SUPREME COURT OF QUEENSLAND
CITATION: Cousins v Mt Isa Mines Ltd [2006] QCA 261 PARTIES: TRENT JEFFERY COUSINS
(applicant/appellant)
v
MT ISA MINES LIMITED ACN 009 661 447
(respondent/respondent)FILE NO/S: Appeal No 10906 of 2005
SC No 664 of 2005DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING
COURT:Supreme Court at Townsville DELIVERED ON: 21 July 2006 DELIVERED AT: Brisbane HEARING DATE: 29 May 2006 JUDGES: McMurdo P, Jerrard JA and Jones J
Separate reasons for judgment of each member of the Court,
McMurdo P and Jerrard JA concurring as to the orders made,
Jones J dissenting in part on the issue of costsORDER: 1. Allow the appeal
2.
The respondent is to pay the appellant's costs of the appeal incurred after the date of the provision of the additional evidence, to be assessed on the standard basis
3. Set aside the orders at first instance 4. Instead order that:
(a) the appellant be authorized to proceed further with his claim;
(b) that further compliance with the Personal Injuries Proceedings Act 2002 (Qld) continue, the date of this decision being the relevant date for the receipt of a complying part 1 notice of claim;
(c) that the appellant pay the respondent's costs of the originating application in any event
CATCHWORDS:
LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – PERSONAL INJURY CASES – appellant wishes to recover damages for personal injury – failure to provide a reasonable excuse for delay in providing a compliance notice – where failure constitutes non-compliance under Personal Injuries Proceedings Act 2002 (Qld) – respondent concedes it suffers no prejudice from the delay – whether authority should be given to allow claim to proceed further
PROCEDURE – SUPREME COURT PROCEDURE - QUEENSLAND – PRACTICE UNDER RULES OF COURT – EVIDENCE – identity of a witness was not known to appellant at the time of hearing – appellant wishes to adduce new information identifying that witness – identity of witness known to the respondent at the time of hearing – where new evidence affects the question of prejudice to the respondent – whether special grounds exist for reception of further evidence
Personal Injuries Proceedings Act 2002 (Qld), s 18
Limitation of Actions Act 1974 (Qld), s 31(2) r 766
Dempsey v Dorber [1990] 1 Qd R 418, followed
Neuss v Roche Bros Pty Ltd [2001] 2 Qd R 487; [2000] QCA
130, cited
Thomas v Transpacific Industries Pty Ltd [2003] 1 Qd R 328;
[2002] QCA 160, cited
Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178;
Appeal No 9466 of 1999, 19 May 2000, appliedCOUNSEL: R J Douglas SC, with G R Mullins, for the appellant
S G Durward SC for the respondentSOLICITORS: Maurice Blackburn Cashman for the appellant
CLS Lawyers for the respondent
McMURDO P: I agree with Jones J that this appeal should be allowed. Jones J has set out the relevant facts and issues in his reasons so that I need not…
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Details
- AGLC
- Cousins v Mt Isa Mines Ltd [2006] QCA 261
- Case
- [2006] QCA 261
- Decision Date
CaseChat Overview and Summary
The appellant, Cousins, seeks to recover damages for personal injury against the respondent, Mt Isa Mines Ltd. The dispute centres on the delay in providing a compliance notice, which is a requirement under the Personal Injuries Proceedings Act 2002 (Qld). The primary issue for the court was whether the appellant had provided a reasonable excuse for the delay in giving the compliance notice, and whether the court should exercise its discretion under s 18 to allow the claim to proceed despite the delay. The court had to determine if the appellant's delay constituted non-compliance with the statutory requirements and, if so, whether the respondent would suffer prejudice from the delay.
The hearing judge found that the appellant had not provided a reasonable excuse for the delay in giving the compliance notice, which was almost two years after the accident and one year and three months out of the statutory time limit. The appellant's failure to provide the name of his co-worker at the time of the accident raised a potential risk of prejudice, though the judge noted that this should not be overstated. The respondent conceded that it did not suffer any prejudice from the delay, and it accepted that the appellant had arguable prospects of success. The court considered the substantial delays in giving the notice and the deficiencies in the evidence provided by the appellant to justify the delay. The court found that the evidence did not provide an adequate basis for exercising its discretion in favour of the appellant under s 18(1)(c).
The appellant sought leave to adduce further evidence, particularly to provide the name of his co-worker. The respondent did not object to the receipt of the new evidence and conceded that it did not suffer any prejudice from the delay or from receiving the new evidence. The court concluded that special grounds existed for receiving the new evidence, as it was received in January 2006 after the judgment had been delivered, and it removed the only basis upon which prejudice could be asserted by the respondent. The new evidence indicated that the respondent had investigated the incident earlier and was aware of the identity of the appellant's co-worker. Additionally, the employer, when sued, intended to join the respondent in the proceedings. The combined impact of these assertions led the court to the conclusion that the new evidence ought to be received.
The court allowed the appeal and ordered that the appellant be permitted to adduce further evidence. This decision highlights the importance of timely compliance with statutory requirements and the potential consequences of delays in providing a compliance notice. However, it also acknowledges that in certain circumstances, where no prejudice is shown and special grounds exist, the court may exercise its discretion to allow new evidence to be received, thereby facilitating the pursuit of a just outcome.
The hearing judge found that the appellant had not provided a reasonable excuse for the delay in giving the compliance notice, which was almost two years after the accident and one year and three months out of the statutory time limit. The appellant's failure to provide the name of his co-worker at the time of the accident raised a potential risk of prejudice, though the judge noted that this should not be overstated. The respondent conceded that it did not suffer any prejudice from the delay, and it accepted that the appellant had arguable prospects of success. The court considered the substantial delays in giving the notice and the deficiencies in the evidence provided by the appellant to justify the delay. The court found that the evidence did not provide an adequate basis for exercising its discretion in favour of the appellant under s 18(1)(c).
The appellant sought leave to adduce further evidence, particularly to provide the name of his co-worker. The respondent did not object to the receipt of the new evidence and conceded that it did not suffer any prejudice from the delay or from receiving the new evidence. The court concluded that special grounds existed for receiving the new evidence, as it was received in January 2006 after the judgment had been delivered, and it removed the only basis upon which prejudice could be asserted by the respondent. The new evidence indicated that the respondent had investigated the incident earlier and was aware of the identity of the appellant's co-worker. Additionally, the employer, when sued, intended to join the respondent in the proceedings. The combined impact of these assertions led the court to the conclusion that the new evidence ought to be received.
The court allowed the appeal and ordered that the appellant be permitted to adduce further evidence. This decision highlights the importance of timely compliance with statutory requirements and the potential consequences of delays in providing a compliance notice. However, it also acknowledges that in certain circumstances, where no prejudice is shown and special grounds exist, the court may exercise its discretion to allow new evidence to be received, thereby facilitating the pursuit of a just outcome.
Orders
Orders of the court
1. Allow the appeal
Background
Background to the litigation
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Evidence
Evidence Before The Court
After canvassing the evidence relied upon, the learned hearing judge found: “[26] As I have said the respondent relies primarily upon the delays from August 2004 but says that the delays prior to that time are consistent generally with a failure to properly pursue the matter. [27] I do not think that the conclusion that the applicant has given a reasonable excuse for his delay in giving notice is justified on the evidence before me. [28] Nor in my view does the evidence support an exercise of the court’s discretion in the applicant’s favour under s 18. The notice was not given until almost two years after the accident and was one year and three months out of time. The applicant has instituted proceedings against his employer who owes him a non-delegable duty of care and one would expect that it is to the employer that the applicant would primarily look to be compensated. [29] The respondent asserts prejudice although no evidence was placed before me on this subject. Nonetheless the fact that the applicant cannot give the surname of the employee who he was working with and that the action arose out of the applicant’s employment with another party might, I infer, give rise to a risk of prejudice although the matter should not be put any higher than this. [30] The respondent accepted for the purposes of the application that the applicant had arguable prospects of success. [31] The delays in giving the notice are substantial. I have already dealt with what is said by the applicant about those delays and the deficiencies in the evidence in relation to those explanations. [32] The evidence in my view does not provide an adequate basis for an exercise of the Court’s discretion favourable to the applicant under s 18(1)(c).” Application to adduce further evidence The appellant seeks leave pursuant to r 766 of Uniform Civil Procedure Rules 1999 (Qld) (UCPR) to adduce further evidence, particularly to provide the name of his co-worker, the lack of which attracted the comment in paragraph [29] above. The respondent raises no objection to the Court receiving the new evidence and it also concedes that it does not suffer any prejudice either from that course being followed or, more generally, from the delay in providing the notice of claim. To permit the receipt of new evidence in the circumstances here, the appellant is required to show special grounds for its reception. The appellant relies upon the fact that the new information was not received until January 2006 by which time the judgment had been delivered. The further information included the fact that the respondent had itself investigated the incident at an earlier time and was aware of the identity of the appellant’s co-worker. A further matter of significance is the fact that the employer, when sued, intends to join the respondent in the proceedings. In circumstances where the respondent does not challenge any of these assertions, their combined impact leads me to the conclusion that the new evidence ought to be received: Thomas v Transpacific Industries Pty Ltd[5]. The new evidence changes the complexion of the issue to be determined. It removes the only basis upon which prejudice could be asserted by the respondent. [5] [2003] 1 Qd R 328 at p 341
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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