Baioumy v Wendt [2017] QDC 55

Boat

FACTS

Mr Baioumy was an Egyptian national. In 2008-9 he had a child with an Australian woman. They latter separated and he returned to Egypt. In 2013, his estranged wife and daughter travelled to Egypt. He refused to allow his daughter to return to Egypt. What ensued was a child recovery plan which involved getting Mr Baioumy onto a boat for several days whilst his wife and daughter returned to Australia.

Mr Baioumy filed a claim and statement of claim in February 2014 against the operator of the boat. The claim related to false imprisonment, and injuries he allegedly sustained whilst being kept onboard the vessel. However, Mr Baioumy did not comply with the rules under the Personal Injuries Proceedings Act (PIPA) in relation to filing a notice of claim. The solicitors for Mr Baioumy were made aware of that requirement in a letter from the defendant’s solicitors on 29 May 2015.

The defendant filed a defence pleading that Mr Baioumy’s failed to comply with (PIPA) and Limitations of Actions Act. The defendant alleged that the proceedings were incompetent under rule 444 of the Uniform Civil Procedure Rules, and later made an application for summary judgement.

LEGAL ISSUES

  1. Was the Mr Baioumy’s failure to comply with the requirements under PIPA to file a notice of claim fatal to the proceedings;
  2. Whether the court has the power to excuse non-compliance with PIPA;
  3. Did the plaintiff have no real prospect of success.

FINDINGS AND CONCLUSION

Section 7 of PIPA states that the provisions are matters of substantive rather than procedural law. On that basis, earlier cases were struck-out. However, drawing on a case of Phipps the court found that non-compliance with PIPA is not fatal, because s18 of PIPA expressly provides the power to the courts to grant leave. Non-compliance with pre-litigation procedures contained in PIPA are not fatal to the proceedings, it is a matter of whether the court should grant leave.

The question became – whether the court should exercise its power to excuse non-compliance. The major factor in its mind was the delay by Mr Baioumy’s solicitor. By way of affidavit, the solicitor admitted to being ignorant as to the strictness of Queensland’s personal injury law regime. However, that delay was not attributable to the plaintiff himself.

Counting against the exercise of the power, the defendant claimed they would suffer prejudice if the action was to proceed. This however, was not made-out as the only loss suffered was an inability to claim that the Mr Baioumy was out of time. That was the very subject of this application and was not a prejudice as such.

The final consideration was whether Mr Baioumy’s case had merit. The court referred to a series of emails between the Defendant and his associates in which they discussed the plans for keeping Mr Baioumy at sea in order to keep him from his wife and child. The exchanges demonstrated an awareness on the part of the defendant as to: the plan, and his role in it. The court formed the view that the plaintiff had a chance at trial, and it was proper to allow the matter to proceed. The application for summary judgement in favour of the defendant was refused.

TAKEAWAYS

The reference to sections of PIPA being substantive rather than procedural rules does not preclude the court exercising a discretion where other provisions of PIPA allow it to do so. The party seeking the discretion needs to provide sufficient reason for doing so. A party seeking to avoid that order, needs to provide a stronger reason than simply that they will not be able to access a defence under limitations of actions requirements.