Facts
The Applicant in this matter alleged she slipped and fell, injuring her right knee, when walking through a shopping centre on 14 October 2019.
Whilst self-represented in September 2021, the Applicant served a Notice of Claim under the Personal Injuries and Proceedings Act 2002 (Qld) (PIPA) on the owner of the centre, QIC Active Retail Property Fund (QIC). In QIC’s response dated 20 October 2021, they identified the Respondent, Millenium Hi-Tech Group Pty Ltd (Millenium), who were contracted to provide cleaning services for the shopping centre and suggested Millenium should be joined to the claim.
Six days later, on 26 October 2021, the Applicant engaged solicitors to act on her behalf. On 9 December 2021, her solicitors wrote to Millenium to join them to the claim. Millenium did not reply to this correspondence as it considered it had not been properly joined under the necessary provisions. On 17 January 2022, the Applicant’s solicitors wrote to Millenium, deeming the Notice of Claim compliant due to no response, and again, Millenium chose to remain silent.
However, on 13 July 2022, Millenium wrote to the Applicant’s solicitors, referring to itself as “The Respondent”, serving a blanket denial of liability in an effort to resolve the matter. At a later date in August 2022, Millenium again wrote to the Applicant’s solicitors, reserving their rights to obtain independent medico-legal evidence.
In September 2022, the Applicant’s solicitors wrote to QIC requesting an informal extension of the limitation period. The solicitors’ file contains a letter addressed to Millenium, also requesting an informal extension, however, Millenium’s Counsel in her sworn affidavit denied ever receiving such correspondence.
Over the next 12 months, the Applicant continued to receive medical treatment, which separately delayed her claim.
In April 2024, the Applicant’s solicitors spoke with Millenium’s Counsel, who informed the Applicant’s solicitors that their client’s limitation period had expired and had not been protected.
The Applicant therefore sought an extension of the period of limitation under the relevant PIPA provision. Both the Applicant’s solicitors and Millenium’s Counsel were seen to be at fault, and in unusual circumstances, the Applicant was granted an extension of her limitation period.
Issues in Dispute
His Honour Judge Byrne KC identified the main issues at hand were:
- Whether the Applicant served a complying Notice of Claim on the Respondent in order for the relevant provision of PIPA to apply to grant her an extension of her limitation period; and
- Whether the Court should exercise its discretion to grant such an application in the Applicant’s favour, taking into account the respective parties’ conduct and the prejudice to Millenium in depriving it of a complete defence to the claim.
Compliant Notice of Claim
In order for the Applicant to rely on the PIPA provision to grant an extension of her limitation period, it must be demonstrated that she served a compliant Notice of Claim on Millenium.
His Honour Judge Byrne KC found that Millenium’s Counsel incorrectly assumed the purported late service of the Notice of Claim was not effective. Millenium’s approach to remain silent and not respond to the Applicant’s solicitors’ correspondence, rather than refute the joinder, in addition to then later responding to various emails as “The Respondent” led His Honour to conclude that the Applicant served a compliant Notice of Claim on the Respondent, and the Respondent consented to being joined. This allowed the Applicant’s Application to proceed.
Exercise of Discretion
The exercise of the Court’s discretion to grant an extension of the limitation period is highly fact dependent.
His Honour was satisfied that the Applicant had, personally, demonstrated a conscientious effort to comply with the PIPA procedure. Whilst she was initially self-represented, she engaged solicitors within a matter of days of being made aware of a potential third party, and was entitled to assume her case would be handled with appropriate care and attention.
The claim was delayed due to her ongoing symptoms in relation to the injury; she had no reason to think she should have been more proactive in following up with her legal representation.
His Honour noted the real dilemma was her solicitors’ failure to protect her limitation period when they received no response from Millenium’s Counsel to the letter requesting an extension and did not proactively follow this up. However, His Honour stated, “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.”
Discretion may be more readily exercised in the Application’s favour when there is no fault on the part of the Applicant.
Prejudice Suffered by Millenium
An important consideration is the prejudice argued to have been suffered by Millenium. Notably, Millenium had closed off its file sometime after the limitation period expired. Millenium submitted that no detailed statements were on file, and any relevant witnesses are no longer employed, with their whereabouts now unknown. However, His Honour found the argument regarding the passage of time not “particularly persuasive”, given they had enough evidence to serve a notice denying liability a few months after being served with the Notice of Claim.
His Honour Judge Byrne KC highlighted that:
- First, it is a possible difficulty that witnesses may not be able to be located, not one actually encountered by Millenium;
- Secondly, had Millenium correctly understood it had been served with a compliant Notice of Claim, it would have then taken the necessary steps to investigate the claim – the failure to do so is not attributable to the Applicant or her solicitors;
- Thirdly, the case against Millenium is likely to centre upon systems and processes used, rather than any individual fault; and
- Fourthly, there is retained CCTV footage of the incident, and one hour each side of it.
It was concluded that, whilst some prejudice would be suffered due to the passage of time, the records held would remain constant and reduced the prejudice.
His Honour Judge Byrne KC concluded:
“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 [Millenium] if the application is granted would likely have been ameliorated by a correct understanding of the joinder…, 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…”
Case Commentary
This matter demonstrates that an Applicant in a personal injuries claim should not necessarily be unfairly penalised for the mistakes of their lawyers; the sins of solicitors will not be visited upon them.
Whilst solicitor oversight is a relevant consideration, it does not necessarily mean an unfavourable result for the Applicant. However, it is important to acknowledge the unusual circumstances where both parties had made mistakes that resulted in an unjust result for the Applicant, who acted diligently and through no fault of her own. Otherwise, the Applicant’s remedy for her solicitors’ oversight may have been against her solicitors in a professional negligence claim.