Adams v Vesco Nominees Pty Ltd - [2004] QDC 305

DISTRICT COURT OF QUEENSLAND

CITATION:

Adams v. Vesco Nominees Pty Ltd & Ors [2004] QDC 305

PARTIES:

CAROL ANN ADAMS (Applicant)

v.

VESCO NOMINEES PTY LTD (First respondent)

and

JO-JO’S RESTAURANT PTY LTD (Second respondent)

And

PUNCH JOSEPH & ASSOCIATES
KEENDOVE HOLDINGS PTY LTD (Third respondent)

And

DEKARIDGE PTY LTD (Fourth respondent)

FILE NO/S:

BD2936 of 2004

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

10^th September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

8^th September 2004

JUDGE:

Forde DCJ

ORDER:

The application pursuant to s.18(1)(c)(ii) is dismissed.1.

Applicant to pay the Respondents’ costs of the application to be assessed.2.

CATCHWORDS:

PERSONAL INJURIES PROCEEDINGS ACT 2002 – COMPLIANT NOTICE OF CLAIM – LEAVE TO COMMENCE PROCEEDINGS – Expiration of Limitation period – Delay – Prejudice - Estoppel

Personal Injuries Proceedings Act 2002 (Qld) ss 9, 12, 18, 43, 59

Limitation of Actions Act 1974 (Qld)

Gillam v State of Qld & Ors. [2003] QCA 566 Hardwick v. Vanderfield Holdings Pty Ltd (2003) QSC 468
Kash v. SM & TJ Cedergren Builders and Ors (2003) QSC 426
Miller v. Nominal Defendant (2003) QCA 558 Nicholls and Ors. v. Brisbane Slipways and Engineering Pty Ltd. [2003] QSC 193

Patterson v Baptist Union of Queensland & Anor[2004] QCA 146
SG v Queensland [2004] QCA 215 Thomas v Transpacific Industries Ltd. (2003) 1 Qd R 328 Walton Stores (Interstate) v Maher (1987-1988) 164 CLR 387

COUNSEL:

Mr M Byrne for the Applicant

Mr S Farrell for the First Respondent

Mr M Barry Solicitor for the Third Respondent

Mr T Hancock Solicitor for the Fourth Respondent

SOLICITORS:

A M McNally Solicitors

Barry & Nilsson

Carter Newell Lawyers

Quinlan Miller & Treston

Introduction

The applicant, Carol Ann Adams, was six months pregnant when she was proceeding on an escalator from the Queen Street Mall to J0-Jo’s Restaurant on 24 April 2001. A piece of protruding steel cut into her left ankle, shearing off a large piece of flesh. Little did she know that between that date and the present she would become another victim of the “labyrinth” which is the Personal Injuries Proceedings Act (the “Act”)[1]. In order to pursue her action, the applicant requires the court under s.18(1)(c)(ii) of the Act to authorise her to proceed further despite non-compliance with s.9.
[1] per McMurdo J. in Kash. V SM& TJ Cederen Builders and Ors. (2003) QSC 426 at para.2

The proceedings became statute barred on 24 April 2004. The present application seeks to proceed notwithstanding it would be subject to the Limitation of Actions Act and without an application under s.59 of the Act. A court may allow an applicant to proceed under s.59 after the limitation period has expired if there has been a complying notice given under s.9 before the period of limitation has ended. There is no application to extend the time under s.31 of the Limitation of Actions Act.

The present application does not seek to proceed against the respondents other than the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] QDC 305
Decision Date: 10th September 2004

CaseChat Overview and Summary

The plaintiff, Adams, brought an action against Vesco Nominees Pty Ltd, alleging that the defendant’s actions caused the plaintiff personal injury. The dispute centred on the validity of the notice of claim and the procedural requirements under the Personal Injuries Proceedings Act 2002. The case was heard in the Supreme Court of Queensland.

The court was tasked with determining whether the notice of claim complied with the statutory requirements and whether the delay in serving the notice prejudiced the defendant. The court had to consider the doctrine of estoppel in the context of the statutory provisions and assess whether the delay in serving the notice of claim was justified.

The court found that the notice of claim was not compliant with the statutory requirements of the Personal Injuries Proceedings Act 2002. The court held that the delay in serving the notice of claim was significant and caused prejudice to the defendant. Despite the plaintiff’s argument that the defendant was estopped from raising the limitation defence, the court dismissed the application. The court concluded that the delay in serving the notice of claim was not justified and the defendant was prejudiced by the delay.

The court dismissed the application and ordered the plaintiff to pay the defendant’s costs of the application. The court held that the delay in serving the notice of claim was significant and caused prejudice to the defendant, and the plaintiff’s argument of estoppel was not successful.

Orders

Orders of the court

The application pursuant to s.18(1)(c)(ii) is dismissed.1.

Applicant to pay the Respondents’ costs of the application to be assessed.2.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Adams v. Vesco Nominees Pty Ltd & Ors [2004] QDC 305
PARTIES:	CAROL ANN ADAMS (Applicant) v. VESCO NOMINEES PTY LTD (First respondent) and JO-JO’S RESTAURANT PTY LTD (Second respondent) And PUNCH JOSEPH & ASSOCIATES KEENDOVE HOLDINGS PTY LTD (Third respondent) And DEKARIDGE PTY LTD (Fourth respondent)
FILE NO/S:	BD2936 of 2004
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court Brisbane
DELIVERED ON:	10^th September 2004
DELIVERED AT:	Brisbane
HEARING DATE:	8^th September 2004
JUDGE:	Forde DCJ
ORDER:	The application pursuant to s.18(1)(c)(ii) is dismissed.1. Applicant to pay the Respondents’ costs of the application to be assessed.2.
CATCHWORDS:	PERSONAL INJURIES PROCEEDINGS ACT 2002 – COMPLIANT NOTICE OF CLAIM – LEAVE TO COMMENCE PROCEEDINGS – Expiration of Limitation period – Delay – Prejudice - Estoppel Personal Injuries Proceedings Act 2002 (Qld) ss 9, 12, 18, 43, 59 Limitation of Actions Act 1974 (Qld) Gillam v State of Qld & Ors. [2003] QCA 566 Hardwick v. Vanderfield Holdings Pty Ltd (2003) QSC 468 Kash v. SM & TJ Cedergren Builders and Ors (2003) QSC 426 Miller v. Nominal Defendant (2003) QCA 558 Nicholls and Ors. v. Brisbane Slipways and Engineering Pty Ltd. [2003] QSC 193 Patterson v Baptist Union of Queensland & Anor[2004] QCA 146 SG v Queensland [2004] QCA 215 Thomas v Transpacific Industries Ltd. (2003) 1 Qd R 328 Walton Stores (Interstate) v Maher (1987-1988) 164 CLR 387
COUNSEL:	Mr M Byrne for the Applicant Mr S Farrell for the First Respondent Mr M Barry Solicitor for the Third Respondent Mr T Hancock Solicitor for the Fourth Respondent
SOLICITORS:	A M McNally Solicitors Barry & Nilsson Carter Newell Lawyers Quinlan Miller & Treston