Day v Humphrey

Case [2017] QSC 236


SUPREME COURT OF QUEENSLAND

CITATION:

Day v Humphrey & Ors [2017] QSC 236

PARTIES:

OLGA DAY

(plaintiff)          

v
JOHN HUMPHREY

(first defendant)
and
TINA COCKBURN

(second defendant)
and
QUEENSLAND UNIVERSITY OF TECHNOLOGY
(third defendant)
and
WESLEY LERCH
(fourth defendant)
and
DAVID BRAY
(fifth defendant)
and
QUEENSLAND COMPENSATION LAWYERS PTY LTD ACN 135 360 119
(sixth defendant)

FILE NO:

5774 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

26 October 2017

DELIVERED AT:

Brisbane

HEARING DATES:

25 and 27 January, 10 February, 2 and 23 March, 17 May, 12 July, and 22 August 2017

JUDGE:

Daubney J

ORDER:

1.   The plaintiff’s application filed 10 July 2017 is dismissed with costs.

2.   The plaintiff’s amended application filed 21 February 2017 is dismissed with costs.

3.   The plaintiff’s claims against the fourth, fifth and sixth defendants are dismissed.

4.   The plaintiff is to pay the fourth, fifth and sixth defendants’ standard costs of and incidental to this proceeding.

5.   The fourth, fifth and sixth defendants shall not recover any costs from the plaintiff in respect of the appearances on 27 January 2017, 17 May 2017 and 12 July 2017.

CATCHWORDS:

WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – PERSONS ENTITLED TO COMPENSATION – WHO IS A WORKER OR EMPLOYEE – GENERALLY – PROCEEDINGS TO OBTAIN  COMPENSATION – PRELIMINARY REQUIREMENTS – NOTICE OF INJURY – EFFECT OF INACCURACY, DELAY OR FAILURE TO GIVE NOTICE – GENERALLY – where the plaintiff claims damages for personal injuries and financial losses as against the fourth, fifth and sixth defendants for alleged negligence, breach of contract and fraudulent misrepresentation – where the plaintiff and fourth, fifth and sixth defendants have complied with all the requirements of the Personal Injuries Proceedings Act 2002 (Qld) – where the plaintiff did not comply with s 275(1) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) – whether the Workers’ Compensation and Rehabilitation Act 2003 (Qld) applies to the plaintiff’s claim for personal injuries – whether the plaintiff was bound to comply with the provisions of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) before commencing a claim against the fourth, fifth and sixth defendants for personal injuries

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS – where the plaintiff has made a claim for damages for personal injuries to which the Workers’ Compensation and Rehabilitation Act 2003 (Qld) applies – where the plaintiff has not complied with the provisions of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) – where the plaintiff claims for damages for fraudulent misrepresentation – whether the plaintiff’s claim for fraudulent misrepresentation has no prospects of success – whether the plaintiff was precluded from instituting her claim for personal injuries due to non-compliance with the Workers’ Compensation and Rehabilitation Act 2003 (Qld) – whether summary judgment should be ordered in favour of the fourth, fifth and sixth defendants

COURTS…

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AGLC
Day v Humphrey [2017] QSC 236
Case
[2017] QSC 236
Decision Date

CaseChat Overview and Summary

Day v Humphrey is a case involving the plaintiff seeking damages for personal injuries and financial losses against the fourth, fifth, and sixth defendants for alleged negligence, breach of contract, and fraudulent misrepresentation. The defendants, in turn, argued that the plaintiff's claims were subject to the Workers' Compensation and Rehabilitation Act 2003 (Qld), and that she had not complied with the relevant provisions of that Act before bringing her claim. The plaintiff also sought to disqualify the judge on the basis of apprehended bias, alleging that the judge had been involved in extra-judicial activities and had been the subject of complaints to the Crime and Corruption Commission. The court had to determine whether the Workers' Compensation and Rehabilitation Act 2003 (Qld) applied to the plaintiff's claim for personal injuries, and whether she was bound to comply with the provisions of that Act before commencing a claim against the fourth, fifth, and sixth defendants. The court also had to decide whether the plaintiff's claim for fraudulent misrepresentation had any prospects of success, and whether the plaintiff's application for disqualification of the judge was well-founded.

The court found that the Workers' Compensation and Rehabilitation Act 2003 (Qld) applied to the plaintiff's claim for personal injuries, and that she was required to comply with the provisions of that Act before commencing a claim against the defendants. The court held that the plaintiff had not complied with s 275(1) of the Workers' Compensation and Rehabilitation Act 2003 (Qld), which required her to provide notice of her injury within three months of the injury occurring. The court found that the plaintiff's claim for fraudulent misrepresentation had no prospects of success because it was based on the same factual matrix as her claim for personal injuries, which was subject to the Workers' Compensation and Rehabilitation Act 2003 (Qld). The court also found that the plaintiff's application for disqualification of the judge was not well-founded because there was no reasonable apprehension of bias on the part of the judge.

In light of the above findings, the court dismissed the plaintiff's claims against the fourth, fifth, and sixth defendants and ordered that the plaintiff pay the defendants' standard costs of and incidental to the proceeding. The court also dismissed the plaintiff's applications for disqualification of the judge and ordered that the plaintiff pay costs. The court found that the fourth, fifth, and sixth defendants were not entitled to recover any costs from the plaintiff in respect of the appearances on 27 January 2017, 17 May 2017, and 12 July 2017.

Orders

Orders of the court

1. The plaintiff’s application filed 10 July 2017 is dismissed with costs.

2. The plaintiff’s amended application filed 21 February 2017 is dismissed with costs.

3. The plaintiff’s claims against the fourth, fifth and sixth defendants are dismissed.

4. The plaintiff is to pay the fourth, fifth and sixth defendants’ standard costs of and incidental to this proceeding.

5. The fourth, fifth and sixth defendants shall not recover any costs from the plaintiff in respect of the appearances on 27 January 2017, 17 May 2017 and 12 July 2017.

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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