Lu v Petrou - [2011] QCA 226

SUPREME COURT OF QUEENSLAND

CITATION:

Lu v Petrou & Ors [2011] QCA 226

PARTIES:

LUCY (XIAOSHUANG) LU
(applicant/appellant)
v
ANDREW PETROU
(first respondent)
STATE OF QUEENSLAND
(second respondent)
COMMONWEALTH OF AUSTRALIA
(third respondent)

FILE NO/S:

Appeal No 3303 of 2011
Appeal No 3304 of 2011
Appeal No 3305 of 2011
SC No 2538 of 2010
SC No 11613 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time/General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

10 August 2011

JUDGES:

Fraser and Chesterman JJA and Margaret Wilson AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

In CA No 3303 and CA No 3304 of 2011:

Application for an extension of time to appeal dismissed with costs to be assessed on the indemnity basis.

In CA No 3305 of 2011:

Appeal dismissed with costs to be assessed on the indemnity basis.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – where the appellant commenced a proceeding against the respondents in November 2009 – where the proceeding was dismissed by consent in January 2010 – where the appellant commenced another proceeding against the respondents in substantially similar terms in March 2010 – where the respondents applied to strike out the second proceeding – where the appellant did not give notice of a claim in the form approved for use under the Personal Injuries Proceedings Act 2002 – where the second proceeding was struck out for non-compliance with the Personal Injuries Proceedings Act 2002 and as an abuse of process – where the court has power to strike out a pleading pursuant to r 171 of the Uniform Civil Procedure Rules 1999 – whether the strike out orders might be set aside on appeal

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – where a further application by the appellant in the second proceeding was struck out in October 2010 – where rules 667 and 668 of the Uniform Civil Procedure Rules 1999 allow for a further application to be made in the Trial Division in limited circumstances – where the court has a discretion pursuant to sections 18 and 43 of Personal Injuries Proceedings Act 2002 to allow a claimant to apply for leave to start a proceeding despite non-compliance with the notice requirements – where the appellant did not put any material before the judge to enliven the discretion – where the appellant cited r 39 of the Uniform Civil Procedure Rules 1999 – where r 39 is directed at procedure within the Magistrates Court – whether the judge erred in dismissing the application

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – where the appellant commenced a third proceeding in October 2010 – where the respondents applied to have the proceeding struck out and for orders protecting them against further similar proceedings being brought…

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.

Continue reading Lu v Petrou

Details

AGLC: Lu v Petrou [2011] QCA 226
Case: [2011] QCA 226
Decision Date: 9 September 2011

CaseChat Overview and Summary

The appellant, Lu, appealed against the dismissal of their appeal against the respondents, Petrou. The initial proceeding was commenced by Lu in November 2009 and dismissed by consent in January 2010. Lu commenced a second proceeding against the respondents in March 2010 in substantially similar terms, which was struck out for non-compliance with the Personal Injuries Proceedings Act 2002 and as an abuse of process. Lu commenced a third proceeding in October 2010, which was permanently stayed as an abuse of process pursuant to r 389A of the Uniform Civil Procedure Rules 1999.

The central legal issues were whether the strike out orders in the second proceeding might be set aside on appeal, whether the judge erred in dismissing the further application in the second proceeding, and whether the judge erred in the exercise of her discretion in staying the third proceeding as an abuse of process. The court held that the appeal was dismissed with costs to be assessed on the indemnity basis. The court found that the judge did not err in dismissing the further application in the second proceeding, and that the judge did not err in the exercise of her discretion in staying the third proceeding as an abuse of process.

The court held that the appeal was dismissed with costs to be assessed on the indemnity basis. The court found that the appellant did not put any material before the judge to enliven the discretion to allow a claimant to apply for leave to start a proceeding despite non-compliance with the notice requirements. The court held that the judge did not err in dismissing the further application in the second proceeding, and that the judge did not err in the exercise of her discretion in staying the third proceeding as an abuse of process.

Orders

Orders of the court

In CA No 3303 and CA No 3304 of 2011:

Application for an extension of time to appeal dismissed with costs to be assessed on the indemnity basis.

In CA No 3305 of 2011:

Appeal dismissed with costs to be assessed on the indemnity basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Lu v Petrou & Ors [2011] QCA 226
PARTIES:	LUCY (XIAOSHUANG) LU (applicant/appellant) v ANDREW PETROU (first respondent) STATE OF QUEENSLAND (second respondent) COMMONWEALTH OF AUSTRALIA (third respondent)
FILE NO/S:	Appeal No 3303 of 2011 Appeal No 3304 of 2011 Appeal No 3305 of 2011 SC No 2538 of 2010 SC No 11613 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension of Time/General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	9 September 2011
DELIVERED AT:	Brisbane
HEARING DATE:	10 August 2011
JUDGES:	Fraser and Chesterman JJA and Margaret Wilson AJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	In CA No 3303 and CA No 3304 of 2011: Application for an extension of time to appeal dismissed with costs to be assessed on the indemnity basis. In CA No 3305 of 2011: Appeal dismissed with costs to be assessed on the indemnity basis.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – where the appellant commenced a proceeding against the respondents in November 2009 – where the proceeding was dismissed by consent in January 2010 – where the appellant commenced another proceeding against the respondents in substantially similar terms in March 2010 – where the respondents applied to strike out the second proceeding – where the appellant did not give notice of a claim in the form approved for use under the Personal Injuries Proceedings Act 2002 – where the second proceeding was struck out for non-compliance with the Personal Injuries Proceedings Act 2002 and as an abuse of process – where the court has power to strike out a pleading pursuant to r 171 of the Uniform Civil Procedure Rules 1999 – whether the strike out orders might be set aside on appeal APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – where a further application by the appellant in the second proceeding was struck out in October 2010 – where rules 667 and 668 of the Uniform Civil Procedure Rules 1999 allow for a further application to be made in the Trial Division in limited circumstances – where the court has a discretion pursuant to sections 18 and 43 of Personal Injuries Proceedings Act 2002 to allow a claimant to apply for leave to start a proceeding despite non-compliance with the notice requirements – where the appellant did not put any material before the judge to enliven the discretion – where the appellant cited r 39 of the Uniform Civil Procedure Rules 1999 – where r 39 is directed at procedure within the Magistrates Court – whether the judge erred in dismissing the application APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – where the appellant commenced a third proceeding in October 2010 – where the respondents applied to have the proceeding struck out and for orders protecting them against further similar proceedings being brought…