified the respondent as the professional cleaning contractors engaged by the owners at those premises, and suggested the respondent ought to be joined to the claim.[1] Six days later, the applicant engaged solicitors to act on her behalf.
[5] On 9 December 2021, those solicitors wrote to the respondent purporting to join it as a respondent to the claim under s. 14 of PIPA. They also requested disclosure pursuant to s. 27 of PIPA.
[6] The respondent accepts that it received this letter, but did not reply as it considered that it had not been properly joined. As there was no response to that correspondence, on 17 January 2022 the applicant's solicitors wrote to the respondent asserting that the Notice of Claim was deemed compliant pursuant to s. 13. The respondent accepts that it received that correspondence, but again did not immediately respond, for the same reason.
[7] Notwithstanding that assertion, on 13 July 2022 the respondent wrote to the applicant's solicitors. In that email it referred to itself as "The Respondent", stated that it had taken all reasonable steps necessary to inform itself of the relevant incident, made a blanket denial as to liability and made an offer under s. 20 of PIPA to resolve the matter.[2] On 3 August 2022, in response to correspondence sent by the applicant's solicitor, the respondent emailed the applicant's lawyers reserving its rights in relation to obtaining an independent medical examination of the applicant.[3]
[8] There was some delay in the progress of the Claim due to some instability with the injury which impacted on a full assessment of its extent. On 13 September 2022, the applicant's solicitor wrote to QIC and obtained an informal extension of the period for the holding of the Compulsory Conference and exchange of mandatory final offers.
[9] The solicitor who had carriage of the applicant's case to that time is no longer in the employ of that firm, which is still retained by the applicant. The file contains a letter dated the same date, addressed to the respondent and bearing the respondent's General Counsel's, Ms Brooks', correct email address and which also seeks an informal extension. By affidavit, Ms Brooks denies receiving that correspondence. In any event, no response was ever received, and the solicitor did not protect the applicant's position apropos the limitation period, which expired on 14 October 2022. The respondent closed its file concerning the application on an unspecified date after 14 October 2022.
[10] The applicant's solicitor's file contains a letter dated 28 March 2023, addressed to the respondent and bearing Ms Brooks' correct email address which provided an update on the applicant's medical status. The respondent denies receiving this letter.
[11] Ms Brooks' accepts that on 22 April 2024 she received correspondence from the applicant's solicitor concerning a previously made disclosure request. She did not respond to that letter.
[12] In April 2024 there was a telephone discussion between Ms Brooks and the applicant's then solicitor in which Ms Brooks asserted that the applicant's limitation period had expired and had not otherwise been protected. Ms Brooks contends this phone call happened on 22 April 2024, while the applicant's file records it happening on 29 April 2024. The difference is of no consequence for present purposes.
[13] On 1 May 2024, the solicitor who currently has carriage of the matter from the same firm, Mr Cooper, rang Ms Brooks to discuss the matter and records that, in effect, she maintained the same position. The source of that evidence is Mr Cooper's own affidavit. Ms Brooks' affidavit is silent as to this phone call.
[14] On 4 June 2024 Mr Cooper wrote to QIC and the respondent advising that he now had carriage of the matter and requesting that the respondent attend to earlier requested disclosure, and also seeking disclosure of further matters.
[15] For clarity, the respondent denies, by Ms Brooks' affidavit, receiving any correspondence from, or having any communication with the applicant's solicitors between 3 August 2022 until 22 April 2024.
[16] The present application was filed on 16 September 2024.

[4]

[17] The present application has been brought under s. 59 of PIPA. That provision only applies where a complying part 1 notice is given before the end of the limitation period. The respondent takes issue with the proposition that the notice it received is a complying notice, because it was addressed only to QIC, and not the respondent. There is also an issue concerning the date when the notice was purportedly served on the respondent.
[18] It is common ground that the applicant's solicitor's correspondence of 9 December 2021 purported to join the respondent without providing a fresh part 1 notice. That correspondence, correctly, asserted that it was not required to do so, and cited Wright v Sirrom Corporation (Aust) Pty Ltd [2019] QSC 26 as authority for the proposition.[4] The respondent did not respond initially because Ms Brooks considered that service of a part 1 notice directed to the respondent was required. That was incorrect, as observed in the cited authority. So, service of a complying part 1 notice occurred on 9 December 2021, subject to the applicable time limits for joining a respondent under s. 14 of PIPA.
[19] By a combined reading of s. 14(1) of PIPA and reg. 7 of the Personal Injuries Proceedings Regulation 2014, the joining of the respondent by service of the part 1 notice had to occur no later than 20 October 2021. It did not happen until 9 December 2021, and so that the purported joinder will not be effective unless, pursuant to s. 14(2) of PIPA, the joinder has occurred "with the person's agreement and the agreement of the parties or the court's leave". The applicant does not seek the court's leave, but it does argue that the applicant can be taken to have the implied agreement of both the respondent, and QIC.
[20] QIC suggested that the applicant should join the respondent to the claim. It can be taken to have consented.
[21] The respondent's position is more nuanced. It received, as I have held, the necessary form and at no stage clearly refuted the purported joinder. Its approach was to remain silent. The affidavits from Ms Brooks do not expressly state that it did not consent to being joined; they are to the effect that she considered it had not been properly joined. Those affidavits are silent about why the correspondence of 13 July 2022 and 3 August 2022 was sent, apart from referring to the former communication containing a denial of liability.
[22] The nature of the correspondence has been briefly outlined in paragraph 7 above. The terms of both items of correspondence are inconsistent with an assertion that a complying part 1 notice had not been served. Further, an offer can only be made under s. 20 of PIPA where a complying notice has been received. Put another way, the offer under s. 20 amounts to an acceptance that it had received a complying notice. That can only have come about where the respondent consented to being joined. In the circumstances, the respondent should be taken to have consented to being joined, and I accept that the part 1 notice is a complying notice.

[7]

[23] A preliminary issue was raised as to whether I should accept that the respondent received the correspondence of 13 September 2022 and that of 28 March 2023, although the latter is of no real consequence.
[24] The respondent's Counsel correctly observes that I am being asked to draw an inference from the presence on the file of correspondence that it was in fact sent, whereas there is sworn and uncontested evidence from Ms Brooks that she did not receive it. It is not contested that the email address on the subject correspondence was the same address at which other communications were received at other times.
[25] There is reason to be concerned about the accuracy of all of Ms Brooks' account. In her first affidavit she deposed to having received correspondence of 22 September 2022 seeking an informal extension of the limitation period. In her second affidavit she deposes to that paragraph being "in error". I accept that she did not receive that correspondence, but mainly because there is no suggestion by the applicant of any such correspondence being sent that day. That she could have referred to such a crucial issue "in error" raises issues as to accuracy and reliability generally.
[26] On the other hand, the solicitor who initially had carriage of the matter for the applicant has, as the applicant seems to accept, not acted with complete diligence. In particular there is no copy of the correspondence of 13 September 2022 to QIC, although it is accepted that it was received by QIC and an extension granted. Further, the failure to protect the limitation period when there was no reply from the respondent does not instil faith as to her diligence in this matter.
[27] Ultimately, I am satisfied that I should accept the sworn denial over the inference sought. While the material raises the issue referred to above, Ms Brooks was available for cross-examination and her denial was not challenged, nor was retraction of the earlier assertion scrutinised. Accordingly, I accept that the respondent did not receive the correspondence of 13 September 2022, but that does not necessarily mean that it was not sent, nor that the applicant's solicitor did not believe it had been sent.

[8]

[28] It is uncontentious that the applicable considerations for the exercise of the discretion are to be found in Paterson v Leigh & Anor,[5] which dealt with the analogous s. 57 of the Motor Accident Insurance Act 1994 (Qld). I have regard to them, without repeating them here. As the respondent accepts, the exercise of the discretion will be highly fact dependent.
[29] I am satisfied that the applicant had, personally, demonstrated a "conscientious effort to comply" with the requirements of PIPA. She was initially self-represented but, within a matter of days of being notified that the respondent might need to be joined, she obtained legal representation. She was entitled to assume her case would be handled with appropriate care and attention. Mr Cooper's affidavit reveals that there was considerable contact with the applicant concerning medical assessments, and the postponement of them due to the injury's instability. There is no reason to think that she should have been more proactive in following up her legal representatives. Where there is no fault on the part of the applicant, the discretion might more readily be exercised in the applicant's favour.[6]
[30] The respondent had been served by the applicant's solicitor with a complying part 1 notice, and a request for disclosure, but elected not to respond to it due to an erroneous belief about the notice's validity, even though the covering letter directed the respondent to the legal basis for its validity. The respondent was then notified, at an appropriate time, that the notice was deemed to be compliant. At that time, regular steps were taken to progress the matter on the applicant's behalf. That there was no response from the respondent does not suggest fault on the part of the applicant's solicitor.
[31] The real cause of the present dilemma is the failure of the applicant's then solicitor with carriage of the matter to protect her limitation period position when there was no response to the letter, she no doubt believed had been sent, on 13 September 2022. There is no direct evidence to explain why the applicant's position had not been protected in the absence of a reply, however in the absence of a rational explanation, it suggests a lack of conscientious effort. A lack of conscientious effort to comply with statutory requirements, even on the part of a solicitor, is not necessarily fatal to a favourable exercise of the discretion, but it is a matter of relevance.[7]
[32] To give context to the ensuing delay, from the applicant's perspective, there were no communications between the applicant's solicitor and the respondent between September 2022 and March 2023, and then from that time until April 2024. From the respondent's perspective there was no communication between August 2022 and April 2024, a period of 20 months. While it would have been desirable to have more regular contact, and contact which was confirmed to have occurred, the delay was brought about through the injury's instability, and so is explicable in terms of fault.
[33] An important consideration in this matter is the prejudice said to have been suffered by the respondent. The respondent closed off its file at some time after the expiration of the limitation period. Ms Brooks has sworn to having ascertained the names of the cleaners employed at the centre at the time, but deposes that none of them are any longer in the employ of the respondent, and that their whereabouts are unknown. She also deposes that while basic statements were taken by QIC at the time from one cleaner and a security officer, there are no detailed statements in existence about the fall. Whatever complaints might now be made about the adequacy of the records available, they were apparently considered a sufficient basis upon which to deny liability in the letter of 3 July 2022.
[34] Further I do not consider the asserted prejudice concerning having to locate the cleaners, and the passage of time on their recollections if they were able to be located, as being particularly persuasive.
[35] First, it is a possible difficulty, not one actually encountered after efforts had been made to do so.
[36] Second, had the respondent correctly understood that it had been served with a complying part 1 notice in December 2021, it is likely that steps would have been taken to obtain statements and contact details of cleaners then. The failure to do so is not attributable to the applicant or her solicitor.
[37] Thirdly, as the applicant's Counsel submits, the case against the respondent is likely to centre upon the systems and processes used, not individual fault. That is borne out by Mr Cooper's letter of 4 June 2024 seeking further discovery of records to that broad effect. It is notable that under the terms of the contract between QIC and the respondent, it was required to keep various records of the nature sought. There can be no doubt that the passage of time can be a powerful dilutant of a witness' memory, but the records should remain constant.
[38] Fourthly, while the impact of the passage of time cannot be minimised, it does not have the same impact as it might in other cases. Here there should be written records available to answer, at least in part, the issues raised, and there is CCTV footage of the incident, and one hour each side of it.
[39] None of that is to suggest that there would not be some difficulty, and some associated prejudice, from the respondent's perspective in having to defend itself from a claim that is now 51/2 years old. It is a matter of weight, in all of the circumstances.
[40] It is an important consideration that to allow the application will be to deprive the respondent of a complete defence afforded by the limitation period. However, in circumstances where much of the prejudice asserted to be suffered by the respondent if the application is granted would likely have been ameliorated by a correct understanding of the joinder of it to the proceedings in December 2021, where there is no fault on the part of the applicant herself, and where the fault of the solicitor can be distilled to the single, but serious, omission to protect the applicant's position in light of no response being received to the request for extension, I consider that the interests of justice favour the granting of the application, notwithstanding the extended period of time since the limitation period expired.

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