Nicol v Caboolture Shire Council - [2003] QDC 33

DISTRICT COURT OF QUEENSLAND

CITATION:

Nicol v. Caboolture Shire Council [2003] QDC 033

PARTIES:

PEGGY ROSE NICOL

v.

CABOOLTURE SHIRE COUNCIL

FILE NO/S:

D1113/03

DIVISION:

Applications

PROCEEDING:

Originating Application

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

16 April 2003

DELIVERED AT:

Brisbane

HEARING DATE:

15 April 2003

JUDGE:

Robin QC DCJ

ORDER:

Leave to start a proceeding in the District Court pursuant to s.43 of the Personal Injuries Proceedings Act 2002.

CATCHWORDS:

Personal Injuries Proceedings Act 2002, s9, s18, s43 – Notice of Claim given after expiration of period allowed by the Act – respondent failed to acknowledge compliance due to lack of “reasonable excuse” provided to it by the applicant – application invoked ss18 & 43 – Court held there are cases where interests of justice and urgency prevail to allow proceeding to begin – Court held both sections applicable but made order under s43.

COUNSEL:

P. de Plater for the Applicant

W. Campbell for the Respondent

SOLICITORS:

Cooke & Hutchinson for Applicant

HBM for the Respondent

According to a draft statement of claim prepared on her behalf, the applicant (and would-be plaintiff), a lady born in 1946, broke her right elbow and suffered other injuries when she “tripped and fell on a protruding tree root and/or uneven paving” on a pathway on Bribie Island on or about 17 April 2000. She instructed her solicitors on 8 January 2002. They sent a letter before action to the respondent Caboolture Shire Council on 15 February 2002. The Queensland Local Government Mutual Liability Pool (“LGM”) responded, advising it was acting. Nothing further happened until August. The applicant’s solicitors, still awaiting a response from LGM, then wrote indicating the applicant would proceed with her proposed claim, if advice of the outcome of LGM’s investigations was not forthcoming. The response this time, by letter of 12 August 2002, was that the respondent wished the applicant to comply with relevant provisions of the Personal Injuries Proceedings Act 2002 (“the Act”). Basic to those requirements, as set out in s.9(1), is that:

“Before starting a proceeding in a court based on a claim, a claimant must give written notice of the claim, in the approved form …”.

This step was not taken until very recently, namely on 20 March 2003. The relevant document became Exhibit 1.

Until 29 August 2002, the applicant would have been entitled to bring a claim in the appropriate court within the general limitation period (where personal injury is concerned) of three years. That remained the situation notwithstanding the Act’s coming into force on 18 June 2002, because the Act applied only in respect of injuries sustained in accidents occurring in the future. However, on 29 August 2002, the Act was given retrospective effect. It is common ground at the Bar table that the period within which the s.9 Notice of Claim had to be given expired on 29 December 2002. Subsection (5) has something to say about this situation:

“(5) If the notice is not given within the period prescribed…

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: [2003] QDC 33
Decision Date: 16 April 2003

CaseChat Overview and Summary

In Nicol v Caboolture Shire Council, the applicant, Nicol, sought leave to commence proceedings against the respondent, Caboolture Shire Council, for personal injuries sustained due to the Council's alleged negligence. The dispute arose when Nicol's Notice of Claim was delivered beyond the statutory time limit as stipulated by the Personal Injuries Proceedings Act 2002. The Caboolture Shire Council did not acknowledge compliance with the statutory requirement for a "reasonable excuse" from the applicant, which is necessary to validate late claims. The case before the court was to determine whether the statutory provisions under sections 18 and 43 of the Act allowed for the late commencement of proceedings, given the absence of an acknowledged reasonable excuse.

The court had to examine whether the statutory framework of the Act permitted any exceptions to the strict time limits for filing claims, particularly in circumstances where a reasonable excuse had not been acknowledged by the defendant. The applicant argued that the interests of justice and the urgency of the case warranted an extension of time to initiate proceedings, while the respondent maintained the statutory time limits were mandatory and inflexible. The court acknowledged that while sections 18 and 43 of the Act provided for extensions of time, the application of these provisions depended on the specific facts of each case. The court considered that there are situations where the interests of justice and the urgency of the case could justify allowing a late claim to proceed, even without an acknowledged reasonable excuse.

The Court found that the applicant's case presented compelling circumstances that warranted an exception to the usual statutory requirements. It recognised that both sections 18 and 43 of the Act were applicable to the case but ultimately exercised its discretion under section 43 to grant leave for the proceedings to commence. The Court's decision hinged on the principle that the interests of justice could prevail over strict compliance with statutory time limits, particularly when the delay was not due to any fault of the applicant. Consequently, the Court made an order allowing the applicant to commence proceedings against the respondent in the District Court.

Orders

Orders of the court

Leave to start a proceeding in the District Court pursuant to s.43 of the Personal Injuries Proceedings Act 2002.

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:	Nicol v. Caboolture Shire Council [2003] QDC 033
PARTIES:	PEGGY ROSE NICOL v. CABOOLTURE SHIRE COUNCIL
FILE NO/S:	D1113/03
DIVISION:	Applications
PROCEEDING:	Originating Application
ORIGINATING COURT:	District Court Brisbane
DELIVERED ON:	16 April 2003
DELIVERED AT:	Brisbane
HEARING DATE:	15 April 2003
JUDGE:	Robin QC DCJ
ORDER:	*Leave to start a proceeding in the District Court pursuant to s.43 of the Personal Injuries Proceedings Act* 2002.**
CATCHWORDS:	Personal Injuries Proceedings Act 2002, s9, s18, s43 – Notice of Claim given after expiration of period allowed by the Act – respondent failed to acknowledge compliance due to lack of “reasonable excuse” provided to it by the applicant – application invoked ss18 & 43 – Court held there are cases where interests of justice and urgency prevail to allow proceeding to begin – Court held both sections applicable but made order under s43.
COUNSEL:	P. de Plater for the Applicant W. Campbell for the Respondent
SOLICITORS:	Cooke & Hutchinson for Applicant HBM for the Respondent