Zarb v Fitzgerald

[2014] QDC 281

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

1. 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

1. 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

1. 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.

1. 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.

1. 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.”

1. The gravamen of section 43 is that the court should be “satisfied there is an urgent need to start the proceeding”. 

1. 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…