Written by Peter CarterNovember 21, 2010
The District Court in Brisbane was asked this month* to absolve a multitude of a statutory and procedural non-compliances relating to a personal injury claim for a U.K. tourist injured in 2001, when an inter-island ferry collided with a catamaran on which she was a passenger.
The failures on the plaintiff’s side – no doubt contributed to by U.K. lawyers directing proceedings from afar – included a 6 year delay which, according to his honour, “doesn’t particularly appear to have concerned anyone until last month or so”. PIPA notices were also misdirected.
The ferry owner, Permanent Trustee had consented in 2004 to a PIPA section 43 order allowing the commencement of proceedings on the eve of the limitation period without a compulsory conference, notwithstanding that a part one notice had not been directed to it.
The plaintiff thus sought an order under PIPA s 18 (1) (c) (ii) to be allowed to proceed further with the claim against Permanent despite her failure to give a complying notice of claim.
Leave was also being sought to add a second defendant – the operator of the ferry, “Hayman” – the party to whom the PIPA part one notice had in fact been directed in 2004. Hayman, naturally enough, alleged prejudice from the delay: there were no current medical reports and the plaintiff’s financial information related “solely to years long in the past”.
Hayman alleged further prejudiced in that it was now too late for it to issue contribution proceedings against the catamaran operator and captain – who were arguable partly liable for the collision.
All things considered, his honour decided that the appropriate exercise of his discretion was to grant the order to join the ferry operator out of time as a second defendant and to grant the s 18 order concerning the first defendant.
Remarking that all the parties had accepted “that matters were proceeding at how ever leisurely a pace”, his honour also ordered pursuant to UCPR rule 389 that the action be allowed to proceed notwithstanding that no step had been taken in the last two years.
* Goff v Permanent Trustee Australia Ltd  QDC 438