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  • Unreported Judgment

Orr v State of Queensland

 

[2003] QSC 463

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

DOUGLAS J

No BS11301 of 2003

JASON THOMAS ORR

Applicant

and

 

STATE OF QUEENSLAND

Respondent

No BS11299 of 2003

 

ALEXANDRA JANE ORR

Applicant

and

 

STATE OF QUEENSLAND

Respondent

No BS11321 of 2003

 

VANESSA FAYNE JEAN GIBSON

Applicant

and

 

STATE OF QUEENSLAND

Respondent

No BS11295 of 2003

 

NATASHA YARRIE

Applicant

and

 

STATE OF QUEENSLAND

Respondent

No BS11319 of 2003

 

STEVEN ANDREW GIRARD

Applicant

and

 

STATE OF QUEENSLAND

Respondent

No BS11287 of 2003

 

SARAH DAVISON

Applicant

and

 

STATE OF QUEENSLAND

Respondent

BRISBANE

DATE 17/12/2003

JUDGMENT

HIS HONOUR: I will deal with Jason Orr's application first. This is an application under section 43 of the Personal Injuries Proceedings Act 2002 to give the applicant leave to start a proceeding despite non-compliance with that part of the Act. It requires me to be satisfied that there is an urgent need to start the proceeding. On the available evidence, the limitation period for any claim by the applicant has expired.

It is only if the applicant persuades a Court under section 31 of the Limitation of Actions Act 1974 that there is a material fact of a decisive character relating to his right of action that was not within his means of knowledge at the relevant time prescribed by that section that, it seems to me, he would be in a position to pursue a claim successfully. Section 43 of the Personal Injuries Proceedings Act appears to be aimed principally, or at least as an example, at the situation where a limitation period is about to expire, and is not, in my view, intended to be another means of extending such a period.

Within the Personal Injuries Proceedings Act both section 59 and section 77D may be used to allow a proceeding to start after the end of a period of limitation. Section 59 applies when a complying part 1 notice is given before the end of the period of limitation applying to the claim. All of these notices are late at the least, and delivered after the end of the limitation period so that has not happened here.

Section 77D only applies if the period of limitation expires between 18 June 2002 and 18 December 2003. On the evidence in this case, that did not happen and I can only speculate whether he will eventually succeed in an application under section 31 of the Limitation of Actions Act. I am not able to say in those circumstances when any period of limitation ended, apart from the obvious termination on reaching the age of 21.

Where those two sections, section 59 and section 77D, make specific provision for the circumstances where proceedings may be started after the end of the limitation period, I do not think that section 43 can be construed to contain, implicitly, a similar power.

In those circumstances, I am not satisfied that there is an urgent need to start the proceeding under s. 43. Either the proceeding is out of time, in which case there is no urgency shown, or it may become a proceeding which can be proceeded with successfully if leave is given under section 31 of the Limitation of Actions Act to extend the period of limitation, and I just cannot predict on the material available to me whether that will happen and whether the limitation period will be extended to any particular date. At most, all that the applicant, Mr Jason Orr, can show is that he is investigating whether there is evidence to warrant an extension of the period of limitation.

Accordingly, I dismiss Mr Jason Orr's application. I will deal with costs later.

For similar reasons as I have just expressed in respect of Mr Jason Orr, I dismiss the application of Vanessa Gibson and of Natasha Yarrie and of Steven Girard.

I will now deal with the application of Sarah Davison. Sarah Davison applies for leave to be given to her pursuant to section 43 of the Personal Injuries Proceedings Act to commence proceedings against the State of Queensland for damages based on allegations that she was abused while a ward of the State between 1985 and 1998. She was then an infant having been born on 21 February 1982.

The limitation period available to her under the Limitation of Actions Act 1974 expired on 21 February 2003 but she did not bring proceedings within that time nor did she issue a notice under the Personal Injuries Proceedings Act 2002 within the time limits prescribed under that Act. She did issue a notice on 12 November 2003 which is claimed not to be compliant and it would seem not to be compliant at least in respect of the delay between when it should have been sent under that Act and the time when it was, a delay of almost 11 months since the time prescribed by the Act and nine months since the expiration of the limitation period under the Limitation of Actions Act.

On the material available to me at present, there has been no reasonable excuse offered for the delay in providing the notice required under the Act. Her instructing solicitor has sworn an affidavit from which I can infer that she may not have become aware of some information relevant to her potential claim until a news article was published on 18 June 2003 but there is little explanation of the delay since then apart from references to the need to have interviews conducted in the presence of trained counsellors and difficulties for those counsellors in making contact with certain claimants whose applications I have heard today, except Sarah Davison.

In those circumstances, I cannot be persuaded that there has been an explanation for the delay and, in saying that, it is relevant, I believe, to bear in mind that on page 1 of a letter dated 9 December 2003 from the Crown Solicitor to the applicant's solicitors the point was taken that she had failed to provide a reasonable excuse for her delay in providing her notice of claim. There has been no response to that letter.

Now, none of that really affects my decision in respect of section 43 which, for similar reasons as those I have just given in the matter of Jason Orr, does not seem to me to be apt to be used as a means of extending a limitation period. Section 77D might have that possibility in certain circumstances but, in the absence of a reasonable explanation for the delay in complying with the Personal Injuries Proceedings Act, I doubt that I have the power under section 77D without such evidence to extend the period of limitation pursuant to its provisions or that I should do so.

Accordingly, I dismiss Sarah Davison's application also.

And the last one is Alexandra Orr's application. For similar reasons to those I have expressed in respect of Sarah Davison, I would dismiss this application.

She was born on 20 November 1981 and claims to have suffered abuse between 1990 and 1992. Her limitation period expired on 20 November 2002.

HIS HONOUR: A notice of claim issued in respect of her claim this morning, 17 December 2003, which is again out of time under the Personal Injuries Proceedings Act and on the material before me there has been no reasonable excuse provided for that delay and, for similar reasons to those I have given in respect of Sarah Davison, I dismiss her application.

HIS HONOUR: I will dismiss each application with costs.

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Editorial Notes

  • Published Case Name:

    Jason Thomas Orr v State of Queensland

  • Shortened Case Name:

    Orr v State of Queensland

  • MNC:

    [2003] QSC 463

  • Court:

    QSC

  • Judge(s):

    Douglas J

  • Date:

    17 Dec 2003

Litigation History

No Litigation History

Appeal Status

No Status