Whether the pre-court obligations imposed by the Personal Injuries Proceedings Act 2002 continue to exist once a claim becomes litigated remains a controversial topic. And for a piece of legislation that has plagued Queensland personal injury practitioners for almost a quarter of a century, to continue to deliver this uncertainty is somewhat surprising.
But with the Queensland Court of Appeal recently finding that a heading had to yield to the language used in the provisions, does that mean that when a court is finally called upon to decide the issue, the pre-court obligations imposed by PIPA will continue to exist in the litigated phase of a claim?
Background
The conjecture as to whether the obligations imposed on parties in the pre-court phase of a PIPA claim arises as a result of the use of a heading in Part 1 of Chapter 2, ‘Pre-court Procedure Procedures’, and some remarks by Jackson J in the Court of Appeal decision Day v Woolworths Ltd [2016] QCA 337. In Day[1] the Court was considering a request made by a Claimant for information under section 27 of PIPA (which imposes obligations on a respondent to give documents and information to a claimant about the circumstances of, or the reasons for, the incident). In writing the lead judgement, Jackson JA said:[2]
‘The first respondent submitted that s 27 of PIPA continues to operate to enable a claimant to ask for information about the circumstances of or the reasons for the incident after a court proceeding is started for the claim. It relied on Angus v Conelius for that conclusion. However that case considered provisions of the Motor Accident Insurance Act 1994 (Qld). There are differences in the statutory provisions involved under PIPA. Accordingly, in Cleary v Rinaudo it was held that provisions close in their text to those of PIPA did not operate to create a continuing right to ask for information under the equivalent to s 27 of PIPA after a court proceeding was started. Although I incline to think that the latter view is correct in the case of PIPA, it is not necessary to answer the question finally in this case.’
Cleary v Rinaudo[3] considered the South Australian Civil Law (Wrongs) Act 2002 which similarly had a pre-proceedings phase. There, the defendant had relied upon a Queensland decision in Angus v Conelius[4] to support its submission that the obligations on the parties-imposed pre-proceedings continued to exist in the litigated phase of a claim. In Cleary, Katzmann J said:[5]
‘Angus v Conelius was not concerned with the disclosure of medical reports and it is not apparent that there was an argument in that case about any potential interference between a party’s right to legal professional privilege and the obligation to disclose medical reports or other documents. The basis for the contextual implication which Jerrard JA drew in Angus v Cornelius is not present in the Wrongs Act. Section 45(3) of the Motor Accident Insurance Act 1994 (Qld) required a claimant to give notice of any change of circumstances relevant to the extent of the claimant’s disabilities or financial loss after notice of a claim was given but before the claim was resolved. There is no comparable provision in the Wrongs Act. Moreover, the relevant provisions of the Motor Accident Insurance Act, unlike those of the PIPA, were not preceded by a heading that purported to limit their scope to the “pre-court” period.’
Katzmann J found that the term ‘Precourt’ meant pre-action, not pre-hearing.[6]
In making his obiter remarks, Jackson JA in Day, observed that there were some differences between PIPA and the Motor Accident Insurance Act (‘MAIA’). Presumably, the differences he was referring to (without expressly saying) was the fact that in the MAIA, there was no heading similar to the ‘Precourt procedures’ that was found in Part 1 of Chapter 2 of PIPA.
In Angus v Conelius,[7] Jerrard JA said:[8]
‘As to the merits of the appellant’s primary argument, neither s 45 nor s 47 – nor the other provisions in Division 3, providing inter alia for jointly arranged expert reports, and the examination of a claimant – is expressed to be inapplicable once legal proceedings are brought based on the claim. No obvious reason exists as to why the obligations and rights given by those sections should end at the compulsory conference. There is also a contextual implication that they do not. The obligation imposed on a claimant by s 45(3) expressly continues till the claim is “resolved”. That resolution could be by agreement or by judgment. (That obligation on the claimant is separate from the obligation on legal practitioners identified in Legal Services Commissioner v Mullins [2006] LPT 012.) The obligation on the claimant under s 45(3) therefore continues after proceedings have begun in a court.’
Although not mentioned by Jackon JA in Day, there is an analogous provision in PIPA that imposes an ongoing obligation on a claimant until the claim is resolved. That provision is found in section 22(6) of PIPA, which provides:
22(6) If, after notice of a claim is given to a respondent under division 1 or purportedly under division 1 but before the claim is resolved, the claimant becomes aware of—
(a) a change in the claimant’s medical condition or disabilities; or
(b) a change in other circumstances relevant to an assessment of the claimant’s claim;
the claimant must, within the period prescribed under a regulation or, if no period is prescribed, within 1 month after becoming aware of the change, inform the respondent of the change.
If the obligation on a claimant under s 45(3) of the MAIA to notify the change in circumstances ‘before the claim was resolved ‘was sufficient for the Court of Appeal in Angus to find that the pre-court obligations survived into the litigated phase of a claim, then presumably a similar view should be taken of section 22(6) of PIPA where it imposes an obligation until the claim ‘is resolved’. On this view, the only substantive difference between PIPA and the MAIA is the heading ‘Pre-court Procedures’ that is found in PIPA but not the MAIA.
The recent decision in Dennison[9], concerned section 36 of the Civil Liability Act 2003. And the content of a heading loomed large in the arguments made to the Court, both at first instance, and on appeal. The heading read: ‘36. Proceedings Against Public or Other Authorities Based on Breach of Statutory Duties’.
In Hamcor Pty Ltd v State of Queensland,[10] the Court (Dalton J) had found that the provision only applied to an action for breach of statutory duty as this was the most natural reading of the words used, having regard to the section, including its heading. This interpretation was not followed by the New South Wales Court of Appeal in Rodriguez.[11] In Dennison, Doyle JA (writing the lead judgment) overruled Hamcor, finding that the literal interpretation urged by the Appellant ‘in my view requires the heading to do too much work; and is inconsistent with the language otherwise employed.’[12]
If, following Dennison, Queensland courts give greater weight to the language of PIPA, rather than the heading, it will likely mean that provisions such as sections 25 and 27 will continue to be available to a claimant during the litigated phase of a claim and sit alongside the rights and obligations imposed by the UCPR.
If this prediction becomes a reality, it sits comfortably with some other cases and decisions, which have not expressly considered the issue regarding the continued applicability of PIPA’s provisions following the commencement of proceedings.[13]
The Dennison decision has provided greater clarity for practitioners for how section 36 of the CLA should be interpreted, and hopefully, in finding that a heading was just a heading, it will also make it clear that the pre-court procedures under PIPA continue to operate when proceedings have been commenced.
[1] [2016] QCA 337.
[2] At [36].
[3] [2013] ACTCA 32.
[4] [2007] QCA 190; [2008] 1 Qd R 101.
[5] At [46].
[6] At [47].
[7] [2007] QCA 190.
[8] At [18].
[9] Dennison v Brisbane City Council [2026] QCA 193.
[10] [2014] QSC 224.
[11] Queensland Bulk Water Supply Authority (T/ASEQWATER) v Rodriguez & Sons Pty Ltd (2020) 393 ALR 162; (2021) NSWCA 206.
[12] At [28]
[13] For example, in Luck v Lusty EMS Pty Ltd [2008] QSC 146, Byrne SJA delivered an ex temporae judgement and rejected an argument by the plaintiff that section 25 did not apply in the litigation phase of the claim. In Kerkow v BCP Holdings Pty Ltd [2010] QDC 209, Andrews SC DCJ dealt with a section 25 PIPA argument, where it was never suggested that the provision did not apply in the litigated phase of the claim. Similarly in Brady v Woolworths Ltd [2010] QDC 260, there was no suggestion made that section 27 of PIPA did not continue to apply in the litigated phase of a claim.
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