Bird v Coco's Fresh Food Market
[2004] QDC 278
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- Bird v Coco's Fresh Food Market[2004] QDC 278
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Bird v Coco's Fresh Food Market[2004] QDC 278
Bird v Coco's Fresh Food Market[2004] QDC 278
DISTRICT COURT OF QUEENSLAND |
CITATION: Bird v Coco's Fresh Food Market [2004] QDC 278
PARTIES:
PHILIO BIRD | Applicant |
v
COCO'S FRESH FOOD MARKET | Respondent |
FILE NO/S: D2569/2004
DIVISION:
PROCEEDING: Originating application
ORIGINATING COURT: District Court, Brisbane
DELIVERED ON: 29 July 2004
DELIVERED AT: Brisbane
HEARING DATE: 29 July 2004
JUDGE: McGill DCJ
ORDER: Order as per draft.
CATCHWORDS:
NEGLIGENCE - Personal Injuries - pre-litigation procedure - notice of claim - whether reasonable excuse given for delay - costs of application.
Personal Injuries Proceedings Act 2002 s 9(5).
Perdis v Nominal Defendant [2003] QCA 555 - applied.
COUNSEL: | K S Howe for the applicant O Cooper (solicitor) for the respondent. |
SOLICITORS: |
DISTRICT COURT | No 2569 of 2004 |
CIVIL JURISDICTION
JUDGE McGILL SC
PHILIO BIRD | Applicant |
and
COCO'S FRESH FOOD MARKET | Respondent |
BRISBANE
..DATE 29/07/2004
ORDER
HIS HONOUR: This is one of those cases where the cause of action arose prior to the Personal Injuries Proceedings Act and prior to the amendment which made that Act operate retrospectively.
It is alleged that there was an injury suffered on the 31st of July, 2001. Following the amendments, it appears that, for some purposes at least, under the operation of the Act, the injury is taken to have occurred on the 1st of August, 2002.
Although retrospective operation of the Act arose when the amending legislation commenced on 29 August, 2002, the effect of the amendments on the transitional provisions was, in this case, that a notice of claim under the Act was to be given by 29 December, 2002.
In fact the notice of claim was given on the 19th of February, 2003. It was admitted that that notice was not in compliance with the requirements of the Act because the applicant had not provided a reasonable excuse for the delay in delivering the notice of claim. There was an excuse offered in a letter of the 19th of February, 2003, but that did not provide a reasonable excuse.
In one of these cases where the cause of action preceded the Act, it is, I think, a little more difficult than usual to identify exactly what period of delay the applicant has to justify in terms of a reasonable excuse. I think it would be plainly ridiculous to require the applicant to justify the delay from the date of the accident in a case where at the date of the accident, legislation of this kind was not even, I think, a gleam in the legislature's eye.
It seems to me that the earliest possible date from which a delay could begin to run was the 29th of August, 2002, but realistically, I think in one of these cases attention should be concentrated on the period between the 29th of December, 2002, and the date at which the notice is given.
What is clear is that well before December or indeed August 2002, the applicant entrusted the conduct of the matter to her solicitor's and left it in her solicitor's hands. Insofar as there is any failure to jump through the hoops which were imposed by the Personal Injuries Proceedings Act, that really was due to the failure of the solicitors to come up to speed on that Act within the appropriate time.
The only suggestion of delay, which was actually raised in the letter of the 19th of February, on the part of the plaintiff personally is that, when she was sent the claim form for execution by the solicitors on the 21st of January, she subsequently signed it and returned it but without its being properly witnessed.
Assuming that that was her fault, it is only a period of about a week or so delay. It was then sent back to her asking her to re-execute in the presence of a witness, and that was in due course done. So there was really very little delay which was attributable to the applicant personally rather than a failure on the part of her solicitors.
It seems to me then that the matter falls squarely within the decision of the Court of Appeal in Purdis v Nominal Defendant [2003] QCA 555, and accordingly the applicant has given a reasonable excuse for the delay. That would not have been apparent to the respondent on the 19th of February 2003, but it ought certainly to have been apparent once the material in support of this application was served.
I was a little puzzled by the fact that it took so long for this issue to be raised before the Court, but I suppose it was reasonable enough for the solicitors for the applicant to try to resolve the matter in correspondence, which they did.
In circumstances, however, where the respondent has maintained the position that there was a failure to give a reasonable excuse even in argument before me today, I suppose if the application had been made earlier the position would have been the same, so that the delay in making the application, as distinct from the delay in giving the notice of claim form, is really of, I think, little relevance, except that the situation has now arisen where there is an urgent need to commence proceedings for the purpose of the section 43 of the Act because the limitation period is about to expire.
The Court of Appeal has indicated that when that situation has arisen, it is appropriate to make an order under section 43 of the Act. And indeed that particular order is not opposed.
The argument really is in relation to costs. A situation arose where it was necessary for the applicant to come to Court, but on the other hand, in my opinion, the application ought not to have been resisted, and the costs of today have really been incurred by the attitude of the respondent in maintaining that there was a failure to give a reasonable excuse, which argument has failed.
Accordingly, the respondent should pay the costs of today, but otherwise the applicant should pay the costs of the application. But rather than having those separate costs assessed and set off, I propose to make no order as to costs. It is probably dealing with the matter in a broad brush way.
I will declare that the applicant has remedied non-compliance by providing a reasonable excuse, and give leave to start a proceeding despite non-compliance with part 1 of chapter 2 of the Act.
...
HIS HONOUR: I will order in terms of the amended draft.
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