February 20, 2013

A restaurant patron injured when his chair collapsed mid-meal in January 2009, was last week stripped of the right to sue Toowoomba’s legendary Weis restaurant over an out-of-time lawsuit.
NSW farmer, Allan Gillogly had won from the Supreme Court an extension of the three-year injury compensation time barrier in June 2012, on the grounds that he had only lately been able to discover the corporate identity of the restaurant proprietor.

He swore that the chair on which he had been seated and which collapsed to the floor, appeared to have “previously been broken” and had been unsuccessfully repaired with glue.

After years of apparent vacillation about giving his NSW solicitor the go ahead to bring a claim, he finally consulted a Queensland lawyer on 11 January 2012, just one day before the claim period expired. With no time at all even to begin the pre-court procedures mandated by the Personal Injuries Proceedings Act, his solicitors filed an originating application two days later (one day after the limitation period had expired), seeking an extension and for leave to start proceedings under PIPA s 43.

This strategy ultimately proved fruitless with the appeal judges deciding – despite agreeing there was an arguable case – that the accurate corporate identity of the restaurant proprietorship “was not a material fact of a decisive character” the recent discovery of which could justify the exercise of discretion to extend time in the plaintiff’s favour.

After all, the plaintiff could simply have commenced proceedings against “Weis restaurant” given that it is permissible for defendants in Queensland civil proceedings to be identified by way of firm name regardless of whether or not such name is registered.

In any event, it could not be said that the legal identity of the owner was beyond the plaintiff’s means to discover by reasonable enquiry. You could, for example, have instructed his solicitor to identify the proprietor “by the simple expedient of a business name search”. All he could eat was all Allan could get.

Weis Restaurant Toowoomba v Gillogly [2013] QCA 021 Brisbane Margaret McMurdo P and Fraser JA and Daubney J 15/02/2013

Categories: Personal Injury , Litigation & Law Practice

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