Arai v Sushi Train (Australia) Pty Ltd - [2004] QDC 162

DISTRICT COURT OF QUEENSLAND

CITATION:

Arai v Sushi Train (Australia) Pty Ltd & Anor [2004] QDC 162

PARTIES:

TAKAHITO ARAI

(Plaintiff/Applicant)

V

SUSHI TRAIN (AUSTRALIA) PTY LTD

(First Defendant/ First Respondent)

&

TANGIGUCHI YUKIMORI

(Second Defendant/ Second Respondent)

FILE NO/S:

DC No 1485 of 2004

DIVISION:

District Court

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Brisbane

DELIVERED ON:

4/6/04

DELIVERED AT:

Brisbane

HEARING DATE:

2/6/04

JUDGE:

Forde DCJ

ORDER:

1. The Applicant is authorised to proceed further with claims against the First and Second Respondent, in respect of an incident occurring on 9 October 2002, the subject of his Notice of Claim of 13 December 2002 pursuant to s.18(1)(c)(ii) of the Personal Injuries Proceedings Act 2002.

2. Order that a copy of the reasons and this order be served on the Second Respondent.

3. The Second Respondent has liberty to apply in respect of this order.

Costs of and incidental to this application are costs in the cause.

CATCHWORDS:

PERSONAL INJURIES PROCEEDING ACT 2002 – PREJUDICE – FAILURE TO PROVIDE REASONABLE EXCUSE - Claimant’s failure to give notice – leave to proceed under s.18(1)(c)(ii) PIPA – Relief sought under s.13 of PIPA – whether court should grant application having regard to circumstances – whether any prejudice to respondents – Liability of Respondent – Non-Compliant Notice of Claim

Personal Injuries Proceedings Act 2002 (Qld) ss. 9, 10, 12, 13, 18.

Foster v Goggin and Anor. [2004] QDC 022

Gillam v State of Queensland [2003] QCA 566

Graco v United Services Club [2003] QSC 319

Kash v SM & TJ Cedergren Builders & Ors. [2003] QSC 426

Nicol v Caboolture Shire Council [2003] QDC 33

COUNSEL:

Mr S Di Carlo for the Applicant

Mr San Nam for the 1^st Respondent

No Appearance for the 2^nd Respondent

SOLICITORS:

Stephens & Tozer for the Applicant

Asahi Lawyers for the 1^st Respondent

Introduction

The Applicant, Takahito Arai, seeks leave under s.18(1)(c)(ii) of the Personal Injuries Proceedings Act 2002 (the “Act”) to proceed further in his claim against the First and Second Respondents. Alternative relief is sought under s.13 of the said Act. The Second Respondent, it is alleged, was employed by the First Defendant at the material time. On 9 October 2002, the Applicant alleges that the Second Defendant assaulted him by smacking him on the head. The injuries seem to be of a psychiatric nature only.

The Applicant (on one version) visited his solicitor in November 2002. In the affidavit of Mr. Dzelalija, the Applicant’s solicitor, he deposes that the Applicant gave him instructions on 9 October 2002. For the purposes of this application that latter date will be relied upon. The Second Respondent was served in December 2002 and the First Respondent on 29 January 2003. Pursuant to the provisions of the said Act s.9(5) requires that the respondents be served within one month of consulting his solicitor.

The main issues for determination on this application are the delay in serving the Notice of Claim, the effect of…

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 162
Decision Date: 4/6/04

CaseChat Overview and Summary

In the matter of Arai v Sushi Train (Australia) Pty Ltd, the primary issue before the court was the claimant's failure to provide reasonable excuse for not giving notice of his intention to commence proceedings within the statutory time limit. The claimant sought leave to proceed with his claims against the respondents, pursuant to section 18(1)(c)(ii) of the Personal Injuries Proceedings Act 2002 (PIPA). The respondents argued that the claimant's failure to provide reasonable excuse for the late notice resulted in prejudice to them, and as such, the application should be dismissed. The claimant, on the other hand, sought relief under section 13 of PIPA, arguing that the court should grant the application having regard to the circumstances and that there was no prejudice to the respondents.

The court considered the relevant statutory provisions and case law to determine whether the claimant had provided a reasonable excuse for the late notice. The court found that the claimant had failed to provide a reasonable excuse for his failure to give notice within the statutory time limit. However, the court also considered the circumstances of the case and found that there was no prejudice to the respondents in allowing the claimant to proceed with his claims. The court held that the claimant's failure to provide reasonable excuse did not automatically preclude him from proceeding with his claims, and that the court had discretion to grant the application under section 18(1)(c)(ii) of PIPA if it was satisfied that the circumstances warranted it. The court also noted that the respondents had not suffered any prejudice as a result of the late notice, as they had been aware of the incident and had been involved in negotiations with the claimant.

The court granted the claimant's application for leave to proceed with his claims against the respondents. The court ordered that a copy of the reasons and the order be served on the second respondent and that the second respondent had liberty to apply in respect of the order. The court also ordered that the costs of and incidental to the application be costs in the cause. The respondents were not entitled to any costs for the application, as the claimant's application had been successful.

Orders

Orders of the court

1. The Applicant is authorised to proceed further with claims against the First and Second Respondent, in respect of an incident occurring on 9 October 2002, the subject of his Notice of Claim of 13 December 2002 pursuant to s.18(1)(c)(ii) of the Personal Injuries Proceedings Act 2002.

2. Order that a copy of the reasons and this order be served on the Second Respondent.

3. The Second Respondent has liberty to apply in respect of this order.

1. Costs of and incidental to this application are costs in the cause.

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:	Arai v Sushi Train (Australia) Pty Ltd & Anor [2004] QDC 162
PARTIES:	TAKAHITO ARAI (Plaintiff/Applicant) V SUSHI TRAIN (AUSTRALIA) PTY LTD (First Defendant/ First Respondent) & TANGIGUCHI YUKIMORI (Second Defendant/ Second Respondent)
FILE NO/S:	DC No 1485 of 2004
DIVISION:	District Court
PROCEEDING:	Application
ORIGINATING COURT:	District Court of Brisbane
DELIVERED ON:	4/6/04
DELIVERED AT:	Brisbane
HEARING DATE:	2/6/04
JUDGE:	Forde DCJ
ORDER:	1. The Applicant is authorised to proceed further with claims against the First and Second Respondent, in respect of an incident occurring on 9 October 2002, the subject of his Notice of Claim of 13 December 2002 pursuant to s.18(1)(c)(ii) of the Personal Injuries Proceedings Act 2002. 2. Order that a copy of the reasons and this order be served on the Second Respondent. 3. The Second Respondent has liberty to apply in respect of this order. Costs of and incidental to this application are costs in the cause.
CATCHWORDS:	PERSONAL INJURIES PROCEEDING ACT 2002 – PREJUDICE – FAILURE TO PROVIDE REASONABLE EXCUSE - Claimant’s failure to give notice – leave to proceed under s.18(1)(c)(ii) PIPA – Relief sought under s.13 of PIPA – whether court should grant application having regard to circumstances – whether any prejudice to respondents – Liability of Respondent – Non-Compliant Notice of Claim Personal Injuries Proceedings Act 2002 (Qld) ss. 9, 10, 12, 13, 18. Foster v Goggin and Anor. [2004] QDC 022 Gillam v State of Queensland [2003] QCA 566 Graco v United Services Club [2003] QSC 319 Kash v SM & TJ Cedergren Builders & Ors. [2003] QSC 426 Nicol v Caboolture Shire Council [2003] QDC 33
COUNSEL:	Mr S Di Carlo for the Applicant Mr San Nam for the 1^st Respondent No Appearance for the 2^nd Respondent
SOLICITORS:	Stephens & Tozer for the Applicant Asahi Lawyers for the 1^st Respondent