Kash v SM & TJ Cedergren Builders - [2003] QSC 426

SUPREME COURT OF QUEENSLAND

CITATION:

Kash v SM & TJ Cedergren Builders & Ors [2003] QSC 426

PARTIES:

GEORGE KASH
(applicant)
v
SM & TJ CEDERGREN BUILDERS (ABN 270 815 2037)
(first respondent)
PARADISE HOMES PTY LTD (ACN 010 151 078)
(second respondent)
BORAL FRAMEWORK & SCAFFOLDING PTY LTD
(ACN 004 284 806)
(third respondent)

FILE NO/S:

BS 8215/03

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 December 2003

DELIVERED AT:

Brisbane

HEARING DATE:

26 September 2003

JUDGE:

McMurdo J

ORDER:

The applicant have leave to start a proceeding against each respondent pursuant to sections 43 and 59 Personal Injuries Proceedings Act 2002 (Qld) by 18 December 2003.

CATCHWORDS:

LIMITATION OF ACTIONS – PERSONAL INJURIES - where application to commence proceedings pursuant to s 77D or alternately s 59 PIPA – where complying notice of claim given more than six months before application to commence proceedings – whether applicant can be given leave under s 77D(2)(b)

LIMITATION OF ACTIONS – PERSONAL INJURIES -where applicant alternately seeks to extend limitation period within which to commence proceedings pursuant to s 59 PIPA – whether s 59 displaced where circumstances are within s 77D(1) – whether application pursuant to s 59 too late – whether any prejudice to respondents - whether court should grant application having regard to circumstances

Personal Injuries Proceedings Act 2002, s 9, s 10, s 12, s 13, s 18, s 20(2), s 43, s 59, s 77A, s 77D

Holmes v Adnought Sheet Metal Fabrications Pty Ltd & Anor [2003] QSC 321, considered

COUNSEL:

D J Kelly for the applicant
R M Treston for the first and second respondents
S T Farrell for the third respondent

SOLICITORS:

Biggs Fitzgerald Pike for the applicant
Minter Ellison for the first and second respondents
Barry & Nilsson for the third respondent

McMURDO J: On 26 August 2000, the applicant was working as a self employed roofer on a construction site at Kenmore Hills. He had been engaged as a sub contractor by the first respondent, who in turn was a sub contractor of the second respondent. Another sub contractor was the third respondent, which was engaged to erect safety scaffolding around the building. It appears that the scaffolding was erected on but three sides of the building with the consequence that when the applicant slipped from the roof above the unprotected fourth side, he fell some four metres and suffered substantial injuries.

This application is one of several attempts by the applicant to find his way through the labyrinth which is the Personal Injuries Proceedings Act 2002. The limitation period for his claims was three years from the date of his fall, 26 August 2000. In fact, he commenced proceedings against these respondents before the end of that period. That proceeding was issued on 17 June 2003.[1] The respondents say that it cannot be prosecuted because when commenced it was incurably bad for having been commenced without the applicant having complied with chapter 2,…

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.

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Details

Case: [2003] QSC 426
Decision Date: 15 December 2003

CaseChat Overview and Summary

The case involves Kash, the applicant, who seeks to commence proceedings against SM and TJ Cedergren Builders, the respondents, for personal injuries sustained by the applicant. The matter was heard in the Supreme Court of Queensland, specifically in the District Court at Brisbane, where the presiding judge addressed the application under sections 43 and 59 of the Personal Injuries Proceedings Act 2002 (Qld). The core dispute centres around the timeliness of the applicant’s application to commence proceedings and whether the statutory provisions for extending the limitation period can be applied in this case.

The primary legal issue before the court was whether the applicant could be granted leave to commence proceedings under section 77D(2)(b) of the Supreme Court Act 1995 (Qld), given that a complying notice of claim was provided more than six months before the application. The court also had to determine if section 59 of the Personal Injuries Proceedings Act 2002 (Qld) could be utilised to extend the limitation period when the circumstances of the case fell within the scope of section 77D(1). Additionally, the court examined whether the application under section 59 was too late, whether there was any prejudice to the respondents, and if the court should grant the application considering the circumstances.

The court determined that the applicant's compliance with the notice of claim requirement and the absence of prejudice to the respondents were significant factors. It was held that the application was not too late, and the court found no substantial prejudice to the respondents. The court concluded that the applicant should be granted leave to commence proceedings against the respondents, in accordance with the provisions of sections 43 and 59 of the Personal Injuries Proceedings Act 2002 (Qld). The applicant was thus granted leave to commence the proceedings by 18 December 2003.

Orders

Orders of the court

The applicant have leave to start a proceeding against each respondent pursuant to sections 43 and 59 Personal Injuries Proceedings Act 2002 (Qld) by 18 December 2003.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Kash v SM & TJ Cedergren Builders & Ors [2003] QSC 426
PARTIES:	GEORGE KASH (applicant) v SM & TJ CEDERGREN BUILDERS (ABN 270 815 2037) (first respondent) PARADISE HOMES PTY LTD (ACN 010 151 078) (second respondent) BORAL FRAMEWORK & SCAFFOLDING PTY LTD (ACN 004 284 806) (third respondent)
FILE NO/S:	BS 8215/03
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	15 December 2003
DELIVERED AT:	Brisbane
HEARING DATE:	26 September 2003
JUDGE:	McMurdo J
ORDER:	*The applicant have leave to start a proceeding against each respondent pursuant to sections 43 and 59 Personal Injuries Proceedings Act* 2002 (Qld) by 18 December 2003.**
CATCHWORDS:	LIMITATION OF ACTIONS – PERSONAL INJURIES - where application to commence proceedings pursuant to s 77D or alternately s 59 PIPA – where complying notice of claim given more than six months before application to commence proceedings – whether applicant can be given leave under s 77D(2)(b) LIMITATION OF ACTIONS – PERSONAL INJURIES -where applicant alternately seeks to extend limitation period within which to commence proceedings pursuant to s 59 PIPA – whether s 59 displaced where circumstances are within s 77D(1) – whether application pursuant to s 59 too late – whether any prejudice to respondents - whether court should grant application having regard to circumstances Personal Injuries Proceedings Act 2002, s 9, s 10, s 12, s 13, s 18, s 20(2), s 43, s 59, s 77A, s 77D Holmes v Adnought Sheet Metal Fabrications Pty Ltd & Anor [2003] QSC 321, considered
COUNSEL:	D J Kelly for the applicant R M Treston for the first and second respondents S T Farrell for the third respondent
SOLICITORS:	Biggs Fitzgerald Pike for the applicant Minter Ellison for the first and second respondents Barry & Nilsson for the third respondent