gadens lawyers assisted the respondent and
its insurer to successfully defeat a claimant's
application for leave to commence proceedings in a personal
injury claim in Zinns v Luca Paccioli Pty Ltd (now known as
Plantation Rise Pty Ltd) & Anor  QDC 267.
Pursuant to section 11 Limitation of Actions Act 1974
(Qld), a claimant must bring a personal injury action
within three years from the cause of action accruing. However,
section 59 (1) Personal Injuries Proceedings Act 2002 (Qld)
("PIPA") confers discretion on the court to
grant leave to file proceedings despite the expiration of the
limitation period where the claimant provides the defendant
with a complying notice of claim prior to expiration of the
Usually, a claimant's application under s59
PIPA would routinely result in the respondent/its
insurer consenting, or the court granting leave to proceed,
despite the expiration of the limitation period.
In our case, Mrs Zinns had provided the respondent with a
complying notice of claim prior to expiration of the limitation
period. However, despite our numerous requests, the claimant
had failed to disclose relevant financial information to
support her economic loss claim.
Further, the insurer had acted in good faith in earlier
granting an informal six month extension' of the
limitation period to the claimant. During this extension
period, the claimant continued to withhold disclosure of
relevant documents. The claimant's failure to comply
with the PIPA disclosure obligations also prevented
the parties from convening a compulsory settlement
gadens submitted to the court that the
claimant's failure to advance the claim and provide
material disclosure in a timely manner did not represent a
"conscientious effort to comply with the
Act"1. This phrase represents a test that
had been previously applied by the Court of Appeal with respect
to claims under the Motor Accidents Insurance Act 1994
(Qld) (MAIA') but had not been considered in the
context of a PIPA claim.
gadens persuaded the court that the
legislative intent of section 57 MAIA was identical to
section 59 PIPA. The court held that, like a claim
under the MAIA, a claimant seeking leave pursuant to
section 59 PIPA bears an evidentiary onus to
demonstrate a "good reason" why they are entitled to
His Honour Dodds DCJ held that because the claimant failed
to disclose relevant financial documents to support her
economic loss claim, she had not discharged her evidential
onus. His Honour dismissed the application with costs.
Consequently, the entire claim was barred.
This is the first time a court has applied the
interpretation given to section 57 MAIA in the context
of an action under PIPA to impose an evidentiary
burden on an applicant to show that the delay has been caused
by the applicant attempting to comply with the statutory
It is now established that where a claimant fails to
disclose information reasonably sought by an insurer, or fails
more generally in his or her duty to progress proceedings in a
timely manner, courts will be reluctant to grant relief under
section 59 PIPA unless the claimant can show good
The outcome in this case will enable respondents and their
insurers to rely on precedent that if the claimant fails to
comply with their obligations and advance their claim, the
claim can become statute barred. Other claims may in future
suffer the same consequences.
At the very least the precedent will send a strong message
to claimants and their solicitors, motivating them to advance
the claim or face the consequences of a barred claim.
Respondents and their insurers will therefore be able to
attempt to resolve claims earlier.
Contractors and principals should ensure they have appropriate insurance coverage instead of relying on indemnity clauses.
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