Body Corporate for Artique CTS v Onoufriou

[2011] QDC 168

[2011] QDC 168

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1422 of 2011

BODY CORPORATE FOR ARTIQUE CTS 34902	Applicant
and
MATOULA ONOUFRIOU	Respondent

BRISBANE

..DATE 08/08/2011

ORDER

CATCHWORDS

Personal Injuries Proceedings Act 2002, s 22(1), s 22(5), s 22(8), s35(2)
Uniform Civil Procedure Rules 1999, r 27

Pre-litigation steps - claimant ordered to provide documents (including medical reports) previously stated to have been available - 3 business days notice stipulated for re-listing of the application when it had been adjourned by consent reduced

HIS HONOUR:  The court orders, pursuant to rule 27(3)(b), that the adjourned originating application be heard, notwithstanding that notice of today's hearing was not given until the 4th of August 2011.

The court further orders, in terms of paragraphs 1 and 4 of the originating application filed the 3rd of May 2011 with the addition to paragraph 2 of "from notification to the respondent's solicitors PCF Law Group of this order."

...

HIS HONOUR:  Those orders are made in the absence of any appearance by or for the respondent who was not here when called.

The mandatory pre-litigation steps required by the Personal Injuries Proceedings Act 2002 (PIPA) have been occurring without the court's involvement; however, the applicant comes to the court in light of difficulties experienced in obtaining information and documents which the Act requires be made available.

The court's understanding is that the respondent in the application complains of personal injuries suffered which she attributes to the ingress of water to her rented unit for which she says the present applicant bears responsibility.

Her solicitors for purposes of preparing and forwarding a part one notice of claim were Matthew Gibson Legal.  They have been replaced by PCF Law Group.

...

HIS HONOUR: It seems clear from the part 2 notice of claim which Ms Onoufriou provided with the assistance of PCF Law that there will be in existence at least medical reports which ought to have been disclosed by provision of copies pursuant to section 22(1)(a) of the Act and within a period of a month (long expired) under subsection (5).

That simply hasn't occurred.  The section, consistently with the Act as a whole, clearly envisages applications like the originating application filed by the present applicant on the 3rd of May 2011 to obtain orders of the court to ensure that steps PIPA requires to be taken are taken.

That application was returnable on the 24th of May 2011.  A "Consent adjournment of the application," signed by both parties on the 23rd of May 2011, is before the Court.  That provided for a consent adjournment "to a date to be fixed on three business days' notice by any party to the other."  For the purposes of today that three days is taken to have its explanation in rule 27.

That rule provides possibilities under sub rule (3) for the court to hear an application on shorter notice.  The respondent to the application has, of course, been aware of the contents and implications of it and that the applicant's solicitors are continuing to pursue the matter.

...

HIS HONOUR:  Their letter of 14th of June 2011 advised the applicant's instructions to re-list its application if satisfaction within a further week should not be forthcoming.  In the event the adjournment to today was advised only on the 4th of August; a weekend has intervened so that there's been short service.

The application is based, as far as the merits are concerned, on the apparent acknowledgement that the requested documentation has been obtained, was in the process of scanning and would be forwarded shortly.  I'm referring to an email communication of 14th of June 2011.

A later letter of 8th of July 2011 inconsistently advises that "we do not currently hold any documents," but that a legal - medical legal appointment with Dr Langley has been arranged for the claimant on the 4th of October 2011.

The respondent's non-appearance means she's in a position to approach the court if a case can be made that some injustice to her occurs from the making of today's orders which, in the circumstances, may appear harsh but are in the spirit of what the Act requires.

It provides justification in the circumstances for the making of costs orders against the respondent which are included in the order made. The Act authorises costs under both subsection (8) of section 22 and section 35(2).

One curiosity I've noted is that the claimant's statutory declaration in support of her notice of claim is dated the 7th of September 2011 which is still almost a month in the future.  I'm not sure whether this has any implications.

One matter which it might be worth mentioning is that Mr Kelly for the applicant says he expects that the documents and information to be made available pursuant to the court's order will include documents having to do with the lease of the premises that's referred to in the statutory declaration.  He did not seek any specific order about them.

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