Be Wary Of Multiple Extension of Time Requests

CTP Insurance

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DATE PUBLISHED: February 2, 2021

FARAM V HENSEC PTY LIMITED [2020] QSC 327

The Applicant/Claimant brought an Application for an extension of time pursuant to section 59(2)(b) of the Personal Insurance Proceedings Act 2002 (Qld) (“PIPA”).

The claim was in respect of an incident that occurred in March 2017 for which notices of claim were served on various Respondents but for which the various pre-procedures under the PIPA (including a compulsory conference) had not been undertaken prior to the initial expiry of the limitation period three years post-incident.

WHY WAS THE APPLICATION NECESSARY?

The limitation period had been informally extended by the parties on two subsequent occasions until 30 June and 30 October 2020. Section 59(2)(b) of PIPA provides that a proceeding may be started after the end of the limitation period if a longer period is allowed by the Court. The Application was made prior to the expiry of the second informal extension. The Application was opposed by the Respondents on the basis of ongoing delay by the Claimant.

The Court has the discretion to allow an extension of the limitation period but where good reasons need to be provided to support why such discretion should be exercised. Referring to Paterson v Leigh [2008] QSC 277, good reasons need to be that any delay that has occurred was as a result of a “conscientious effort to comply” with the relevant pre-proceedings Act. The length of delay was important, as was prejudice or potential prejudice to the Respondents and the general interests of justice to both parties. This was so far as whether a fair trial could proceed in the circumstances as against a claimant being statute barred from proceeding and losing the right to his claim, as against whether it is reasonable to deprive a respondent of relying upon such limitation period. To simply allow an extension of the limitation period without good reason would then cause the time limits in the Limitation of Actions Act 1974 to be redundant, which was obviously not the point of the legislation.

A reasonable explanation for the delay needs to show that there is a significant connection between complying with the requirements of the relevant pre-proceedings Act and any delay which occurred.

Despite the two informal extensions of the limitation period, no reasonable steps had been taken to ensure compliance with the PIPA to enable a compulsory conference to be held and proceedings to be commenced prior to the expiry of, in particular, the second informal extension date. The Claimant’s solicitors listed various actions to take place to enable them to comply with the PIPA including both to liability and quantum related matters. They could not state how long such steps would take and referenced a lack of disclosure of records from the Queensland Police Service (QPS) to delaying investigations about the circumstances of the accident.

No medico-legal examinations had taken place in the 3.5 years after the accident. The Claimant’s Counsel conceded that the Claimant himself had not been diligent in progressing the matter and such delays were unrelated to complying with the PIPA. To this, the Claimant had failed to contact his solicitors despite some 18 attempts by his solicitors to do so between late 2018 and early 2020. When contact was finally made in early 2020, the Claimant said he would undertake what would be required of him to progress this matter but subsequently, this did not occur and again attempts by his solicitors to contact him were unsuccessful until shortly prior to the hearing of the Application. The Claimant’s solicitors submitted that due to the Claimant’s PTSD, it caused avoidant behaviour relevant to him not progressing his claim but the Claimant gave no evidence himself to same, nor was it found that the medical evidence reasonably support same. Further, the Respondents produced social media searches of the Claimant in 2018 and 2020, which showed him engaged with people and not displaying behaviour that would lead the Court to accept that he could not at least contact his solicitors and give instructions to progress his matter.

FINDINGS

The Claimant’s request to formally extend the limitation period was rejected for a number of reasons relating to the length of the delay and potential prejudice to the Respondent. There was, however, no evidence that a fair trial could not occur.

On the balance, due to the apparent lack of interest and attention by the Claimant himself to his claim and the lack of explanation in particular for same, that it would not be reasonable in the circumstances to exercise the Court’s discretion. The Claimant had the opportunity and knew of the informal extensions to the limitation period such that he was essentially on notice in relation to progressing his claim, yet he still did not. To the outstanding disclosure from the QPS, whilst relevant, the Claimant’s solicitors could have undertaken their own investigations to advance the claim such that any failure to obtain the QPS records had no causative connection to the Claimant otherwise taking no other steps to progress his claim.

IMPLICATIONS

A claimant cannot presume that they can do nothing after submitting a complying Notice of Claim Form and then forget about the matter and pick it back up sometime later and their claim can still continue. A claimant has an obligation (like the other parties) to progress the matter in a reasonable and appropriate time. Just because other parties may be willing to extend the limitation period informally on another occasion also does not necessarily mean that they will continue to agree to do so indefinitely where there has otherwise been no reasonable attempts to further progress the claim. As the Court said, to exercise its discretion in a claimant’s favour, good reasons need to be given and simply doing nothing is not appropriate.

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