Weis Restaurant Toowoomba v. Gillogly [2013] QCA21

Facts

On 14 January 2009 the Respondent/Claimant went to the Weis Restaurant Toowoomba for an evening meal with his wife and a business associate. Whilst sitting at the table, the chair he was seated on collapsed underneath the 60 year old causing him to fall heavily to the ground, striking his right knee.

He was a farmer from Moree, New South Wales, and returned to his property and consulted with his General Practitioner. A referral to an Orthopaedic Surgeon was made and he underwent an arthroscopy. There were some further ongoing Orthopaedic and General Practitioner consultations.

On 21 July 2009 he consulted with his New South Wales solicitor on unrelated issues. A limited retainer occurred between the Claimant and his then lawyer. The lawyer communicated with the restaurant on 22 July 2009, with a response from WFI on 31 July 2009 advising that they were the Insurer for the restaurant and were investigating the matter. On 16 October 2009 the Claimant’s solicitors wrote to the Insurer seeking an update, with a response from the Insurer dated 20 October 2009 advising that their investigations were ongoing. By 17 November 2009 the Claimant’s then solicitor communicated with the Claimant advising that he had received notification from the Insurer for the Weis Restaurant asking for details of his claim. The solicitor also requested instructions to retain a Barrister and that the Client Agreement be completed and signed.

On 2 February 2010 the Claimant met with his then solicitor where it was confirmed by a diary note of his solicitor that he would not act until he had received a signed Client Agreement and payment of some outstanding fees for the commercial litigation. On 13 April 2010 the Insurer wrote to the Claimant’s then solicitor advising investigations had been completed but observed that no claim had been submitted.

On 5 May 2010 the Claimant’s then solicitor communicated with the Claimant stating again he required his version of the accident so he could communicate with the Insurer. The solicitor then attended on the Claimant on 9 September 2010 noting that the Client Agreement had not been returned and he would not act for the Claimant until that had occurred and payment of fees concerning the commercial litigation.

It was said by his then solicitor that the Claimant should consult with a Queensland based solicitor and it was confirmed he would not act for the Claimant without the signed Client Agreement.

On 28 June 2011 the Claimant attended on his then solicitor where the solicitor said that there was a three year time limit which expired on 14 January 2012. On the following day, the Claimant sent to his then solicitor a brief handwritten statement of the accident and his injuries. On 1 July 2011 the then solicitor communicated to the Claimant stating that again he would not act unless there was a signed Client Agreement and confirmed that there was again a three year limitation period.

On 21 December 2011 the Claimant’s then solicitor communicated to the Claimant by facsimile noting that the Client Agreement had not been signed and returned and he would not act and the limitation period would expire on 14 January 2012 and he should instruct a Queensland based solicitor.

The Claimant confirmed he had received that facsimile of 21 December 2011 and said that he was shocked and tried to communicate with his then solicitor. He tried to communicate with other solicitors over the Christmas/New Year period. It was not until 9 January 2012 the Claimant said to his solicitor in New South Wales that he could not find anyone in Queensland to act. His then solicitor communicated to the Claimant advising of three names of firms that worked on a “ no win – no fee” basis. His then solicitor confirmed that a claim must be lodged before 14 January 2012 to protect his interest.

On 11 January 2012 the Claimant engaged his new solicitor based in Queensland.

The Claim

On 13 January 2012 the claimant lodged an urgent Application seeking:-

  1. An extension of the limitation period under Section 31 of the Limitations of Actions Act 1974 (Qld) (“LAA”);
  2. Leave to start proceedings in the Court pursuant to Section 43 of the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”);
  3. The proceedings be stayed pending compliance of Part 1 Chapter 2 of the PIPA.

On 23 May 2012 His Honour Judge Botting heard the Application and provided Judgment dated 22 June 2012 granting an extension of the limitation period pursuant to Section 31 of the LAA.

The basis upon which the extension was granted was that the Claimant learned of a fact that the identity of the restaurant was a Proprietary Limited entity, being the true identity of the proposed Defendant and it was the material fact relating to the right of action. It was said this occurred on 5 April 2012.

The Decision

The Court of Appeal consisting of the President Margaret McMurdo, Fraser JA and Daubney J upheld the Appellant/Defendant’s Appeal and ordered that the Originating Application be dismissed with costs.

The Court confirmed that a Claimant may be ignorant of the material fact (the precise legal identity of a person against whom a right of action lies) but “it will not be a material fact of a decisive character if a reasonable man, having taken appropriate advice on the facts of which the [Claimant] did have knowledge, would regard those facts as showing that an action would have a reasonable prospect of success and ought to be taken” Do Carmo v. Ford Excavations Pty Ltd (1984) 154 CLR 324, per Wilson J at 248, see also; Deane J at 251.

The Court said on the evidence of the Claimant that by mid 2009 he had resolved to pursue his claim against the restaurant for personal injuries. It was said that a reasonable person who knew that fact and had taken appropriate advice on that fact would regard the fact as showing that an action or right of action would have reasonable prospects of success and result in an award of damages sufficient to justify the bringing of the action.

The Court noted it was clear that the Claimant not only knew of the facts that showed that he had an action of reasonable prospects of successful he decided to pursue that action. It was not necessary for him to show the precise legal identity of the owner of the restaurant in order to pursue that action.

The Court found that had proceedings been decided to be pursued, the claim could simply be instituted against the business name whether it was registered or unregistered by virtue of Rules 89 and 90 of the Uniform Civil Procedure Rules 1999 (Qld).

It was determined that the primary Judge erred in making an Order for an extension of time.

The Court also held that a solicitor so instructed could have easily ascertained the legal identity of the owner of the restaurant by:-

  1. A Business Name Search;
  2. Issuing the relevant Notice of Claim pursuant to PIPA under Section 9. This would have required a response by Section 10 or 12 of the actual legal identity of the owner. It appears no PIPA notice was given.

Conclusion

It was apparent that the Claimant, by July 2009, had instructed his solicitors to bring a claim. Those solicitors had given a notice of his claim.

The Claimant did not comply with PIPA by giving a PIPA notice within the three year limitation period.

The extension of the limitation period pursuant to Section 31 of the LAA was correctly overturned given that there was a retainer with the new solicitors on 11 January 2012, three days before the limitation period.

The new solicitors could have simply completed the PIPA notice and served it to the Insurer to preserve the rights under Section 18 (1)(c)(ii) and/or Section 59 (2)(b) of PIPA before the expiring limitation period.

That avenue was not apparently undertaken by the new lawyers.