Venz v Caboolture Shire Council

DISTRICT COURT OF QUEENSLAND

CITATION: 

Venz v Caboolture Shire Council [2009] QDC 102

PARTIES: 

ROBERT VENZ

(Applicant)
v

CABOOLTURE SHIRE COUNCIL

(Respondent)

FILE NO/S: 

No. 2102/07 No. 3404/08

DIVISION: 

Civil

PROCEEDING: 

Application

ORIGINATING 

COURT: 

Brisbane

DELIVERED ON: 

23 January 2009

DELIVERED AT: 

Brisbane

HEARING DATE: 

16 January 2009

JUDGE: 

Searles DCJ

ORDER: 

I order:

1.	In action 2102/07, the order made by the Registrar on 13 August 2007 be corrected by adding the words, “with such proceedings to be filed on or before 14 August 2007” at the end of numbered paragraph 1.
2.	In action 3404/07, the Applicant’s application is dismissed.
3.	The Applicant to pay the costs of the Respondent on both applications on a standard basis to be agreed or failing agreement to be assessed.

CATCHWORDS: 

Personal Injuries Proceedings Act 2002 ss43, 5; UCPR
rr.388, 666[2].

COUNSEL: 

R. Green – Applicant
A. Harding – Respondent

SOLICITORS: 

Qld Law Group – Applicant HBM Lawyers – Respondent

1. The above Applicant made application for leave to initiate proceedings pursuant to s 43 of the Personal Injuries Proceedings Act 2002 (the Act) or in the alternative pursuant to s 59(2)(b) of the Act against the Respondent for damages for personal injuries sustained on 14 August 2004 with such proceedings to be filed on or before 30 June 2008.

2. On the same day I heard an application by the above Respondent in District Court matter 2102 of 2007 involving the same parties and the same claim. It sought to have an order made by the Registrar on 13 August 2007 corrected by adding the words “with such proceedings to be filed on or before 14 August 2007” at the end of numbered paragraph 1.

3. The Applicant alleges he sustained an injury on 14 August 2004 at 17 Coobart Court Morayfield when he fell into an unsigned and unfenced drain culvert on the property as he walked between his car and the house. On 24 December 2004 he gave a Part 1 Notice of Claim pursuant to the Act. Subsequently the Respondent denied liability and sought one hundred percent contribution from the owners of the property where the accident occurred[1].

   [1]            Affidavit E L Mergard, paras 4-6

4. With the three year limitation period expiration date looming on 14 August 2007 agreement was reached with the Respondent that the Applicant be granted leave to initiate proceedings with such proceedings to be filed on or before 14 August 2007.

5. UCPR 666 allows the Registrar to make an order if the parties consent in writing and if the Registrar considers the order appropriate. Under r 666(2) the consent of each party must be filed in the registry. Under cover of a letter dated 26 July 2007 the Applicant’s solicitor sent a draft consent to the Respondent’s solicitors for their signing, they having already signed it on behalf of the Applicant. Importantly paragraph 1 of the order in the consent did not contain the abovementioned words requiring filing by 14 August 2007.

6. The Respondent’s solicitors advised of…