Mutze v Townsville City Council - [2003] QDC 448

[2003] QDC 448

DISTRICT COURT

CIVIL JURISDICTION

JUDGE MCGILL SC

No BD4178 of 2003

ANTHONY MUTZE	Applicant
and
TOWNSVILLE CITY COUNCIL	Respondent

BRISBANE

..DATE 11/12/2003

ORDER

HIS HONOUR: This is an application which has now become one for authorisation under Section 18(C)(ii) for the applicant to proceed with a claim notwithstanding non-compliance with the Personal Injuries Proceedings Act 2002 and for leave to start a proceeding in respect of the claim pursuant to 77D(2)(b) of the Act.

The applicant claims to have been injured at some time between January and August 2000. The applicant was living in a house in Townsville during that period which was subject to repeated flooding, as a result of which the applicant claims that raw sewerage came out of the sewerage system in the vicinity of the applicant's house and accumulated under and around the applicant's house, as a result of which the applicant suffered psychiatric injury and contracted Giardia.

The applicant claims that the presence of the sewerage discharge during the flooding was a result of negligence on the part of the respondent in relation to the sewerage system.

I dare say that in a general way the respondent would be responsible for sewerage systems in Townsville.

The applicant consulted a solicitor during 2000 in relation to the matter. At that stage of course there was no Personal Injuries Proceedings Act and the applicant was in a position simply to issue an appropriate proceeding to claim damages with respect of any injury suffered within three years of the date when the cause of action arose.

Subsequently the Personal Injuries Proceedings Act was passed and came into operation on 18 June 2002 but at that stage the requirements for Notice of Claim were not retrospective and so did not apply to the claim by the applicant. However later in 2002, the Act was amended so that notice requirements were imposed retrospectively on someone in the position of the applicant who had not then commenced a claim.

There were special transitional provisions in Section 77A which specified the times within which notices were to be given, otherwise the times limited by Section 9 would have been unrealistic and would already have expired. A Notice of Claim was given on 12 December 2002 on behalf of the application within the time extended by Section 77A, but it was not a Compliant Notice of Claim.

It followed that under Section 18 the failure to give a Complying Notice of Claim prevented the claimant from proceeding further with the claim unless one of the three things specified in Section 18 occurred. None of those have yet occurred.

There was in the earlier part of 2003 some correspondence about non-compliance and it does not seem to me that the matters finally identified on behalf of the respondent as areas of non-compliance, are very serious or substantial, however it is common ground that the Notice of Claim was not compliant and that none of the matters in Section 18.1 have yet…

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 Mutze v Townsville City Council

Details

AGLC: Mutze v Townsville City Council [2003] QDC 448
Case: [2003] QDC 448
Decision Date: 11/12/2003

CaseChat Overview and Summary

Mutze v Townsville City Council is a case involving a claim for damages due to alleged negligence by the Townsville City Council regarding a sewerage system, which resulted in the applicant, Anthony Mutze, suffering psychiatric injury and contracting Giardia. The dispute concerns the applicant's failure to comply with the Personal Injuries Proceedings Act 2002, particularly the requirement to submit a Notice of Claim, and seeks authorisation to proceed with the claim despite this non-compliance. The legal issues revolved around the interpretation of the Act, specifically Sections 18, 77D, and 77A, and whether the court had the discretion to grant leave to proceed with the claim under Section 77D(2)(b) even after the statutory deadline for submitting a Notice of Claim had passed.

The court found that while the applicant's Notice of Claim was not compliant, it was within the court's discretion to authorise the proceeding under Section 18(1)(c)(ii) of the Act. Once such an order was made, a complying Notice of Claim would be deemed given under Section 20(2)(b). The court interpreted Section 77D(2)(a) and (b) as allowing for two separate scenarios: starting a proceeding if a complying Notice of Claim was given before 18 June 2003, or at a later time with the court's leave. The court rejected the respondent's argument that the leave under Section 77D(2)(b) was restricted to cases where a complying Notice of Claim was given before 18 June 2003. The court held that the legislature intended the restriction to apply only to paragraph (a), and not to paragraph (b), and therefore, the court had the discretion to grant leave even if a complying Notice of Claim was not submitted before the statutory deadline.

The court's decision was influenced by the reasoning in Cuthbert v Adams, where similar issues were considered. The court concluded that there was a discretion to grant leave under Section 77D(2)(b), and in the interest of justice, it would adjourn the application to allow the applicant an opportunity to remedy the non-compliance in the Notice of Claim. The court reserved the costs of the application.

Orders