Hale v. Global Constructions Management (Qld) Pty Ltd

[2009] QDC 262

[2009] QDC 262

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1732 of 2009

STEVEN HALE	Applicant
and
GLOBAL CONSTRUCTIONS MANAGEMENT (QLD) PTY LTD	Respondent

BRISBANE

..DATE 30/06/2009

ORDER

CATCHWORDS: District Court of Queensland Act 1967 s 85 - Personal Injuries Proceedings Act 2002 (PIPA) s 43 - application for leave to proceed with a PIPA claim (to avoid limitations problems) transferred to the Supreme Court when applicant's solicitors appreciated claim awarded District Court's monetary jurisdiction

HIS HONOUR:  The Court makes an order in terms of the initialled draft which transfers Mr Hale's application for leave to commence proceedings against the respondent under section 43 of the Personal Injuries Proceedings Act 2002 (PIPA) to the Supreme Court.

It is the usual situation of the three-year limitation period being about to expire in respect of an injury Mr Hale says he sustained at work owing to negligence or breach of duty of the supplier of scaffolding to a site where he was, and in particular, he complains about the steps which were incorporated in the scaffolding.

The normal mandatory pre-litigation steps required by the PIPA have not been completed.  Those have been embarked upon.  The reason for the transfer is that it has become clear from the form 1 notice of claim under PIPA that Mr Hale's claim exceeds by $100,000 or so the monetary limit of District Court jurisdiction.

The consequence of the District Court granting the section 43 leave as sought by the originating application filed the 23rd of June 2009 would be to limit Mr Hale to recovery of a sum within the District Court limit, currently $250,000.  That may involve his abandoning just entitlements.

Claimants have been embarrassed in analogous circumstances where a proceeding was instituted pursuant to leave granted by a District Court Judge. In the order made in Weisman v Weisman [2009] QDC 153, it was set aside in Weisman (No 2) when it emerged that the claim exceeded District Court jurisdiction. Pertinent local authorities of relevance were considered by Judge McGill in Australia Meat Holdings Ltd v Higgs [2006] QDC 81.

Mr Charrington has referred me to a High Court decision named Berowra Holdings Pty Ltd v Gordon [2006] HCA 32, 225 CLR 364, which indicates that ameliorating orders can possibly be made. It's clear from authorities collected by Judge McGill (in particular Hamling v Australia Meat Holdings Pty Ltd [2005] QCA 415) that leave obtained in the District Court would not suffice to authorise a proceeding in the Supreme Court.

Section 85 of the District Court Act has been amended in recent times to remove the original requirement on the District Court Judge to transfer a proceeding for which only the Supreme Court had jurisdiction there. There are controls now which preclude the Court's acting under subsection (2) to order the transfer. Subsection (2) does not apply if subsection (4) or subsection (5) applies.

Subsection (5) is not a difficulty.  It applies where the District Court doesn't have jurisdiction.  That isn't the case.  The Court has jurisdiction, but only to the limited extent of acting in aid of a contemplated proceeding subject to a monetary cap of $250,000.

Subsection (4) is more problematic.  It applies where the District Court "considers that the party who started the proceeding knew or should have known that the Court did not have jurisdiction to hear the proceeding."  A consequence can be that the Court strikes out the proceeding.  At this very early stage, no inconvenience has been caused to anyone, it seems to me.

The bar in subsection (4) only applies if the Court reaches a view adverse to the applicant or his lawyers.  There are a couple of affidavits from Ms Lewis, who is the solicitor with carriage of the matter.  While they may be considered somewhat thin, perhaps not having been prepared with subsection (4) in mind, I am very far from reaching the adverse view which the subsection contemplates.

The last thing to say something about is the absent respondent, not here when called by the Bailiff.  Brief oral evidence was taken to establish "service" of the application by facsimile on the respondent company.  I am assuming without deciding that that service is sufficient.  There is no justification for the Court being particularly excited about the respondent's situation.  The reality now is that a hearing date will have to be obtained by the Supreme Court, and no doubt the applicant's solicitors will advise the respondent appropriately of it.

Order as per initialled draft.

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