Feher v Commonwealth of Australia - [2014] QDC 145

DISTRICT COURT OF QUEENSLAND

CITATION:

Feher v Commonwealth of Australia [2014] QDC 145

PARTIES:

TIMOTHY MARTIN FEHER
(applicant)

v

COMMONWEALTH OF AUSTRALIA
(respondent)

FILE NO:

2093/14

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Brisbane

DELIVERED ON:

20 June 2014

DELIVERED AT:

Brisbane

HEARING DATE:

12 June 2014

JUDGE:

Butler SC, DCJ

ORDER:

1. Order that the applicant have leave pursuant to s 43 of the Personal Injuries Proceedings Act 2002 to start a proceeding in this court for damages for personal injury sustained on or about 6 June 2006;

2. Declared that the applicant has given a reasonable excuse for his delay in giving a Part 1 Notice of Claim pursuant to s 9(5) of the Personal Injuries Proceedings Act 2002;

3. Ordered the applicant have leave pursuant to s 59(2)(b) of the Personal Injuries Proceedings Act 2002 to commence a proceeding in this court for damages for personal injury sustained on or about 6 June 2006.

4. The proceedings be stayed until there is compliance with Chapter 2, Part 1 of the Personal Injuries Proceedings Act 2002.

5. The costs of and incidental to this application will be the respective parties’ costs in the cause of the proceedings to be brought.

CATCHWORDS:

LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – where three year limitation period has expired – where non-compliance with requirements of Personal Injuries Proceedings Act 2002 – whether urgent need to start proceedings – whether leave to commence proceedings should be granted.

COUNSEL:

R Morgan for the applicant
D L Atkinson for the respondent

SOLICITORS:

Shine Lawyers for the applicant
Minter Ellison for the respondent

This is an application for leave to commence a proceeding for damages for personal injuries despite non-compliance by the applicant with the requirements of the Personal Injuries Proceedings Act 2002 (“PIPA”) and despite the three year limitation period having expired.

At the outset the applicant sought and was granted leave to amend the originating application to add a paragraph applying for an order under s 43 of the PIPA.

The applicant seeks the following orders:

“1.A declaration pursuant to Section 18(1)(c)(i) of the Personal Injuries Proceedings Act 2002 that the Applicant has remedied non-compliance as at 6 February 2014.
2.In the alternative, an order that the Applicant is authorised to proceed further with the claim despite the noncompliance pursuant to Section 18(1)(c)(ii) of the Personal Injuries Proceedings Act 2002.
3.An order that the Applicant be granted leave to commence a proceeding after the expiration of the three year limitation period in the Court, based upon liability for personal injury sustained by the Applicant in an incident at the Respondent’s premises on or about 6 June 2006 pursuant to s. 43 of the Personal Injuries Proceedings Act 2002 as amended.
4.An order that the Applicant be granted leave to commence a proceeding, after the expiration of the three year limitation period, in the Court…

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.

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Details

Case: [2014] QDC 145
Decision Date: 20 June 2014

CaseChat Overview and Summary

In the case of Feher v Commonwealth of Australia, the applicant sought leave to commence proceedings for damages for personal injuries sustained on 6 June 2006. The dispute arose in the context of personal injuries and involved the question of whether the applicant could commence legal action despite the expiration of the statutory limitation period. The Federal Court was tasked with deciding whether the applicant could be granted leave to start proceedings, whether he had provided a reasonable excuse for the delay in giving a notice of claim, and whether there was an urgent need to commence proceedings. The court was also required to determine whether the applicant had complied with the requirements of the Personal Injuries Proceedings Act 2002.

The court considered whether the applicant had provided a reasonable excuse for his delay in giving a notice of claim, and whether there was an urgent need to commence proceedings. The applicant argued that there were genuine reasons for the delay, including his lack of knowledge of the injury and its consequences, and the fact that he had not received proper legal advice. The court found that the applicant had provided a reasonable excuse for the delay and that there was an urgent need to commence proceedings. The court also determined that the applicant had not complied with the requirements of the Personal Injuries Proceedings Act 2002, and that the proceedings should be stayed until compliance was achieved.

The court granted the applicant leave to start proceedings for damages for personal injury sustained on or about 6 June 2006, and declared that the applicant had given a reasonable excuse for his delay in giving a notice of claim. The court ordered that the proceedings be stayed until the applicant complied with the requirements of the Personal Injuries Proceedings Act 2002. The court also ordered that the costs of and incidental to this application would be the respective parties’ costs in the cause of the proceedings to be brought. The outcome of this case provides guidance for applicants seeking to commence proceedings for personal injuries after the limitation period has expired, and highlights the importance of providing a reasonable excuse for delay and complying with statutory requirements.

Orders

Orders of the court

1. Order that the applicant have leave pursuant to s 43 of the Personal Injuries Proceedings Act 2002 to start a proceeding in this court for damages for personal injury sustained on or about 6 June 2006;

2. Declared that the applicant has given a reasonable excuse for his delay in giving a Part 1 Notice of Claim pursuant to s 9(5) of the Personal Injuries Proceedings Act 2002;

3. Ordered the applicant have leave pursuant to s 59(2)(b) of the Personal Injuries Proceedings Act 2002 to commence a proceeding in this court for damages for personal injury sustained on or about 6 June 2006.

4. The proceedings be stayed until there is compliance with Chapter 2, Part 1 of the Personal Injuries Proceedings Act 2002.

5. The costs of and incidental to this application will be the respective parties’ costs in the cause of the proceedings to be brought.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Feher v Commonwealth of Australia [2014] QDC 145
PARTIES:	TIMOTHY MARTIN FEHER (applicant) v COMMONWEALTH OF AUSTRALIA (respondent)
FILE NO:	2093/14
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court of Brisbane
DELIVERED ON:	20 June 2014
DELIVERED AT:	Brisbane
HEARING DATE:	12 June 2014
JUDGE:	Butler SC, DCJ
ORDER:	1. Order that the applicant have leave pursuant to s 43 of the Personal Injuries Proceedings Act 2002 to start a proceeding in this court for damages for personal injury sustained on or about 6 June 2006; *2. Declared that the applicant has given a reasonable excuse for his delay in giving a Part 1 Notice of Claim pursuant to s 9(5) of the Personal Injuries Proceedings Act* 2002;** 3. Ordered the applicant have leave pursuant to s 59(2)(b) of the Personal Injuries Proceedings Act 2002 to commence a proceeding in this court for damages for personal injury sustained on or about 6 June 2006. *4. The proceedings be stayed until there is compliance with Chapter 2, Part 1 of the Personal Injuries Proceedings Act* 2002. 5. The costs of and incidental to this application will be the respective parties’ costs in the cause of the proceedings to be brought.**
CATCHWORDS:	LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – where three year limitation period has expired – where non-compliance with requirements of Personal Injuries Proceedings Act 2002 – whether urgent need to start proceedings – whether leave to commence proceedings should be granted.
COUNSEL:	R Morgan for the applicant D L Atkinson for the respondent
SOLICITORS:	Shine Lawyers for the applicant Minter Ellison for the respondent