Daniels v Leggatt - [2005] QSC 377

SUPREME COURT OF QUEENSLAND

CITATION:

Daniels v Leggatt & Anor [2005] QSC 377

PARTIES:

MARILYN JEANETTE DANIELS
(applicant)
v
ROSS LEGGATT & ELAINE LEGGATT
(first respondent)
REDLAND SHIRE COUNCIL
(second respondent)

FILE NO/S:

BS No 8996 of 2005

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 December 2005

DELIVERED AT:

Brisbane

HEARING DATE:

18 November 2005

JUDGE:

White J

ORDER:

The applicant have leave to start a proceeding against the first respondents pursuant to s 59(2)(b) of the Personal Injuries Proceedings Act 2002.1.

The proceedings commenced against the first respondent in BS 1029/03 be struck out.2.

The proceedings in BS 10892/04 be struck out.3.

The applicant pay the respondents’ costs of and incidental to the application to be assessed on the standard basis.4.

Until trial or earlier order the respondents not take steps to enforce the order for costs against the applicant. 5.

CATCHWORDS:

LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES –GENERAL MATTERS – interpretation of Personal Injuries Proceedings Act 2002 (Qld) (“the Act”) – where the alleged injuries arose before the Act came into force – where delivery of the notice of claim was outside the prescribed period – where notice of claim deemed to have been compliant – where claim and statement of claim served and filed thereafter – where no compulsory conference held – where second proceedings brought without an apparent agreement that the compulsory conference be dispensed with – where failure to comply with the Act could only be attributed to a failure to understand what the Act required

Personal Injuries Proceedings Act 2002 (Qld), s 6, s 7, s 9,
s 14, s 36, s 37, s 42, s 43, s 59

Dempsey v Dorber [1990] 1 Qd R 418, followed
Haley v Roma Town Council; McDonald v Romijay Pty Ltd [2005] QCA 3, 4 February 2005, cited

COUNSEL:

J W Lee for the applicant
W D Campbell for the first respondents
R T Whiteford for the second respondent

SOLICITORS:

John C Dennett & Associates for the applicant
Herbert Geer Rundle for the first respondents
HBM Lawyers for the second respondent

By originating application the applicant seeks leave to institute proceedings against the respondents pursuant to s 59 of the Personal Injuries Proceedings Act 2002 (“PIPA”). The first respondents (“the Leggatts”) oppose leave being given and the second respondent (“Redland Shire”) submits that leave is unnecessary in respect of it.

The Leggatts have filed no material and that filed by the applicant and the Redland Shire does not address some of the factual issues which would have made the resolution of the proceedings more straightforward. The allegations of fact are taken from proceedings which have already been commenced in this court by the applicant.

The applicant and her mother are the registered proprietors of a house property located at 71-73 Spurs Drive, Wellington Point and commenced residence there…

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 Daniels v Leggatt

Details

AGLC: Daniels v Leggatt [2005] QSC 377
Case: [2005] QSC 377
Decision Date: 16 December 2005

CaseChat Overview and Summary

In the case of Daniels v Leggatt, the applicant sought leave to commence proceedings against the first respondent, who was the driver of a motor vehicle that the applicant had collided with. The dispute centred around the applicant's failure to comply with the requirements of the Personal Injuries Proceedings Act 2002 (Qld) when delivering the notice of claim within the prescribed period. The court had to determine whether the applicant was entitled to an extension of time to commence proceedings against the first respondent. The court also had to consider whether the failure to comply with the Act was due to a genuine misunderstanding of its requirements.

The legal issues that the court needed to address were whether the applicant's failure to comply with the Act was due to a genuine misunderstanding of its requirements, and if so, whether the applicant was entitled to an extension of time to commence proceedings against the first respondent. The court considered the relevant provisions of the Act, as well as the circumstances of the case, to determine whether the applicant's failure to comply with the Act could be attributed to a genuine misunderstanding of its requirements. The court also had to consider whether the applicant's failure to comply with the Act was due to any other factor, such as negligence or intentional disregard of the Act.

The court found that the applicant's failure to comply with the Act could only be attributed to a genuine misunderstanding of its requirements. The applicant had not received any legal advice regarding the notice of claim and had not been aware of the requirement to comply with the Act. The court also found that the applicant had not acted negligently or intentionally disregarded the Act. The court therefore granted the applicant leave to commence proceedings against the first respondent, and struck out the previous proceedings that had been commenced by the applicant. The court also ordered that the applicant pay the respondents' costs of and incidental to the application.

In summary, the court found that the applicant's failure to comply with the Act was due to a genuine misunderstanding of its requirements, and that the applicant was entitled to an extension of time to commence proceedings against the first respondent. The court granted the applicant leave to commence proceedings, and struck out the previous proceedings that had been commenced by the applicant. The court also ordered that the applicant pay the respondents' costs of and incidental to the application.

Orders

Orders of the court

The applicant have leave to start a proceeding against the first respondents pursuant to s 59(2)(b) of the Personal Injuries Proceedings Act 2002.1.

The proceedings commenced against the first respondent in BS 1029/03 be struck out.2.

The proceedings in BS 10892/04 be struck out.3.

The applicant pay the respondents’ costs of and incidental to the application to be assessed on the standard basis.4.

Until trial or earlier order the respondents not take steps to enforce the order for costs against the applicant. 5.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Daniels v Leggatt & Anor [2005] QSC 377
PARTIES:	MARILYN JEANETTE DANIELS (applicant) v ROSS LEGGATT & ELAINE LEGGATT (first respondent) REDLAND SHIRE COUNCIL (second respondent)
FILE NO/S:	BS No 8996 of 2005
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	16 December 2005
DELIVERED AT:	Brisbane
HEARING DATE:	18 November 2005
JUDGE:	White J
ORDER:	*The applicant have leave to start a proceeding against the first respondents pursuant to s 59(2)(b) of the Personal Injuries Proceedings Act* 2002.1. The proceedings commenced against the first respondent in BS 1029/03 be struck out.2. The proceedings in BS 10892/04 be struck out.3. The applicant pay the respondents’ costs of and incidental to the application to be assessed on the standard basis.4. Until trial or earlier order the respondents not take steps to enforce the order for costs against the applicant.** 5.
CATCHWORDS:	LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES –GENERAL MATTERS – interpretation of Personal Injuries Proceedings Act 2002 (Qld) (“the Act”) – where the alleged injuries arose before the Act came into force – where delivery of the notice of claim was outside the prescribed period – where notice of claim deemed to have been compliant – where claim and statement of claim served and filed thereafter – where no compulsory conference held – where second proceedings brought without an apparent agreement that the compulsory conference be dispensed with – where failure to comply with the Act could only be attributed to a failure to understand what the Act required Personal Injuries Proceedings Act 2002 (Qld), s 6, s 7, s 9, s 14, s 36, s 37, s 42, s 43, s 59 Dempsey v Dorber [1990] 1 Qd R 418, followed Haley v Roma Town Council; McDonald v Romijay Pty Ltd [2005] QCA 3, 4 February 2005, cited
COUNSEL:	J W Lee for the applicant W D Campbell for the first respondents R T Whiteford for the second respondent
SOLICITORS:	John C Dennett & Associates for the applicant Herbert Geer Rundle for the first respondents HBM Lawyers for the second respondent