Carter Newell Lawyers have successfully opposed an application to extend the applicant’s statutory limitation period on the basis the applicant failed to comply diligently with pre-court procedures in Faram v Hensec Pty Limited [2020] QSC 327.
The application was made pursuant to s 59 of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA), which states:
59 Alteration of period of limitation
(1) If a complying part 1 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 complying part 1 notice is given or leave to start the proceeding is granted; or
(b) a longer period allowed by the court.
Background
The applicant alleges he sustained injuries in an altercation at a tavern on 3 March 2017.
A PIPA claim was commenced against the provider of security guard services and the tavern, alleging the injuries occurred as a result of the respondents’ failure to prevent the altercation.
Part 1 Notices of Claim were was served on the security provider on 27 January 2018 and on the tavern on 1 February 2019. Part 2 Notices of Claim were never provided.
The applicant’s solicitor made medicolegal appointments for the applicant in January 2019, however those appointments were cancelled as they could not obtain their client’s instructions to attend.
Pursuant to the Limitations of Actions Act 1974 (Qld) the three year statutory limitation period expired on 3 March 2020.
The applicant’s solicitor sought two informal extensions of the limitation period; the first was to 30 June 2020, and the second to 30 October 2020. The respondents consented to those informal requests.
Nearing 30 October 2020, the applicant’s solicitor foreshadowed an application pursuant to s 59 of PIPA to seek an open ended extension of the limitation period.
The respondents did not consent on the basis the applicant had not evidenced a willingness to prosecute his claim in line with the main objects of PIPA, and proffered the agreement must have a defined expiration date, particularly given the delays already incurred.
Carter Newell Lawyers, on behalf of the security provider, requested the applicant give consideration to a timetable for the outstanding steps, which included provision of a Part 2 Notice of Claim, responses to outstanding requests for information and documentation, and medicolegal assessment of the applicant.
The solicitors for the venue sought affidavits detailing the steps taken to progress the claim, and responses to their outstanding requests for information.
In response, the applicant’s solicitor commenced the Originating Application pursuant to s 59(2)(b) of PIPA. The application was opposed by both respondents.
The steps taken otherwise in relation to the claim are set out substantially in Her Honour’s judgment.
