An application for leave to extend the limitation period was denied because the applicant failed to show that the delay was occasioned by a “conscientious effort to comply” with PIPA.
In Issue
Whether leave to extend the limitation period should be granted where an applicant had issued notices of claim within the limitation period, but failed to comply with pre-court procedures under the Personal Injuries Proceedings Act 2002 (Qld) (PIPA)
The background
Mr Kyle Faram, the applicant, sought an order pursuant to s59(2)(b) of the Personal Injuries Proceedings Act 2002 (PIPA) for leave to commence proceedings in relation to a claim for damages arising out of an incident that occurred on 3 March 2017 (over 3 years earlier).
The applicant’s claim arose out of an incident which occurred at the Park Ridge Tavern on 3 March 2017 when the applicant was assaulted by some other patrons. He claimed that the respondents failed to discharge the duty of care they owed to him as a lawful patron at the licenced premises by failing to provide effective services to either avert or contain the incident.
The applicant first contacted solicitors on or around March 2017, and instructed them to commence a claim for personal injuries. Part 1 of the Notice of Claim was given to the first respondent on 23 January 2018, and to the second respondent on 6 February 2019. The statutory limitation period for bringing an action for damages expired on 3 March 2020.
The limitation period had been informally extended by the parties on two occasions. The plaintiff sought a further, third extension to which the respondents did not agree. Accordingly, the applicant filed an application seeking the above order. Both respondents opposed the application on the basis that the applicant could not show that the delays were occasioned by a “conscientious effort to comply” with the pre-court proceedings under PIPA (a reference to one of the factors that courts will consider in exercising their discretion to make such orders) .
Notably, the applicant’s solicitor went to extraordinary lengths to contact the applicant prior to the application, including personally attending his last known address. When she eventually reached the applicant via phone through his brother, he stated that the reason he had not been in contact with them was because of the aggressive nature of the assault and the claims process triggered his prior diagnosis of PTSD. However, there was no medical evidence to support this assertion.
The decision at trial
This was not a case where the applicant’s lack of attention to his claim could be attributed to his solicitors. The applicant’s solicitors generally tried to progress the matter as best they could by requiring the respondent to comply with PIPA, but could do little given the complete absence of instructions and cooperation from him.
The present case was one where the applicant failed to explain his lack of attention to the claim for almost two years and he failed to demonstrate an intention to advance his claim and comply with PIPA. While there had been some delay by the respondents, more so by the first respondent, that delay did not have the same significance that it may otherwise have had given that little of the respondent’s delay interfered with or contributed to the applicant’s delay to progress the matter and comply with PIPA.
Accordingly, the court found that the applicant had not discharged the onus to persuade the court to exercise its discretion in his favour. The applicant was unable to show that the delay was occasioned by a “conscientious effort to comply” with PIPA. The application was dismissed, and the applicant was ordered to pay the respondent’s costs of, and incidental to, the application.
Implications for you
Whether or not leave is granted depends upon the exercise of the discretion of the court. The discretion conferred by s59(2)(b) PIPA was created to ameliorate the position for claimants who experience difficulty in complying with the technical requirements of PIPA within the period prescribed by the Limitations of Actions Act so that claims can be determined fairly on their merits. If a claimant is not being diligent in the pursuit of a claim, it is important to query why they are seeking an extension of the limitation period. Ultimately, the onus is on the claimant to provide a good reason why the discretion ought to be exercised in her/his favour.
