Dunbabin v Camilleri - [2021] QDC 9

DISTRICT COURT OF QUEENSLAND

CITATION:

Dunbabin v Camilleri [2021] QDC 9

PARTIES:

BRIAN DUNBABIN

(applicant)

v

TED CAMILLERI

(respondent)

FILE NO:

D134/2020

DIVISION:

Civil

PROCEEDING:

Originating Application

ORIGINATING COURT:

Maroochydore District Court

DELIVERED ON:

29 January 2021

DELIVERED AT:

Maroochydore

HEARING DATE:

21 August 2020

JUDGE:

Long SC DCJ

ORDER:

Application dismissed.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – where the applicant claims to have suffered injury as a result of an assault by the respondent on 21 October 2016 – where the applicant issued a complying notice of claim within the limitation period but had not otherwise completed the pre-litigation procedures under the Personal Injuries Proceedings Act 2002 (Qld) before the limitation period expired – where the applicant applies for leave to commence proceedings even though the limitation period has ended

LEGISLATION:

District Court of QueenslandAct1967 (Qld), s 68(1)(a)

Limitation of Actions Act1974 (Qld), s 11

Personal Injuries Proceedings Act 2002 (Qld), ss 4, 9, 36, 43, 44, 59

CASES:

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Folwell v Mayer [2020] QSC 162

Haley & Anor v Roma Town Council [2005] QCA 3; [2005] 1 Qd R 478

Kash v SM & TJ Cedergren Builders [2003] QSC 426; [2004] 1 Qd R 643; [2003] QSC 426

MacDonald v Romijay P/L & Ors [2005] QCA 3 at [48]

Paterson v Leigh & Anor [2008] QSC 277

Ward v Wiltshire Australia Pty Ltd [2008] QCA 93; (2008) 51 MVR 1

Yarwood v State of Queensland [2017] QDC 305

COUNSEL:
G Barr for the applicant
P Metzdorf for the respondent

SOLICITORS:
Butler McDermott Lawyers for the applicant
Ryan Solicitors & Attorneys for the respondent

Introduction

This is an application brought to allow the applicant to commence a proceeding for compensation for personal injuries due to the assault of the applicant by the respondent on 21 October 2016, despite the passing of the period of limitation in s 11 of the Limitation of Actions Act1974 (Qld).
Although the processes required by the Personal Injuries Proceedings Act2002 (Qld) (“PIPA”) have been engaged by the applicant, who has the benefit of a compliant Notice of Claim served within the limitation period, which, it is common ground, relevantly expired on 20 October 2019, the difficulty is that such processes have not been completed and in particular no compulsory conference has occurred as required by s 36 of the PIPA.
The application also seeks relief in the form of an order dispensing with the requirement for a compulsory conference, pursuant to s 36(5)(b) of the PIPA. Such dispensation may only be granted for “good reason” and is not a necessary condition of any grant of the primary relief sought to enable the applicant’s claim to be pursued. That is because, in the event that the applicant is granted relief pursuant to s 59(2) of the PIPA, to start…

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 Dunbabin v Camilleri

Details

AGLC: Dunbabin v Camilleri [2021] QDC 9
Case: [2021] QDC 9
Decision Date: 29 January 2021

CaseChat Overview and Summary

The case of Dunbabin v Camilleri involved an application by the applicant, Dunbabin, to extend the limitation period for initiating legal proceedings against Camilleri, the respondent, for injuries sustained in an alleged assault on 21 October 2016. Dunbabin had issued a notice of claim within the statutory timeframe but had not completed the pre-litigation procedures under the Personal Injuries Proceedings Act 2002 (Qld) before the limitation period expired. Despite having issued the notice of claim within the required time, Dunbabin sought leave to commence proceedings even after the limitation period had expired.

The legal issue before the court was whether there were sufficient grounds to extend the limitation period, particularly given the absence of a finding that Dunbabin had made a conscientious effort to comply with the pre-court procedures. The court also considered the potential for prejudice to the respondent, Camilleri, who was uninsured for the potential liability in question. While the court acknowledged the competing circumstances, it ultimately determined that Dunbabin had not demonstrated that there was good reason, or that the interests of justice required, an extension of the limitation period.

The court reasoned that despite the applicant's efforts, the absence of a finding of conscientious effort to comply with pre-court procedures and the potential for presumptive prejudice to the respondent were significant factors. The court concluded that there was no necessity to grant the application, as Dunbabin had not shown that the interests of justice required an extension of the limitation period. Therefore, the application was dismissed, and no dispensation of the compulsory conference was sought.

ORDERS:
Application dismissed.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As has been noted, the absence of a finding for the applicant of his position being supported by conscientious effort to comply with the pre-court procedures, is not necessarily fatal to his application. Neither is it now a matter of speculating as to the prospects of the applicant potentially having a new cause of action because of the fault of his legal representatives and which, in this application, he must accept. But neither is that prospect to be ignored in understanding the position of the applicant and the contrasting position of the respondent, in circumstances where there is the sense of presumptive prejudice which may identified as influencing the legislative time limitation and perhaps more readily in respect of issues relevant to quantum rather than liability, as opposed to any identified actual prejudice. In circumstances where prior to expiry of the limitation period there is no significant delay attributable to the respondent in respect of the completion of the pre-court procedures and where he is uninsured for the potential liability which the applicant seeks to re-engage, the importance of his present ability to rely on the limitation of action defence, looms large. In these circumstances and despite the competing circumstances, it should not be concluded that the applicant has demonstrated that there is good reason, or that the interests of justice require that an extension of the limitation period be granted, so as to obviate the respondent’s defence or bar to action against him. Conclusion Accordingly, there is no necessity to deal with the application to the extent that dispensation of the compulsory conference is sought. The order is that the application filed 4 August 2020, is dismissed.

Ratio Decidendi

Legal Principle Established

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CITATION:	Dunbabin v Camilleri [2021] QDC 9
PARTIES:	BRIAN DUNBABIN (applicant) v TED CAMILLERI (respondent)
FILE NO:	D134/2020
DIVISION:	Civil
PROCEEDING:	Originating Application
ORIGINATING COURT:	Maroochydore District Court
DELIVERED ON:	29 January 2021
DELIVERED AT:	Maroochydore
HEARING DATE:	21 August 2020
JUDGE:	Long SC DCJ
ORDER:	Application dismissed.
CATCHWORDS:	LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – where the applicant claims to have suffered injury as a result of an assault by the respondent on 21 October 2016 – where the applicant issued a complying notice of claim within the limitation period but had not otherwise completed the pre-litigation procedures under the Personal Injuries Proceedings Act 2002 (Qld) before the limitation period expired – where the applicant applies for leave to commence proceedings even though the limitation period has ended
LEGISLATION:	District Court of QueenslandAct1967 (Qld), s 68(1)(a) Limitation of Actions Act1974 (Qld), s 11 Personal Injuries Proceedings Act 2002 (Qld), ss 4, 9, 36, 43, 44, 59
CASES:	Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Folwell v Mayer [2020] QSC 162 Haley & Anor v Roma Town Council [2005] QCA 3; [2005] 1 Qd R 478 Kash v SM & TJ Cedergren Builders [2003] QSC 426; [2004] 1 Qd R 643; [2003] QSC 426 MacDonald v Romijay P/L & Ors [2005] QCA 3 at [48] Paterson v Leigh & Anor [2008] QSC 277 Ward v Wiltshire Australia Pty Ltd [2008] QCA 93; (2008) 51 MVR 1 Yarwood v State of Queensland [2017] QDC 305
COUNSEL:	G Barr for the applicant P Metzdorf for the respondent
SOLICITORS:	Butler McDermott Lawyers for the applicant Ryan Solicitors & Attorneys for the respondent