Sarina v Thursday Afternoon Pty Ltd - [2003] QDC 149

DISTRICT COURT OF QUEENSLAND

CITATION:
Sarina v Thursday Afternoon Pty Ltd [2003] QDC 149

PARTIES:

PETER HOWARD SARINA

Applicant

and

THURSDAY AFTERNOON PTY LTD

Respondent

FILE NO:
D106/2003

DIVISION:
Civil

PROCEEDING:
Application

DELIVERED ON:
16 May 2003

DELIVERED AT:
Southport

HEARING DATE:
7 April 2003

JUDGE:
Alan Wilson SC DCJ

ORDER:
1.     That the applicant have leave to amend the originating application by adding, after the word “Orders” in the first line thereof the words “under s 18(1)(c) of the Personal Injuries Proceedings Act 2002”.

2.     That the applicant is authorised to proceed further with the claim referred to in the originating application despite the non-compliance of his Notice of Claim dated 30 January 2003 with the Personal Injuries Proceedings Act 2002.

3.     No order as to costs.

CATCHWORDS:
STATUTES – STATUTORY CONSTRUCTION – Notice of Claim under Personal Injuries Proceedings Act 2002 – delay – whether reasonable excuse for delay

Personal Injuries Proceedings Act 2002

Cases considered:

Brannigan v Nominal Defendant (2000) 2 Qd R 116

Piper v Nominal Defendant (2003) QSC 039

Simpson v Hopemount Pty Ltd & Anor (2003) QSC 078

Solway v Lumley General Insurance Ltd & Ors (2003) QCA 136

Startune Pty Ltd v Ultra-Tune Systems (Aust) Pty Ltd (1991) 1 QD R 192

Taikato v The Queen (1996) 186 CLR 454

Thomas v Transpacific Industries Pty Ltd (2003) 1 Qd R 328

COUNSEL:
Mr M E Pope for the applicant
Mr A C Harding for the respondent

SOLICITORS:
Primrose Couper Cronin Rudkin for the applicant
Suncorp Insurance Ltd for the respondent

This is an application under s 18(c) of the Personal Injuries Proceedings Act 2002 (PIPA) for a declaration that the claimant has remedied a non-compliance with that legislation or, alternatively, for an order authorising him to proceed further with the claim despite non-compliance.

Two preliminary matters arose: first, the respondent (an insurance company) objected to the applicant’s non-compliance with UCPR r 26(6) which requires that these applications specify the name and section number of the Act under which they are brought. Leave was given to the applicant to amend the originating application to remedy that defect. The second matter concerned the requirement in UCPR r 26(8) that the application or the material filed in it must show this Court has jurisdiction to decide the matter[1]. The definition of “Court” in the schedule to PIPA provides that, if no proceeding based on a claim has been started, references in the legislation are taken as a reference to a Court “with jurisdiction to hear the claim”. The applicant’s original Notice of Claim was exhibited to an affidavit of his solicitor and I also gave him leave to tender a copy of a draft claim in the action he might, ultimately, bring. Both persuaded me the matter falls within the jurisdiction of this Court, and I may decide the application.
[1] Startune Pty Ltd v Ultra-Tune Systems (Aust) Pty Ltd (1991) 1 QD R 192, at 197…

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 Sarina v Thursday Afternoon Pty Ltd

Details

AGLC: Sarina v Thursday Afternoon Pty Ltd [2003] QDC 149
Case: [2003] QDC 149
Decision Date: 16 May 2003

CaseChat Overview and Summary

In the matter of Sarina versus Thursday Afternoon Pty Ltd, the dispute centred on the timeliness of a Notice of Claim under the Personal Injuries Proceedings Act 2002. The applicant sought leave to amend the originating application to include a specific reference to a section of the Act and permission to proceed with the claim despite the non-compliance of the Notice of Claim dated 30 January 2003. The case was heard in the relevant Australian court, which was tasked with determining the legal sufficiency of the applicant's reasons for the delay in lodging the Notice of Claim.

The court was required to decide whether the applicant had provided a reasonable excuse for the delay in submitting the Notice of Claim, as mandated by the Act. The primary issue was whether the applicant's explanation for the delay was sufficient to warrant an extension of the statutory time limit for lodging the Notice of Claim. The court had to weigh the applicant's reasons against the statutory framework and assess whether the delay was justified under the circumstances.

Upon reviewing the evidence and arguments presented, the court found that the applicant had provided a reasonable excuse for the delay in lodging the Notice of Claim. The court was satisfied that the applicant had acted promptly once the circumstances giving rise to the delay were brought to their attention. Consequently, the court granted the applicant leave to amend the originating application and authorised the applicant to proceed with the claim despite the non-compliance of the Notice of Claim with the Act. The court made no order as to costs, leaving this matter to be resolved between the parties.

The court's orders included granting the applicant permission to amend the originating application to include a specific reference to a section of the Act and authorising the applicant to proceed with the claim despite the non-compliance of the Notice of Claim. No costs order was made.

Orders

Orders of the court

1. That the applicant have leave to amend the originating application by adding, after the word “Orders” in the first line thereof the words “under s 18(1)(c) of the Personal Injuries Proceedings Act 2002”.

2. That the applicant is authorised to proceed further with the claim referred to in the originating application despite the non-compliance of his Notice of Claim dated 30 January 2003 with the Personal Injuries Proceedings Act 2002.

3. No order as to costs.

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

Full text does not contain this section.

CITATION:	Sarina v Thursday Afternoon Pty Ltd [2003] QDC 149
PARTIES:	PETER HOWARD SARINA Applicant and THURSDAY AFTERNOON PTY LTD Respondent
FILE NO:	D106/2003
DIVISION:	Civil
PROCEEDING:	Application
DELIVERED ON:	16 May 2003
DELIVERED AT:	Southport
HEARING DATE:	7 April 2003
JUDGE:	Alan Wilson SC DCJ
ORDER:	1. That the applicant have leave to amend the originating application by adding, after the word “Orders” in the first line thereof the words “under s 18(1)(c) of the Personal Injuries Proceedings Act 2002”. 2. That the applicant is authorised to proceed further with the claim referred to in the originating application despite the non-compliance of his Notice of Claim dated 30 January 2003 with the Personal Injuries Proceedings Act 2002. 3. No order as to costs.
CATCHWORDS:	STATUTES – STATUTORY CONSTRUCTION – Notice of Claim under Personal Injuries Proceedings Act 2002 – delay – whether reasonable excuse for delay Personal Injuries Proceedings Act 2002 Cases considered: Brannigan v Nominal Defendant (2000) 2 Qd R 116 Piper v Nominal Defendant (2003) QSC 039 Simpson v Hopemount Pty Ltd & Anor (2003) QSC 078 Solway v Lumley General Insurance Ltd & Ors (2003) QCA 136 Startune Pty Ltd v Ultra-Tune Systems (Aust) Pty Ltd (1991) 1 QD R 192 Taikato v The Queen (1996) 186 CLR 454 Thomas v Transpacific Industries Pty Ltd (2003) 1 Qd R 328
COUNSEL:	Mr M E Pope for the applicant Mr A C Harding for the respondent
SOLICITORS:	Primrose Couper Cronin Rudkin for the applicant Suncorp Insurance Ltd for the respondent