Blows v Townsville City Council - [2018] QSC 234

SUPREME COURT OF QUEENSLAND

CITATION:

Blows v Townsville City Council [2018] QSC 234

PARTIES:

JEFFREY IAN BLOWS

(applicant)

v
TOWNSVILLE CITY COUNCIL
ABN 44 741 992 072

(respondent)

FILE NO/S:

BS No 5109 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 October 2018

DELIVERED AT:

Brisbane

HEARING DATE:

2 October 2018

JUDGE:

Douglas J

ORDER:

The application is dismissed with costs.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – EVIDENCE TO ESTABLISH RIGHT OF ACTION – where the applicant was an employee of the respondent – where the applicant’s employment was terminated – where the Queensland Industrial Relations Commission found that the applicant’s termination was invalid – where the applicant alleges that he suffered psychiatric injury as a result of the invalid termination of his employment – where a statutory scheme prevented the applicant from being entitled to seek damages from his employer until he obtained a notice from his employer – where the applicant obtained the notice after the limitation period expired – where the applicant sought an extension under s 31(2) of the Limitation of Actions Act 1974 (Qld) – whether there was evidence to establish a right of action in accordance with s 31(2)(b) – whether the respondent owed the applicant a duty of care

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – GENERALLY – whether the issuing of the notice outside the limitation period was a “material fact of a decisive character” for the purposes of s 31(2)(a) of the Limitation of Actions Act 1974 (Qld)

Limitation of Actions Act 1974 (Qld), s 31
Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 237, s 302

C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390; [2009] HCA 47, cited
Charlton v WorkCover Queensland [2007] 2 Qd R 421; [2006] QCA 498, distinguished
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, cited
Govier v The Uniting Church in Australia Property Trust (Q) [2017] QCA 12, followed
Hintz v WorkCover Queensland [2007] QCA 72, followed
State of New South Wales v Paige (2002) 60 NSWLR 371; [2002] NSWCA 235, followed

COUNSEL:

M Grant-Taylor QC for the applicant

G Diehm QC with J Wiltshire for the respondent

SOLICITORS:

Littles Lawyers for the applicant

Keir Steele Lawyers for the respondent

The applicant had been employed as a parking unit officer with the respondent for 20 years until June 2014 when he was presented with a “show cause” letter alleging misconduct against him. He was dismissed from his employment by a letter dated 24 June 2014. He then sought redress in the Queensland Industrial Relations Commission which, on 15 June 2016, declared that his termination was invalid on the basis that it…

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.

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Details

Case: [2018] QSC 234
Decision Date: 12 October 2018

CaseChat Overview and Summary

In the case of Blows v Townsville City Council, the applicant sought an extension of the limitation period for bringing a claim for damages against the respondent, Townsville City Council. The applicant, who was formerly employed by the respondent, alleged that he suffered psychiatric injury as a result of the invalid termination of his employment, which was found to be invalid by the Queensland Industrial Relations Commission. The statutory scheme in Queensland prevented the applicant from being entitled to seek damages from his employer until he obtained a notice from his employer. The applicant obtained the notice after the limitation period had expired. The applicant sought an extension under s 31(2) of the Limitation of Actions Act 1974 (Qld). The court had to determine whether there was evidence to establish a right of action in accordance with s 31(2)(b) and whether the respondent owed the applicant a duty of care.

The court considered whether the respondent owed the applicant a duty of care in the law of negligence with respect to the conduct of an investigation into his behaviour and the manner of his dismissal. The applicant claimed that the investigation and his dismissal had precipitated deterioration in his mental state and the development of a marked aggravation of his depression. The respondent argued that the applicant had failed to show a prima facie case and that any relevant duty of care was owed by the respondent to him. The court considered whether the issuing of the notice outside the limitation period was a "material fact of a decisive character" for the purposes of s 31(2)(a) of the Limitation of Actions Act 1974 (Qld). The court concluded that the applicant had not established a right of action in accordance with s 31(2)(b) of the Limitation of Actions Act 1974 (Qld) and that the respondent did not owe the applicant a duty of care.

The court found that the applicant had not established a right of action in accordance with s 31(2)(b) of the Limitation of Actions Act 1974 (Qld). The court held that the applicant had not shown a prima facie case that the respondent owed him a duty of care in the law of negligence. The court considered that the area of unfair dismissals was heavily regulated in both the State and Commonwealth contexts and that it represented a particular and carefully calibrated balancing of the conflicting interests involved. The court held that the expansion of the law of tort to matters concerning the creation and termination of a contract of employment may distort the balance of conflicting interests found to be appropriate as a matter of contract or by intervention of statute. The court held that matters concerning the creation and termination of a contract of employment can, in its opinion, properly be left to the law of contract, subject to the extensive statutory modification that the parliaments have introduced into this specific area of contract law.

The court dismissed the application with costs. The court held that the applicant had not established a right of action in accordance with s 31(2)(b) of the Limitation of Actions Act 1974 (Qld) and that the respondent did not owe the applicant a duty of care. The court found that the applicant had failed to show a prima facie case and that the issuing of the notice outside the limitation period was not a "material fact of a decisive character" for the purposes of s 31(2)(a) of the Limitation of Actions Act 1974 (Qld). The court held that the applicant was not entitled to an extension of the limitation period pursuant to s 31 of the Limitation of Actions Act.

Orders

Orders of the court

The application is dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The respondent submits, however, that the applicant has failed to show a “prima facie case” and, in particular, that any relevant duty of care was owed by the respondent to him. It also submits that, as the applicant could have applied for an NOA more than six months before the expiration of the ordinary period of limitation and thus could have established a right to commence a proceeding for damages, he is not now entitled to an extension of the limitation period pursuant to s 31 of the Limitation of Actions Act. Evidence to establish the right of action - duty of care The first question is whether the respondent owed him a duty of care in the law of negligence with respect to the conduct of an investigation into his behaviour and, in turn, the manner of his dismissal. The investigation and his dismissal are said to have precipitated deterioration in his mental state and the development of a marked aggravation of his depression.[1] The personal injuries he claims to have suffered are described in his notice of claim for damages dated 5 December 2017 as having been suffered as a result of his being served with an invitation to show cause why he should not be dismissed and his dismissal, from which he says he developed a psychiatric illness since diagnosed as a major depressive disorder which he attributes to the respondent’s negligence.[2][1] See the report of Dr Caniato dated 21 July 2017, ex RR-25 to the affidavit of Mr Ravat filed 30 July 2018 at p 98 of the annexures to that affidavit.[2] See ex RR-32 to the affidavit of Mr Ravat filed 30 July 2018 at p 129 of the annexures. The respondent’s submission is made in reliance on decisions in State of New South Wales v Paige[3] and Govier v The Uniting Church in Australia Property Trust (Q).[4] The decision in State of New South Wales v Paige dealt with whether a duty of care existed in an employer to provide a safe system of work encompassing the provision of a safe system of investigation and decision-making with respect to procedures for discipline and termination of employment pursuant to New South Wales legislation so as to avoid psychiatric injury. It was described as a novel duty and inconsistent with the heavy regulation of unfair dismissals at both Commonwealth and State levels across Australia. Spigelman CJ for the New South Wales Court of Appeal on this issue went on to say:[5]“[154]The area of unfair dismissals is heavily regulated in both the State and Commonwealth contexts. It represents a particular and carefully calibrated balancing of the conflicting interests involved namely, between preserving the expectations of employees on the one hand and enabling employers to create jobs and wealth, on the other hand. The arguments and factors accepted in Johnson v Unisys are directly applicable to the legislation examined above and the same conclusion, namely a refusal to expand the duty of care in negligence to provide an alternative cause of action for unfair dismissals, should be the result.[155]The expansion of the law of tort to matters concerning the creation and termination of a contract of employment, as distinct from performance under the contract, may distort the balance of conflicting interests found to be appropriate as a matter of contract or by intervention of statute. Where, as here, the courts are asked to create a novel duty of care, the courts should refrain from doing so where there is such a well developed alternative mechanism for adjusting the interests involved. Matters concerning the creation and termination of a contract of employment can, in my opinion, properly be left to the law of contract, subject to the extensive statutory modification that the parliaments have introduced into this specific area of contract law.”[3] (2002) 60 NSWLR 371.[4] [2017] QCA 12.[5] (2002) 60 NSWLR 371, 400 at [154]-[155]; see also 405 at [182], 416 at [330] and 419 at [358].

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Blows v Townsville City Council [2018] QSC 234
PARTIES:	JEFFREY IAN BLOWS (applicant) v TOWNSVILLE CITY COUNCIL ABN 44 741 992 072 (respondent)
FILE NO/S:	BS No 5109 of 2017
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	12 October 2018
DELIVERED AT:	Brisbane
HEARING DATE:	2 October 2018
JUDGE:	Douglas J
ORDER:	The application is dismissed with costs.
CATCHWORDS:	LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – EVIDENCE TO ESTABLISH RIGHT OF ACTION – where the applicant was an employee of the respondent – where the applicant’s employment was terminated – where the Queensland Industrial Relations Commission found that the applicant’s termination was invalid – where the applicant alleges that he suffered psychiatric injury as a result of the invalid termination of his employment – where a statutory scheme prevented the applicant from being entitled to seek damages from his employer until he obtained a notice from his employer – where the applicant obtained the notice after the limitation period expired – where the applicant sought an extension under s 31(2) of the Limitation of Actions Act 1974 (Qld) – whether there was evidence to establish a right of action in accordance with s 31(2)(b) – whether the respondent owed the applicant a duty of care LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – GENERALLY – whether the issuing of the notice outside the limitation period was a “material fact of a decisive character” for the purposes of s 31(2)(a) of the Limitation of Actions Act 1974 (Qld) Limitation of Actions Act 1974 (Qld), s 31 Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 237, s 302 C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390; [2009] HCA 47, cited Charlton v WorkCover Queensland [2007] 2 Qd R 421; [2006] QCA 498, distinguished Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, cited Govier v The Uniting Church in Australia Property Trust (Q) [2017] QCA 12, followed Hintz v WorkCover Queensland [2007] QCA 72, followed State of New South Wales v Paige (2002) 60 NSWLR 371; [2002] NSWCA 235, followed
COUNSEL:	M Grant-Taylor QC for the applicant G Diehm QC with J Wiltshire for the respondent
SOLICITORS:	Littles Lawyers for the applicant Keir Steele Lawyers for the respondent