Kash v SM & TJ Cedergren Builders & Ors [2003] QSC 426

Minter Ellison for the first and second respondents

[1] McMURDO J: On 26 August 2000, the applicant was working as a self employed roofer on a construction site at Kenmore Hills. He had been engaged as a sub contractor by the first respondent, who in turn was a sub contractor of the second respondent. Another sub contractor was the third respondent, which was engaged to erect safety scaffolding around the building. It appears that the scaffolding was erected on but three sides of the building with the consequence that when the applicant slipped from the roof above the unprotected fourth side, he fell some four metres and suffered substantial injuries.

[2] This application is one of several attempts by the applicant to find his way through the labyrinth which is the Personal Injuries Proceedings Act 2002. The limitation period for his claims was three years from the date of his fall, 26 August 2000. In fact, he commenced proceedings against these respondents before the end of that period. That proceeding was issued on 17 June 2003.[1] The respondents say that it cannot be prosecuted because when commenced it was incurably bad for having been commenced without the applicant having complied with chapter 2, part 1, and in particular the requirement for a compulsory conference.[2] In this application, the applicant accepts the correctness of Holmes v Adnought Sheet Metal Fabrications Pty Ltd & Anor [2003] QSC 321 and does not seek any order to the end of prosecuting that proceeding.

[3] Instead the applicant seeks orders to enable him to now issue proceedings in identical terms. The respondents argue that although he was too early to bring the June proceedings, he is now too late to bring further proceedings. That is because s 77D(2)(b) permits proceedings to be brought, with the court's leave, no later than six months after a complying notice of claim is given, and the respondents say that it was given to each of them more than six months before this application was brought. As the matter was argued, the questions for determination are whether and when each respondent received a complying notice of claim.

[4] A Notice of Claim in relation to these respondents was dated 16 January 2003 and served upon them on 20 January 2003. It had one and perhaps two problems in being a complying notice of claim, which means "a notice of claim given under s 9 ... as required under chapter 2, part 1, division 1."[3] The first is that it was given late. The second is that it misstated the date of the accident as 16 August 2000 rather than 26 August 2000.

[5] As to its lateness, s 9(3) required the notice to be given on the earlier of two alternative days, being that date nine months from the incident or the date which was one month from the claimant's first consultation with a lawyer about the case. By the operation of s 77A, the first of those dates is taken to be nine months from 1 August 2002, that is 1 May 2003. By the same section, the second of those dates is taken to be one month from three months after the day on which the Personal Injury Proceedings Amendment Act 2002 received assent, which it did on 29 August 2002. Accordingly the alternative date for the purposes of s 9(3) was 29 December 2002. The applicant's notice given on 20 January 2003 was therefore some 22 days late.

[6] It is unnecessary to determine whether the insertion of an incorrect date for the incident made the notice non complying. This is because the notice was in any event non complying for its lateness, and further because of the effect of the respective responses to the notice.

[7] On 30 January 2003, the solicitors for the first respondents advised that they were proper respondents to the claim and that the notice of claim was compliant. Accordingly, the applicant's failure to give a complying notice of claim did not prevent him from proceeding further with the claim against the first respondents: s 18(1)(a)(i). Against the first respondents the notice is to be regarded as compliant with the consequence that a complying notice of claim was given on 20 January 2003. The notice against the first respondents was not within s 20(2) which in some circumstances makes the notice's compliance effective from a later date. This is because of the distinction between a respondent's statement that it is satisfied the notice has been given as required and a statement that the respondent has waived compliance with the relevant requirement, a distinction which appears from s 12(2) and s 18(1). If a respondent states that it is satisfied of the notice's compliance, then it is irrelevant to enquire whether the respondent's satisfaction was correct. It is treated against that respondent as in all respects a complying notice, and absent some provision such as that in s 20 which would deem it to have been given from some other date, the date on which it was given is its actual date of service.

[8] On 20 February 2003, the second respondent, through its insurer, responded in effectively identical terms. It follows that against the second respondent, a complying notice was given on 20 January 2003.

[9] The third respondent, through its insurer, wrote on 3 March 2003 that it did not consider that it was a proper respondent. Its explanation was that it first delivered scaffolding material to the site on 18 August 2000, which it erected on 21 August, whereas the notice of claim had specified the date of the incident (wrongly) as 16 August. This was a response in terms of s 10(1)(c). The applicant, through his solicitors, replied on 14 March, pursuant to s 10(4)(b) calling for a response under s 12. Consequently the third respondent was obliged to respond under s 12 within one month. Nothing more was heard from the third respondent until 16 June. The third respondent thereby failed to respond under s 12 within the prescribed period under that section, with the result that it "is conclusively presumed to be satisfied the notice is a complying notice of claim": s 13. The applicant was thereby entitled to proceed further notwithstanding his failure to give a complying notice of claim because of s 18(1)(a)(ii).

[10] But there are competing arguments as to when the notice became effective as a complying notice as against the third respondent. The applicant submits that it was a complying notice no earlier than 24 June, when the applicant corrected the mistake in the date of the incident. Alternatively, it is submitted that the notice became compliant only when the third respondent wrote on 14 August to the effect that the notice was considered "compliant since 24 June 2003", a submission which relies upon the alleged effect upon s 20(2)(a). The third respondent submits that the notice must be regarded as effectively compliant from its date. I accept the third respondent's submission. The applicant was entitled to proceed further as soon as he had the benefit of the presumption of satisfaction with the notice: s 18(1)(a)(ii). Section 20(2) does not apply because this is not a case when the notice became effectively a complying notice by the respondent's waiving compliance or being satisfied that the claimant has taken reasonable action to remedy the non compliance. The difference between responses of those kinds and where the absence of a response gives rise to a presumed satisfaction with the notice is apparent from the reading of s 12, s 13 and (especially) s 18. A respondent's presumed satisfaction with the notice has the same result as an expressed satisfaction. In each case, the notice is treated as at all times a complying one. The types of case within s 20(2)(a) differ in that they are cases where the response under s 12 has been that the respondent is not satisfied as to compliance, but is prepared to allow the claim to go forward.

[11] It follows that the notice was a complying notice against the third respondent, as it was against the first and second respondents, from the date it was served: 20 January 2003.

[12] After the correspondence from the third respondent of 16 June, the applicant issued proceedings the following day apparently concerned that 18 June was a critical cut off point. It appears that those representing the applicant had the understanding that by s 77D, the applicant could commence proceedings without the court's leave, although there had been non compliance with other requirements of chapter 2, part 1, such as that of a compulsory conference. This involved a misunderstanding of the operation of s 77D. Its actual or potential effect is upon a period of limitation. In circumstances where it is engaged, it extends or permits the court to extend that period. As at 17 June the applicant was still some two months within time to commence his case. What should have been done on behalf of the applicant was for an application to have been made under s 43 for leave to commence the proceedings. As I have mentioned, the applicant makes no application now in reliance upon s 43 in relation to those proceedings. Instead he makes application to extend the limitation period under s 77D which is in these terms:

"77D Alteration of limitation period for personal injury arising out of an incident happening before 18 June 2002

(1) this section applies in relation to a personal injury arising out of an incident happening before 18 June 2002 if -

(a) the period of limitation for a proceeding based on a claim for the personal injury ends during the period starting 18 June 2002 and ending at the end of 18 December 2003; and

(b) a proceeding based on the claim has not been started in a court, including in a court outside Queensland or Australia.

(2) If the period of limitation has 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 - before or on 18 June 2003; or

(b) at a later time, not more than 6 months after the complying notice of claim is given and not later than the end of 18 December 2003, with the court's leave.

(3) If a proceeding is started under subsection (2) without the claimant having complied with chapter 2, part 1, the proceeding is stayed until the claimant complies with the part of the proceeding otherwise ends.

(4) this section does not limitation section 43.[4]"

[13] As I have mentioned, the limitation period ended on 26 August 2003, so that the requirement of paragraph (1)(a) is satisfied. The respondents concede that paragraph (1)(b) is also satisfied upon the basis that the June proceeding, the parties agree, was of no effect and is therefore not to be regarded as a proceeding within that paragraph. The power to extend the limitation period is then said to come from s 77D(2)(b). But that permits the period to be extended to "a later time, not more than 6 months after the complying notice of claim is given and not later than the end of 18 December 2003". The problem is that the complying notice of claim was given on 20 January 2003. More than six months have passed since that notice. Indeed, that period of six months expired before the period of limitation. In consequence, in the circumstances of this case, s 77D provided no power to extend time for commencing an action.

[14] However, this Act contains another provision which permits the limitation period to be extended. It is s 59 which is in these terms:

(1) If a complying notice of claim is given before the end of the period of limitation applying to the claim, the claimant may start a proceeding in a court based on the claim even though the period of limitation has ended.

(2) However, the proceeding may be started after the end of the period of limitation only if it is started within -

(a) 6 months after the notice is given or leave to start the proceeding is granted; or

(3) Also, if a proceeding is started under subsection (2) without the claimant having complied with part 1, the proceeding is stayed until the claimant complies with the part or the proceeding otherwise ends.

(3) If a period of limitation is extended under the Limitations of Actions Act 1974, part 3,[5] this section applies to the period of limitation as extended under that part."

[15] Section 59 was within the Act as originally enacted, i.e. before it was extended to apply to accidents happening before 18 June 2002. The evident intent of s 59 is to permit, in some cases, an extension of the period of limitation because the defendant has had the benefit of a complying notice of claim within the limitation period. It would appear from s 59(2) that the court in an appropriate case could extend the period of limitation to a date more than six months after the complying notice was given. If s 59 applies to the present case, there is a power to extend a limitation period as the applicant seeks.

[16] One question is whether the operation of s 59 is displaced where the circumstances are within s 77D(1). Section 77D(2) requires a complying notice of claim to be given prior to the commencement of proceedings which have the benefit of a period of limitation extended under that section. But it does not require that notice to have been given within the original period of limitation, as does s 59. This indicates the different purposes intended to be served by the respective provisions. Section 59 appears to recognise the extra burden of bringing proceedings within a limitation period, as a result of the claimant having to take the pre suit steps required by this Act, and therefore allows a claimant extra time where a respondent has had the benefit of a complying notice within the limitation period. To a large extent the purposes of a period of limitation might be thought to be served by the giving of a complying notice of claim. The purpose of s 77D is somewhat different. It is concerned with the potential unfairness to a claimant against whom time had already started to run when this Act was made applicable to accidents which had occurred prior to 18 June 2002. But the purpose of s 59 is relevant whether the accident occurred before or after that date, and there is no reason to deny the operation of s 59 to cases to which s 77D applies, because they satisfy the requirements of s 77D(1). The present case shows that an application to extend the limitation period might not be able to be granted under s 77D(2) although it might seem to be consistent with the intent of s 59 that it should be granted. Had the intention been to provide, in respect of pre 18 June 2002 accidents, that the period of limitation could be extended only under s 77D, that intent could have been expressed within s 77D itself, or by an amendment to s 59. In my view, s 59 is not displaced because the facts also being the case within s 77D(1).

[17] The respondents argue that the applicant is too late to apply under s 59. They say that an application for an order under s 59(1)(b) to extend the period of limitation must be made within that period, or (if later) within the period for which the proceeding could be commenced without leave according to s 59(2)(a).

[18] They argue that this follows `because the court has no power to make such an order nunc pro tunc', and for this they cite Holmes v Adnought Sheet Metal Fabrications. That decision however, does not assist in the resolution of the present issue. In Holmes, a proceeding commenced without compliance with chapter 2, part 1 or an order under s 18(1)(c) or s 43 was struck out as incurably bad, because those sections were interpreted as permitting the relevant order to be made with effect only from the date of the order. Upon that interpretation, an order could not be made which would operate from the date on which the proceeding had been commenced, and absent such an order, the proceedings had not been commenced in accordance with the Act.

[19] The present question involves the interpretation of s 59, which did not arise in Holmes. Nor is it similar to Holmes, where an order was sought to validate a step already taken, and in particular, a proceeding already commenced. Instead, the order sought would have a future operation by permitting a proposed proceeding to be brought with the benefit of an extended period of limitation. The present question must be answered by an interpretation of the terms of s 59, read of course in the context of the Act and its objects.

[20] The respondents' argument seems to be based on a suggested unfairness from a defendant's losing a good defence. But that is also the effect of an order made under s 59 within the limitation period. In each case, the effect of the order is to permit the proceeding to be commenced out of time and to deprive the defendant of the limitation period defence. The potential unfairness to a defendant, in a particular case, from an order extending time could be greater where the order is made after the expiry of the period, if a defendant has by then in some way relied upon that expiry to its detriment. That is a consideration which would affect the exercise of the discretion under s 59, but it does not require the section to be interpreted as precluding an order beyond the limitation period in every case.

[21] The interpretation advanced by the respondents would leave the power under s 59 so limited that it would be difficult to see much purpose for its existence. The power can only be exercised where a complying notice of claim has been given, at which point the claimant knows enough of the proposed case to supply the particulars which are required for a complying notice.[6] Such a claimant who has not otherwise complied with chapter 2, part 1, could start the proceeding within the limitation period by obtaining an order under s 43, and would not need an extension of the limitation period. The cases where a claimant, although within time to sue without leave, would for some reason still need an extension of the limitation period, will be comparatively rare. To confine the s 59 power of extension to persons who are still within time to sue would be contrary to its apparent purpose.

[22] There is no express limitation on the power under s 59 as the respondents suggest, and in my view, nor should it be implied. It follows that the power under s 59 can be exercised before or after the date within s 59(2)(a).

[23] In the present case, it can be exercised now. This interpretation does not effectively deny defendants the benefit of a period of limitation, because the scope for the operation of s 59 is limited by the requirements for a complying notice within the period and for the court's discretion to be exercised judicially by due consideration of the relevant circumstances including any relevant prejudice to the defendant.

[24] The second respondent has submitted that its interpretation of s 59 is necessary to prevent "sections 18 and 43 (amongst others) becoming largely redundant so long as a compliant notice was served prior to the limitation." I do not agree. Section 43 gives a discretionary power to allow a claimant to start proceedings without having complied with the required preliminary steps. It exists largely because there will be deserving cases which should be allowed to go forward before the limitation period expires. Section 59 gives a power to extend the limitation period. The considerations affecting the respective exercises of these powers are different, and a claimant's case could warrant a s 43 order to avoid becoming time barred, where the same case might not warrant a s 59 order once it is out of time. To acknowledge the true extent of the s 59 power is not to encourage claimants to let their claims become time barred.

[25] Given then the potential operation of s 59, should the limitation period be extended in this case? The exercise of that power is affected by the factors such as the extent of the delay, the prospect of any prejudice to a respondent, and the prejudice to the applicant by being permanently shut out of the proceeding. The delay here involves a matter of but a few months, i.e. from 26 August 2003. The application was filed on 18 September. The delay is explained by a misunderstanding on the part of those representing the applicant as to the operation of this Act. There is no potential prejudice from the delay apart, of course, from the loss of the limitation defence itself. I am conscious that the effect of delay is sometimes difficult to identify such that it can be readily overlooked. But in the present case I am satisfied that there is no significant prospect of prejudice to any respondent. Each was given a notice of claim at the beginning of this year. The third respondent was under some difficulty because of the misstatement of the date of the incident, but that was corrected in June, still some months within the limitation period. Importantly, the applicant commenced proceedings against the respondents on 17 June. I do not suggest that this stopped time running. But the existence of those proceedings does assist in considering whether a delay in commencement of the proposed proceedings could have caused any significant prejudice. I conclude that the period of limitation ought to be extended pursuant to s 59(2)(b) so that it expires on 18 December 2003. That this is the date within s 77D is largely coincidental. After the hearing, I asked for submissions as to s 59, which had not been addressed, and the parties required some weeks to provide those submissions, which I received on 11 December. By s 59(3) that proceeding would then be stayed until the applicant otherwise complies with part 1. To the extent necessary the applicant should have leave to start the proceeding under s 43.

[26] Accordingly it will be ordered the applicant have leave to start a proceeding against each respondent pursuant to s 43 and s 59 by 18 December 2003. I shall hear the parties as to costs.

[3] Definition of "Complying Notice of Claim" in the Schedule to the Act as it was at any material time to these proceedings before the commencement of Act No. 16 of 2003.

[4] Section 43 (Need for urgent proceeding)

[5] Limitation of Actions Act 1974, part 3 (Extension of periods of limitation)

[6] Personal Injuries Proceedings Regulation 2002