DISTRICT COURT OF QUEENSLAND
CITATION:
Baioumy v Wendt [2017] QDC 55
PARTIES:
MAZEN HASSAN MAHROUS HASSAN BAIOUMY
(Plaintiff)
v
SEL WENDT
(Defendant)
FILE NO/S:
94 of 2015
DIVISION:
Civil
PROCEEDING:
Application in proceeding
ORIGINATING COURT:
Cairns
DELIVERED ON:
10 March 2017
DELIVERED AT:
Cairns
HEARING DATE:
3 February 2017
JUDGE:
Morzone QC DCJ
ORDER:
1. The defendant’s application for summary judgment filed 23 December 2015 is dismissed.
2. The plaintiff is authorised to proceed with the claim despite non-compliance with the Personal Injuries Proceedings Act 2002 (Qld) pursuant to s 18(1)(c)(ii) of that Act.
3. The plaintiff will file and serve an amended the Claim and Statement of Claim by 4:00 pm on 7 April 2017.
4. The defendant will file any amended defence by 4:00 pm on 28 April 2017.
5. The proceeding is otherwise stayed until the plaintiff complies with the Personal Injuries ProceedingsAct 2002 (Qld) in all appropriate respects.
6. I will hear further submissions about costs.
7. Unless either party applies for, or the parties otherwise agree to, a different costs order by 4:00 pm on 10 April 2017, the costs of and incidental to the applications will be costs in the proceeding.
CATCHWORDS:
PROCEDURE – JURISDICTION AND GENERALLY – Personal Injuries Proceedings Act 2002 (Qld) – application for leave to proceed despite non-compliance with pre-litigation procedures – cross application for summary judgment - plaintiff filed proceedings for damages for false imprisonment before expiry of limitation period – plaintiff failed to service notice of claim before commencing proceedings or expiry of limitation period – whether failure to comply with pre-litigation procedure renders proceeding not justiciable, invalid or nullity - where notice of claim served outside limitation period – exercise of discretion – explanation of non-compliance due to interstate solicitor’s ignorance of practice and procedure – whether prejudice merely because loss of limitation defence - whether non-compliance is excusable or whether to strike out statement of claim – whether to stay proceeding pending compliance.
PROCEDURE – SUMMARY JUDGMENT – whether plaintiff has real prospects of success – whether need for a trial.
Legislation:
Limitation of Actions Act 1974, s11
Personal Injuries Proceedings Act 2002 (Qld), ss 7, 9, 18, 43, 59
Uniform Civil Procedure Rules 1999 (Qld), s 293Cases:
Berowra Holdings Pty Ltd v Gordon [2006] 228 ALR 387
Boulter v Batten and Suncorp General Insurance Ltd [2010] QDC 56 ]
Bulsey & Anor v State of Queensland [2015] QCA 187
Cousins v Mt Isa Mines [2006] 2 Qd R 343
Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232
Gillam v State of Qld & Ors [2003] QSC 566
Gray v Morris [2004] 2 Qd R 118
Holmes v Adnought Sheet Metal Fabrications Pty Ltd [2004] 1 Qd R 378
Lucy (Xiaoshuang) Lu v Andrew Petrou & Ors [2011] QSC 57
Madsen v Pope & Anor [2014] QDC 45
Martens v Stokes [2013] 1 Qd R 136
Phipps v Australian Leisure and Hospitality Group Limited [2007] QCA 130
Stanley-Clarke v Boyle [2012]…
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- AGLC
- Baioumy v Wendt [2017] QDC 55
- Case
- [2017] QDC 55
- Decision Date
CaseChat Overview and Summary
The court examined the specific requirements of the Personal Injuries Proceedings Act 2002 (Qld) and considered the plaintiff's explanation for the non-compliance, which was attributed to an interstate solicitor's unfamiliarity with Queensland practice and procedure. The court acknowledged that the loss of the limitation defence was a prejudice to the defendant, but also recognised that Baioumy had filed the claim within the limitation period and had subsequently served a notice of claim outside of that period. The court exercised its discretion under section 18(1)(c)(ii) of the Act to authorise Baioumy to proceed with the claim, despite the non-compliance, but ordered that the plaintiff file and serve an amended claim and statement of claim by a specified date. The proceeding was stayed until the plaintiff complied with all appropriate respects of the Act.
The court dismissed the defendant's application for summary judgment, holding that Baioumy had real prospects of success in the proceeding. The court also ordered that the defendant file any amended defence by a specified date and that further submissions about costs would be heard. Unless the parties otherwise agreed or applied for a different costs order, the costs of and incidental to the applications would be costs in the proceeding. The court's decision was based on a balance of the factors, including the plaintiff's explanation for the non-compliance, the prejudice to the defendant, and the need to ensure that justice is done in the circumstances of the case.
Orders
Orders of the court
1. The defendant’s application for summary judgment filed 23 December 2015 is dismissed.
2. The plaintiff is authorised to proceed with the claim despite non-compliance with the Personal Injuries Proceedings Act 2002 (Qld) pursuant to s 18(1)(c)(ii) of that Act.
3. The plaintiff will file and serve an amended the Claim and Statement of Claim by 4:00 pm on 7 April 2017.
4. The defendant will file any amended defence by 4:00 pm on 28 April 2017.
5. The proceeding is otherwise stayed until the plaintiff complies with the Personal Injuries Proceedings Act 2002 (Qld) in all appropriate respects.
6. I will hear further submissions about costs.
7. Unless either party applies for, or the parties otherwise agree to, a different costs order by 4:00 pm on 10 April 2017, the costs of and incidental to the applications will be costs in the proceeding.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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