SUPREME COURT OF QUEENSLAND
CITATION:
Coles Group Limited v Costin [2015] QCA 140
PARTIES:
COLES GROUP LIMITED
ACN 004 089 936
(appellant)v
DEBORAH ANNE COSTIN
(respondent)FILE NO/S:
Appeal No 9350 of 2014
DC No 1886 of 2014DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
Miscellaneous Application – CivilORIGINATING COURT:
District Court at Brisbane – Unreported, 5 September 2014DELIVERED ON:
31 July 2015
DELIVERED AT:
Brisbane
HEARING DATE:
22 April 2015
JUDGES:
Holmes and Gotterson JJA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. The respondent’s application filed on 16 April 2015 to adduce further evidence be granted.
2. The application for an extension of time in which to bring an application for leave to appeal be granted.
3. The application for leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) be granted.
4. The appeal be allowed.
5. The parties file and serve within 14 days any undertaking by the respondent and submissions on further orders, including costs orders.
CATCHWORDS:
LIMITATION OF ACTIONS – GENERAL MATTERS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – PRINCIPLES UPON WHICH DISCRETION EXERCISED – where an employee of a supermarket suffered an injury in the course of her duties – where the employee lodged a notice of claim for damages after consulting various doctors – where the limitation period for bringing an action had expired – where there was an unnecessary and unexplained delay by the employee’s lawyers in bringing an application to extend the limitation period – where part of the claim related to inadequate training – where the primary judge granted an extension of the limitation period – whether supermarket prejudiced in that respect by the employee’s delay – whether the primary judge erred in exercising the discretion to extend
APPEAL AND NEW TRIAL – APPEAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – where the supermarket purports to appeal from the primary decision as of right under s 118(2)(b) of the District Court of Queensland Act 1967 (Qld) – where that section provides for appeal as of right from the District Court where the claim is for or relates to property equal to or more than the jurisdictional limit – whether there is a right of appeal – whether leave to appeal should be granted
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – EVIDENCE NOT AVAILABLE AT HEARING – WHEN ADMISSIBILE – where the employee was unable to contact an important witness until after the primary decision was appealed – where a ground of appeal is that the supermarket was prejudiced by the unavailability of the witness – where the employee applies for the fresh evidence to adduced – where the application, if granted, would remove a ground of appeal – whether the evidence could…
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- Case
- [2015] QCA 140
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the primary judge had erred in granting the extension of the limitation period. It was also required to consider whether the supermarket was prejudiced by the employee's delay in lodging the claim, and if so, whether this constituted a valid ground for refusing an extension of time. Furthermore, the court needed to decide whether the supermarket had a right of appeal from the primary decision as of right under s 118(2)(b) of the District Court of Queensland Act 1967 (Qld), or whether leave to appeal should be granted under s 118(3) of the Act. Lastly, the court needed to consider whether further evidence, which became available after the primary decision was appealed, could be admitted.
The court found that the primary judge had exercised the discretion to extend the limitation period correctly. The court held that the supermarket had not demonstrated any prejudice caused by the employee's delay in lodging the claim. Regarding the appeal, the court held that the supermarket did not have a right of appeal as of right, but it granted leave to appeal under s 118(3) of the District Court of Queensland Act 1967 (Qld). The court also held that the fresh evidence, which could not have been obtained with reasonable diligence before the primary decision, could be admitted. The court allowed the appeal, set aside the primary decision, and remitted the matter to the District Court for further consideration.
The court ordered that the respondent's application to adduce further evidence be granted, the application for an extension of time to bring an application for leave to appeal be granted, and the application for leave to appeal be granted. The appeal was allowed, and the parties were required to file and serve any undertaking by the respondent and submissions on further orders, including costs orders, within 14 days.
Orders
Orders of the court
1. The respondent’s application filed on 16 April 2015 to adduce further evidence be granted.
2. The application for an extension of time in which to bring an application for leave to appeal be granted.
3. The application for leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) be granted.
4. The appeal be allowed.
5. The parties file and serve within 14 days any undertaking by the respondent and submissions on further orders, including costs orders.
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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