Hollingsworth v Beresford

[2003] QDC 415

[2003] QDC 415

DISTRICT COURT
CIVIL JURISDICTION

JUDGE McGILL SC

No D81 of 2003 (Southport)

ELAINE HOLLINGSWORTH	Applicant
and
DARRYL BERNARD BERESFORD	Respondent
BRISBANE ..DATE 10/11/2003
ORDER

10112003 T19-20/BGS9 M/T 2-3/2003 (McGill DCJ)

HIS HONOUR: In this matter the applicant alleges that she	1
suffered an injury as a result of the actions of the defendant in August, 2000. Subject to the operation of the Personal Injuries Proceedings Act, the limitation period expired in August this year and proceedings were not commenced prior to

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the expiration of the limitation period.

However, the plaintiff gave notice of claim under the Personal be a compliant notice of claim pursuant to section 20(2)(a) of

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the Personal Injuries Proceedings Act. On the face of it,
therefore, under section 59, the requirements of subsection 1
have been complied with and therefore the applicant was
entitled to start a proceeding in a Court based on the claim,

even though the period of limitation had ended.

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Subsection (2) imposes a restriction that the proceeding must be started within six months, or a longer period allowed by the Court, after the complying Part One Notice was given, or leave to start the proceeding was granted. The reference to

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leave to start the proceeding is, I think, a reference to the
powers elsewhere in the Personal Injury Proceedings Act for
leave to start a proceeding notwithstanding non-compliance
with the requirement to give a notice or otherwise to comply

with the requirements of part one.

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However, there would, I think, be no need now to exempt the
applicant from complying with a requirement to give a notice.
10112003 T19-20/BGS9 M/T 2-3/2003 (McGill DCJ) 2 ORDER 60

If a proceeding is started under subsection 2, subsection 3	1
provides that the proceeding is stayed until the claimant complies with part one, or the proceeding otherwise ends.
...

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HIS HONOUR: The effect of subsection 59(3) is that, provided there is a complying notice of claim, a proceeding which falls within section 59(1) and (2) can be started within the time specified without having otherwise complied with part one,

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although the proceeding is stayed until the complainant
complies with the balance of part one, or the proceeding

otherwise ends.

Although I had thought originally that section 59 was only

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concerned with overcoming a limitation defence and did not
overcome any other legislative impediment to the commencement
of a proceeding in the Court, it seems to me on further
consideration that unless one reads the words, "The claimant

may start a proceeding in a Court based on the claim", as

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applying notwithstanding a failure to comply with part one
other than division one, then there is no function to be
served by section 59(3), because that assumes that the
proceeding will then be stayed until the balance of part one

has been complied with.

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In other words, section 59(1) would otherwise overcome the restrictions elsewhere in the Act on commencing a proceeding before steps such as a compulsory conference are taken. 10112003 T19-20/BGS9 M/T 2-3/2003 (McGill DCJ) 3 ORDER 60

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If an order was made under section 36 dispensing with a compulsory conference, the proceeding subsequently started will hardly be stayed until the compulsory conference had been held. If an order was made under section 43, allowing a

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proceeding to be commenced, section 43(3) would operate and in
that situation there would be no need for section 59(3) to

operate.

So, I think that section 59 must apply even if there has not

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been an excusal or some other order made elsewhere under the one. That is, otherwise then by giving a complying notice of claim. But once the proceeding has been commenced, the proceeding will be stayed until the balance of part one is

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complied with.

The effect of section 59 therefore, is to relieve the claimants of the concern they might otherwise have had about having to comply with the pre-litigation proceedings before

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the limitation period expires, but ensures that the pre-
litigation proceedings are still complied with in an
appropriate way so that the benefits of the legislation can be

obtained.

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Accordingly, it follows that on the face of it section 59
applies in the present case, unless it is displayed by section

77D.

4 ORDER 60

10112003 T19-20/BGS9 M/T 2-3/2003 (McGill DCJ)

I do not think that section 77D was intended to displace	1
section 59 in a case to which it applies. Rather section 77D was intended to provide some additional time within which to do things in circumstances where, as a result of an amendment to the Act, it was given some additional retrospective

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operation.

It was intended to mitigate the effect of giving the Act retrospective operation, rather than impose an additional and more stringent requirement than that imposed by, for example,

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section 59.

I think that a claimant can take advantage of section 77D if that is possible, if the claimant's claim falls within the terms of that section. But the fact that on the face of it

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the claimant's claim falls within 77D(1), does not mean that the claimant cannot take advantage of section 59 of the Act, if that section otherwise applies.

So, accordingly, I am satisfied that the action commenced on 6

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November, 2003 was commenced as permitted by section 59, and accordingly it was unnecessary to make this application. That is consistent with the submissions advanced on behalf of the respondent, and on that basis the application is dismissed. I think it is common ground that the applicant will bear the

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respondent's costs of the application.

...

5 ORDER 60

10112003 T19-20/BGS9 M/T 2-3/2003 (McGill DCJ)

HIS HONOUR: No order as to costs. 1

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6 ORDER 60