Winterburn v Vinidex Pty Ltd
[2006] QSC 51
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- Winterburn v Vinidex Pty Ltd[2006] QSC 51
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Winterburn v Vinidex Pty Ltd[2006] QSC 51
Winterburn v Vinidex Pty Ltd[2006] QSC 51
SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION
JONES J
No 49 of 2006
RODNEY MALCOM WINTERBURNApplicant and VINIDEX PTY LTD and Respondents |
CAIRNS ..DATE 03/03/2006 |
[1] HIS HONOUR: This is an application by the plaintiff in proceedings pursuant to section 43 of the Personal Injuries Proceedings Act 2002 ("the Act") for leave to commence proceedings against the first respondent despite noncompliance with section 9 of the Act.
[2] The plaintiff was injured in the course of his employment on the 6th of March 2003. As a consequence, his action, to be within ordinary periods of limitation, would need to commence today or on Monday, hence there is considerable urgency in the determination of this application.
[3] The application is opposed by the first respondent on the basis that there is an alternative provided in the Act for overcoming the basis of non-compliance. The basis is that the applicant could rely upon section 59(2) of the Act providing for a six month extension of the limitation period. This would require the deliver of a compliant notice before the expiration of limitation in one business day's time.
[4] Such an opportunity identified in the submissions which have been read on behalf of the first respondent is almost illusory. It is really unnecessary to further consider the prospect of this occurring given the broad discretion which the Court has in granting leave of the kind that is sought. Such a discretion was identified particularly in the case of Gillam versus State of Queensland and Watpac 2003 QCA 566. See particularly the judgment of Dutney J, paragraphs 36 to 38.
[5] I have considered all the circumstances. It seems to me the proper course is to allow the applicant to commence the proceedings, to stay the proceedings then until there has been compliance with the section, and to allow those matters of compliance to be considered in an appropriate way, rather than once which would put the applicant at risk of (a) further litigation, and (b) dismissal of the claim.
[6] I will make the following orders:
The applicant be granted leave pursuant to section 33 of the Personal Injuries Proceedings Act 2002 to commence proceedings against the first respondent for damages for personal injuries sustained on 6 March 2002 despite his non-compliance with the requirements of section 9 of the said Act.
I order that the leave to commence proceedings be on the condition that the proceedings be stayed until the applicant complies with the requirements of part 1 of chapter 2 of the said Act or the proceeding is discontinued or otherwise ends.
I make no order as to costs.