Hillier v Commonwealth of Australia

[2004] QDC 558

[2004] QDC 558

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD3370 of 2004

PETA HILLIER	Applicant
and
COMMONWEALTH OF AUSTRALIA	Respondent

BRISBANE

..DATE 27/09/2004

ORDER

Catchwords

: Applicant granted leave to commence a proceeding under s 43 of Personal Injuries Proceedings Act 2002 in circumstances of urgency of imminent expiry of limitation period - applicant's position against another defendant (his employer) protected as regards limitation period by legislation.

HIS HONOUR:  The applicant's case is that she suffered personal injuries in separate work accidents on the 29th of September 2001 and the 8th of October 2001 while working for her employer, Serco Sodexho Defence Services, at Enoggera Army Barracks.

Obviously, the limitation period in respect of the first injury is about to expire creating an urgent situation of the kind referred to in section 43 of the Personal Injuries Proceedings Act 2002.

So far as any responsibility to the direct employer is concerned, matters are proceeding under The WorkCover Queensland Act 1996 in such a way that the applicant does not stand to be embarrassed by the expiration of a limitation period.  That cannot be said of the claim she wishes to make against the respondent, which is the Commonwealth of Australia, as occupier of premises.

Marked Exhibit 1 is a facsimile from the Australian Government Solicitor representing the interests of the Commonwealth sent to the applicant's solicitors.  It seeks further time so that information supposedly outstanding can be provided by the applicant or her solicitors and given consideration.  There are obviously complexities in the situation, including possible claims for indemnity or contribution as between the Commonwealth of Australia and the employer.

I think the interests of justice and let us say considerations of practicality and convenience point to the making of an order under section 43 to permit proceedings to be started against the Commonwealth of Australia, subject to the statutory stay, as appropriate.

I will make an order in terms of the initialled draft, which requires some alteration.

I can't have paragraph 3 there, can I?

MR KEMP:  With regards to?

HIS HONOUR:  Well, "by consent".

MR KEMP:   No, your Honour.

HIS HONOUR:  Can I require disclosure?

MR KEMP:  You can, your Honour; section 22 of the Act.

HIS HONOUR:  Well, how should we fix it?  Is something going to happen on the 27th of October?

MR KEMP:  No, your Honour.  It's just a date that I believe was convenient; one month from today.

HIS HONOUR:  So the AGS proposal was that nothing happen today and that the application go off to the 27th of October?

MR KEMP:  That's correct.

HIS HONOUR:  Now, if that happens, you may find the limitation period has beaten you.

MR KEMP:  That's correct, your Honour.

HIS HONOUR:  All right.  So - well, let's be clear; we're reaching a conclusion today but it's not the AGS's preferred one.  Does paragraph 3 really help?

MR KEMP:  It just - your Honour, it just allows for the applicant to meet all the requirements under the Act, to ensure that the AGS are fully informed and all issues are prior to conference‑‑‑‑‑

HIS HONOUR:  Well, if we delete - we don't need the first line of 3, "The parties by consent", we just have:

"3.  The applicant address issues of non-compliance identified by the respondent."

Those aren't actually - they're not all in Exhibit 3, are they?  Some of them are in other - some of those issues are identified elsewhere, aren't they, in other documents I've seen.

MR KEMP:  That's correct.  That's correct.

HIS HONOUR:  But I think that identifies it.  Then:

"3(b) All parties provide their disclosure within two months."

Well, you say that's customary and useful.  And in (c) - it's a lady, isn't it?

MR KEMP:  Correct, your Honour.

HIS HONOUR:  So it will be:

"The applicant provide her notice of claim within three months of."

In fact, you don't need "of the order being made", do you?  You just need "within two months and within three months"; is that correct?

MR KEMP:  That's fine.

HIS HONOUR:  You're talking about this order?

MR KEMP:  That's correct.

HIS HONOUR:  Within two months and within three months.  We'll make it:

"3(d)  The applicant advise the respondent's solicitors of the making of this order forthwith."

You'll just send them a fax, won't you, something like that?

MR KEMP:  We will, your Honour.

HIS HONOUR:  No order as to costs.  Order as per draft.

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