Klarich v. Tiger Moth Joy Rides Pty Ltd

[2004] QDC 571

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD3940 of 2004

SHAWN MICHAEL KLARICH	Applicant
and
TIGER MOTH JOY RIDES PTY LTD (ACN 051 531 376)	First Respondent
and
ALLAN DUNBAR	Second Respondent

BRISBANE

..DATE 22/11/2004

ORDER

CATCHWORDS: Personal Injuries Proceedings Act 2002 - special provision made in order for leave to start a proceeding under s 43 that respondent's consent not prejudice his ability to raise limitations point under legislation about civil aviation

HIS HONOUR: This is a last minute application by Shawn Michael Klarich under section 43 of the Personal Injuries Proceedings Act 2002 for leave to commence proceedings against the respondents arising out of the crash of an aircraft that occurred on the 21st of November 2001. The limitation period expired over the weekend just past in circumstances giving the applicant an extra day.

The second respondent has appeared and consented to the orders sought, the principal ones of which relating to it are the granting of leave to commence a proceeding and the pronouncing of a stay which the PIPA imposes anyway until the pre-litigation procedures have been complied with.

The second respondent has a particular concern which has been attended to by the Court's adding to the draft order paragraph 6, as follows:

"The second respondent's consenting to the above orders does not prejudice his ability to raise any limitations defence that may be open to him under legislation relating to civil aviation."
Ms Mooney (appearing for the second respondent) is not
prepared to announce a final position on that issue.
PIPA procedures have been underway for some time. The unco-
operative attitude of the first respondent which, having had
two different solicitors acting in the past, is now self-
represented has been largely responsible for the delay that's
attended the matter.

The second respondent has previously been brought to the Court and Judge Boyce on 20th of December 2002 in 4769 of 2002 made orders which were necessary to overcome the situation in which the first respondent had not responded to a PIPA claim, in particular by confirming whether or not it was a proper respondent.

The orders sought today on an amended form of application require the second respondent to give written notice under section 27(1)(b) of the PIPA within 14 days of service of the order and to give over copies of documents of the kind mentioned in section 27(1)(a), if it has any, within 21 days of such service. Those orders are made pursuant to section 35.

Now, has notice been given of that amendment?

MR DIGNAN: Yes, your Honour. I refer to‑‑‑‑‑

HIS HONOUR: All right. Mr Dignan's affidavit establishes that notice of amendments being sought to the original application filed on the 4th November 2004 has gone to the first respondent's registered office.

The circumstances of expiry of the ordinary three year limitation period are clearly ones of urgency as Court of Appeal has confirmed in Gillam v. State of Queensland [2003] QCA 566.

I order as per initialled draft.

-----

CaseChat Overview and Summary

Shawn Michael Klarich applied for leave to commence proceedings against Tiger Moth Joy Rides Pty Ltd and Allan Dunbar arising from an aircraft crash that occurred on 21 November 2001. The application was made under section 43 of the Personal Injuries Proceedings Act 2002 and the limitation period had expired just prior to the application. Allan Dunbar consented to the orders sought but expressed a concern that his consent not prejudice any potential limitations defence he may have under civil aviation legislation. Tiger Moth Joy Rides Pty Ltd had been unco-operative throughout the proceedings, further delaying the matter.

The court was required to decide whether to grant the leave sought by the applicant and whether to impose a stay on the proceedings until pre-litigation procedures were completed under the PIPA. Additionally, the court needed to address the second respondent's concern that his consent to the orders would not prejudice his ability to raise a limitations defence under civil aviation legislation.

The court granted the leave sought by the applicant and imposed a stay on the proceedings until pre-litigation procedures were completed. The court also made an order ensuring that the second respondent's consent to the orders would not prejudice his ability to raise a limitations defence under civil aviation legislation. The court found that the urgency of the situation, due to the expiration of the limitation period, justified the granting of leave and the imposition of a stay.

The court ordered that Allan Dunbar provide written notice and copies of relevant documents within 14 and 21 days respectively of the service of the order. The court also ordered that Tiger Moth Joy Rides Pty Ltd be given notice of the amendments being sought to the original application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established