Pask v Gold Coast City Council

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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…

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Details
Case
[2006] QDC 366
Decision Date

CaseChat Overview and Summary

The matter before the court involved a dispute between the applicant, Pask, and the Gold Coast City Council, regarding her ability to proceed with a personal injury claim. The applicant sought leave to bypass the pre-court procedural requirements outlined in section 9 of the Personal Injuries Proceedings Act due to her non-compliance with these provisions. The Council argued that the applicant should not be granted leave to proceed as she had not complied with the pre-court procedures, and therefore, no reasonable excuse existed for her non-compliance. The court was required to determine whether the applicant had a reasonable excuse for her non-compliance with the pre-court procedures and whether she should be granted leave to proceed with her claim despite this non-compliance.

The court considered the statutory provisions governing the pre-court procedures, as well as the circumstances of the case, to assess whether the applicant had a reasonable excuse for her non-compliance. It was determined that the applicant had not intentionally disregarded the pre-court procedures, but rather had been unaware of the requirements due to a misunderstanding of the legal process. The court found that this misunderstanding constituted a reasonable excuse for the applicant's non-compliance, and that the applicant's overall conduct did not warrant a refusal of leave. Consequently, the court granted the applicant leave to proceed with her claim despite her non-compliance with the pre-court procedures.

The court's decision was based on the understanding that the statutory provisions governing pre-court procedures should be applied in a manner that is fair and just in the circumstances of each case. The court held that the applicant's misunderstanding of the legal process and her overall conduct justified granting leave, despite her non-compliance with the pre-court procedures. As a result, the court ordered that the applicant be granted leave to proceed further with her claim, pursuant to section 18(1)(c)(ii) of the Personal Injuries Proceedings Act. This decision highlights the importance of ensuring that the pre-court procedures are applied in a manner that is fair and just, taking into account the specific circumstances of each case.

Orders

Orders of the court

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

Background

Background to the litigation

Full text does not contain this section.

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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