Charlton v Prominora Pty Ltd - [2006] QSC 236

SUPREME COURT OF QUEENSLAND

CITATION:

Charlton v Prominora Pty Ltd [2006] QSC 236

Charlton v S Employment Services Pty Ltd (in liquidation) and Work Cover Queensland

PARTIES:

GARY WALTER CHARLTON

(Applicant)

AND

PROMINORA PTY LTD (in liquidation)

(First Respondent)

AND

WORKCOVER QUEENSLAND

(Second Respondent)

GARY WALTER CHARLTON

(Applicant)

AND

S EMPLOYMENT SERVICES PTY LTD (in liquidation)

(First Respondent)

AND

WORKCOVER QUEENSLAND

(Second Respondent)

FILE NO/S:

S51 of 2006

S308 of 2005

DIVISION:

Trial Division

PROCEEDING:

Applications

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

20 June, 2006

DELIVERED AT:

TOWNSVILLE

HEARING DATE:

6 June 2006

JUDGE:

Cullinane J

ORDER:

Applications dismissed with costs to be assessed.

CATCHWORDS:

LIMITATION OF ACTION – Where decision by the Industrial Magistrate removing obstacle to claim damages – whether such decision can be a material part of a decisive nature under s. 31 of the Limitation of Actions Act 1974 (Qld)

Limitation of Actions Act 1974 (Qld)

WorkCover Queensland Act 1996 (Qld)

Do Carmo v Ford Excavations Pty Ltd (1983-1984) 154 CLR 234

Hamling v Australia Meat Holdings Pty Ltd [2005] QCA 415 cited

Re: Sihvola [1979] QdR 458

Tanks v WorkCover Queensland [2001] QCA 103

COUNSEL:

Mr A.T. Moon for the Applicant

Mr S.C.Williams QC and Mr A.S. Mellick for the Respondent

SOLICITORS:

Connolly Suthers for the Applicant

Boulton Cleary & Kern for the Respondent

These are two applications pursuant to s.31 of the Limitation of Actions Act 1974 as amended.

The Applicant was employed by the two respondent companies at the Yabulu Nickel plant.

For part of the relevant period he was employed by the Respondent Prominora Pty Ltd and for the balance by the Respondent S Employment Services Pty Ltd. He deposes that he had not been aware until after consulting legal advisors that he had been employed by both companies. The relevant period is from July 1999 to August 2000.

There is, it seems to me, evidence which satisfies the requirements of s.31(2)(b) contained in the report of Mr Kahler, an engineer, and there was no argument addressed by the Respondent to this issue.

The applications are unusual in the sense that what is relied upon in each case as a material fact of a decisive nature is a determination in the Applicant’s favour by a court of certain issues raised in a claim for statutory compensation by him. The decision was handed down on 15^th July 2004 thus removing an obstacle under the Work Cover legislation to the institution of proceedings for damages by him.

On the 27^th May 2005 this court ordered in proceedings 308 of 2005 Townsville (in which S Employment Services Pty Ltd and WorkCover Queensland are named as the Respondents) that pursuant to s.305 of the WorkCover Queensland Act 1996 the Applicant be granted leave to institute proceedings notwithstanding non-compliance with the requirements of Chapter 5 of the that Act. This order was made by consent.

No such order was made in any proceedings in which Prominora Pty Ltd was a Respondent.

The Applicant contended that…

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: [2006] QSC 236
Decision Date: 20 June, 2006

CaseChat Overview and Summary

Charlton brought an action against Prominora Pty Ltd in the District Court of Queensland, seeking damages for personal injuries sustained during employment. The crux of the dispute centred around whether the plaintiff's right to bring the action was barred by the application of the Limitation of Actions Act 1974 (Qld). Specifically, Charlton argued that the decision by the Industrial Magistrate in a related matter, which removed an obstacle to his claim for damages, constituted a material part of a decisive nature under section 31 of the Act.

The central legal issue before the court was whether the Industrial Magistrate's decision could be considered a material part of a decisive nature that would trigger the three-year limitation period under section 31 of the Act. Charlton contended that this decision was a significant event that should start the limitation period, while Prominora argued that the decision did not meet the criteria of being a material part of a decisive nature.

The court held that the decision by the Industrial Magistrate did not constitute a material part of a decisive nature. The reasoning was that the decision did not provide a definitive resolution of the merits of Charlton's claim, nor did it conclusively determine that he was entitled to compensation. Instead, it merely addressed procedural issues. Consequently, the limitation period did not begin to run until the Industrial Magistrate's decision was made, and Charlton's action was not barred by limitation. The applications were dismissed, with costs to be assessed.

Orders

Orders of the court

Applications dismissed with costs to be assessed.

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:	Charlton v Prominora Pty Ltd [2006] QSC 236 Charlton v S Employment Services Pty Ltd (in liquidation) and Work Cover Queensland
PARTIES:	GARY WALTER CHARLTON (Applicant) AND PROMINORA PTY LTD (in liquidation) (First Respondent) AND WORKCOVER QUEENSLAND (Second Respondent) GARY WALTER CHARLTON (Applicant) AND S EMPLOYMENT SERVICES PTY LTD (in liquidation) (First Respondent) AND WORKCOVER QUEENSLAND (Second Respondent)
FILE NO/S:	S51 of 2006 S308 of 2005
DIVISION:	Trial Division
PROCEEDING:	Applications
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	20 June, 2006
DELIVERED AT:	TOWNSVILLE
HEARING DATE:	6 June 2006
JUDGE:	Cullinane J
ORDER:	Applications dismissed with costs to be assessed.
CATCHWORDS:	LIMITATION OF ACTION – Where decision by the Industrial Magistrate removing obstacle to claim damages – whether such decision can be a material part of a decisive nature under s. 31 of the Limitation of Actions Act 1974 (Qld) Limitation of Actions Act 1974 (Qld) WorkCover Queensland Act 1996 (Qld) Do Carmo v Ford Excavations Pty Ltd (1983-1984) 154 CLR 234 Hamling v Australia Meat Holdings Pty Ltd [2005] QCA 415 cited Re: Sihvola [1979] QdR 458 Tanks v WorkCover Queensland [2001] QCA 103
COUNSEL:	Mr A.T. Moon for the Applicant Mr S.C.Williams QC and Mr A.S. Mellick for the Respondent
SOLICITORS:	Connolly Suthers for the Applicant Boulton Cleary & Kern for the Respondent