Andrews v BDS Technical Services P/L - [2003] QSC 469

SUPREME COURT OF QUEENSLAND

CITATION:

Andrews v BDS Technical Services P/L & Anor [2003] QSC 469

PARTIES:

GRANT JASON ANDREWS
v
BDS TECHNICAL SERVICES PTY LTD ACN 010 645 619
(first respondent)
NETWORK DESIGN AND CONSTRUCTION LIMITED ACN 086 174 781
(second respondent)

FILE NO:

SC No 10713 of 2003

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 December 2003

DELIVERED AT:

Brisbane

HEARING DATE:

15 December 2003

JUDGE:

Douglas J

ORDER:

Order that the applicant have leave to commence proceedings against the first respondent pursuant to s. 77D(2)(b) of the Personal Injuries Proceedings Act 2002 not later than the end of 18 December 2003.

Authorise the applicant to proceed further with his claim despite his non-compliance with the time for giving notice pursuant to s. 9 of the Personal Injuries Proceedings Act 2002 and give leave to him to commence proceedings against the second respondent pursuant to s. 77D(2)(b) not later than 18 December 2003.

CATCHWORDS:

LIMITATION OF ACTIONS – PERSONAL INJURIES – where applicant seeks leave to commence proceedings against first respondent pursuant to s 77D PIPA – where applicant previously commenced proceedings against first respondent under WorkCover Queensland Act - where applicant was not a ‘worker’ within meaning of WorkCover Queensland Act – whether applicant’s common law rights have been abolished by WorkCover Queensland Act – whether proceedings commenced pursuant to WorkCover Queensland Act a “proceeding based on the claim” for purposes of s 77D(1)(b) PIPA – whether applicant should be given leave to commence proceedings against first respondent pursuant to s77D(2)(b) PIPA

LIMITATION OF ACTIONS – PERSONAL INJURIES - where applicant seeks leave to commence proceedings against second respondent pursuant to s 77D PIPA – where notice of claim non-compliant as delivered out of time – where second respondent not a party to proceedings under WorkCover Queensland Act and had no previous notice of claim – whether having regard to circumstances applicant should be given leave to proceed with claim pursuant to s 18(1)(c)(ii) despite non-compliance – whether applicant should be given leave to commence proceedings against second respondent pursuant to s 77D(2)(b) PIPA

COUNSEL:

R Treston for the applicant
M Evans for the first respondent
S Farrell for the second respondent

SOLICITORS:

Sciacca’s Lawyers & Consultants for the applicant
Porter Davies for the first respondent
Sparke Helmore Solicitors for the second respondent

DOUGLAS J: The applicant was injured at work on 7 October 1999 and commenced earlier proceedings in this Court on 19 September 2002 relying in part on an allegation that he was a worker and that the first respondent to this application was his employer within the meaning of the WorkCover Queensland Act 1996. The point was taken against him in those proceedings that he was not a worker because he was not a PAYE taxpayer. That point appears to have been well made. After taking counsel’s advice the applicant then issued a part 1 notice of claim under the Personal Injuries Proceedings Act 2002 (“PIPA”) on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Andrews v BDS Technical Services P/L

Details

AGLC: Andrews v BDS Technical Services P/L [2003] QSC 469
Case: [2003] QSC 469
Decision Date: 17 December 2003

CaseChat Overview and Summary

The case of Andrews v BDS Technical Services P/L involved the applicant seeking leave to commence proceedings against two respondents under section 77D of the Personal Injuries Proceedings Act 2002. The applicant had previously attempted to bring proceedings against the first respondent under the WorkCover Queensland Act but was not recognised as a ‘worker’ within the meaning of that Act. The applicant was seeking to revive his common law rights which he believed had been extinguished by the WorkCover Queensland Act. Additionally, the applicant sought to bring proceedings against the second respondent, who had not been a party to the previous WorkCover Queensland Act proceedings and had no prior notice of the claim, despite the notice of claim being delivered out of time.

The central legal issues before the court were whether the applicant's common law rights had been abolished by the WorkCover Queensland Act and whether the proceedings commenced under that Act constituted a ‘proceeding based on the claim’ for the purposes of section 77D(1)(b) of the Personal Injuries Proceedings Act 2002. Furthermore, the court had to determine whether the applicant should be granted leave to proceed with his claim against the first respondent and whether he should be allowed to commence proceedings against the second respondent despite the non-compliance with the time for giving notice.

The court determined that the applicant’s common law rights had not been extinguished by the WorkCover Queensland Act, as he was not a ‘worker’ within the meaning of that Act. Consequently, the applicant was not precluded from seeking leave to bring proceedings against the first respondent under section 77D(2)(b) of the Personal Injuries Proceedings Act 2002. The court also found that despite the non-compliance with the notice period, the applicant should be granted leave to proceed against the second respondent. This decision was based on the circumstances of the case, where it was deemed just and equitable to allow the applicant to proceed with his claim. Therefore, the court granted the applicant leave to commence proceedings against both respondents within specified timeframes.

The court ordered that the applicant be granted leave to commence proceedings against the first respondent not later than 18 December 2003 and authorised the applicant to proceed further with his claim despite the non-compliance with the time for giving notice under section 9 of the Personal Injuries Proceedings Act 2002. Additionally, the applicant was granted leave to commence proceedings against the second respondent not later than 18 December 2003.

Orders

Orders of the court

Order that the applicant have leave to commence proceedings against the first respondent pursuant to s. 77D(2)(b) of the Personal Injuries Proceedings Act 2002 not later than the end of 18 December 2003.

Authorise the applicant to proceed further with his claim despite his non-compliance with the time for giving notice pursuant to s. 9 of the Personal Injuries Proceedings Act 2002 and give leave to him to commence proceedings against the second respondent pursuant to s. 77D(2)(b) not later than 18 December 2003.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Andrews v BDS Technical Services P/L & Anor [2003] QSC 469
PARTIES:	GRANT JASON ANDREWS v BDS TECHNICAL SERVICES PTY LTD ACN 010 645 619 (first respondent) NETWORK DESIGN AND CONSTRUCTION LIMITED ACN 086 174 781 (second respondent)
FILE NO:	SC No 10713 of 2003
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	17 December 2003
DELIVERED AT:	Brisbane
HEARING DATE:	15 December 2003
JUDGE:	Douglas J
ORDER:	Order that the applicant have leave to commence proceedings against the first respondent pursuant to s. 77D(2)(b) of the Personal Injuries Proceedings Act 2002 not later than the end of 18 December 2003. Authorise the applicant to proceed further with his claim despite his non-compliance with the time for giving notice pursuant to s. 9 of the Personal Injuries Proceedings Act 2002 and give leave to him to commence proceedings against the second respondent pursuant to s. 77D(2)(b) not later than 18 December 2003.
CATCHWORDS:	LIMITATION OF ACTIONS – PERSONAL INJURIES – where applicant seeks leave to commence proceedings against first respondent pursuant to s 77D PIPA – where applicant previously commenced proceedings against first respondent under WorkCover Queensland Act - where applicant was not a ‘worker’ within meaning of WorkCover Queensland Act – whether applicant’s common law rights have been abolished by WorkCover Queensland Act – whether proceedings commenced pursuant to WorkCover Queensland Act a “proceeding based on the claim” for purposes of s 77D(1)(b) PIPA – whether applicant should be given leave to commence proceedings against first respondent pursuant to s77D(2)(b) PIPA LIMITATION OF ACTIONS – PERSONAL INJURIES - where applicant seeks leave to commence proceedings against second respondent pursuant to s 77D PIPA – where notice of claim non-compliant as delivered out of time – where second respondent not a party to proceedings under WorkCover Queensland Act and had no previous notice of claim – whether having regard to circumstances applicant should be given leave to proceed with claim pursuant to s 18(1)(c)(ii) despite non-compliance – whether applicant should be given leave to commence proceedings against second respondent pursuant to s 77D(2)(b) PIPA
COUNSEL:	R Treston for the applicant M Evans for the first respondent S Farrell for the second respondent
SOLICITORS:	Sciacca’s Lawyers & Consultants for the applicant Porter Davies for the first respondent Sparke Helmore Solicitors for the second respondent