Connolly v Bellette - [2019] QDC 38

DISTRICT COURT OF QUEENSLAND

CITATION:

Connolly v Bellette [2019] QDC 38

PARTIES:

RONALD CONNOLLY
(applicant)

v

TERRY BELLETTE
(respondent)

FILE NO/S:

214 of 2019

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court

DELIVERED ON:

7 March 2019 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

7 March 2019

JUDGE:

Porter QC DCJ

ORDER:

1. Application dismissed.

2. Applicant to pay the respondent’s cost of the application on the standard basis.

CATCHWORDS:

LIMITATION OF ACTIONS – where applicant seeks relief under Personal Injuries Proceedings Act 2002 (Qld) – where part 1 notice was provided outside statutory period for provision of the notice – whether the applicant had a reasonable excuse for delay in providing the notice – where the applicant had been informed as to the need to provide the part 1 notice and as to the limitation periods applicable – whether the applicant’s inability to obtain speculative legal representation comprised a reasonable excuse for delay in providing the notice – whether, if a reasonable excuse was made out, the court should exercise its discretion to permit the claim to proceed despite expiry of the limitation period – whether the respondent being uninsured was relevant to the discretion – whether the failure to seek relief under s. 43(1) was relevant to the discretion.

Personal Injuries and Proceedings Act 2002 (Qld) s. 9(1), s. 9(3)(a), s. 9(5), s. 18, s. 43(1), s. 59

Douglass v Rocla Pty Ltd [2014] QDC 182
Paterson v Leigh & Anor [2008] QSC 277
Perdis v Nominal Defendant [2004] 2 Qd R 64; [2003] QCA 555
Piper v Nominal Defendant [2004] 2 Qd R 85; [2003] QCA 557

COUNSEL:

P G Jeffery for the applicant
D J Murphy for the respondent

SOLICITORS:

Keller Nall and Brown for the applicant
HW Litigation for the respondent

On 23 January 2019, the applicant, Mr Connolly, filed an originating application in this court, seeking relief, amongst other things, under s. 93(2)(b) of the Personal Injuries and Proceedings Act 2002 (Qld), hereafter, PIPA. On the application, Mr Connolly’s counsel, Mr Jeffery, confined the application to relief under s. 59(2)(b) of the Act. I dismiss that application for the reasons which follow.

On 27 May 2015, the applicant alleges he was assaulted by the respondent. He alleges the assault occurred during a confrontation at the business office of the respondent. The applicant had gone there, it is alleged, to challenge the respondent about the taking of a vehicle and contents, belonging to him, by the respondent, seemingly by way of some sort of self-help by the respondent. The applicant says, in the course of that confrontation, he was struck, causing personal injury. The details of the alleged assault are not otherwise important to this application. The limitation period for commencing proceedings in respect of that assault expired, at the latest, on 28 May 2018, and possibly on 27 May 2018. The applicant has not yet commenced proceedings. His claim is, prima facie, statute barred. This would not be fatal, however, if he could…

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.

Continue reading Connolly v Bellette

Details

AGLC: Connolly v Bellette [2019] QDC 38
Case: [2019] QDC 38
Decision Date: 7 March 2019 (ex tempore)

CaseChat Overview and Summary

In the case of Connolly v Bellette, the applicant, Connolly, sought to bring a claim under the Personal Injuries Proceedings Act 2002 (Qld) against the respondent, Bellette, for injuries sustained in a motor vehicle accident. The critical issue was whether Connolly's application was within the statutory limitation period for providing the required notice, specifically the part 1 notice. The application was lodged outside the statutory timeframe, and the primary focus of the court's consideration was whether Connolly had a reasonable excuse for this delay. Connolly argued that their delay was due to an inability to secure speculative legal representation, despite being aware of the necessity to provide the notice and the applicable limitation periods.

The court examined the relevant statutory provisions and case law to determine what constitutes a reasonable excuse for the delay. It considered the applicant's awareness of the need to provide the notice, their efforts to secure legal representation, and the impact of the respondent's uninsured status on the exercise of the court's discretion. The court also scrutinised whether the failure to seek relief under section 43(1) of the Act was pertinent to the discretion. Ultimately, the court concluded that Connolly's inability to obtain legal representation did not amount to a reasonable excuse for the delay, and thus, the application was dismissed.

In reaching its decision, the court weighed the statutory requirements against the principles of fairness and justice. The court found that while the respondent's uninsured status might have influenced the applicant's decision-making, it did not constitute a reasonable excuse for the delay. Furthermore, the failure to seek relief under section 43(1) was deemed relevant in assessing the reasonableness of the excuse. The court ordered that the application be dismissed and that Connolly pay Bellette's costs of the application on the standard basis.

Orders

Orders of the court

1. Application dismissed.

2. Applicant to pay the respondent’s cost of the application on the standard basis.

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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CITATION:	Connolly v Bellette [2019] QDC 38
PARTIES:	RONALD CONNOLLY (applicant) v TERRY BELLETTE (respondent)
FILE NO/S:	214 of 2019
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court
DELIVERED ON:	7 March 2019 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	7 March 2019
JUDGE:	Porter QC DCJ
ORDER:	1. Application dismissed. 2. Applicant to pay the respondent’s cost of the application on the standard basis.
CATCHWORDS:	LIMITATION OF ACTIONS – where applicant seeks relief under Personal Injuries Proceedings Act 2002 (Qld) – where part 1 notice was provided outside statutory period for provision of the notice – whether the applicant had a reasonable excuse for delay in providing the notice – where the applicant had been informed as to the need to provide the part 1 notice and as to the limitation periods applicable – whether the applicant’s inability to obtain speculative legal representation comprised a reasonable excuse for delay in providing the notice – whether, if a reasonable excuse was made out, the court should exercise its discretion to permit the claim to proceed despite expiry of the limitation period – whether the respondent being uninsured was relevant to the discretion – whether the failure to seek relief under s. 43(1) was relevant to the discretion. Personal Injuries and Proceedings Act 2002 (Qld) s. 9(1), s. 9(3)(a), s. 9(5), s. 18, s. 43(1), s. 59 Douglass v Rocla Pty Ltd [2014] QDC 182 Paterson v Leigh & Anor [2008] QSC 277 Perdis v Nominal Defendant [2004] 2 Qd R 64; [2003] QCA 555 Piper v Nominal Defendant [2004] 2 Qd R 85; [2003] QCA 557
COUNSEL:	P G Jeffery for the applicant D J Murphy for the respondent
SOLICITORS:	Keller Nall and Brown for the applicant HW Litigation for the respondent