Sopinski v Ewing [2011] QDC 212 (15 September 2011)

Last Updated: 30 September 2011

DISTRICT COURT OF QUEENSLAND

CITATION:	Sopinski v Ewing [2011] QDC 212
PARTIES:	MARGUERITE MARY SOPINSKI (Applicant) AND PETER JOHN EWING (Respondent)
FILE NO/S:	OA3351/11
DIVISION:
PROCEEDING:	Originating Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	15 September 2011
DELIVERED AT:	Brisbane
HEARING DATE:	15 September 2011
JUDGE:	McGill DCJ
ORDER:	Leave to commence a proceeding as per draft; no order as to costs.
CATCHWORDS:	PERSONAL INJURIES – Pre-litigation procedure – leave to commence a proceeding to be stayed – whether urgency – whether reasons to grant leave – costs of application not opposed – whether s 48 of PIPA applies. Personal Injuries Proceedings Act 2002 ss 43, 44, 48 GU v TO [2005] QCA 480 – cited.
COUNSEL:	S.G. Wight (Solicitor) for the applicant R.E. Laidley for the respondent
SOLICITORS:	Kerin Lawyers for the applicant The respondent was not represented

[1] This is an application under s 43 of the Personal Injuries Proceedings Act 2002 (the Act). The applicant alleges that she has suffered personal injury on or about 30 September 2008 as a result of an accident involving a horse. The applicant and the respondent were involved in a personal relationship at that time and there is a difference in the versions of the accident involving the horse which is apparent on the material before me.

[2] It is not necessary for the purposes of an application under s 43 for the applicant to demonstrate a reasonably arguable case for success on liability in the proceeding to be commenced, and I do not think it is necessary for me to consider in any detail just what happened in the accident. It is sufficient to say that the applicant wishes to assert that the injury which she has suffered was caused by the negligence of the respondent and, if she wants to do that, the appropriate way to do it is in accordance with the Act.

[3] The practical explanation for part of the delay in doing anything under the Act, which was not commenced until 31 August 2011 when the applicant consulted solicitors, is that the personal relationship continued until earlier this year. It may well be that if the personal relationship had not broken down these proceedings would not have been pursued. However, it does appear that it is only quite recently that the applicant took steps with a view to pursuing these proceedings.

[4] There is some material before me which suggests that from the applicant’s point of view there were practical reasons why she did not seek to pursue them earlier, but it does not appear that this was in any sense the fault of the respondent.

[5] In circumstances where the limitation period had not expired but was shortly to expire, then it was reasonable enough to consider an approach under s 43 of the Act in circumstances where it would not have been possible to comply with the requirements of serving a Part 1 Notice of Claim and so on, and complete the pre-litigation procedure, prior to the expiration of the Limitation of Actions Act period. A Part 1 Notice of Claim was served by letter dated 5 September 2011, but otherwise the matter proceeded to an application under s 43.

[6] The essential function of s 43 is to overcome the difficulty which would otherwise arise in circumstances where the limitation period is about to expire, that otherwise the Act prevents someone in that situation from simply issuing a proceeding as would have occurred prior to the Act being enacted. It was sometimes necessary, for example, when solicitors received late instructions and the limitation period was about to expire, to issue a proceeding quickly, and perhaps do the sort of things which would commonly be done prior to issuing proceedings afterwards. Section 43, as it has been interpreted by the Court of Appeal in, for example, GU v TO [2005] QCA 480, was intended to overcome that particular difficulty.

[7] The basis for making an order under s 43 is the existence of urgency arising because of the imminent expiration of the limitation period, which is the case here, and that circumstance would ordinarily provide sufficient justification for exercising the discretion in favour of the applicant. No doubt there could be circumstances where it would be appropriate not to exercise the discretion notwithstanding the element of urgency that arises in this way but no material or basis for such an approach has been put forward on behalf of the respondent.

[8] Indeed, in relation to the substantive relief sought in the application, the respondent’s position is that he neither supports nor opposes the application. There is authority critical of that position or a party taking that position, which is at least arguably contrary to r 5 of the UCPR, and it is certainly a position which courts have been known to discourage. It is not the sort of approach which encourages a favourable order for costs.

[9] In relation to the question of costs, however, the respondent does seek the costs of the application. The respondent relies on a number of factors, one being that apparently no attempt was made under s 44 to avoid the necessity for an application under s 43. Section 44 of the Act provides a mechanism by which the parties may, by agreement, avoid the necessity for an application to the Court. Obviously, I do not know to what extent s 44 is used in practice because the court does not find out about these things, but it is certainly very common for applications to be made under s 43 and then resolved by a consent order.

[10] There is the circumstance that there was only about a month left and it might have been thought that the time was not sufficient to attempt to explore the s 44 path before filing an originating application. Perhaps more importantly, in circumstances where the respondent has not consented to the order, it is difficult to argue that if the applicant had sought to rely on s 44 then the necessary agreement by the respondent would have been forthcoming so that the costs under s 43 could have been avoided. The respondent’s actual behaviour rather suggests that it would have been a waste of time and perhaps run up unnecessary costs if the applicant’s solicitors had attempted to proceed under s 44 initially.

[11] The respondent also relied on s 48 of the Act. In my view, s 48 applies in a situation where there is a proceeding based on the claim, an expression which is used consistently throughout the Act as a reference to the proceeding by which a party seeks in court damages in respect of the personal injury which is the subject of the claim. For example, that is the obvious usage of the same expression where it appears in s 9 of the Act. Section 48 does not apply to this application.

[12] The respondent has sought an order for costs of the application and, indeed, an order that the costs be paid prior to the time when the stay on the proceedings to be commenced, which would be imposed by s 43 of the Act, is lifted. It is true that the respondent was not responsible for the delay in the applicant’s decision to pursue the claim, or for the failure to activate s 44, but on the other hand it does seem to me that the response of the respondent to the application has been excessive. There has been a great deal of material put on by the respondent and, indeed, by the applicant, which, it seems to me, has nothing whatever to do with the substance of an application under s 43, so a great deal of unnecessary costs have been incurred in relation to the matter, and because of that, and as a mark of disapproval of the unhelpful approach that the respondent adopted to the application, I am not prepared to make an order which might otherwise have been reasonable, of ordering the applicant to pay the respondent’s costs except insofar as they related to the opposition to the application.

[13] In relation to the question of costs, I think the appropriate course is that the applicant not have an order for costs, because it seems that the applicant simply chose not to pursue this claim until relatively recently and that, for practical purposes, made an application under s 43 necessary. On the other hand, I think the respondent’s response to it has been unreasonable and excessive and I will not order costs to be paid in favour of the respondent.

[14] So, I will vary the draft order by crossing out the word “that” at the beginning of paragraphs 1 and 2, crossing out paragraphs 3 and 4, and substituting a paragraph 3, that there be no order as to costs.