DISTRICT COURT OF QUEENSLAND
CITATION:
Zarb v Fitzgerald [2014] QDC 281
PARTIES:
Charles Victor ZARB
(Applicant)
-and-
William Joseph FITZGERALD
(Respondent)
FILE NO:
350 of 2014
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
District Court, Townsville
DELIVERED ON:
11 December 2014
DELIVERED AT:
Townsville
HEARING DATE:
08 December 2014
JUDGE:
Durward SC DCJ
ORDERS:
1. Application dismissed
CATCHWORDS:
PRACTICE & PROCEDURE – PERSONAL INJURIES – LEAVE TO COMMENCE PROCEEDING – where claimant applies for leave to proceed pursuant to s43 PIPA on ground other than expiration of limitation period – whether degree of urgency made out – whether s43 applicable to the ground of the claimants application.
LEGISLATION:
S43 Personal Injuries Proceedings Act 2002; s57(2) (b) Motor Accident Insurance Act 1994
CASES:
Gu v To [2005] QCA 480; Paterson v Leigh & Anor [2000] QSC 277.
COUNSEL:
R Pack for the applicant
W Elliott for the respondent
SOLICITORS:
Giudes & Elliott solicitors for the applicant
Norton Rose Australia for the respondent
The applicant sought leave to commence proceedings pursuant to section 43 of the Personal Injuries Proceedings Act 2002 (“PIPA”) and directions as to the conduct of the proceedings.
The event
The applicant suffered personal injury allegedly caused by medical procedures performed by the respondent on 10 December 2012. He is aged almost 80 years. Since the surgery he has suffered from other illnesses and requires significant care. He has suffered four episodes of aspiration pneumonia that have been successfully resolved by treatment but is said to be at risk of further episodes.
The background
Hence the applicant has brought the application to in effect facilitate or substitute court supervision of the proceeding over and above the pre-trial procedures provided in PIPA. This is despite the fact that section 43 PIPA mandates the pre-court procedures and where leave is given to commence a proceeding the proceeding is stayed until the statutory pre-court procedures are completed.
The pre-court procedures mandated by PIPA have not yet been completed. The liability statement of the insurer is due in mid-January 2015. Thereafter the compulsory conference and perhaps the mediation processes, would customarily take place.
Section 43 of PIPA relevantly provides as follows:
“43Starting urgent proceedings with the court’s leave
(1) The court, on application by a claimant, may give leave to the claimant to start a proceeding in the court for damages based on a liability for personal injury despite non-compliance with this part if the court is satisfied there is an urgent need to start the proceeding.
…….
(3) However, if leave is given, the proceedings started by leave is stayed until the claimant complies with this part or the proceeding is discontinued or otherwise ends.”
The gravamen of section 43 is that the court should be “satisfied there is an urgent need to start the proceeding”.
The section customarily is invoked where a limitation period is imminent. If leave is given, “… the proceeding started by leave is stayed until the claimant complies with…
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- AGLC
- Zarb v Fitzgerald [2014] QDC 281
- Case
- [2014] QDC 281
- Decision Date
CaseChat Overview and Summary
The court considered the relevant provisions of the Personal Injuries Proceedings Act and determined that the degree of urgency claimed by the applicant was not sufficient to satisfy the requirements of section 43. The court found that the application did not meet the necessary threshold to grant leave. The court also concluded that section 43 did not apply to the ground of the applicant's application. The court held that the applicant had not demonstrated sufficient urgency or other compelling circumstances that would justify the grant of leave.
Accordingly, the court dismissed the applicant's application for leave to commence proceedings. The court found that the applicant had not satisfied the necessary requirements under section 43 of the Personal Injuries Proceedings Act. The court did not make any further orders, as the application was dismissed on the basis that the applicant had not demonstrated sufficient urgency or other compelling circumstances that would warrant the grant of leave.
Orders
Orders of the court
1. Application dismissed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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