Section 43 PIPA – Leave does not stay the limitation period from expiring or permit an order to extend it

Van de Velde v State of Queensland [2010] QDC 19

His Honour McGill DCJ helpfully considers the authorities regarding the pending expiration of the limitation period when leave pursuant to section 43 of the Personal Injuries Proceedings Act 2002 (Qld) is given:

Davison v State of Queensland (2006) 226 CLR 234

GU v TO [2005] QCA 480

Haley v Roma Town Council [2005] 1 QDR 478

The conclusion reached is:

[22] It seems to me, therefore, that it is at least arguable that the approach adopted by the Court of Appeal in GU v TO is not a matter of dicta but is part of the ratio of that decision. It is therefore binding on me.

[23] Whether or not that is the case, I would respectfully entirely agree with the comments made, particularly by Jerrard J in that matter. It does seem to me quite clear that s 43 does not in itself permit an order to be made extending the limitationperiod and therefore a condition cannot be imposed which purports to permit a proceeding to be commenced on a date later than the date when the limitation period

would expire, or at least such a condition would not have the effect sought by the applicant.

[24] The practical effect, therefore, is that it seems to me that all I can do is give leave to the applicant to start a proceeding in the District Court for damages based on liability for personal injury despite non-compliance with Chapter 2 Part 1 of the Personal Injuries Proceedings Act.  That proceeding, if commenced, will be stayed by subsection (3) of the section. In the circumstances, it does not seem to me that any other condition is necessary or appropriate having regard to the particular circumstances of the case. I suppose the applicant can apply to the Registrar for relief from payment of the ordinary fees.

Brisbane Barrister – David Cormack

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