Willey v Lush Hair Salon - [2003] QDC 444

DISTRICT COURT OF QUEENSLAND

CITATION:

Willey v Lush Hair Salon [2003] QDC 444

PARTIES:

KATHRYN THELMA WILLEY
Applicant
v
LUSH HAIR SALON
(BN 18063457)
Respondent

FILE NO:

BD 3665/03

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

9 December 2003

DELIVERED AT:

Brisbane

HEARING DATE:

17 November 2003

JUDGE:

Robin QC DCJ

ORDER:

The application must be dismissed.

CATCHWORDS:

Personal Injuries Proceedings Act 2002 (PIPA), s 9, s 20, s77D – relief refused to an applicant would-be plaintiff injured on 29 March 2000 to permit a proceeding otherwise statute barred to be commenced – applicant had neither should started a proceeding nor commenced to comply with PIPA requirements until limitation period had expired

COUNSEL:

D Kelly for the Applicant

SOLICITORS:

Parker Simmonds for the Applicant

Before the court is an originating application in the following terms:

“This Application is brought pursuant to the Personal Injuries Proceedings Act 2002 (PIPA).

To the Respondent: TAKE NOTICE that the Applicant is applying to the Court for the following orders:-
1. A declaration that the Claimant has given a Notice of Claim under s.9 of PIPA as required; or

2.A declaration that the Claimant has remedied non-compliance with s.9 of PIPA.

3.
The Claimant has authority to proceed further with the claim


despite non-compliance with PIPA.
4.
The Applicant has leave pursuing to s.77D (2) (b) of PIPA


to commence a proceeding in the District Court of


Queensland by 18 December 2003.
5.
That this Application be treated as an action commenced by


claim and the said proceedings to be treated as a


continuation of this action.

6.
The Applicant’s costs of and incidental to this Application

to be assessed on a standard basis as her costs in the Claim.”

The heading apart, it is in identical terms with one returnable on the same day, Nicole Earthrowl v State of Queensland BD 3663/03, which was defended. Many of the considerations are similar, so that the court’s reasons in Earthrowl, in considerable measure, may be referred to, without repeating them, here. Mr Kelly was counsel for the applicants in both matters.

The respondent did not appear when called. According to affidavits of the applicant’s solicitor, Mr Simmonds, service was effected by posting to the respondent three times: once to the registered business address of the registered business name, once to a post office box, once to the address which appeared to be the residence of one Christophe Bertomeu, the person carrying on the business according to a “business names” search.

The applicant, according to another affidavit of Mr Simmonds, alleges that she sustained injury as a result of an incident that occurred “at the Lush Hair Salon located at shop 62707 Broadbeach Arcade, Main Place, Broadbeach” on 29 March 2000. She claims to have sustained injury including clumps of hair breaking off or pulling out at the roots in a misadventure with “hair extensions” . She consulted Mr Simmonds’ firm on about 30 May 2000. A letter was sent out a week later referring…

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 Willey v Lush Hair Salon

Details

AGLC: Willey v Lush Hair Salon [2003] QDC 444
Case: [2003] QDC 444
Decision Date: 9 December 2003

CaseChat Overview and Summary

In the case of Willey v Lush Hair Salon, the applicant sought to bring an action against Lush Hair Salon for injuries sustained on 29 March 2000. The applicant had not initiated any legal proceedings nor had they taken steps to comply with the requirements of the Personal Injuries Proceedings Act 2002 (PIPA) until after the limitation period had expired. The court was tasked with determining whether the applicant could be granted relief under the provisions of the PIPA to permit the commencement of proceedings that would otherwise be barred by limitation.

The primary legal issue before the court was whether the applicant's delay in initiating the action and in complying with the statutory requirements justified granting relief under sections 9, 20, and 77D of the PIPA. The court needed to consider the extent to which the applicant's inaction contributed to the delay and whether it was reasonable under the circumstances.

The court concluded that the applicant had not demonstrated sufficient grounds to warrant relief under the PIPA. The applicant had neither started a proceeding nor begun to comply with the Act's requirements within the applicable limitation period. The court found that the applicant's delay was substantial and unjustified, and that the applicant had failed to show any special circumstances that would warrant an extension of time. The court held that the application for relief should be dismissed, and therefore the applicant could not commence proceedings against Lush Hair Salon for the injuries sustained.

The court's final order was that the application for relief under the Personal Injuries Proceedings Act 2002 be dismissed. This decision effectively precluded the applicant from bringing an action against Lush Hair Salon for the injuries sustained on 29 March 2000.

Orders

Orders of the court

The application must be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Willey v Lush Hair Salon [2003] QDC 444
PARTIES:	KATHRYN THELMA WILLEY Applicant v LUSH HAIR SALON (BN 18063457) Respondent
FILE NO:	BD 3665/03
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	9 December 2003
DELIVERED AT:	Brisbane
HEARING DATE:	17 November 2003
JUDGE:	Robin QC DCJ
ORDER:	The application must be dismissed.
CATCHWORDS:	Personal Injuries Proceedings Act 2002 (PIPA), s 9, s 20, s77D – relief refused to an applicant would-be plaintiff injured on 29 March 2000 to permit a proceeding otherwise statute barred to be commenced – applicant had neither should started a proceeding nor commenced to comply with PIPA requirements until limitation period had expired
COUNSEL:	D Kelly for the Applicant
SOLICITORS:	Parker Simmonds for the Applicant