Cummings v Visy Paper Pty Ltd - [2016] QDC 208

DISTRICT COURT OF QUEENSLAND

CITATION:

Cummings v Visy Paper Pty Ltd & Anor [2016] QDC 208

PARTIES:

DARREN LEE CUMMINGS

(applicant/plaintiff)

v

VISY PAPER PTY LTD (ACN 005 803 234)

(first respondent/defendant)

and

WORKCOVER QUEENSLAND

(second respondent/defendant)

FILE NO/S:

BD979/12

DIVISION:

Civil

PROCEEDING:

Application for extension of time

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

22 July 2016

DELIVERED AT:

Brisbane

PUBLISHED ON:

19 August 2016

HEARING DATE:

13 July 2016

JUDGE:

Ryrie DCJ

ORDERS:

The application is dismissed.1.

The applicant is to pay the respondent’s costs on a standard basis unless the parties otherwise agree. 2.

CATCHWORDS:

LIMITATIONS OF ACTIONS – EXTENSION OF PERIOD – KNOWLEDGE OF MATERIAL FACTS – MATERIAL FACTS OF A DECISIVE CHARACTER – where applicant suffered a psychiatric injury whilst employed by the 1^st respondent – where applicant applies for an extension of the limitation period under s 31(2) Limitation of Actions Act 1974 (Qld) – whether material fact of a decisive nature was within the means of knowledge of the plaintiff – whether limitation period should be extended

Limitations of Actions Act 1974 (Qld) ss 30, 31

Baillie v Creber & Anor [2010] QSC 52 - applied

Charlton v WorkCover QLD & Ors [2007] 2 Qd R 421 -
Applied

State of Queensland v Stephenson (2006) 226 CLR 197 – applied

Leigh v State of Queensland [2010] QSC 227 – applied

NF v State of Queensland [2005] QCA 110 – applied

COUNSEL:

S Anderson for the applicant/plaintiff

M T O’Sullivan for the respondents/defendants

SOLICITORS:

Shine Lawyers for the applicant/plaintiff

Cooper Grace Ward for the respondents/defendants

Introduction

This is an application pursuant to s 31 of the Limitations of Actions Act 1974 (Qld) (‘LAA’) for the period of limitation in relation to a personal injuries action to be extended in respect of a work place injury that occurred over a period during 1996 to 2001 with symptoms commencing in 1999. Both parties accept that before an order can be made pursuant to s 31, it must be shown that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until after the 22^nd February 2010.

A notice of claim for damages was lodged by the applicant in respect of a psychiatric injury dated 10^th February 2011 as it related to the 1^st respondent. On the 22^nd February 2011, WorkCover Queensland waived compliance in respect of that notice however maintained its’ right to rely upon the limitation defence. As such, the respondents now oppose this application.

Relevant background

The applicant had made an application for workers compensation dated 18^th September 2001 in respect of a psychiatric injury which he said he had suffered during the course of his employment with the 1^st respondent as a result of bullying, harassment and intimidation which he had been subjected to in the workplace. The application was initially accepted by WorkCover Queensland however upon a subsequent review of…

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: [2016] QDC 208
Decision Date: 22 July 2016

CaseChat Overview and Summary

Cummings brought an action against Visy Paper Pty Ltd, claiming damages for psychiatric injury sustained during employment. The matter was before the court to determine whether an extension of the limitation period was appropriate under section 31(2) of the Limitation of Actions Act 1974 (Qld). The primary legal issue was whether the material facts of a decisive nature were within the applicant's means of knowledge at the time the limitation period expired, thus justifying an extension of the limitation period.

The court considered the nature and extent of the applicant's knowledge of the material facts at the time the limitation period ended. It assessed whether these facts were of a decisive character and whether they were accessible to the applicant. The court held that the applicant was aware of the material facts that formed the basis of the claim. The court concluded that these facts were of a decisive nature and that they were within the means of knowledge of the applicant. As a result, the applicant was deemed to have the necessary information to commence proceedings within the statutory limitation period.

Consequently, the application for an extension of the limitation period was dismissed. The court also ordered that the applicant pay the respondent's costs on a standard basis unless the parties agreed otherwise. This decision underscores the importance of timely knowledge of material facts for claims involving personal injuries and the stringent application of limitation periods in such cases.

Orders

Orders of the court

The application is dismissed.1.

The applicant is to pay the respondent’s costs on a standard basis unless the parties otherwise agree. 2.

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:	Cummings v Visy Paper Pty Ltd & Anor [2016] QDC 208
PARTIES:	DARREN LEE CUMMINGS (applicant/plaintiff) v VISY PAPER PTY LTD (ACN 005 803 234) (first respondent/defendant) and WORKCOVER QUEENSLAND (second respondent/defendant)
FILE NO/S:	BD979/12
DIVISION:	Civil
PROCEEDING:	Application for extension of time
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	22 July 2016
DELIVERED AT:	Brisbane
PUBLISHED ON:	19 August 2016
HEARING DATE:	13 July 2016
JUDGE:	Ryrie DCJ
ORDERS:	The application is dismissed.1. The applicant is to pay the respondent’s costs on a standard basis unless the parties otherwise agree. 2.
CATCHWORDS:	LIMITATIONS OF ACTIONS – EXTENSION OF PERIOD – KNOWLEDGE OF MATERIAL FACTS – MATERIAL FACTS OF A DECISIVE CHARACTER – where applicant suffered a psychiatric injury whilst employed by the 1^st respondent – where applicant applies for an extension of the limitation period under s 31(2) Limitation of Actions Act 1974 (Qld) – whether material fact of a decisive nature was within the means of knowledge of the plaintiff – whether limitation period should be extended Limitations of Actions Act 1974 (Qld) ss 30, 31 Baillie v Creber & Anor [2010] QSC 52 - applied Charlton v WorkCover QLD & Ors [2007] 2 Qd R 421 - Applied State of Queensland v Stephenson (2006) 226 CLR 197 – applied Leigh v State of Queensland [2010] QSC 227 – applied NF v State of Queensland [2005] QCA 110 – applied
COUNSEL:	S Anderson for the applicant/plaintiff M T O’Sullivan for the respondents/defendants
SOLICITORS:	Shine Lawyers for the applicant/plaintiff Cooper Grace Ward for the respondents/defendants