Pask v Gold Coast City Council

DISTRICT COURT OF QUEENSLAND

CITATION:	Pask v Gold Coast City Council [2006] QDC 366
PARTIES:	SHIRLEY ANN PASK Applicant
v
GOLD COAST CITY COUNCIL Respondent
FILE NO/S:	374/2006
DIVISION:	Civil Jurisdiction
PROCEEDING:	Application
ORIGINATING  COURT:	District Court, Southport
DELIVERED ON:	18 October 2006
DELIVERED AT:	Southport
HEARING DATE:	28 August 2006
JUDGE:	Dearden DCJ
ORDER:	That the applicant be granted leave pursuant to s.18(1)(c)(ii) of the Personal Injuries Proceedings Act to proceed further with her claim despite non-compliance with s.9 of the Personal Injuries Proceedings Act
CATCHWORDS:	APPLICATION – Personal Injury – Non compliance with pre-court procedures – Reasonable excuse – Court’s discretion to authorise claim to proceed despite non- compliance
Cases Cited:
Morris v. Gold Coast City Council [2006] QDC 172 Weeks v. The Nominal Defendant [2005] QCA 118 Piper v The Nominal Defendant [2003] QCA 557
Personal Injuries Proceedings Act 2002
COUNSEL:	Mr P de Plater for the applicant Mr K Howe for the respondent
SOLICITORS:	Maurice Blackburn Cashman for the applicant O’Keefe Mahoney Bennett for the respondent

Introduction

1. This is an application by the applicant, Shirley Ann Pask against the respondent, Gold Coast City Council, seeking (relevantly) the following orders:

[1]	A declaration that the applicant has provided a reasonable excuse for the delay in giving the respondent a Part 1 Notice of Claim pursuant to s.9 of the Personal Injuries Proceedings Act 2002 (“the Act”).
[2]	A declaration that the applicant has given the respondent a complying Part 1 Notice of Claim pursuant to s.9 of the Act.
[3]	In the alternative, pursuant to s.18(1)(c)(i) of the Act, the Court declare that the applicant has remedied any non-compliance.
[4]	In the alternative, that the applicant be granted leave pursuant to s.18(1)(c)(ii) of the Act to proceed further with the claim despite non- compliance.

Facts

1. The applicant was born on 14 July 1949 and is now 57 years of age. On 9 June 2004, when aged 53, the applicant was injured as a result of an incident which occurred on the footpath of 25 Pinaroo Street, Santa Barbara, Gold Coast.

2. The applicant describes the incident as follows:-[1]

   “I had arrived at my son’s new home after dark at approximately 7.00pm in order to move in with him. At around 9.00pm I walked out of the home and across the road to my car to retrieve an item. As I came back from the car, I turned and pressed my automatic button to lock the car. I was stepping backwards slowly when suddenly I fell straight back having stepped in the uncovered hole on the Council nature strip outside the home. I had never been to this home before that night and I had arrived after dark and had not seen the hole in the Council nature strip at all.”

3. The applicant asserts that she sustained the following injuries in the incident:-[2]

[1]	Broken clavicle
[2]	Broken ribs – 3, 4 and 5 on left side
[3]	Scarring on left shoulder.

Chronology

1. The accident having occurred on 9…