Dowd v Swift Australia Pty Ltd - [2008] QCA 228

SUPREME COURT OF QUEENSLAND

CITATION:

Dowd v Swift Australia P/L [2008] QCA 228

PARTIES:

RAYMOND JAMES DOWD
(plaintiff /respondent)
v
SWIFT AUSTRALIA PTY LIMITED ABN 011 062 338
(defendant/applicant)

FILE NO/S:

Appeal No 2572 of 2008
DC No 219 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

8 August 2008

DELIVERED AT:

Brisbane

HEARING DATE:

1 August 2008

JUDGES:

Keane JA, Mackenzie AJA and Dutney J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application refused with costs

CATCHWORDS:

WORKERS' COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – PRELIMINARY REQUIREMENTS – NOTICE OF INJURY – GENERALLY – where respondent employed by applicant as meatworker – where respondent commenced action for personal injuries against applicant – where respondent pleads three time periods in which injury may have been suffered – where respondent received notice of assessment specifying the date of injury – where applicant brought application to strike out parts of the statement of claim referring to two of the three time periods – where District Court judge at first instance dismissed application – where applicant sought leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) – whether by nominating three time periods in which the injury may have been suffered the respondent should be taken to be alleging three separate injuries – whether WorkCover Queensland Act 1996 (Qld) requires respondent to plead an injury so that it relates to a specific event – whether leave should be granted and whether order of learned District Court judge should be set aside

WorkCover Queensland Act 1996 (Qld), s 33, s 253, s 266

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 37, applied
Re Moage Ltd (in liq) v Jagelman & Ors (1998) 153 ALR 711; [1998] FCA 296, discussed
Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514; [1992] HCA 55, followed
Wilkinson v Stevensam P/L & Ors [2006] QCA 88, distinguished

COUNSEL:

J A Griffin QC for the applicant
A J Moon for the respondent

SOLICITORS:

A K Compensation Lawyers for the applicant
Connolly Suthers for the respondent

KEANE JA: I agree with Dutney J that the application should be refused with costs for the reasons given by his Honour.

MACKENZIE AJA: I agree with the reasons of Dutney J and with the orders proposed by him.

DUTNEY J: The applicant, seeks leave under s 118 (3) of the District Court of Queensland Act 1967 (Qld) to appeal against a decision of a judge of the District Court dismissing an application to strike out part of the respondent’s statement of claim.

At the material time, the applicant operated a meatworks in Townsville. The respondent was employed by the applicant as a meatworker and claims to have been…

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: [2008] QCA 228
Decision Date: 8 August 2008

CaseChat Overview and Summary

In the matter of Dowd v Swift Australia Pty Ltd, the respondent, employed as a meatworker by the applicant, initiated proceedings seeking compensation for personal injuries sustained during their employment. The applicant brought an application to strike out parts of the statement of claim, which referred to three separate time periods during which the injury may have occurred. The respondent had received a notice of assessment specifying a particular date of injury. The District Court judge dismissed the application, leading the applicant to seek leave to appeal under section 118(3) of the District Court of Queensland Act 1967 (Qld).

The central legal issue before the court was whether the respondent's nomination of three time periods in which the injury may have been suffered constituted allegations of three separate injuries. This, in turn, raised the question of whether the WorkCover Queensland Act 1996 (Qld) mandates that an injury must be pleaded in relation to a specific event. The court was required to determine whether the respondent's pleadings complied with the statutory requirements and if the District Court judge's decision should be overturned.

The court held that the respondent's pleading of three time periods did not necessarily constitute three separate injuries. It was sufficient for the respondent to identify the general period during which the injury occurred. The court found that the statutory requirement for a specific event was not strictly interpreted to preclude the respondent from pleading a general time frame. Consequently, the court refused the applicant's leave to appeal and upheld the District Court judge's order. The court's reasoning was that the respondent's pleadings were adequate within the context of the statutory provisions and did not warrant a different outcome. The court concluded that the order of the learned District Court judge should remain in place.

Orders

Orders of the court

Application refused with costs

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:	Dowd v Swift Australia P/L [2008] QCA 228
PARTIES:	RAYMOND JAMES DOWD (plaintiff /respondent) v SWIFT AUSTRALIA PTY LIMITED ABN 011 062 338 (defendant/applicant)
FILE NO/S:	Appeal No 2572 of 2008 DC No 219 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Application for leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	8 August 2008
DELIVERED AT:	Brisbane
HEARING DATE:	1 August 2008
JUDGES:	Keane JA, Mackenzie AJA and Dutney J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application refused with costs
CATCHWORDS:	WORKERS' COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – PRELIMINARY REQUIREMENTS – NOTICE OF INJURY – GENERALLY – where respondent employed by applicant as meatworker – where respondent commenced action for personal injuries against applicant – where respondent pleads three time periods in which injury may have been suffered – where respondent received notice of assessment specifying the date of injury – where applicant brought application to strike out parts of the statement of claim referring to two of the three time periods – where District Court judge at first instance dismissed application – where applicant sought leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) – whether by nominating three time periods in which the injury may have been suffered the respondent should be taken to be alleging three separate injuries – whether WorkCover Queensland Act 1996 (Qld) requires respondent to plead an injury so that it relates to a specific event – whether leave should be granted and whether order of learned District Court judge should be set aside WorkCover Queensland Act 1996 (Qld), s 33, s 253, s 266 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 37, applied Re Moage Ltd (in liq) v Jagelman & Ors (1998) 153 ALR 711; [1998] FCA 296, discussed Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514; [1992] HCA 55, followed Wilkinson v Stevensam P/L & Ors [2006] QCA 88, distinguished
COUNSEL:	J A Griffin QC for the applicant A J Moon for the respondent
SOLICITORS:	A K Compensation Lawyers for the applicant Connolly Suthers for the respondent