Ballingall v WorkCover Queensland - [2017] QSC 133

SUPREME COURT OF QUEENSLAND

CITATION:

Ballingall v WorkCover Queensland & Ors [2017] QSC 133

PARTIES:

CHRISTOPHER LEE BALLINGALL
(Applicant)

v

WORKCOVER QUEENSLAND
(First Respondent)

And

SDV LONGWALL PTY LTD (EXTERNALLY ADMINSTERED)

(Second Respondent)

And

BM ALLIANCE COAL OPERATIONS PTY LTD

(Third Respondent)

FILE NO:

S238 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Mackay

DELIVERED ON:

23 June 2017

DELIVERED AT:

Rockhampton

HEARING DATE:

6 June 2017

JUDGE:

McMeekin J

ORDERS:

1.   The applicant is directed to bring in minutes of the necessary order within seven days.

2.   If there is a disagreement about the orders proposed the parties have liberty to apply.

3.   In the absence of the filing of written submissions within seven days costs are reserved.

CATCHWORDS:

LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – where the applicant wishes to pursue a claim for damages against the respondents – where the limitation period for the claim has expired – whether a prima facie case is shown – whether the applicant was in possession of sufficient information before the critical dates – whether the respondents would suffer prejudice at trial – whether time should be extended.

Limitation of Actions Act 1974 (Qld), s 30, s 31

Personal Injuries Proceedings Act 2003 (Qld)

Berg v Kruger Enterprises [1990] 2 Qd R 301, cited

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, followed

Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306, cited

Dick v University of Queensland [2000] 2 Qd R 476, followed

Healy v Femdale Pty Ltd [1993] QCA 210, followed

Hintz v WorkCover Qld & Anor [2007] QCA 72, cited

Hoy & McCormack v Honan [1997] QCA 250, cited

Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325, followed

NF v State of Queensland [2005] QCA 110, followed

Sauer v Allianz Australia Insurance Limited [2006] NSWCA 364, cited

State of Queensland v Stephenson (2006) 226 CLR 197; 227 ALR 17; [2006] HCA 20, cited

Sugden v Crawford [1989] 1 Qd R 683, considered

Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, followed

COUNSEL:

GW Diehm QC for the applicant

SJ Deaves for the first and second respondents

MT O’Sullivan for the third respondent

SOLICITORS:

Macrossan and Amiet Solicitors for the applicant

Dibbs Barker for the first and second respondents

HWL Ebsworth Lawyers for the third respondent

McMeekin J: Christopher Lee Ballingall applies under s 31 of the Limitation of Actions Act 1974 (Qld) (“the Act”) to extend the limitation period applicable to a claim for damages that he seeks to pursue against the respondents.

The limitation period within which he was permitted to commence such a proceeding expired on 20 June 2016 without action being commenced. A PIPA[1] Notice of Claim against the third respondent was deemed compliant on 5 January 2017. A Notice of Claim under the…

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 Ballingall v WorkCover Queensland

Details

AGLC: Ballingall v WorkCover Queensland [2017] QSC 133
Case: [2017] QSC 133
Decision Date: 23 June 2017

CaseChat Overview and Summary

In the case of Ballingall v WorkCover Queensland, the dispute centred on the applicant's attempt to pursue a claim for damages against the respondents, despite the expiration of the statutory limitation period. The Court of Appeal was tasked with determining whether the applicant had a prima facie case for the extension of the limitation period, whether the applicant had been in possession of sufficient information prior to the expiration of the critical dates, and whether the respondents would suffer prejudice at the trial if the period were extended. The applicant argued that the statutory provisions for the extension of time were applicable, and that the respondents would not be prejudiced by the extension.

The court examined the statutory provisions and the circumstances surrounding the applicant's knowledge of the injury and the identity of the tortfeasor. It was noted that the applicant had been in possession of sufficient information to bring a claim before the limitation period expired, but had failed to do so. The court also considered whether the respondents would suffer prejudice at trial if the limitation period were extended, and found that there was no evidence to suggest that the respondents would be prejudiced by the extension. The court concluded that the applicant had a prima facie case for the extension of the limitation period, and that the application should be granted.

The court's reasoning was based on the statutory provisions and the circumstances of the case. It was determined that the applicant had a prima facie case for the extension of the limitation period, and that the respondents would not be prejudiced by the extension. As such, the court granted the application and directed the applicant to bring in the necessary order within seven days. If there was a disagreement about the orders proposed, the parties had liberty to apply. In the absence of the filing of written submissions within seven days, costs were reserved.

Orders

Orders of the court

1. The applicant is directed to bring in minutes of the necessary order within seven days.

2. If there is a disagreement about the orders proposed the parties have liberty to apply.

3. In the absence of the filing of written submissions within seven days costs are reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Ballingall v WorkCover Queensland & Ors [2017] QSC 133
PARTIES:	CHRISTOPHER LEE BALLINGALL (Applicant) v WORKCOVER QUEENSLAND (First Respondent) And SDV LONGWALL PTY LTD (EXTERNALLY ADMINSTERED) (Second Respondent) And BM ALLIANCE COAL OPERATIONS PTY LTD (Third Respondent)
FILE NO:	S238 of 2017
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland at Mackay
DELIVERED ON:	23 June 2017
DELIVERED AT:	Rockhampton
HEARING DATE:	6 June 2017
JUDGE:	McMeekin J
ORDERS:	1. The applicant is directed to bring in minutes of the necessary order within seven days. 2. If there is a disagreement about the orders proposed the parties have liberty to apply. 3. In the absence of the filing of written submissions within seven days costs are reserved.
CATCHWORDS:	LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – where the applicant wishes to pursue a claim for damages against the respondents – where the limitation period for the claim has expired – whether a prima facie case is shown – whether the applicant was in possession of sufficient information before the critical dates – whether the respondents would suffer prejudice at trial – whether time should be extended. Limitation of Actions Act 1974 (Qld), s 30, s 31 Personal Injuries Proceedings Act 2003 (Qld) Berg v Kruger Enterprises [1990] 2 Qd R 301, cited Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, followed Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306, cited Dick v University of Queensland [2000] 2 Qd R 476, followed Healy v Femdale Pty Ltd [1993] QCA 210, followed Hintz v WorkCover Qld & Anor [2007] QCA 72, cited Hoy & McCormack v Honan [1997] QCA 250, cited Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325, followed NF v State of Queensland [2005] QCA 110, followed Sauer v Allianz Australia Insurance Limited [2006] NSWCA 364, cited State of Queensland v Stephenson (2006) 226 CLR 197; 227 ALR 17; [2006] HCA 20, cited Sugden v Crawford [1989] 1 Qd R 683, considered Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, followed
COUNSEL:	GW Diehm QC for the applicant SJ Deaves for the first and second respondents MT O’Sullivan for the third respondent
SOLICITORS:	Macrossan and Amiet Solicitors for the applicant Dibbs Barker for the first and second respondents HWL Ebsworth Lawyers for the third respondent