Emerson v Coles Myer Ltd - [2004] QSC 161

SUPREME COURT OF QUEENSLAND

CITATION: Emerson v Coles Myer Ltd & Anor [2004] QSC 161

PARTIES:  KATE LOUISE EMERSON
(Applicant)
v
COLES MYER LIMITED ACN 004 089 936
(First Respondent)
  and
  Q-COMP
(Second Respondent)

FILE NO: S130/2004

DIVISION: Trial Division

DELIVERED ON: 27 May 2004

DELIVERED AT: Rockhampton

HEARING DATES: 8 April 2004

JUDGE: Dutney J

ORDERS:Declare that the reasons for rejecting in part the applicant’s claim which reasons are contained in the letter from the first respondent to the applicant dated 28 October 2002 do not comply with the requirements of r. 81 of the WorkCover Queensland Regulation 1997 (Qld).
CATCHWORDS: WORKERS’ COMPENSATION – review against decision to reject claim relating to epileptic seizures – where rejection letter not received in the first instance by the applicant – where copy of the letter forwarded to the applicant at a later date by her solicitor – whether time started to run for review proceedings purposes – whether notice of the decision to reject the claim defective – whether “reasons” given for rejecting claim

WorkCover Queensland Act 1996 (Qld), ss. 33, 119(1), 135, 161(3), 161(4), 196, 197, 253(1)(a)(ii), 260, 261(1), 261(2), 261(3), 261(4), 262(4), 280, 437, 489(2), 489(4), 491(1), 491(4)(a)

WorkCover Queensland Regulation 1997 (Qld), r. 81
Q-Comp and Diane Baulch (No C97 of 2003, Hall P, 27 February 2004), doubted

COUNSEL:Mr GF Crow for the applicant
Mr PG Bickford for the first respondent
Mr PB Rashleigh for the second respondent

SOLICITORS: Chris Trevor and Associates for the applicant
Minter Ellison for the first respondent
Q-Comp for the second respondent

This application sought relief in the form of leave to appeal against a decision rejecting a claim for compensation or alternatively a declaration that the operation of the WorkCover Queensland Act 1996 (Qld) (“the Act”) is postponed where the worker is a minor until the worker attains her majority. At the oral hearing of the application it was conceded by the applicant’s counsel that the relief set out in the application was inappropriate. It was said that an amended application would be filed setting out the relief actually sought. Although the issues were identified in the course of argument, no amended application has been filed. I am left in the position that the application before me has been effectively abandoned. The only hint I have been given as to what is actually sought is the statement by Mr Crow at page 37 of the transcript of the hearing. At line 49 Mr Crow stated that what is sought is a declaration that the reasons contained in the letter of 28 October 2002, to which I will shortly refer, do not comply with the statutory requirements. Mr Crow intimated that no consequential relief was required. That seems to me to be improbable. I have thus little idea of what this applicant seeks. Nevertheless, I will do my best to deal with the issues raised.

The facts are not in dispute.

The applicant was injured at work on 19 April 2002. An…

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.

Continue reading Emerson v Coles Myer Ltd

Details

AGLC: Emerson v Coles Myer Ltd [2004] QSC 161
Case: [2004] QSC 161
Decision Date: 27 May 2004

CaseChat Overview and Summary

The applicant, Kate Louise Emerson, sought relief in the form of leave to appeal against a decision rejecting her claim for workers' compensation relating to an epileptic seizure she suffered at work. Alternatively, she sought a declaration that the operation of the WorkCover Queensland Act 1996 (Qld) is postponed until she attained her majority. The first respondent, Coles Myer Ltd, rejected her claim for compensation relating to the epileptic seizure, but accepted her claim for post-traumatic stress disorder. The second respondent, Q-COMP, is the statutory body responsible for administering the workers' compensation scheme in Queensland. The primary issue before the court was whether the reasons provided for rejecting the applicant's claim for compensation relating to the epileptic seizure complied with the requirements of the WorkCover Queensland Regulation 1997 (Qld). The court held that the reasons provided in the rejection letter did not comply with the statutory requirements. The court found that the letter did not contain reasons for the decision in accordance with the regulation, as it did not address the matters prescribed under the regulation. Additionally, the court found that the applicant did not receive the required written notice of the decision until late October 2003, meaning her application for review was within the prescribed time. The court also found that the insurer was not precluded from assessing whether any individual injury claimed in an application was an injury to which the Act applied. The court held that the three-month time limit in s 491(1) of the Act was mandatory and the applicant's application for review was made within the prescribed time. The court declared that the reasons contained in the rejection letter did not comply with the requirements of the Act. The court reserved argument on whether to make any other orders and on costs.

Orders