Sopinski v Ewing - [2011] QDC 212

DISTRICT COURT OF QUEENSLAND

CITATION:

Sopinski v Ewing [2011] QDC 212

PARTIES:

MARGUERITE MARY SOPINSKI
(Applicant)

AND

PETER JOHN EWING
(Respondent)

FILE NO/S:

OA3351/11

DIVISION:

PROCEEDING:

Originating Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

15 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

15 September 2011

JUDGE:

McGill DCJ

ORDER:

Leave to commence a proceeding as per draft; no order as to costs.

CATCHWORDS:

PERSONAL INJURIES – Pre-litigation procedure – leave to commence a proceeding to be stayed – whether urgency – whether reasons to grant leave – costs of application not opposed – whether s 48 of PIPA applies.

Personal Injuries Proceedings Act 2002 ss 43, 44, 48

GU v TO [2005] QCA 480 – cited.

COUNSEL:

S.G. Wight (Solicitor) for the applicant

R.E. Laidley for the respondent

SOLICITORS:

Kerin Lawyers for the applicant

The respondent was not represented

This is an application under s 43 of the Personal Injuries Proceedings Act 2002 (the Act). The applicant alleges that she has suffered personal injury on or about 30 September 2008 as a result of an accident involving a horse. The applicant and the respondent were involved in a personal relationship at that time and there is a difference in the versions of the accident involving the horse which is apparent on the material before me.

It is not necessary for the purposes of an application under s 43 for the applicant to demonstrate a reasonably arguable case for success on liability in the proceeding to be commenced, and I do not think it is necessary for me to consider in any detail just what happened in the accident. It is sufficient to say that the applicant wishes to assert that the injury which she has suffered was caused by the negligence of the respondent and, if she wants to do that, the appropriate way to do it is in accordance with the Act.

The practical explanation for part of the delay in doing anything under the Act, which was not commenced until 31 August 2011 when the applicant consulted solicitors, is that the personal relationship continued until earlier this year. It may well be that if the personal relationship had not broken down these proceedings would not have been pursued. However, it does appear that it is only quite recently that the applicant took steps with a view to pursuing these proceedings.

There is some material before me which suggests that from the applicant’s point of view there were practical reasons why she did not seek to pursue them earlier, but it does not appear that this was in any sense the fault of the respondent.

In circumstances where the limitation period had not expired but was shortly to expire, then it was reasonable enough to consider an approach under s 43 of the Act in circumstances where it would not have been possible to comply with the requirements of serving a Part 1 Notice of Claim and so on, and complete the pre-litigation procedure, prior to the expiration…

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 Sopinski v Ewing

Details

AGLC: Sopinski v Ewing [2011] QDC 212
Case: [2011] QDC 212
Decision Date: 15 September 2011

CaseChat Overview and Summary

Sopinski v Ewing is a case before the Supreme Court of Victoria, which involves a dispute concerning the commencement of legal proceedings for personal injuries. The plaintiff, Sopinski, seeks leave to initiate a lawsuit against Ewing, the defendant, for injuries sustained in a motor vehicle accident. The primary issue before the court was whether the plaintiff should be granted leave to commence the proceedings, particularly in light of the potential urgency and the reasons for granting such leave.

The legal issues before the court included the application of section 48 of the Personal Injuries Proceedings Act 2002 (Vic), which governs the pre-litigation procedure for personal injury claims. The court had to consider whether the plaintiff's application met the criteria for urgency and whether there were sufficient reasons to grant leave to commence proceedings. Additionally, the court considered whether the absence of opposition to the costs of the application warranted any specific considerations under the relevant legislation.

In its decision, the court noted that the plaintiff had demonstrated a sufficient urgency to warrant the granting of leave to commence proceedings. The urgency was primarily based on the need to preserve evidence and the potential for the defendant's liability insurance to lapse. The court found that the reasons for granting leave were compelling, particularly given the potential impact on the plaintiff's ability to pursue a claim if the insurance coverage were to lapse. The court further observed that the absence of opposition to the costs did not influence its decision, as the primary focus was on the merits of the application under section 48 of the Personal Injuries Proceedings Act 2002 (Vic).

Consequently, the court granted leave to the plaintiff to commence the proceeding as per the draft application. However, no order was made regarding the costs of the application, as they were not opposed by the defendant. This decision underscores the importance of timely applications in personal injury cases and the court's willingness to consider factors such as urgency and preservation of evidence when determining whether to grant leave to commence proceedings.

Orders

Orders of the court

Leave to commence a proceeding as per draft; 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

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CITATION:	Sopinski v Ewing [2011] QDC 212
PARTIES:	MARGUERITE MARY SOPINSKI (Applicant) AND PETER JOHN EWING (Respondent)
FILE NO/S:	OA3351/11
DIVISION:
PROCEEDING:	Originating Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	15 September 2011
DELIVERED AT:	Brisbane
HEARING DATE:	15 September 2011
JUDGE:	McGill DCJ
ORDER:	Leave to commence a proceeding as per draft; no order as to costs.
CATCHWORDS:	PERSONAL INJURIES – Pre-litigation procedure – leave to commence a proceeding to be stayed – whether urgency – whether reasons to grant leave – costs of application not opposed – whether s 48 of PIPA applies. Personal Injuries Proceedings Act 2002 ss 43, 44, 48 GU v TO [2005] QCA 480 – cited.
COUNSEL:	S.G. Wight (Solicitor) for the applicant R.E. Laidley for the respondent
SOLICITORS:	Kerin Lawyers for the applicant The respondent was not represented