EWAN V MISKIN HILL CTS 29107 & ANOR [2024] QSC 306
Executive Overview
- The invalidity or non-compliance of a Part 1 Notice of Claim served on a respondent has no impact on their obligation under s 10.
- The imposition of such an obligation, which is activated on receipt of a Part 1 notice, is of ‘central importance to the promotion of the purposes of the PIP Act’, which ultimately seeks to assist claimants identify respondents and ‘facilitate the early and efficient resolution’ of pre-proceedings claims.
- Contribution notices given under s 16 (to the contrary) will likely be measured with a stricter approach, such that disputed notices served outside of the prescribed 3-month period will be deemed invalid unless admissible evidence can be led to establish that service was made in accordance with s (8)(1)(b).
- Simply stating that a respondent only became aware of the prospective contributor within seven days of serving a notice, without adducing any further evidence as to the truth of that statement, especially in circumstances where the contributor was known to the respondent prior, will likely be held insufficient.
Involved Parties
- Applicant: The owner of a residential unit in Brisbane.
- First Respondent: Titles Scheme established for the unit block property.
- Second Respondent (“SR”): Body corporate management company (engaged by the first respondent).
Background
This dispute involved a procedural contention as to whether the SR had been properly joined to the claim.
By way of contextual overview:
- In March 2022, the applicant alleged suffering a slip and fall accident in the common area of the unit block where she resided.
- The nature of the incident was such that the Personal Injuries Proceedings Act 2002 (Qld) (“PIP Act”) governed the claim’s procedures, and in September 2023, the applicant served a Part 1 Notice of Claim (“P1NOC”) on the first respondent.
- On 15 July 2024, the first respondent served a s16 contribution notice on the SR.
- Shortly thereafter, the applicant issued a P1NOC against the SR.
In response, the SR advised the parties that the contribution notice had been served out of time, meaning the applicant’s attempt to add the SR was non-compliant with s 14(1) of the Act. When the applicant rejected this position, solicitors for the SR persisted, claiming their client would not be responding to the P1NOC due to the invalidity of the contribution notice served upon it.
1: Was the s 16 contribution notice valid?
The first limb of consideration for the Court involved assessing whether – despite being served outside of the prescribed 3-month limitation period – the SR’s contribution notice had been validly served under r 8(1)(b) of the Personal Injuries Proceedings Regulation 2014 (Qld)(“PIP Regulation”).
The Court concluded that it had not been, on the basis that:
- The applicant had led no admissible evidence to support a finding that the first respondent had served its contribution notice within (7) days of identifying the SR as a contributor (as per r 8(1)(b) of the PIP Regulation);
- The correspondence sent by the first respondent’s solicitors asserting that the SR’s client had only been ‘identified as a contributor in this matter on 9 July 2024, when the Administration Agreement – Engagement of a Body Corporate Manager dated 1 July 2021 was produced’ was not an admissible document as to the truth of its contents;
- Neither the first respondent nor the applicant had led any evidence at the hearing to rebuke the SR’s submission that the first respondent had knowledge and possession of the management agreement years prior to 9 July 2024; and
- The wording of s 16(2) of the PIP Act plainly provided that absent consent by all parties to the claim (including the prospective contributor) or the leave of the Court, a s 16 contribution notice cannot be served outside of the prescribed timeframes.
2: Can the applicant, having received an invalid s 16 notice, still make the SR a respondent under s14(1) of the Act and r 7(1)(b) of the Regulation?
The Court concluded that while the applicant was provided with a copy of the first respondent’s s 16 notice, it was not empowered to add the SR as a respondent under s 14(1) because:
- The wording in s 16(2) to receiving a ‘copy of a contribution notice’ is to be construed as a reference to an operative contribution notice; and
- The impugned notice had not been validly issued, meaning the SR was not made a contributor under ss 16(1) and (2).
3: Was service of the P1NOC otherwise effective to render the SR a respondent to the claim?
The final consideration necessitated an analysis of ss 9, 10, and 13 of the PIP Act.
The Court emphasised the importance of flexibility where ‘the s 9(1) notice obligation is a road block to commencing court proceedings and the identity of potential respondents may emerge at a variety of different times and under a variety of different circumstances’.
While the initial timeframe for service of the P1NOC under s 9(3) had expired, the claimant was nonetheless obliged to give a P1NOC under s 9(5) together with a statement evincing a reasonable excuse for the delay.
While the latter was absent in the present matter, the Court still concluded that the P1NOC was ‘not invalid merely because a statement of reasonable excuse was not given’. The reasons underpinning the Court’s determination with respect to this element were as follows:
- Section 9 is ‘a part of a suite of interconnecting provisions’, including the adjacent s 10, which imposes an obligation on the recipient of a P1NOC to:
- Identify whether regards itself as a proper respondent (s 10(1)(a));
- Clarify, if the recipient is unable to regard itself as such, whether that is due to a lack of information, and in such circumstance, make a further request for further information to assist it in making the decision (s 10(1)(b)); and
- Confirm, when applicable, that the respondent regards itself as not being a proper respondent, and in that circumstance, to then provide reasons as to why that is the case (s 10(1)(c)).
- There are no express words contained in s 9 which would suspend of render s 10 inoperable in circumstances where a reasonable excuse has not been provided.
- Both ss 10 and 12 expressly operate in respect to compliant and non-compliant P1NOCs, which is evident in part by the fact:
- The P1NOCS referenced in those sections are one and the same; and
- Section12 applies to any P1NOC given under or ‘purportedly under’ this division.
- As s 12 is enlivened with respect to non-compliant P1NOCS, the obligations under that section require any recipient to provide a written response stating whether the P1NOC is compliant or non-compliant (and in the case of the latter, confirm whether the areas of non-compliance are waived).
- Statements made by the SR via email correspondence following receipt of the applicant’s P1NOC did not constitute an adequate response required by s 10 (which included assertions that the facts of the claim were at odds with contemporaneous evidence, and that the SR did not propose responding until such time as compliance with the Act had been effected).
In the above circumstances, the Court found the SR’s failure to respond to its obligation under s 10(1) created a conclusive presumption to the effect that the SR was satisfied the notice was compliant.
Relief
As the applicant succeeded with respect to the third limb, the Court made declarations in respect thereto, namely that the SR was conclusively presumed to be satisfied that the P1NOC was compliant.
The SR was thus added as a formal respondent to the claim.
The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.
Published: 29 January 2025
Author: Thomas McLaughlin