Hankin v Riseley T/a Riseley Prestige Realty

[2006] QDC 254

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1911 of 2006

ROBYN LYNETTE HANKIN	Applicant
and
ANN LOUISE RISELEY trading as RISELEY PRESTIGE REALTY BN 67 22593	First Respondent

and

JAMES FINUCAN Second Respondent

and

DAVINA POLETTO Third Respondent

and

MAURIE SEWELL trading as Fourth Respondent
GOLD COAST CARPETS BN 41 01868

BRISBANE

..DATE 10/07/2006

ORDER

CATCHWORDS: Personal Injuries Proceedings Act 2002 s 43 - application for leave to start a proceeding on eve of expiration of 3 years limitation period.

HIS HONOUR: This is an application under Section 43 of the Personal Injuries Proceedings Act 2002 which is urgent, given the limitation period's imminent ending.

The foreshadowed proceeding concerns damages arising out of an incident that happened on the 13th of July 2003 in relation to the first respondent's real estate office. The second and third respondents are the owners of the relevant building and the fourth respondent was the installer of a carpet which is said to have been in a dangerous condition.

The applicant was not dilatory in engaging solicitors, having first done so on the 22nd of October 2003. There has been a history of disappointments in respect of continuity of legal representation which is so confusing that, even if there were any point in allocating blame, it would a very difficult task; and the circumstances are ones in which the applicant oughtn't to suffer.

It is almost a practice now to allowing these applications on the eve of limitation periods ending to preserve the traditional rights of injured people. The taking of an understanding attitude is in line with the Court of Appeal's decision in Gillam v. State of Queensland [2004] 2 Queensland Reports 251 and now the High Court's decision in Davison v. Queensland, Yorrie v. State of Queensland and Orr v. State of Queensland [2006] HCA 21.

As is customary, the proceeding leave to institute which is given will be stayed pending compliance with the usual pre- litigations steps mandated by the Act. The order includes an abridgment of time to permit the application to be heard against the 4th respondent, the carpet installer, or repairer, as clarified by Mr Howe.

...

HIS HONOUR: The fourth respondent, if so minded, may approach the Court to revisit the order. The circumstances in relation to him are perhaps not as difficult as those in respect of the second and third respondent owners who have not been served, given that they are overseas. By contrast the first respondent has provided a document indicating her consent to the orders sought, which is Exhibit 1. The material however indicates that all respondents would be well aware of the incident and of the applicant's intended claim.

Order as per paragraphs 1, 2, 3 and 4 of the originating application filed on the 5th of July 2006.

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CaseChat Overview and Summary

The case of Hankin v Riseley T/a Riseley Prestige Realty concerns an application under Section 43 of the Personal Injuries Proceedings Act 2002 by Robyn Lynette Hankin, seeking leave to commence proceedings against Ann Louise Riseley, trading as Riseley Prestige Realty, as well as James Finucan, Davina Poletto, and Maurie Sewell trading as Gold Coast Carpets. The application was made on the eve of the three-year limitation period expiring, as the incident in question occurred on 13 July 2003 at the real estate office of the first respondent. The applicant seeks damages arising from the dangerous condition of a carpet installed by the fourth respondent, which is alleged to have caused her injury.

The legal issues at the heart of this case revolve around the applicant's entitlement to bring the proceedings just before the limitation period ends, and whether the circumstances justify an extension of time. The applicant's application is urgent due to the approaching limitation period, and the court must consider the applicant's history of legal representation, the reasons for the delay, and whether she should be penalised for the confusion and delays in her legal representation. The court also needed to determine whether all respondents were adequately served and aware of the proceedings.

The court granted the application, emphasising the importance of allowing such applications to protect the rights of injured individuals. The judge noted that the applicant had not been dilatory in engaging legal representation and that the circumstances warranted an understanding approach. The decision aligns with recent precedents from the Court of Appeal and the High Court, which advocate for a flexible approach to limitation periods in personal injury cases. The court also stipulated that leave to institute the proceeding would be stayed pending compliance with pre-litigation steps required by the Act. Additionally, the court allowed for an abridged time for the application to be heard against the carpet installer, with the order including an extension for the fourth respondent to respond. The decision acknowledges that the situation of the second and third respondents, who are overseas, presents additional complexities.

The final orders of the court were as per the paragraphs 1, 2, 3, and 4 of the originating application filed on 5 July 2006, with provisions for the fourth respondent to potentially seek a review of the order if they so desired. The first respondent, Ann Louise Riseley, had provided consent to the orders, whereas the other respondents had not been served or were overseas. The court ensured that all respondents were aware of the incident and the applicant's claims.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established