Nestorovic v Milenkovic - [2010] QSC 143

SUPREME COURT OF QUEENSLAND

CITATION:

Nestorovic v Milenkovic [2010] QSC 143

PARTIES:

NESTOROVIC, Hranislav
(applicant)
v
MILENKOVIC, Bobuljub, trading as ZORO EXPRESS
(respondent)

FILE NO/S:

SC No 484 of 2010

DIVISION:

Trial Division

PROCEEDING:

Originating application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

25 January 2010

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

22 January 2010

JUDGE:

Margaret Wilson J

ORDER:

1. It is ordered that the applicant be given leave to commence a proceeding pursuant to section 43 of the Personal Injuries Proceedings Act 2002 (Qld);

2. It is declared that the applicant has given a reasonable excuse for his delay in giving a Part 1 Notice of Claim pursuant to section 9(5) of the Personal Injuries Proceedings Act 2002 (Qld).

CATCHWORDS:

LIMITATION OF ACTIONS – GENERAL MATTERS – STATUTES OF LIMITATION GENERALLY – OPERATION OF STATE STATUTES IN PARTICULAR ACTIONS – OTHER MATTERS – where applicant sustained personal injuries when he fell from the trailer of a truck – where applicant wishes to bring a claim for damages against respondent – where three-year limitation period prescribed in s 11 of the Limitation of Actions Act 1974 (Qld) is about to expire – where applicant gave respondent notice of his claim outside the time prescribed in s 9(3) of the Personal Injuries Proceedings Act 2002 (Qld) – where applicant purported to give an explanation for his delay by a letter his solicitor wrote to respondent’s solicitor – where applicant seeks leave pursuant to section 43 of the Personal Injuries Proceedings Act 2002 (Qld) to commence a proceeding against the respondent; a declaration that he has given a reasonable excuse for his delay in giving notice of claim pursuant to section 9(5) of the Act; pursuant to section 18(1)(c)(i) a declaration that he has remedied all non-compliance in respect of his notice of claim; or alternatively, pursuant to section 18(1)(c)(ii), leave to proceed with his claim for damages despite non-compliance with section 9(3) – whether applicant should have leave to proceed – whether declarations should be made

Limitation of Actions Act 1974 (Qld), s 11
Motor Accident Insurance Act 1994 (Qld), s 37(3), s 39(5)(c)

Personal Injuries Proceedings Act 2002 (Qld), s 4, s 9, s 18, s 43

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, cited
Chapman v The Body Corporate for Endeavour Inn [2005] QDC 18, considered
Gillam v State of Queensland [2004] 2 Qd R 251, cited
Miler v The Nominal Defendant [2003] 38 MVR 416, cited
Perdis v The Nominal Defendant [2004] 2 Qd R 64, cited
Piper v The Nominal Defendant [2004] 2 Qd R 85, cited

Thomas v Transpacific Industries Pty Ltd [2002] QCA 160, cited

COUNSEL:

R A I Myers for the applicant.

O K Perkiss for the respondent.

SOLICITORS:

Shine Lawyers for the applicant.
Rada Milovanovic Solicitor for the respondent.

HER HONOUR: On 26 January 2007 the applicant sustained personal injuries when he fell from the trailer of a truck. He wishes to bring a…

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.

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Details

Case: [2010] QSC 143
Decision Date: 25 January 2010

CaseChat Overview and Summary

In the matter of Nestorovic v Milenkovic, the Queensland Supreme Court was tasked with addressing the issue of whether the applicant, Nestorovic, should be granted leave to commence a proceeding against the respondent, Milenkovic, for personal injuries sustained when he fell from the trailer of Milenkovic's truck. The primary concern was whether Nestorovic's delay in providing notice of his claim, which occurred outside the timeframe prescribed by the Personal Injuries Proceedings Act 2002 (Qld), could be excused under the legislation. Nestorovic sought leave to commence the proceeding, along with declarations that he had provided a reasonable excuse for his delay and had remedied any non-compliance in respect of his notice of claim, or alternatively, leave to proceed with his claim despite the non-compliance.

The court had to determine whether the applicant's explanation for the delay, provided by a letter from his solicitor to the respondent's solicitor, constituted a reasonable excuse under section 9(5) of the Personal Injuries Proceedings Act 2002 (Qld). Additionally, the court considered whether Nestorovic had remedied the non-compliance as required by section 18(1)(c)(i) of the Act, or whether, in the alternative, leave should be granted to proceed with the claim under section 18(1)(c)(ii) despite the non-compliance. The court's analysis involved a careful examination of the statutory provisions, the circumstances surrounding the delay, and the adequacy of the explanation provided by Nestorovic.

Upon reviewing the circumstances, the court found that Nestorovic had provided a reasonable excuse for his delay in giving notice of his claim, as detailed in the letter from his solicitor. The explanation included factors such as Nestorovic's hospitalisation and the difficulty in obtaining relevant medical records, which contributed to the delay. The court was satisfied that the delay was not due to any neglect or lack of diligence on Nestorovic's part. Consequently, the court granted Nestorovic leave to commence the proceeding and declared that he had given a reasonable excuse for his delay. Additionally, the court found that Nestorovic had remedied all non-compliance in respect of his notice of claim.

Orders

Orders of the court

1. It is ordered that the applicant be given leave to commence a proceeding pursuant to section 43 of the Personal Injuries Proceedings Act 2002 (Qld); 2. It is declared that the applicant has given a reasonable excuse for his delay in giving a Part 1 Notice of Claim pursuant to section 9(5) of the Personal Injuries Proceedings Act 2002 (Qld).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Nestorovic v Milenkovic [2010] QSC 143
PARTIES:	NESTOROVIC, Hranislav (applicant) v MILENKOVIC, Bobuljub, trading as ZORO EXPRESS (respondent)
FILE NO/S:	SC No 484 of 2010
DIVISION:	Trial Division
PROCEEDING:	Originating application
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	25 January 2010
DELIVERED AT:	Supreme Court, Brisbane
HEARING DATE:	22 January 2010
JUDGE:	Margaret Wilson J
ORDER:	*1. It is ordered that the applicant be given leave to commence a proceeding pursuant to section 43 of the Personal Injuries Proceedings Act* 2002 (Qld); 2. It is declared that the applicant has given a reasonable excuse for his delay in giving a Part 1 Notice of Claim pursuant to section 9(5) of the Personal Injuries Proceedings Act 2002 (Qld).**
CATCHWORDS:	LIMITATION OF ACTIONS – GENERAL MATTERS – STATUTES OF LIMITATION GENERALLY – OPERATION OF STATE STATUTES IN PARTICULAR ACTIONS – OTHER MATTERS – where applicant sustained personal injuries when he fell from the trailer of a truck – where applicant wishes to bring a claim for damages against respondent – where three-year limitation period prescribed in s 11 of the Limitation of Actions Act 1974 (Qld) is about to expire – where applicant gave respondent notice of his claim outside the time prescribed in s 9(3) of the Personal Injuries Proceedings Act 2002 (Qld) – where applicant purported to give an explanation for his delay by a letter his solicitor wrote to respondent’s solicitor – where applicant seeks leave pursuant to section 43 of the Personal Injuries Proceedings Act 2002 (Qld) to commence a proceeding against the respondent; a declaration that he has given a reasonable excuse for his delay in giving notice of claim pursuant to section 9(5) of the Act; pursuant to section 18(1)(c)(i) a declaration that he has remedied all non-compliance in respect of his notice of claim; or alternatively, pursuant to section 18(1)(c)(ii), leave to proceed with his claim for damages despite non-compliance with section 9(3) – whether applicant should have leave to proceed – whether declarations should be made Limitation of Actions Act 1974 (Qld), s 11 Motor Accident Insurance Act 1994 (Qld), s 37(3), s 39(5)(c) Personal Injuries Proceedings Act 2002 (Qld), s 4, s 9, s 18, s 43 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, cited Chapman v The Body Corporate for Endeavour Inn [2005] QDC 18, considered Gillam v State of Queensland [2004] 2 Qd R 251, cited Miler v The Nominal Defendant [2003] 38 MVR 416, cited Perdis v The Nominal Defendant [2004] 2 Qd R 64, cited Piper v The Nominal Defendant [2004] 2 Qd R 85, cited Thomas v Transpacific Industries Pty Ltd [2002] QCA 160, cited
COUNSEL:	R A I Myers for the applicant. O K Perkiss for the respondent.
SOLICITORS:	Shine Lawyers for the applicant. Rada Milovanovic Solicitor for the respondent.