Askew v Eacham Shire Council - [2006] QDC 79

DISTRICT COURT OF QUEENSLAND

CITATION:

Askew v Eacham Shire Council [2006] QDC 079

PARTIES:

JUNE HELEN ASKEW

Applicant

v

EACHAM SHIRE COUNCIL

Respondent

FILE NO/S:

BD920/05

DIVISION:

PROCEEDING:

Originating Application

ORIGINATING COURT:

District Court Brisbane.

DELIVERED ON:

13 April 2006

DELIVERED AT:

Brisbane

HEARING DATE:

7 April 2006

JUDGE:

McGill DCJ

ORDER:

Declare that the claimant has remedied the non-compliance in the notice of claim.

CATCHWORDS:

PRACTICE – Pre-litigation procedure – Personal Injuries Proceedings Act – late notice of claim – late response to purported rectification – respondent not deemed satisfied.

PRACTICE – Pre-litigation procedure – Personal Injuries Proceedings Act – late notice of claim – whether reasonable excuse for the delay given.

Personal Injuries Proceedings Act 2002 ss 9(5), 13.

Dunn v Lawrence [2005] QSC 291 – followed.
Gillam v State of Queensland [2004] 2 Qd R 251 – considered.
Piper v Nominal Defendant [2004] 2 Qd R 85 – applied.
Sultan v New Asian Shipping Co Ltd [2003] QSC 231 – followed.

COUNSEL:

P. B. de Plater for the applicant

S. T. Farrell for the respondent

SOLICITORS:

Schultz Toomey O’Brien Lawyers for the applicant

Barry & Nilsson for the respondent

This is an application under the Personal Injuries Proceedings Act 2002 (“the Act”) for a declaration that the respondent is conclusively presumed to be satisfied that a notice of claim is a complying notice of claim, or in the alternative for a declaration that the applicant has remedied the non-compliance in the notice of claim which was given, or in the further alternative for an order authorising the applicant to proceed further with the claim notwithstanding the non-compliance. The application raises a point under s.13 of the Personal Injuries Proceedings Act 2002 (“the Act”) which both counsel submitted had not previously been decided, the question of whether a reasonable excuse had been given for failing to give a timely notice of claim, and finally the question of whether the court’s discretion to allow the claim to proceed, notwithstanding non-compliance with the requirement to give a notice of claim, should be exercised.

Background

The history of the matter is a little unusual. The applicant alleges that she was injured in a single vehicle motor vehicle accident on 24 April 2002, while driving on a gravel road under the control of the respondent. It is alleged that the accident occurred because of the negligence of the respondent in maintaining the road. At the time of the accident the applicant was 63, and apparently suffered some injury in the accident. The accident was investigated by a police officer, who recorded that the applicant had no recollection of the accident; he thought she may have blacked out for a time, either as a result of the accident or possibly even before it. His report did not record anything about the state of the road, other than the presence of some tyre marks which he attributed to the applicant’s vehicle. It does not appear the accident was reported to the respondent at about…

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: [2006] QDC 79
Decision Date: 13 April 2006

CaseChat Overview and Summary

In the matter of Askew v Eacham Shire Council, the dispute arose when the claimant, Askew, failed to provide a notice of claim within the time frame specified by the Personal Injuries Proceedings Act. The respondent, Eacham Shire Council, was the defendant in this case before the court. The primary issue before the court was whether the late notice of claim could be considered as having been remedied, despite the respondent's failure to respond to the claimant's attempt to rectify the non-compliance within the prescribed period.

The court examined whether there was a reasonable excuse for the delay in providing the notice of claim and whether the respondent had effectively acknowledged the rectification attempt. The court concluded that while the claimant had made efforts to remedy the non-compliance, the respondent did not respond to the rectification attempt as required by the Act. Consequently, the court found that the respondent had not been deemed satisfied with the rectification attempt. The court held that the late notice of claim could not be remedied due to the respondent's failure to respond to the rectification attempt within the specified time frame.

The final orders of the court declared that the claimant had not remedied the non-compliance in the notice of claim due to the respondent's non-response to the rectification attempt. The court's decision underscored the importance of timely responses to rectification attempts in personal injury proceedings under the Act.

Orders

Orders of the court

Declare that the claimant has remedied the non-compliance in the notice of claim.

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:	Askew v Eacham Shire Council [2006] QDC 079
PARTIES:	JUNE HELEN ASKEW Applicant v EACHAM SHIRE COUNCIL Respondent
FILE NO/S:	BD920/05
DIVISION:
PROCEEDING:	Originating Application
ORIGINATING COURT:	District Court Brisbane.
DELIVERED ON:	13 April 2006
DELIVERED AT:	Brisbane
HEARING DATE:	7 April 2006
JUDGE:	McGill DCJ
ORDER:	Declare that the claimant has remedied the non-compliance in the notice of claim.
CATCHWORDS:	PRACTICE – Pre-litigation procedure – Personal Injuries Proceedings Act – late notice of claim – late response to purported rectification – respondent not deemed satisfied. PRACTICE – Pre-litigation procedure – Personal Injuries Proceedings Act – late notice of claim – whether reasonable excuse for the delay given. Personal Injuries Proceedings Act 2002 ss 9(5), 13. Dunn v Lawrence [2005] QSC 291 – followed. Gillam v State of Queensland [2004] 2 Qd R 251 – considered. Piper v Nominal Defendant [2004] 2 Qd R 85 – applied. Sultan v New Asian Shipping Co Ltd [2003] QSC 231 – followed.
COUNSEL:	P. B. de Plater for the applicant S. T. Farrell for the respondent
SOLICITORS:	Schultz Toomey O’Brien Lawyers for the applicant Barry & Nilsson for the respondent