Morris v Gold Coast City Council

DISTRICT COURT OF QUEENSLAND

CITATION:

Morris v Gold Coast City Council [2006] QDC 172

PARTIES:

MARJORIE MORRIS
Applicant

v
GOLD COAST CITY COUNCIL
Defendant

FILE NO/S:

D707/2005

DIVISION:

Civil Jurisdiction

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

3 February 2006

DELIVERED AT:

Southport

HEARING DATE:

23 January 2006

JUDGE:

Dearden DCJ

ORDER:

The applicant be granted leave pursuant to s 18(1)(c)(ii) of Personal Injuries Proceedings Act 2002 to proceed further with her claim despite non-compliance with s 9 of Personal Injuries Proceedings Act 2002

CATCHWORDS:

APPLICATION – Personal injury – Non compliance with pre-court procedures of Personal Injuries Proceedings Act 2002 – Reasonable excuse – Court’s discretion to authorise claim to proceed despite non-compliance

Personal Injuries Proceedings Act 2002

Weeks v The Nominal Defendant [2005] QCA 118

Piper v The Nominal Defendant [2003] QCA 557

Daniels v Leggatt [2005] QCA 377

Dempsey v Dorber [1990] 1 Qd R 418

COUNSEL:

Mr D Rangiah for the applicant

Mr K Howe for the respondent  

SOLICITORS:

Maurice Blackburn Cashman for the applicant
O’Keefe Mahoney Bennett for the respondent   

Introduction

1. This is an application by the applicant, Marjorie Morris, against the respondent, Gold Coast City Council, seeking (relevantly) the following orders:

[1] Declaration that the applicant provided a reasonable excuse for the delay in giving the respondent a Part 1 notice of claim pursuant to s 9 of the Personal Injuries Proceedings Act 2002 (PIPA);

[2] Declaration that the applicant gave the respondent a complying Part 1 notice of claim pursuant to s 9 of PIPA on 31 May 2005;

[3]     In the alternative, that pursuant to s.18(1)(c)(i) of PIPA, the Court declare that the applicant has remedied any non-compliance;

[4] In the alternative, that the applicant be given leave pursuant to s 18(1)(c)(ii) of PIPA to proceed further with the claim despite non-compliance.

Facts

1. The applicant was born on 24 July 1925 and is now 80 years of age.  On 13 January 2004, when aged 78, she was injured as a result of stepping into a concealed hole in the grass between the kerbing and the footpath on Cougal Street, Southport outside the Gold Coast Specialist Medical Centre and Gold Coast Hospital.  Photographs of the concealed hole (which appear to have been taken shortly after the date of injury) were intended to have been sent as an enclosure with a handwritten letter from the applicant to the respondent on 24 March 2004. The applicant’s letter of 24 March 2004 enclosed an appointment letter from the Gold Coast Hospital (it appears that the applicant was on her way to an appointment at the Gold Coast Hospital when the injury occurred), a letter from the applicant’s doctor (Dr Simon Carter) in respect of her injuries, a letter from an eye-witness to the accident and various receipts in respect of the applicant’s medical costs relating to the injury.

1. The applicant omitted to include the photographs to which she had referred in her initial letter of 24 March 2004 to the respondent, and these photographs…