Coles Group Limited v Costin - [2015] QCA 140

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 2014

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal
Miscellaneous Application – Civil

ORIGINATING COURT:

District Court at Brisbane – Unreported, 5 September 2014

DELIVERED 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 made

ORDERS:

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…

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: [2015] QCA 140
Decision Date: 31 July 2015

CaseChat Overview and Summary

Coles Group Limited sought to appeal a decision of the District Court of Queensland that granted an extension of the limitation period to an employee who had suffered an injury while working for the supermarket. The employee, having consulted various doctors, lodged a notice of claim for damages after the limitation period had expired. The supermarket argued that the primary judge erred in exercising the discretion to extend the limitation period, as the employee's lawyers had caused an unnecessary and unexplained delay in bringing the application. Additionally, the supermarket contended that it had been prejudiced by the employee's delay, particularly in relation to the part of the claim concerning inadequate training.

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

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:	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 2014
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal Miscellaneous Application – Civil
ORIGINATING COURT:	District Court at Brisbane – Unreported, 5 September 2014
DELIVERED 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 made
ORDERS:	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…