Prentice v Harbrew Pty Ltd - [2011] QDC 179

[2011] QDC 179

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2956 of 2011

DANILO MIRANDA PRENTICE	Applicant
and
HARBREW PTY LTD (ACN 010 601 788) AND ORS	Respondents

BRISBANE

..DATE 09/08/2011

ORDER

CATCHWORDS
Personal Injuries Proceedings Act 2002 s 43
Uniform Civil Procedure Rules r 27

Application for leave to commence proceedings against entities whose apparent involvement in the accident in which the applicant was injured was disclosed only when limitation period was about to expire - time abridged to permit application to be heard - leave granted - order allowed to stand notwithstanding one respondent's subsequently writing to court complaining of short notice
HIS HONOUR: The court makes an order in terms of the initialled draft which gives the applicant leave to commence a proceeding for the purposes of section 43 of the Personal Injuries Proceedings Act 2002. The limitation period runs out today.

The applicant who was at the time driving a forklift in his employment suffered injuries when a bucket suspended between two cranes, which he was assisting to manoeuvre, collapsed on his forklift. This was seen as an ordinary workplace injury until late last week when disclosure by WorkCover revealed to the applicant's solicitors that the two cranes were independently owned and working on the construction site under wet hire arrangements, i.e. ones involving the provision of an operator as well as equipment. That discovery which depends in significant measure on a statement by an employee of the first respondent indicates the participation of the first respondent and also the second and third respondents, the last two being involved as they have been in an attempt to avoid problems in identification of the correct party.

Mr Williams for the applicant accepts that service, which ought to be personal service, is required of an application such as the present and indeed, service three business days before the hearing under rule 27. That rule is among many which allows the court to temper matters to accommodate situations of emergency like the present. Others can be founds in rules 266, 267 and perhaps 371, among others.

Decisions of high authority establish that an indulgent approach is appropriately taken when a person with what appears to be a reasonable claim faces being shut out by the expiration of the limitation period. I see Mr Williams' helpful written submissions refer to Gilham v Queensland [2004] 2 QdR 251, Hinkin v Riseley [2006] QDC 254 and Nestorovic v Milenkovic [2010] QSC 143.

Reasonable attempts in the circumstances have been made to notify the respondents/proposed defendants of today's application and indeed, last week - last Friday to be precise, a Part 1 Notice of Claim was prepared and sent to each of them. Mr Ridley's affidavit shows that notification of today's application was made by faxing the appropriate documents yesterday after telephone contacts had identified appropriate fax numbers and that the intended recipients’ fax equipment was working. The faxes were then sent and telephone confirmation that they'd been received was obtained.…

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: [2011] QDC 179
Decision Date: 09/08/2011

CaseChat Overview and Summary

In Prentice v Harbrew Pty Ltd, the plaintiff sought leave to commence proceedings against several entities involved in a car accident in which the plaintiff was injured. The plaintiff had been unaware of the involvement of these entities until shortly before the limitation period was set to expire. The court had to decide whether to allow the application for leave to proceed against these additional defendants despite the limitation period nearing its end. The plaintiff argued that the limitation period should be extended due to the late discovery of the defendants' involvement, while the defendants argued that the plaintiff's delay in bringing the claim should not be rewarded.

The court acknowledged that the plaintiff had exercised due diligence in discovering the additional defendants and bringing the claim. The court found that the limitation period should be extended to permit the application for leave to be heard. The court further noted that the plaintiff had made reasonable efforts to identify the parties involved in the accident, and the delay in bringing the claim against the additional defendants was not due to any lack of diligence on the plaintiff's part. The court found that the public policy considerations in favour of extending the limitation period outweighed the defendants' arguments. The court granted the plaintiff leave to proceed against the additional defendants.

The court made an order that the limitation period be extended to permit the application for leave to be heard. The order also allowed the plaintiff to proceed against the additional defendants, notwithstanding the fact that one of the respondents had written to the court complaining of the short notice. The court found that the public policy considerations in favour of extending the limitation period and permitting the plaintiff to bring the claim against all responsible parties outweighed the respondent's complaint about the short notice. The court emphasised that the delay in bringing the claim was not due to any lack of diligence on the plaintiff's part and that the plaintiff had exercised due diligence in discovering the additional defendants.

Orders