Dwynwen Elizabeth WILLIAMS v Geoffrey De Lacy

[2010] QDC 525

[2010] QDC 525

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD3477 of 2010

DWYNWEN ELIZABETH WILLIAMS	Applicant
and
GEOFFREY DE LACY	Respondent

BRISBANE

..DATE 01/12/2010

ORDER

CATCHWORDS

Personal Injuries Proceeding Act 2002 s 43 - Uniform Civil Procedure Rules r 27, r 105, r 367

Urgent circumstances in which leave to commence a proceeding was granted without personal service of the application and supporting material on the respondent/proposed defendant.
HIS HONOUR: The court has made an order in terms of the initialled draft which permits the applicant to commence a proceeding against the respondent claiming damages for personal injuries pursuant to section 43 of the Personal Injuries Proceedings Act 2002, notwithstanding that the steps which the Act (PIPA) requires be completed before litigation have not been carried out.

There is one particular serious difficulty in the applicant's way which is that the application which was filed on the 24th of November 2010 has not been personally served.  That's plainly required by the combined effect of Rule 27 and rule 105.

What has been done on the 24th of November 2010, according to Mr Ponti's affidavit sworn that day and filed by leave today, is the sending of a letter to the respondent by facsimile and by pre-paid post enclosing a copy of the originating application and an earlier filed affidavit of Mr Ponti.  The date of filing would appear to be the 24th of November 2010, going by the court stamp, although the later affidavit of Mr Ponti nominates the 23rd of November 2010 and the Court's file index nominates 25th of November 2010.

According to the later affidavit, on the 22nd of November 2010 Mr Ponti sent a letter to the respondent enclosing a notice of claim form, part 1 and part 2, under the PIPA.  As described in Mr Ponti's filed affidavit, which is all the court has, the circumstances are ones of extreme urgency.  The would-be plaintiff attended on Mr Ponti for the first time, it seems, on the 22nd of November 2010; instructions were given that he investigate the possibility of a personal injuries action against the respondent who is a medical practitioner.

The complaint relates to a surgical procedure called a Nissen Fundoplication which was supposedly performed by the respondent on the 22nd of May 2007 but was not successful.

A further such operation was conducted by the respondent "in December 2007", again not successful, and allegedly leaving the applicant in considerable pain.

There was a further operation conducted at the Royal Brisbane Women's Hospital on the 12th of November 2010 carried out by another surgeon.

The material available to Mr Ponti is slight in the extreme but there's a possibility of the applicant having a good claim which she ought to have an opportunity to pursue.

Given that the respondent's last surgery cannot be dated except by being ascribed to the month of December 2007, today has to be taken as the last date for commencement of a proceeding from the point of view of the limitations legislation.  It's in those circumstances of urgency that the court has made what should be regarded as a quite extraordinary order pursuant to Rule 367(1) permitting the application to be heard notwithstanding that personal service as required by the other rules mentioned above has not been effected.

In the circumstances, it was appropriate to add to the order, which is made without costs, provision that, notwithstanding the stay included in the order, the respondent is at liberty to apply to the court within 14 days of service of a copy of the order upon him to have it set aside or varied.

Making the best judgment which the court can on the basis of the limited evidence available, the conclusion has been reached for the purposes of Rule 367(2) that the interests of justice require the court to proceed as it has.

Orders as per initialled draft.

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