Castillon v P&O Ports Limited

DISTRICT COURT OF QUEENSLAND

CITATION:	Castillon v P&O Ports Limited [2007] QDC 054
PARTIES:	LEONARD CASTILLON

Plaintiff

V

P&O PORTS LIMITED (A.C.N. 000 049 301)

Defendant

FILE NO/S: 

445 of 2003

DIVISION: 

Civil Jurisdiction

PROCEEDING: 

Application

ORIGINATING 
COURT: 

District Court Southport

DELIVERED ON: 

30 March 2007

DELIVERED AT: 

District Court Rockhampton

HEARING DATE: 

25 January 2007, further written submissions received 7 & 14
February 2007

JUDGE: 

Kingham DCJ

ORDER: 

1.	Leave is granted to add the claim for a recurrence and/or aggravation of bilateral carpal tunnel syndrome.
2.	The limitation period in relation to the claim for bilateral carpal tunnel syndrome is extended until one day after these proceedings were commenced.
3.	This matter is listed for a directions hearing on a date to be fixed after consultation with counsel for the parties.
4.	All other applications are declined.
5.	Costs of these applications will be determined at the directions hearing.

CATCHWORDS: 

PLEADINGS – CAUSE OF ACTION – STRIKE OUT APPLICATION – NEW CAUSE OF ACTION – OUT OF TIME – SUBSTANTIALLY THE SAME FACTS – Claim for damages for recurrence or aggravation of bilateral carpel tunnel syndrome – New cause of action added out of time – Arose out of substantially the same facts – No prejudice to defendant – Leave granted.

PERSONAL INJURIES – WORKCOVER QUEENSLAND CLAIM – ENTITLEMENT TO COMMENCE PROCEEDINGS – Two applications for compensation processed under one claim number – Subsequent procedural steps referable to that claim number – Proceedings in relation to both injuries protected – Entitlement to pursue claim not extinguished.

PLEADINGS – AMENDMENT – APPLICATION TO DISALLOW – Amendment to reintroduce claim removed by prior amendment – Leave not required – No prejudice to defendant – Amendment not disallowed.

LIMITATIONS OF ACTIONS – APPLICATION TO EXTEND TIME – RES JUDICATA – ISSUE ESTOPPEL – ANSHUN ESTOPPEL – Application to extend time refused – Second application made – Whether second application subject to res judicata or an issue estoppel – Whether subject to Anshun estoppel – Failure by defendant to disclose all relevant material on first application – Second application heard.

LIMITATION OF ACTIONS – APPLICATION TO EXTEND TIME – MATERIAL FACT OF A DECISIVE CHARACTER – Termination of employment after one year prior to limitation period expiry – Where plaintiff knew before that date he could not continue as a crane driver– Where possibility of redeployment until employment terminated – time extended.

Limitation of Actions Act 1974 (Qld), s31(2)(a)
Uniform Civil Procedure Rules 1999(Qld), rr 171, 376, 377,
378, 379
WorkCover Queensland Act 1996 (Qld), ss34, 34(3)(b), 253,
280, 305, 342

applied
Broken Hill Pty Co Ltd v Waugh (1988) 14 NSWLR 360 –
applied
Castillon v P & 0 Ports Ltd [2005] QDC 180 – discussed
Castillon v P & O Ports Ltd [2005] QCA 406 – discussed
Clout & Ors v Klein & Ors [2001] QSC 401 – followed
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234
– applied
Draney v Barry [2002] 1 Qd R…