Dale Erwin-Jones v Latitude Underwriting Pty Limited [2016] NSWDC 34

Dale Erwin-Jones v Latitude Underwriting Pty Limited [2016] NSWDC 34

Section 59 of the Personal Injuries Proceedings Act 2002 (QLD) bears upon the existence, extent and enforceability of the plaintiff's remedy and is substantive law of Queensland applicable to the New South Wales proceedings for a Queensland tort. It operates consistently with s 11 of the Limitation of Actions Act 1974 (QLD) by allowing a claimant who gave a complying Part 1 Notice of Claim within the limitation period to obtain leave after expiry. Because the plaintiff gave a complying notice within the three year limitation period and the defendant relied on no presumptive or actual prejudice, the court exercised its discretion to grant leave nunc pro tunc.

Jurisdiction
Australia
Judgment Date
18 February 2016
Procedural Posture
Civil Personal Injury Claim for Damages Arising Out of a Slip Accident in Queensland / Notice of Motion Seeking Leave to Commence Proceedings After Expiration of the Limitation Period, Nunc Pro Tunc
Outcome
Leave granted to extend time for the plaintiff to commence proceedings, nunc pro tunc.
Legal Topics
['extension of Limitation Period' 'substantive Law of Place of Tort' 'personal Injuries Proceedings Act 2002 (qld) S 59' 'limitation of Actions Act 1974 (qld) S 11' 'lex Loci Delicti']
['civil Procedure' 'limitation of Actions' 'conflict of Laws' 'personal Injury'] ['extension of Limitation Period' 'substantive Law of Place of Tort' 'personal Injuries Proceedings Act 2002 (qld) S 59' 'limitation of Actions Act 1974 (qld) S 11' 'lex Loci Delicti']

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Procedural Posture

Civil Personal Injury Claim for Damages Arising Out of a Slip Accident in Queensland / Notice of Motion Seeking Leave to Commence Proceedings After Expiration of the Limitation Period, Nunc Pro Tunc

Legal Issues

  1. 1 ['Whether s 59 of the Personal Injuries Proceedings Act 2002 (QLD) applied in proceedings commenced in the District Court of New South Wales for a tort occurring in Queensland.' 'Whether s 59 of the Personal Injuries Proceedings Act 2002 (QLD) is substantive or procedural law.' 'Whether the plaintiff should be granted leave to commence proceedings after the expiration of the three year limitation period.' 'Whether s 59 of the Personal Injuries Proceedings Act 2002 (QLD) is inconsistent with or displaced by s 11 of the Limitation of Actions Act 1974 (QLD).']

Ratio Decidendi

Section 59 of the Personal Injuries Proceedings Act 2002 (QLD) bears upon the existence, extent and enforceability of the plaintiff's remedy and is substantive law of Queensland applicable to the New South Wales proceedings for a Queensland tort. It operates consistently with s 11 of the Limitation of Actions Act 1974 (QLD) by allowing a claimant who gave a complying Part 1 Notice of Claim within the limitation period to obtain leave after expiry. Because the plaintiff gave a complying notice within the three year limitation period and the defendant relied on no presumptive or actual prejudice, the court exercised its discretion to grant leave nunc pro tunc.

Court Disposition

Leave granted to extend time for the plaintiff to commence proceedings, nunc pro tunc.

Orders

  • ['The plaintiff is granted leave to commence proceedings after the expiration of the three year limitation period pursuant to s 59(2) of the Personal Injuries Proceedings Act 2002 (QLD), nunc pro tunc, by filing her Statement of Claim on 14 July 2014.' "The costs of the Notice of Motion be the plaintiff's costs in...