Lagos v TPA Shows Operations Pty Ltd

[2003] QDC 38

State Reporting Bureau

Transcript of Proceedings

Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.

DISTRICT COURT	[2003] QDC 038
CIVIL JURISDICTION JUDGE ROBIN QC
No 660 of 2003
ZACHARY LAGOS BY HIS LITIGATION	Applicant
GUARDIAN MEGAN LAGOS
and
TPA SHOWS OPERATIONS PTY LTD	First Respondent
(ACN 007 383 020)
and
ROYAL NATIONAL AGRICULTURAL AND
INDUSTRIAL ASSOCIATION OF QUEENSLAND	Second Respondent
BRISBANE ..DATE 18/03/2003
ORDER

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18032003 T09/VC2 M/T CMS31/2003 (Robin DCJ)

HIS HONOUR: This is an application by the litigation guardian	1
of a young boy who it is alleged was injured at the 2002 Royal National Show in Brisbane on a ride called "Circus Circus" which the first respondent, TPA Shows Operations Proprietary Limited, was allegedly operating. All this activity occurred

10

at the premises of and to an extent under the auspices of the
second respondent.

The litigation guardian is encountering difficulties in satisfying the requirements of the Personal Injuries

20

Proceedings Act 2002. The bulky Form 1, Notice of Claim (non Health Care claims), was completed and dated 11th of November 2002 and sent to the respondents. The second respondent has

responded in a way which permits the plaintiff to proceed.

However, the first respondent has sent the following letter

30

dated 6th December 2002:

"Regarding your papers we received on 15 November 2002 we wish to advise that the incident was fully reported to us and our safety officer and there seems to be

discrepancies to your version and our safety officer's
version as to how this incident occurred. Thus we deny
any liability on out part as we cannot control the
actions of individuals - adult or child. We can only

advise we enclose our safety officer's report for your	40
perusal."

There is no safety officer's report in the material before the been briefed with it so I suppose it is mysterious whether

50

there was such a report enclosed.

The obligation of the first respondent under section 10 of the

Act - which had to be satisfied within one month, there

ORDER

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18032003 T09/VC2 M/T CMS31/2003 (Robin DCJ)

apparently being no other period prescribed under a regulation	1
was for advising in writing:

"(a) if the person considers that the person is a proper
respondent to the claim, give notice to the claimant

under section 12; or

(b) if the person is unable to decide on the information

contained in the notice whether or not the person is a	10
proper respondent to the claim, advise the claimant of the further information the person reasonably needs to decide whether the person is a proper respondent to the
claim; or
(c) if the person considers that the person is not a proper respondent to the claim, give the claimant, in writing -

(i) reasons why the person considers the person is	20
not a proper respondent to the claim; and
(ii) any information the person has that may help the claimant to identify a proper respondent to the claim."

A maximum penalty of 100 penalty units is provided for non- compliance.

30

It would appear to me from the first respondent's communication that it is the proper respondent in the sense of being the right person to be pursued, even if it has some defence on the merits.

40

In those circumstances, section 10(1)(a) seems to be applicable and to place the first respondent under an obligation to give a notice under section 12 which, once again, imposes obligations while offering alternatives. The

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section is -

"Respondent's response to the notice of a claim

(1) This section applies to a person ("respondent") to
whom a notice of a claim is given under this division or

purportedly under this division and who -

ORDER

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(a) considers himself, herself or itself to be the	1
proper respondent to the claim; or
(b) is given notice under section 10(2)(b) or (4)(b) that the claimant considers the person to be a proper respondent to the claim

(2) The respondent must, within the prescribed period,

give the claimant written notice -

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(a) stating whether the respondent is satisfied that

the notice is a complying notice of claim; and

(b) if the respondent is not satisfied, identifying
the non-compliance and stating whether the
respondent waives compliance with the requirements;

and

(c) if the respondent does not waive compliance with

the requirements, allowing the claimant a reasonable	20
period, of at least 1 month, specified in the notice either to satisfy the respondent that the claimant has in fact complied with the requirements or to take reasonable action specified in the notice to remedy the non-compliance.

(3) If the respondent is not prepared to waive compliance
with the requirements in the first instance, the
respondent must, within 1 month after the end of the

period specified under subsection (2)(c), give the	30
claimant a written notice -

(a) stating that the respondent is satisfied the
claimant has complied with the relevant
requirements, is satisfied with the action taken by
the claimant to remedy the non-compliance, or waives

the non-compliance in any event; or

(b) stating that the respondent is not satisfied

that the claimant has taken reasonable action to	40
remedy the non-compliance, and giving full particulars of the non-compliance and the claimant's failure to remedy it.

(4) In this section -

'prescribed period' means -

(a) if the respondent responds directly to the

claimant under this section as contemplated by	50
section 10(1)(a) - the period prescribed under section 10(1); or
(b) otherwise -

(i) the period prescribed under a regulation;

or

ORDER

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18032003 T09/VC2 M/T CMS31/2003 (Robin DCJ)

(ii) if no period is prescribed, the later of	1
the following -
(A) if the respondent gives notice to the claimant under section 10(3)(a) that the respondent is a proper respondent to the claim - 1 month after the respondent is given the further information under section 10(2)(a);
(B) if the claimant advises the respondent	10
under section 10(2)(b) or (4)(b) that the claimant considers the person to be a proper respondent to the claim and requires the person to give notice to the claimant under this section - 1 month after the claimant advises the respondent under the paragraph."

The applicant's solicitors were in obvious difficulty since	20
the first respondent's communication did not in terms
satisfying the statute respond to receipt of the notice of
claim. This makes it impermissible for the applicant to
proceed to go through the various steps which the Act provides
for as preliminaries to any claim in the Court. In the Act	30
steps are laid out with a view to resolving matters out of Court - compulsory conferences and the like.
The solicitors pursued the matter in correspondence of the
18th of December 2002 and 9th of January 2003 which	40
foreshadowed this application. A letter of 24th of January
2003 indicates that the matter was delayed on account of
telephone advice that Mr Pickett, the signatory of the first
respondent's letter, was overseas. There was another follow-
up letter on the 12th of February 2003.	50
The applicant has, from her point of view, I suppose, been patient and it is really only the filing of the application on

ORDER

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the 4th of March 2003, and subsequent service of it, which has	1
produced any response.
There is placed before the Court a letter from Pietrzak Solicitors of Melbourne, of 14th of March 2003, in the

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following terms:

"14 March 2003

Messrs Rees R & Sydney Jones
Solicitors
PO Box 13086

GEORGE STREET BRISBANE 4003

By fax: [phone]	20
Dear Sirs Re: Zachary Lagos by his Litigation Guardian Megan Lagos
We have recently been contacted by TPA Show Operations
Pty Ltd in relation to the above matter. We are
instructed that although your correspondence is dated the
5th of March, 2003 the documentation has only been
received. We note that the matter is listed in the
District Court at Brisbane on the 18th March, 2003.	30
Unfortunately our client has not had an opportunity to properly assess the matter and is not in a position to obtain appropriate representation on the day.
Furthermore, he believes that he has previously responded to the claim by denying the allegations and also request that a psychological report be obtained.
We are instructed that our client denies the allegations
and believes he has complied with providing an	40
appropriate response. Should this not be the case then he will need to instruct appropriate solicitors to act on his behalf in relation to the matter.
Furthermore, the principal of the company is currently interstate and further instructions cannot be obtained.
In light of the above we would seek an adjournment for a period of 60 days.
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Yours faithfully Pietrzak Solicitors"

On the basis of possibly inappropriate romantic notions as to

the presumed lifestyle of Mr Pickett and his associates as a

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18032003 T10/CD31 M/T CMS31/2003 (Robin DCJ)

showman, on the eve of the Royal Easter Show in Sydney and	1
other such events, I'm sympathetic to the plea made that the first respondent be allowed more time, although this is obviously an indulgence given that the situation goes back to November last year.

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I'm also sympathetic to lay people, assuming that's still the appropriate characterisation of the first respondent, faced with having to deal with something like the notice of claim and the requirements of the recent Queensland legislation.

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The Court also ought to be mindful that we now are in times of fast-track litigation and the Court, I suppose, should pull its weight to ensure that the juggernaut is allowed to rush forwards, especially against a background of legislation like the Act, which has the purpose of delaying things.

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It's impossible to criticise the applicant for having applied, as it now has, yet the purpose of the legislation of avoiding Court costs is unnecessarily subverted and in part because the first respondent has shown a lack of enthusiasm for

40

participating in the procedures which the Queensland those owe their form to the requirements of professional defendants such as insurance companies and that not a lot of thought has been given to persons who, as lay people, find

50

themselves within the purview of the Act.

The main difference between Mr Whitten and the Court has been

whether minimum times ought to be allowed to the first

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18032003 T10/CD31 M/T CMS31/2003 (Robin DCJ)

respondent or more generous ones as requested by the Melbourne	1
solicitors. I think it is always a useful approach to allow litigants, particularly reluctant ones on the respondent's side, the time that they say they need. The order that I'll make is a mixture.

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This will be the order:

1.    Order that within 31 days of service of a copy of this

order, by posting to its registered office with a copy sent to

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Pietrzak Solicitors of 220 La Trobe Street, Melbourne,
Victoria, 3000, the first respondent give the claimant written
notice, pursuant to sections 10 and 12 of the Personal
Injuries Proceedings Act 2002, in response to the claimant's

Form 1 notice of claim dated 11th of November 2002 - this

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order being made under section 35 of the Act.

2. Order that provided that service as referred to above has

occurred no later than 12th April 2003, unless the first
respondent has given a complying written notice as referred to

40

above, it be conclusively presumed, as from 13th May 2003, to be satisfied that the applicant/claimant's notice of claim is a complying notice of claim under section 13 of the Act.

3. Liberty to apply generally and in particular liberty to

the first respondent to apply by application returnable on or
before the 13th of May 2003, for variation of this order.
18032003 T10/CD31 M/T CMS31/2003 (Robin DCJ)

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8 ORDER 60

4. Order that the applicant's costs of the application to be assessed be paid by the first respondent.	1
Of course, the first respondent hasn't appeared today when called, although service was established and confirmed by its

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solicitor's letter. It had the ordinary right of a litigant
in whose absence orders are made to apply to seek to have them
varied. It may be that there are things that can be said
about aspects of this order, including the costs order, to

make a review appropriate, but for the moment no more has been

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heard from the first respondent than as is set out in these

reasons.

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