Collins v All Metal Magic Pty Ltd

DISTRICT COURT OF QUEENSLAND

CITATION:

Collins v All Metal Magic Pty Ltd and Anor [2016] QDC 48

PARTIES:

ROCHELLE LEANNE COLLINS

(applicant)

v

ALL MENTAL MAGIC PTY LTD

(first respondent)

and

WORKCOVER QUEENSLAND

(second respondent)

FILE NO/S:

682/16

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

10 March 2016

DELIVERED AT:

Brisbane

HEARING DATE:

2 March 2016

JUDGE:

Farr SC DCJ

ORDER:

Application Dismissed

CATCHWORDS:

LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – where the applicant wishes to claim for damages against the respondents – where the limitation period for the claim has expired – whether time should be extended.

EMPLOYMENT LAW – injury of employee – claim for damage – pre-litigation procedure – applicant seeking leave despite statutory non-compliance.

Limitation of Actions Act 1974 (Qld), s 30, s 31
Workers Compensation and Rehabilitation Act 2003 (Qld), s 298

Barnes v Smith & Ors [2011] QSC 259
Dent v Lang’s Building Supplies Pty Ltd [2015[ QSC 368
Greenhalgh v Bacas Training & Ors [2007] QCA 327
Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325
NF v State of Queensland [2005] QCA 110
Pizer v Ansett Australia Limited [1998] QCA 298
Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431

COUNSEL:

R W Morgan for the applicant

S P Gray for the respondents

SOLICITORS:

Shine Lawyers for the applicant

BT Lawyers for the respondents

1. The applicant seeks the following orders:

1. The applicant be granted leave pursuant to s 298(1) of the Workers Compensation and Rehabilitation Act 2003 (‘WCRA’) to bring a proceeding despite non-compliance with the requirements of s 275 of the WCRA;

2. Pursuant to s 31 of the Limitations of Actions Act 1974 (‘LAA’), an order that the period of limitation for the applicants claim for damages for personal injuries be extended so that it expires at 11 March 2016;

3.          Costs;

4.          Such further or other order is this Honourable Court may deem appropriate.

1. The application is opposed by the respondents.

Legislation

1. Sections 298 and 299 of the WCRA state:

298 Court to have given leave despite noncompliance

(1) Subject to section 296, the claimant may start the proceeding if the court, on application by the claimant, gives leave to bring the proceeding despite noncompliance with the requirements of section 275.
(2) The order giving leave to bring the proceeding may be made on conditions the court considers necessary or appropriate to minimise prejudice to the insurer from the claimant's failure to comply with the requirements of section 275.

299 Other provision for urgent proceedings

Part 2, division 3 provides for the urgent starting of proceedings by persons mentioned in section 237(1), and for the staying of those proceedings.

1. The LAA provides relevantly as follows:

30 Interpretation

(1) For the purposes of this section and sections 31, 32, 33 and 34—

(a) the material facts relating to a right of action include the following—

(i)…