Osman v. Charles & Anor - [2007] QDC 27

DISTRICT COURT OF QUEENSLAND

CITATION:

Osman v Charles & Anor [2007] QDC 027

PARTIES:

ABADIA SAAVEDRA OSMAN

Applicant

V

LOIS CHARLES

First Respondent

AND

SUNCORP METWAY (ABN: 83 075 695 966)

Second Respondent

FILE NO/S:

532 of 2005

DIVISION:

Civil

PROCEEDING:

Application for leave to commence proceedings

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

8 March 2007

DELIVERED AT:

District Court, Cairns

HEARING DATE:

26 February 2007

JUDGE:

Kingham DCJ

ORDER:

1. The Applicant has leave to commence proceedings within 14 days of the date of this order

CATCHWORDS:

PERSONAL INJURIES CLAIM – Motor Accident Insurance Act 1994 (Qld) – Where proceedings were not commenced within the limitation period – Where consent reached between the parties allowing proceedings to be commenced out of time – Where proceedings not commenced within the agreed time frame – Where explanation given of failure to commence proceedings – Where difficulties complying with requirements of MAIA – Where subsequent solicitor error – Where no fault of the applicant – Discretion exercised.

Motor Accident Insurance Act 1994 (Qld)

Hall v Nominal Defendant [1966] 117 CLR 423

Morrison-Gardiner v Car Choice P/L & Anor; Crain v Crocker & Anor; O’Dare v Vitanza & Ors [2004] QCA 480

Perdis v Nominal Defendant [2003] QCA 555

Winters v Doyle [2006] QCA 110

COUNSEL:

R. Morgan for the Applicant

R. Treston for the Respondents

SOLICITORS:

Queensland Law Group for the Applicant

Sparke Helmore Lawyers for the Respondents

Mr Osman is a citizen and resident of Columbia. On 29 March 2002, while stopped at traffic lights on the Gold Coast highway, he was injured when a car driven by Ms Charles collided with the rear of the vehicle he was driving. Mr Osman wishes to recover damages for the injuries he sustained in the accident. He did not commence proceedings within the limitation period, which expired on 29 March 2005.

The parties consented to orders on 28 September 2005 by which Mr Osman was granted leave to commence proceedings within 60 days of certain events occurring, including a court order dispensing with the requirement to hold a compulsory conference. An order dispensing with the compulsory conference (the second order) was made on 8 May 2006 and, pursuant to the consent order, proceedings should have been commenced within 60 days thereafter. Due to error by Mr Osman’s solicitors, proceedings were not commenced.

Mr Osman applied for relief from the consequence of that error. Initially relief was sought on alternative grounds, the first being an application for leave to vary the time for performance of the consent order. That ground was abandoned at the hearing and only the alternative ground for relief was pursued. That is, an order pursuant to s57(2)(b) of the Motor Accident Insurance Act 1994 (Qld) (MAIA) for leave to commence proceedings. The respondents did not argue that the court did not have discretion to make the order, because an earlier consent order was made to extend time[1].

[1] In Hall v Nominal Defendant, Taylor and Owen…

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 Osman v. Charles & Anor

Details

AGLC: Osman v Charles [2007] QDC 27
Case: [2007] QDC 27
Decision Date: 8 March 2007

CaseChat Overview and Summary

In the matter of Osman v. Charles & Anor, the applicant, Osman, sought leave to commence proceedings out of time under the Motor Accident Insurance Act 1994 (Qld). The proceedings related to a personal injury claim that had not been initiated within the statutory limitation period. The respondent, Charles, and the second respondent had reached a consent agreement with Osman to allow the proceedings to be filed late. However, Osman subsequently failed to commence the proceedings within the agreed timeframe. Osman provided an explanation for the delay, citing difficulties in complying with the requirements of the MAIA and subsequent errors by his solicitor. Osman argued that he was not at fault for the delay.

The primary legal issue before the court was whether Osman should be granted leave to commence the proceedings out of time, despite not adhering to the agreed schedule. The court had to consider whether Osman's explanation for the delay was reasonable and whether he had acted with due diligence in attempting to comply with the consent agreement. Additionally, the court had to assess whether Osman's solicitor's error constituted an exceptional circumstance warranting leniency. The court had discretion under the MAIA to grant leave if satisfied that the delay was excusable.

The court found that Osman had not acted negligently in the delay and that the error by his solicitor was not attributable to Osman's fault. The court acknowledged the difficulties Osman faced in complying with the requirements of the MAIA and considered the explanation provided. The court exercised its discretion under the MAIA and granted Osman leave to commence the proceedings within 14 days of the date of the order. This decision recognised the applicant's lack of fault in the delay and the presence of exceptional circumstances that warranted the court's leniency.

Orders

Orders of the court

1. The Applicant has leave to commence proceedings within 14 days of the date of this order

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

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CITATION:	Osman v Charles & Anor [2007] QDC 027
PARTIES:	ABADIA SAAVEDRA OSMAN Applicant V LOIS CHARLES First Respondent AND SUNCORP METWAY (ABN: 83 075 695 966) Second Respondent
FILE NO/S:	532 of 2005
DIVISION:	Civil
PROCEEDING:	Application for leave to commence proceedings
ORIGINATING COURT:	District Court, Southport
DELIVERED ON:	8 March 2007
DELIVERED AT:	District Court, Cairns
HEARING DATE:	26 February 2007
JUDGE:	Kingham DCJ
ORDER:	1. The Applicant has leave to commence proceedings within 14 days of the date of this order
CATCHWORDS:	PERSONAL INJURIES CLAIM – Motor Accident Insurance Act 1994 (Qld) – Where proceedings were not commenced within the limitation period – Where consent reached between the parties allowing proceedings to be commenced out of time – Where proceedings not commenced within the agreed time frame – Where explanation given of failure to commence proceedings – Where difficulties complying with requirements of MAIA – Where subsequent solicitor error – Where no fault of the applicant – Discretion exercised. Motor Accident Insurance Act 1994 (Qld) Hall v Nominal Defendant [1966] 117 CLR 423 Morrison-Gardiner v Car Choice P/L & Anor; Crain v Crocker & Anor; O’Dare v Vitanza & Ors [2004] QCA 480 Perdis v Nominal Defendant [2003] QCA 555 Winters v Doyle [2006] QCA 110
COUNSEL:	R. Morgan for the Applicant R. Treston for the Respondents
SOLICITORS:	Queensland Law Group for the Applicant Sparke Helmore Lawyers for the Respondents