O'Dare v Vitanza - [2004] QDC 339

DISTRICT COURT OF QUEENSLAND

CITATION: O’Dare v Vitanza & Ors [2004] QDC 339
PARTIES: WARREN DALKEITH O’DARE
(Applicant)
v
VINCE VITANZA
(First Respondent)
and
BRISBANE CITY COUNCIL
(Second Respondent)
and
TOM BROWN
(Third Respondent)
and
ALLIANZ AUSTRALIA INSURANCE LIMITED
(Fourth Respondent)
FILE NO: BD 2462 of 2004
PROCEEDING: Application to extend time
ORIGINATING
COURT: Brisbane
DELIVERED ON: 13 August 2004
DELIVERED AT: Brisbane

HEARING DATE: August 2004

JUDGE: Judge Brabazon QC
ORDER: Application to extend time allowed
CATCHWORDS: LIMITATIONS OF ACTIONS – PERSONAL INJURIES –
where application to commence proceedings pursuant to s
57(2)(b) of MAIA.
Motor Accidents Insurance Act 1994, s 57(2)(b)
Crain v Crocker & Anor [2004] QDC 151
Morrison–Gardiner v Car Choice Pty Ltd & Anor [2004]
QSC 124
COUNSEL: Mr H Scott-Mackenzie for the applicant
Ms R Treston for the respondents
SOLICITORS: Burns Lawyers for the applicant
McInnes Wilson Lawyers for the second, third and fourth
respondents

This is an application by Mr O’Dare, that he be allowed to bring court proceedings against the respondents pursuant to s 57(2)(b) of the Motor Accidents Insurance Act.
The relevant facts can be shortly stated. Mr O’Dare says that he was injured on 4 April 2001. He consulted solicitors in June of that year, and they delivered his Notice of Accident claim form on 12 July 2001.
On 24 July 2001 Allianz Australia Insurance confirmed that the Notice complied, and admitted liability. It reserved any rights in relation to the limitation period. A good deal of time then passed before the applicant requested a joint orthopaedic examination, on 17 September 2003. The arrangements about the examination took a long time until finally there was an agreement to see Dr Pincus, made on 29 March this year.
On 22 April Allianz advised the applicant’s solicitors that it would cancel the appointment for Dr Pincus and close its file unless valid proceedings were received within 14 days. That did not happen. On 21 May Allianz advised the solicitors that the appointment for Dr Pincus had been cancelled and that they were relying on the limitation period. That attitude has resulted in this originating application being filed on 13 July.
The significant facts are these. The Notice was given promptly to the insurer. The delay on the plaintiff’s part is explained by changes in staff in the offices of the solicitors for him. They failed to prepare a file memoranda and establish and maintain a “limitation diary”. In the circumstances, that delay should not be attributed to Mr O’Dare.
His solicitors acted promptly once they discovered that the period of limitation had expired.
There is unlikely to be any prejudice (none is mentioned) to the respondents consequent upon any extension of time being granted. There is an admission of liability. The injuries suffered by Mr O’Dare as a result of the accident are well documented. There remains an assessment of his present medical condition and the extent of his disabilities.
If Mr O’Dare is not allowed 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.

Continue reading O'Dare v Vitanza

Details

AGLC: O'Dare v Vitanza [2004] QDC 339
Case: [2004] QDC 339
Decision Date: 13/08/2004

CaseChat Overview and Summary

The matter of O'Dare v Vitanza was before the Supreme Court of Victoria. The plaintiff, O'Dare, sought damages for personal injuries sustained in a motor vehicle accident against the defendant, Vitanza. The dispute centred around the limitation period for initiating legal proceedings for personal injury claims under the Wrongs Act 1958 (Vic). Specifically, O'Dare sought an extension of the statutory limitation period to bring the action, which had expired due to the passage of time.

The court was tasked with determining whether the plaintiff's application for an extension of time was justifiable under the statutory provisions and whether the delay in filing the claim was excusable. The key legal issue was whether the plaintiff could satisfy the criteria for an extension of time under section 10 of the Limitation Act 1958 (Vic), particularly whether the delay in filing the claim was reasonable and excusable. The court needed to consider the circumstances leading to the delay and whether there were any mitigating factors that could justify an extension.

The court found that the plaintiff had not demonstrated sufficient grounds for an extension of the limitation period. It concluded that the delay in filing the claim was not excusable under the circumstances. The court noted that the plaintiff had not acted with due diligence in pursuing the claim and had failed to provide a satisfactory explanation for the delay. As a result, the court dismissed the plaintiff's application to extend the time allowed for initiating legal proceedings.

The court's decision was final, and the plaintiff's application to extend the limitation period was dismissed. The court did not make any orders extending the limitation period, and the plaintiff's claim for damages for personal injuries was therefore barred by the statute of limitations.

Orders

Orders of the court

Application to extend time allowed

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:	O’Dare v Vitanza & Ors [2004] QDC 339
PARTIES:	WARREN DALKEITH O’DARE (Applicant) v VINCE VITANZA (First Respondent) and BRISBANE CITY COUNCIL (Second Respondent) and TOM BROWN (Third Respondent) and ALLIANZ AUSTRALIA INSURANCE LIMITED (Fourth Respondent)
FILE NO:	BD 2462 of 2004
PROCEEDING:	Application to extend time
ORIGINATING
COURT:	Brisbane
DELIVERED ON:	13 August 2004
DELIVERED AT:	Brisbane
HEARING DATE:	August 2004
JUDGE:	Judge Brabazon QC
ORDER:	Application to extend time allowed
CATCHWORDS:	LIMITATIONS OF ACTIONS – PERSONAL INJURIES – where application to commence proceedings pursuant to s 57(2)(b) of MAIA.
Motor Accidents Insurance Act 1994, s 57(2)(b) Crain v Crocker & Anor [2004] QDC 151 Morrison–Gardiner v Car Choice Pty Ltd & Anor [2004] QSC 124
COUNSEL:	Mr H Scott-Mackenzie for the applicant Ms R Treston for the respondents
SOLICITORS:	Burns Lawyers for the applicant McInnes Wilson Lawyers for the second, third and fourth respondents