Dunn v Lawrence - [2005] QSC 291

SUPREME COURT OF QUEENSLAND

CITATION:

Dunn v Lawrence [2005] QSC 291

PARTIES:

DAVID JOHN DUNN
(applicant)
v
EARLE CHARLES LAWRENCE
(respondent)

FILE NO/S:

BS6758/05

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

18 October 2005

DELIVERED AT:

Brisbane

HEARING DATE:

12 September 2005

JUDGE:

Mackenzie J

ORDER:

The application is dismissed1.

The applicant pay the respondent’s costs of and incidental to the application to be assessed

2.

CATCHWORDS:

LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – PERSONAL INJURY CASES - where Part 1 PIPA Notice served within limitation period – where respondent identified a number of non-compliance issues with respect to Part 1 Notice – where respondent did not expressly waive compliance – where respondent requested claimant to remedy non-compliance within 1 month pursuant to s12(3)(b) – where claimant did not take steps to remedy non-compliance – where respondent did not provide notice prescribed by s12(3) - where agreed limitation period subsequently expired – where claimant applied to court for extension of time pursuant to s59(2) – where pre-condition of s59(2) is that complying notice of claim issued – where applicant argued that notice of claim deemed to be compliant pursuant to s12(3)(a) and s13 of PIPA – whether failure of respondent to respond pursuant to s12(3) triggered the presumption in s13 - whether a complying Part 1 notice of claim issued before the end of the limitation period

Personal Injuries Proceedings Act 2002 (Qld) s59, s12, s13

Haley v Roma Town Council; McDonald v Romijay Pty Ltd [2005] QCA 3
Kash v SM & TJ Cedergren Builders (2004) 1 Qd R 643
Sultan v New Asian Shipping Co Ltd [2003] QSC 231

COUNSEL:

W L Hampton for the applicant
T Matthews for the respondent

SOLICITORS:

Quinn & Scattini for the applicant
Paul Everingham and Co for the respondent

MACKENZIE J: This is an application for leave to proceed pursuant to s 59(2)(b) of the Personal Injuries Proceedings Act 2002 (“PIPA”). The applicant was assaulted by the respondent on 23 June 2001. The injury allegedly relied on, according to the notice of claim delivered pursuant to PIPA occurred during a confrontation following what appears to have been an incident when the respondent was riding his bicycle and the applicant was driving his motor vehicle. The respondent pleaded guilty to common assault in the Caboolture Magistrates Court on 23 February 2005, although the reason for the long delay in those proceedings being finalised is not explained.

The PIPA notice of claim was served on 10 September 2002. Because of the transitional provision in s 77A(2) it was served in time. On 8 October 2002 the respondent’s then solicitors identified a number of non-compliance issues. The letter stated that the respondent did not waive compliance and required the claimant to remedy non-compliance no later than one month from the receipt of the letter. While the letter does not specifically state that the respondent considered himself a proper respondent, the terms of the letter, which echo s 12(2)(b) and…

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 Dunn v Lawrence

Details

AGLC: Dunn v Lawrence [2005] QSC 291
Case: [2005] QSC 291
Decision Date: 18 October 2005

CaseChat Overview and Summary

Dunn v Lawrence is a case involving a dispute between the plaintiff, Dunn, and the defendant, Lawrence, concerning personal injury claims. Dunn sought an extension of the limitation period under the Personal Injury Proceedings Act (PIPA) to file a claim against Lawrence. The case was heard in a court in Australia. The central legal issue before the court was whether Dunn could extend the limitation period for filing a claim against Lawrence despite not fully complying with the notice requirements stipulated in the PIPA. Specifically, the court needed to determine if the failure of Lawrence to respond in accordance with the PIPA triggered a presumption that Dunn's notice of claim was compliant.

The court meticulously reviewed the procedural steps taken by Dunn and Lawrence. Dunn served a Part 1 Notice within the limitation period but Lawrence identified non-compliance issues. Although Dunn was given a chance to remedy these issues, they failed to do so within the specified timeframe. Consequently, Lawrence did not respond as required by the statute. The court examined the interaction between sections 12(3)(b), 12(3), and 13 of the PIPA to decide if the respondent's inaction led to the presumption of compliance under section 13. The court concluded that the statutory requirement for a response from the respondent was not met, and therefore, no presumption of compliance was triggered. As a result, the court held that no compliant Part 1 Notice of claim was issued before the expiration of the limitation period.

Ultimately, the court dismissed Dunn's application for an extension of time. The court ordered that Dunn pay Lawrence's costs associated with the application, which were to be assessed. This decision underscores the importance of adhering to statutory notice requirements in personal injury cases under the PIPA.

Orders

Orders of the court

The application is dismissed1.

The applicant pay the respondent’s costs of and incidental to the application to be assessed

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

Full text does not contain this section.

CITATION:	Dunn v Lawrence [2005] QSC 291
PARTIES:	DAVID JOHN DUNN (applicant) v EARLE CHARLES LAWRENCE (respondent)
FILE NO/S:	BS6758/05
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	18 October 2005
DELIVERED AT:	Brisbane
HEARING DATE:	12 September 2005
JUDGE:	Mackenzie J
ORDER:	The application is dismissed1. The applicant pay the respondent’s costs of and incidental to the application to be assessed 2.
CATCHWORDS:	LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – PERSONAL INJURY CASES - where Part 1 PIPA Notice served within limitation period – where respondent identified a number of non-compliance issues with respect to Part 1 Notice – where respondent did not expressly waive compliance – where respondent requested claimant to remedy non-compliance within 1 month pursuant to s12(3)(b) – where claimant did not take steps to remedy non-compliance – where respondent did not provide notice prescribed by s12(3) - where agreed limitation period subsequently expired – where claimant applied to court for extension of time pursuant to s59(2) – where pre-condition of s59(2) is that complying notice of claim issued – where applicant argued that notice of claim deemed to be compliant pursuant to s12(3)(a) and s13 of PIPA – whether failure of respondent to respond pursuant to s12(3) triggered the presumption in s13 - whether a complying Part 1 notice of claim issued before the end of the limitation period Personal Injuries Proceedings Act 2002 (Qld) s59, s12, s13 Haley v Roma Town Council; McDonald v Romijay Pty Ltd [2005] QCA 3 Kash v SM & TJ Cedergren Builders (2004) 1 Qd R 643 Sultan v New Asian Shipping Co Ltd [2003] QSC 231
COUNSEL:	W L Hampton for the applicant T Matthews for the respondent
SOLICITORS:	Quinn & Scattini for the applicant Paul Everingham and Co for the respondent