Roberts v Wayne Taylor Transport Pty Ltd
[2005] QDC 114
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- Unreported Judgment
- Roberts v Wayne Taylor Transport Pty Ltd[2005] QDC 114
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Roberts v Wayne Taylor Transport Pty Ltd[2005] QDC 114
Roberts v Wayne Taylor Transport Pty Ltd[2005] QDC 114
DISTRICT COURT | No 1258 of 2005 |
CIVIL JURISDICTION
JUDGE DEARDEN
WAYNE MORRIS ROBERTS | Applicant |
and
WAYNE TAYLOR TRANSPORT PTY LTD ABN 920 5243 9120 | Respondent |
BRISBANE
DATE 29/04/2005
JUDGMENT
HIS HONOUR: This is an application pursuant to section 43(1) of the Personal Injuries Proceedings Act by which the applicant Wayne Roberts seeks leave to start a proceeding in the District Court, Queensland against Wayne Taylor Transport Pty Ltd in respect of injuries sustained by the applicant on 2 May 2002 at Bexhill, New South Wales. The proceeding must be started by 2 May 2005.
The respondent's counsel, Mr McDougall, sets out in his written submissions with some significant detail the potential actions available to the applicant in tort and in breach of contract and the potential effect of workers compensation legislation (both Queensland and New South Wales), the Motor Accident Insurance Act (Queensland) and the Personal Injuries Proceedings Act (Queensland).
In summary, Mr McDougall, submits that:
- 1)there is no satisfactory explanation for the delay in delivering a notice of claim under the Personal Injuries Proceedings Act; and
- 2)the claim has no reasonable prospects of success.
The applicant's counsel, Mr Thomae, submits:
- 1)there is no requirement for the Court to be satisfied that a reasonable excuse exists for the delay (see Gillam -v- The State of Queensland [2004] 2 QdR 251 per Jerrard JA at page 25 8);
- 2)that the applicant's solicitors have acknowledged their mistake in not pursuing the Personal Injuries Proceedings Act processes in a timely fashion;
- 3)delay arising from negligence of the solicitors should not be ascribed to the client (Morrison-Gardener -v- Car Choice Pty Ltd and Anor [2004] QSC 124 per Holmes J, affirmed in the Court of Appeal);
- 4)that no prejudice will be suffered by the respondent;
- 5)that the decision of Dutney J in Francis -v- Emijay Pty Ltd [2005] QSC 39 indicates that, at the least, his client has an arguable chance of recovering damages against the respondent at common law; and
- 6)that refusing the application would shut the applicant out forever from any cause of action against the respondent.
Mr Thomae acknowledges the applicant may not ultimately succeed in his action but submits that the applicant should, in the exercise of my discretion, be given the opportunity of commencing proceedings. I have carefully assessed the competing considerations which involve complex issues of jurisdiction and statutory interpretation.
I have been persuaded that the applicant does on the face of the material before me have an arguable of recovering damages against the defendant and his failure to commence proceedings to date can clearly be ascribed to the conduct of his matter by his solicitors rather than the conduct of the applicant himself. I find that there is an urgent need for the applicant to commence proceedings (see Personal Injuries Proceedings Act section 43 (1)).
Accordingly, I order as follows:
- 1)That pursuant to section 43 (1) of the Personal Injuries Proceedings Act 2003 (“The Act”), the applicant be given leave to commence proceedings against the respondent by 2 May 2005.
- 2)That the applicant's proceedings started by leave be stayed until the applicant has complied with chapter 2 part 1 of the Act, or the proceedings is discontinued or otherwise ends.
- 3)Each party be at liberty to apply by giving five business days notice in writing to the other party.
- 4)That costs be reserved.
Is there anything else arising out of that, gentlemen?
MR McDOUGALL: No, your Honour.
MR THOMAE: No, your Honour.
HIS HONOUR: Thank you, Mr Thomae. Thank you for your appearance this morning. I will note for the record that the order that I have made is in accordance with the draft order that you supplied to me at the end of the proceedings when the matter was argued, Mr Thomae, which I have initialled and placed with the papers.
MR THOMAE: Thank you, your Honour.