Etemovic v Baulderstone Hornibrook Qld Pty Ltd [2010] QSC 141

The plaintiff sought to join an existing third party as the second defendant in circumstances where as against the third party the limitation period had expired and they had not complied with the pre-court compliance as prescribed by the Personal Injuries and Proceedings Act 2002 (Qld) (“PIPA”). The third party did however, participate pursuant to a contribution notice of the defendant in the PIPA claim.

Her Honour Mullins J followed Pukeroa v Berkeley Challenge Pty Ltd [2005] 2 Qd R 46 and held the application for joinder could not succeed:

[26] Despite the participation of the third party in the compulsory conference held under

s 36 of PIPA, the third party participated only as a contributor and was never the

recipient from the plaintiff of a claim, even though the third party was provided

with a copy of the plaintiff’s notice of claim by the defendant. Section 9(1) of PIPA

therefore presently precludes the commencement of a proceeding by the plaintiff

against the third party: Pukeroa at [3] and [31]. The structure of PIPA which

requires the respondent to a notice of claim to give information to the claimant

under s 9(7) about other possible respondents to the claim or under s 16(3) about the

issue of a contribution notice means that the claimant should be provided with the

information to enable the claimant to make appropriate decisions about what parties

should be pursued in respect of the claim. There is no justification for construing s

9(1) of PIPA as being satisfied by the plaintiff where the copy of the notice of claim

was provided by the defendant to the third party with the contribution notice under s

16(1) of PIPA.

[27] As the decision in Pukeroa also illustrates, the power to add a defendant under r 69

cannot be relied on to dispense with compliance by the plaintiff with the pre-court

procedures under PIPA in respect of the proposed additional defendant. The

remedial purpose of r 69 does not displace the mandatory requirements imposed by

PIPA in respect of a claim by a plaintiff that is regulated by PIPA.

However, her Honour raised the question of amending the application to obtain leave under section 59(2)(b) of PIPA to start pre-proceedings against the third party (extension of the limitation period). The joinder of the third party would necessarily be stayed pending compliance with the pre-proceedings pursuant to section 59(3) of PIPA. The application was adjoined to a date to be fixed to allow for consideration of amending the application.

Brisbane Barrister – David Cormack

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