Foster & Anor v Longhurst & Anor

[2004] QDC 22

DISTRICT  COURT OF QUEENSLAND

CITATION:

Foster & Anor v. Longhurst & Anor [2004] QDC 022

PARTIES:

CLINTON ANTHONY FOSTER (Plaintiff)

v

MARY ROIRI & ELIZABETH GOGGIN (First Defendants)

And

JOHN CLIFFORD LONGHURST & QIC LOGAN HYPERDOME PTY LTD (Second Defendants)

FILE NO:

Appeal No. 4142 of 2002

PROCEEDING:

Application to join a defendant

DELIVERED ON:

26 February 2004

DELIVERED AT:

Brisbane

HEARING DATES:

5 December 2003

JUDGE:

Judge Brabazon QC

ORDER:

Application dismissed

CATCHWORDS:

PROCEDURE – QUEENSLAND – PRACTICE UNDER THE RULES OF COURT – PARTIES – OTHER MATTERS – Where the plaintiff seeks to join a defendant after the expiration of the limitation period – Interpretation of UCPR rule 69.

LIMITATION OF ACTIONS – PERSONAL INJURIES – Where the plaintiff seeks to join another defendant pursuant to s77D or alternatively s59 PIPA – Where the three year limitation period has expired – Whether leave can be granted to proceed.

Personal Injuries Proceedings Act 2002, s9, s14, s16, s18, s43, s59, 77D

Uniform Civil Procedure Rules (Qld) r69

Bates & Ors v Queensland Newspapers Pty Ltd & Anor [2001] QSC 083

Kash v SM & TJ Cedergren Builders & Ors [2003] QSC 426

Piper v Nominal Defendant [2003] QCA 557

COUNSEL:

Mr Horvath for the applicant
Mr Harding for the respondent

SOLICITORS:

Shane Ellis Lawyer for the applicant

1. The plaintiff seeks to recover damages for personal injuries.  He says that he injured his ankle on 15 October 1999 while stepping on a puddle of water outside a florist shop at the Logan Hyperdome.  The first defendants were the florists at the time. The second defendants were the owners of the shopping centre. 

1. He now wishes to join a third defendant, Prestige Property Services Pty Ltd.  It was the cleaner at the time of his injury. 

1. Mr Foster faces two obstacles.  His counsel asked leave to join Prestige Property Services as a defendant, notwithstanding that the three year limitation period for such a proceedings has expired.  Secondly, he asks for the Court’s leave to proceed, notwithstanding his failure to comply with the requirements of the Personal Injuries Proceedings Act. 

1. At the time of his injury Mr Foster was a 23 year old man who worked in the security industry.  He says that his injury did not resolve.  His leg was in plaster for six weeks.  He lost that time from work.  His problems continued, on and off.  In May 2002 he decided to see a solicitor.  He contacted his present solicitors to inquire about pursuing a claim.  He believed he had three years to do that.  He believed that the water he slipped in came from the florist shop, which was close to where the accident occurred.  His solicitors made some investigations, but they were not detailed.  His solicitor had difficulty in completing the required notice of claim, as Mr Foster did not attend on at least three occasions because of transport problems and work call ups.  He had not lodged tax returns, and had few financial records.  Some of his…