Venz v Moreton Bay Regional Council

SUPREME COURT OF QUEENSLAND

CITATION: Venz v Moreton Bay Regional Council (formerly Caboolture Shire Council) [2009] QCA 224

PARTIES: ROBERT VENZ (applicant/applicant) v MORETON BAY REGIONAL COUNCIL (FORMERLY CABOOLTURE SHIRE COUNCIL) (respondent/respondent)

FILE NO/S: Appeal No 1862 of 2009 / DC No 3404 of 2008

DIVISION: Court of Appeal

PROCEEDING: Application for Leave s 118 DCA (Civil)

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 4 August 2009

DELIVERED AT: Brisbane

HEARING DATE: 27 July 2009

JUDGES: Muir JA, Mullins and Philippides JJ / Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDERS: 1. **Application for leave to appeal allowed;**2. **Appeal allowed;3. Orders made at first instance be set aside and order that:(a)**The applicant have leave pursuant to s 59 of the Personal Injuries Proceedings Act **2002 (Qld) to start a proceeding in the District Court against the respondent for damages for personal injuries allegedly sustained by him on 14 August 2004 at Morayfield, Queensland;(b)The proceeding be stayed until the parties have complied with Chapter 2 Part 1 of the said Act;(c)The parties' costs of the application filed 5December 2008 be the parties' costs in the proceeding; and(d)**The respondent pay the applicant's costs of the appeal.

CATCHWORDS: LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – PRINCIPLES UPON WHICH DISCRETION IS EXERCISED – where the respondent signed a consent order granting the applicant leave to initiate proceedings against the respondent pursuant to s 43 Personal Injuries Act 2002 (Qld) ("the Act") – where consent order specified a date by which proceedings were to be filed – where proceedings were not filed on or before stipulated date – where applicant applied to District Court for leave to commence proceedings pursuant to s 43 or, alternatively, s 59(2)(b) of the Act – where primary judge, dismissing the application, considered the granting of leave would deprive the respondent of contractual rights – whether primary judge erred in the exercise of his discretion by attributing undue weight to the respondent’s contractual rights and insufficient weight to other considerations / Personal Injuries Proceedings Act 2002 (Qld), s 43, s 59 / Uniform Civil Procedure Rules 1999 (Qld), r 968(4), r 969(5) / Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24, cited / Ernst & Young (a firm) v Butte Mining plc [1996] 2 All ER 623, cited / Moga v Australian Associated Motor Insurers Ltd [2008] QCA 79, cited / Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 WLR 185, cited / Spencer v Nominal Defendant [2008] 2 Qd R 64; [2007] QCA 254, distinguished

COUNSEL: R D Green for the applicant / A C Harding for the respondent

SOLICITORS: Qld Law Group for the applicant / HBM Lawyers for the respondent

1. MUIR JA: Introduction

The applicant seeks leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) against the order of a Judge of the District Court dismissing the applicant's application for leave to start proceedings pursuant to s 43 of the Personal Injuries Proceedings Act 2002 (Qld) ("the Act") or, alternatively, pursuant to s 59(2)(b) of that Act.

2. The grounds of appeal, in substance, are that the primary judge erred in the exercise of his discretion by attributing undue weight to the circumstance that the granting of leave would prejudice the respondent's contractual rights and insufficient weight to other considerations.

The facts

3. The applicant alleges that he was injured on 14 August 2004 when he fell into an unfenced drainage culvert about which no warning signs had been placed. He gave a Part 1 Notice of Claim pursuant to the Act on 24 December 2004. The respondent denied liability.

4. In early July 2007 the solicitors for the applicant wrote to the solicitors for the respondent enquiring about the respondent's attitude to an extension of the limitation period which was due to expire on 14 August 2007. On or about 23 July 2007 the respondent's solicitors advised by email that the respondent would not agree to extending the limitation period but would "most likely consent to an Application pursuant to Section 43 of the [Act] if brought within the limitation period and if the Claim and Statement of Claim are filed within that time also."

5. After an exchange of correspondence, the respondent's solicitors signed a form of consent order on 3 August 2007 and sent it to the applicant's solicitors by courier. The form included terms:

"1.That the Applicant be granted leave to initiate proceedings, pursuant to section 43 of the Personal Injuries Proceedings Act 2002 (Qld) against the Respondent for damages for personal injuries allegedly sustained on 14 August 2004, with such proceedings to be filed on or before 14 August 2007.

2.The proceedings must be commenced in the District Court of Brisbane." (emphasis added)

6. The inclusion of the emphasised words had been agreed between the parties in the course of correspondence.

7. Due to an administrative oversight, the order which emanated from the Registry omitted from paragraph 1 the emphasised words and figures. That occurred because a draft order sent by the applicant's solicitors to the Registry, together with the correct form of consent by the respondent's solicitors, mistakenly omitted the emphasised words and figures. Nothing turns on this mistake as the primary judge amended the order pursuant to r 388 of the Uniform Civil Procedure Rules 1999 (Qld) to include the missing matter.

8. A Claim and Statement of Claim were sent to the Court for filing on 9 August 2007. The documents were returned to the applicant's solicitors the same day bearing a 9 August date stamp but no court seal. The Claim did have a signature where there was provision for the Registrar's signature on the front page but the signature had an obvious line struck through it. Mr Pearcey, who was then a law clerk with the carriage of the matter, did not notice any irregularity in the documents. Copies of the Claim and Statement of Claim were served on the respondent's solicitors under cover of a letter dated 9 August 2007. Earlier that day Mr Pearcy telephoned the respondent's solicitors to advise that the Claim and Statement of Claim "should be filed that day."

9. The primary judge held that the applicant's solicitors attempted to file the Claim and Statement of Claim on 9 August 2007 and, by implication, that the attempt had failed. He noted the unsatisfactory state of the evidence in relation to the attempt at filing.

10. In April 2008, Ms Mergard, a solicitor who had the carriage of the matter on behalf of the respondent's solicitors, when reviewing the subject file, conducted an e-courts search under the name "Venz". It failed to disclose the existence of any filed Claim or Statement of Claim. Another search conducted by a law clerk at the Registry produced the same result but was instrumental in uncovering the error in the consent order.

11. On or about 2 June 2008, Ms Mergard informed Mr Pearcy that before proceeding to a compulsory conference, the respondent's solicitors required evidence that the applicant's solicitors had filed a Claim and Statement of Claim in the District Court. The applicant's solicitors then discovered that the proceeding had not been commenced and the Claim and Statement of Claim were filed in the District Court on 23 June 2008. Sealed copies were served on the respondent's solicitors. In correspondence between the solicitors in July 2008, the applicant's solicitors insisted that the proceedings were on foot and the respondent's solicitors asserted that the applicant's claims were statute barred.

The primary judge's reasons

12. The primary judge held that it was not appropriate to make an order under s 43 of the Act as there was no "urgent need to commence proceedings". There was no challenge to that finding or to the finding that the applicant himself was not at fault. The primary judge noted that the respondent did not argue that there had been any unreasonable or unexplained delay or that "the prospects of a fair trial have been diminished".

13. The primary judge explained the respondent's argument before him as follows:

"The Respondent’s position is quite a simple one, that is, that it will suffer prejudice if leave is granted because it will mean that the action which is presently statute barred would not be so barred. It relies upon Spencer v Nominal Defendant¹ which is not dissimilar to this case. In that case a similar Consent Order was made providing for the action for damages to be commenced by a set date and for the dispensing of other steps which, but for the order, would have been necessary before proceedings were able to be commenced."

14. The primary judge exercised his discretion against the granting of leave primarily for the reason that the granting of leave would deprive the respondent of contractual rights. He concluded:

"Notwithstanding that there was no attack on the Applicant’s conduct of the action or upon the time taken to respond to address the issue giving rise to this application and the fact that the Applicant himself is not personally responsible for the dilemma he now finds himself in, in all the circumstances including, importantly, the prejudice the granting of leave would cause to the Respondent, I am not persuaded that leave should be granted. Assuming, without deciding, that the power under s 59 empowers this court to destroy contractual rights, which the granting of leave would involve, no compelling reasons have been put before me to justify that course with the consequential prejudice to the Respondent. As in Spencer v Nominal Defendant, there is no other basis for setting aside [the] contract underlying the consent order."

The applicant's submissions

15. It is submitted that the primary judge gave overwhelming weight to the respondent's "contractual rights" and failed to attribute sufficient weight or to take properly into account:

(a)The applicant's lack of personal fault;

(b)The absence of "real delay";

(c)The absence of prejudice to the respondent;

(d)The circumstances in which proceedings were not instituted within time and the mistaken belief of the applicant's solicitors that proceedings had been commenced;

(e)The object of the discretion which is to "ensure that claims could be decided fairly on their merits."

The respondent's submissions

16. The primary judge gave express consideration in his reasons to the matters relied on by the applicant on appeal, accepting them as "salient features". The primary judge held, in effect, that these features did not displace the considerations that:

(a)By granting the relief sought the respondent would be deprived of its limitations defence;

(b)There was a binding agreement "as to the date for the filing of a Claim and Statement of Claim which should be honoured";

(c)The applicant failed to commence proceedings within the agreed time; and

(d)The consent order operated as a binding contract and the favourable exercise of a discretion under s 59 would "in effect, set aside an agreement reached between the parties".

Consideration

17. There was no challenge to the finding that the filing of the Claim and Statement of Claim was not effected within time. In any event it was correct. A document filed personally or by post is "filed when the registrar records the document and stamps the seal of the court on it."² The primary judge was rightly concerned with the inadequacy of the evidence about the cause of the failure of the attempted filing but found that there was an attempt at filing. The respondent took no issue on the appeal with the circumstances of the unsuccessful filing.

18. With respect, the conclusion that the granting of leave would have the effect of destroying the respondent's contractual rights under the consent order is incorrect. It is convenient to repeat paragraph 1 of the order:

"1.That the Applicant be granted leave to initiate proceedings, pursuant to section 43 of the Personal Injuries Proceedings Act 2002 (Qld) against the Respondent for damages for personal injuries allegedly sustained on 14 August 2004, with such proceedings to be filed on or before 14 August 2007." (emphasis added)

19. If, which I doubt, an agreement was embodied in the consent order, it was that the respondent consented to leave being granted pursuant to s 43 of the Act if proceedings were filed by the applicant on or before 14 August 2007. The proceedings weren't so filed. The consequence of this failure, on the construction of the order just advanced, was that no leave was given and the respondent was no longer bound to consent to an order that leave be given. Another possible construction of the order is that it granted leave to the applicant to commence the proceeding and obliged him to file the Claim and Statement of Claim by the specified date. On that construction, leave was given but the applicant was in breach of the obligation to file by the specified date. The latter construction was not advanced or relied on by the parties.

20. Thus, on the construction which was common ground, all that resulted from the failure to file on or before the stipulated date, was that the applicant did not have leave to initiate proceedings or any continuing consent to the granting of leave and the applicant had to make a fresh application for leave if he wished to commence the proceeding. The respondent was free to oppose any such application and there was no term of any agreement between the parties (if one existed) which governed whether or how any other application for leave under s 59 could be brought. Consequently the granting of such leave by the Court would not have interfered with any of the respondent's contractual rights.

21. Counsel for the respondent argued that there was a contractual obligation on the applicant to file the "proceedings" by the stipulated date. If that is correct, which I think unlikely, the applicant breached that obligation. But the breach, if it existed, did no more than give the respondent the right to claim damages. The applicant did not agree expressly or implicitly that if he failed to file the proceedings on or before the stipulated date he would not bring another application pursuant to s 43 or under some other provision of the Act. Any such implied term would not meet the test propounded in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales.³

22. Consequently, even on the construction of the order advanced by the respondent's counsel, the giving of leave under s 59 would not have destroyed any of the respondent's "contractual rights", rather the respondent would have been deprived of a limitations defence to which it had no contractual entitlement. The proceedings would have been commenced, necessarily, after the stipulated date but it is not suggested that this, of itself, resulted in any loss or prejudice.

23. The primary judge, it would seem, considered that the views expressed in Spencer v Nominal Defendant were directly applicable. They are not. The consent order in that case, so far as one can tell from the report of the case, did not provide for the granting of leave to commence proceedings but did impose an obligation on the applicant to commence proceedings within a stipulated time. It also related to different legislation and, more obviously incorporated the terms of an agreement between the parties. In this case it is doubtful that the subject order constituted an agreement between the parties as opposed to an order to which both parties consented. In this regard, it is relevant that the subject order was interlocutory, required the exercise of a discretion by the Court and gave the parties liberty to apply.

Conclusion

26. I would order that:

1.The application for leave to appeal be allowed;

2.The appeal be allowed;

3.The orders made at first instance be set aside and it be ordered that:

(a)The applicant have leave pursuant to s 59 of the Personal Injuries Proceedings Act 2002 (Qld) to start a proceeding in the District Court against the respondent for damages for personal injuries allegedly sustained by him on 14 August 2004 at Morayfield, Queensland;

(b)The proceeding be stayed until the parties have complied with Chapter 2 Part 1 of the said Act;

(c)The parties' costs of the application filed 5 December 2008 be the parties' costs in the proceeding; and

(d)The respondent pay the applicant's costs of the appeal.

27. MULLINS J: I agree with Muir JA.

28. PHILIPPIDES J: I have had the advantage of reading the reasons for judgment of Muir JA. I agree with the reasons of his Honour and with the proposed orders.

Footnotes

1. [2008] 2 Qd R 64. ↩

2. Uniform Civil Procedure Rules 1999 (Qld), r 968(4) and r 969(5) respectively. ↩

3. (1982) 149 CLR 337 at 347. ↩

4. [2008] 2 Qd R 64. ↩

5. See Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 WLR 185; Moga v Australian Associated Motor Insurers Ltd [2008] QCA 79 and Ernst & Young (a firm) v Butte Mining plc [1996] 2 All ER 623 at 636, 637. ↩

6. C.f. Winters v Doyle [2006] 2 Qd R 285 and Spencer v Nominal Defendant [2008] 2 Qd R 64. ↩