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Ghobrial v Assaf

Ghobrial v Assaf

Case [2014] QDC 141 18 June 2014

Limitation Periods

Statutory Construction

Standing

Admissibility of Evidence

Civil Litigation & Procedure

Statutory Interpretation

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DISTRICT COURT OF QUEENSLAND

CITATION:

Ghobrial v Assaf & Ors [2014] QDC 141

PARTIES:

MAGDY SAMAAN GHOBRIAL
(Plaintiff)

and

SALIM ASSAF
(First Defendant)

and

CAROLINE ASSAF
(Second Defendant)

and

KEITH JAMES HUNTER
(Third Defendant)

and

HUNTER SOLICITORS
(Fourth Defendant)

FILE NO/S:

165 of 2012

DIVISION:

Civil

PROCEEDING:

Applications

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

18 June 2014

DELIVERED AT:

Southport

HEARING DATE:

3 March 2014

JUDGE:

McGinness DCJ

ORDER:

The plaintiff’s claim against the first and second defendants is dismissed.

The first and second defendants’ application is dismissed.

The plaintiff should pay the first and second defendants’ costs of the action, not including the costs of the first and second defendants’ application.

The application by the third and fourth defendants is dismissed.

I order the third and fourth defendants to pay the plaintiff’s costs of that application.

CATCHWORDS:

LIMITATIONS OF ACTIONS – extension or postponement of actions – extension of time in personal injury matters – where the plaintiff’s claim is statute barred – Personal Injuries Proceedings Act 2002 (Qld), s 59.

PERSONAL INJURIES – Pre-litigation procedure – leave to
commence proceedings prior to completing – no power to

give leave which extends limitation period.

Personal Injuries Proceedings Act 2002 (Qld), s 13, s 18, s 20, s 43, s 59.

Uniform Civil Procedure Rules1999 (Qld), r 7, r 485, r 905(2)(a).

Personal Injuries Proceedings Amendment Act 2002 (Qld), s 9.

Limitation of Actions Act1974 (Qld), s 11, s31.

Motor Accident Insurance Act 1994 (Qld), s 37, s 39, s 57.

Gillam v State of Queensland [2004] 2 Qd R 251.

Morrison-Gardiner v Car Choice Pty Ltd [2005] 1 Qd R 378.

Haley v Roma Town Council [2005] 1 Qd R 478.

SG v State of Queensland (No 2) [2004] QCA 461.

GU v TO [2005] QCA 480.

Davison v State of Queensland (2006) 226 CLR 234.

Kash v SM & TJ Cedergren Builders [2004] 1 Qd R 643.

Spring v Sarina Russo Job Access (Aust)Pty Ltd [2009] QDC 93.

Van de Velde v State of Queensland [2010] QDC 19.

Dunn v Lawrence [2005] QSC 291.

Tiver v Sunshine Coast Regional Council [2009] QDC 106.

Hollingsworth v Beresford [2003] QDC 415.

Talbot v Blindell [1908] 2 QB 114.

Asia Pacific Glass Pty Ltd v Sindea Trading Co Pty Ltd (No 2) [2003] NSWSC 845.

Graham v WorkCover Queensland [2005] QDC 263.

Vicary v State of Queensland [2009] QSC 284.

COUNSEL:

C Wilson for the Plaintiff
S Taylor (Solicitor) for the First and Second Defendants
K Holyoak for the Third and Fourth Defendants

SOLICITORS:

GC Law for the Plaintiff
Radcliff Taylor for the First and Second Defendants
McInnes Wilson for the Third and Fourth Defendants

The Personal Injuries Proceedings Act2002 (Qld) (“the Act”) provides in s 43(1) that the court may give leave to a claimant to start a proceeding in the court for damages if the court is satisfied there is an urgent…

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 Ghobrial v Assaf

Details

AGLC: Ghobrial v Assaf [2014] QDC 141
Case: [2014] QDC 141
Decision Date

CaseChat Overview and Summary

In Ghobrial v Assaf, the District Court of Queensland was called upon to determine whether the plaintiff's claim against the first and second defendants was statute-barred. The plaintiff, Magdy Samaan Ghobrial, alleged that the first defendant, Salim Assaf, stabbed him on 1 April 2006, resulting in personal injuries. The plaintiff's action was statute-barred by the Limitation of Actions Act 1974 (Qld) as the limitation period expired on 1 April 2009. However, the plaintiff became aware of his psychiatric injury related to the assault on 14 February 2011 and instructed his solicitors to commence proceedings. On 2 August 2011, the first defendant was convicted of unlawfully wounding the plaintiff.

The court was required to decide whether the plaintiff's claim against the first and second defendants was statute-barred, and if not, whether summary judgment should be entered against the solicitors for professional negligence or breach of contract. The court also had to determine whether the plaintiff's claim against the first and second defendants should be dismissed, and whether summary judgment should be entered against the plaintiff in favour of the first and second defendants.

The court found that the plaintiff's claim against the first and second defendants was statute-barred by the Limitation of Actions Act 1974 (Qld). The Personal Injuries Proceedings Act 2002 (Qld) did not extend the limitation period as the plaintiff did not give a complying Part 1 notice of claim before the end of the limitation period. The court further held that the plaintiff's proceeding had been commenced in breach of s 18 of the Personal Injuries Proceedings Act 2002 (Qld) as the Part 1 notice of claim was not served within one month of the extension of the limitation period. As a result, the plaintiff's claim against the first and second defendants was dismissed, and the first and second defendants' application was also dismissed. The plaintiff was ordered to pay the first and second defendants' costs of the action, excluding the costs of their application. The application by the third and fourth defendants was dismissed, and they were ordered to pay the plaintiff's costs of that application.

Orders