Kitson v NQEA Australia Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Kitson v NQEA Australia Pty Ltd [2006] QSC 220

PARTIES:

ANDREW KITSON
(Applicant)
v
NQEA AUSTRALIA PTY LTD
(Respondent)

FILE NO/S:

61 of 2006

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Cairns

DELIVERED ON:

9 June 2006

DELIVERED AT:

Cairns

HEARING DATE:

3 March 2006

JUDGE:

Jones J

ORDER:

1. I make the following declarations –

(i) that the applicant has remedied non-compliance with s 9 (3)(b) of PIPA;

(ii) that the applicant gave the respondent a complying part 1 notice claim pursuant to s 9(1) of PIPA by 23 November 2005.

2. I order that the respondent pay the applicant’s costs of and incidental to the application to be assessed on the standard basis such order to take effect 15 days from the date hereof.

3. I give each party liberty to apply on giving two business day’s notice to the other party.

CATCHWORDS:

LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – PERSONAL INJURY CASES - where applicant delayed in giving notice of claim to respondent pursuant to s 9 of the Personal Injuries Proceedings Act – where applicant had changed solicitors – where applicant had informed respondent of reason for delay – whether explanation was reasonable

Taylor v Stratford [2003] QSC 427

Personal Injuries Proceedings Act 2000 s 9(1), s 9(3)(b), s 18, s 20

COUNSEL:

C Ryall for the applicant
D Morzone for the respondent

SOLICITORS:

Shine Roche McGowan for the applicant
Morrow Petersen for the respondent

1. By this application the applicant seeks various orders, pursuant to s 18 of the Personal Injuries Proceedings Act 2000 (“PIPA”).  The principal relief sought is:-

1. a declaration that the applicant has remedied non-compliance with s 9(3)(b) of PIPA;

2. in the alternative, an order that the applicant as claimant be authorised to proceed further with the claim despite non-compliance with s 9(3)(b) of PIPA.

Background facts

1. The applicant was injured in the course of his employment on 4 August 2004.  He was at that time employed by Skilled Engineering Pty Ltd and the place of his employment was at the premises of the respondent at Cairns.

1. In relation to this incident, the first contact with the respondent on behalf of the applicant occurred on or about 17 June 2005 by a letter sent by his present solicitors. By this date the period for giving notice pursuant to s 9(3)(a) had expired on two counts. It was approximately one month after the nine month period provided for by the section but, more particularly, it was more than one month after the applicant had first consulted solicitors in respect of this injury. He first contacted a firm of solicitors on 20 January 2005 thus making the time for due delivery of the Notice of Claim being 20 February 2005. The firm of solicitors initially retained gave no notice to the respondent but did give some notice to WorkCover. It appears that no further action was taken until the…