Holmes v Adnought Sheet Metal Fabrications Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:                  Holmesv Adnought Sheet Metal Fabrications Pty Ltd & The Queensland Corrective Services Commission            [2003] QSC 321

PARTIES:                    JAMES CLIVE HOLMES

(Plaintiff/Applicant)

v  

ADNOUGHT SHEET METAL FABRICATIONS        PTY LTD
(First Defendant/First Respondent)
  and
  THE QUEENSLAND CORRECTIVE SERVICES       COMMISSION
(Second Defendant/Second Respondent)

FILE NO:  S620 of 2002

DIVISION:                   Trial Division

DELIVERED ON:       23 September 2003

DELIVERED AT:        Rockhampton

HEARING DATE:       22 August 2003

JUDGE:   Dutney J

ORDERS:1.     The action is struck out;

2.The application for an extension of time    within which to commence proceedings is   dismissed.

CATCHWORDS:          PERSONAL INJURIES – LEAVE NUNC PRO TUNC – where provisions of WorkCover Queensland Act 1996 (Qld) and Personal Injuries Proceedings Act 2002 (Qld) not complied with – whether proceedings a nullity – whether leave can be granted nunc pro tunc where prerequisites are substantive law requirements

LIMITATION OF ACTIONS – PERSONAL INJURIES - EXTENSION OF TIME – MATERIAL FACTS OF A DECISIVE CHARACTER – where plaintiff/applicant’s work related impairment assessed at 20-25% - where plaintiff/applicant must have been aware that the objective facts disclosed a reasonable cause of action  before the limitation period expired

Limitation of Actions Act 1974 (Qld) ss 30 and 31

Personal Injuries Proceedings Act 2002 (Qld) ss4, 7, 9, 18, 43 and 77D

WorkCover Queensland Act 1996 s252, s280, 302, 304 and 305

Bonser v Melnacis [2000] QCA 13, followed

Emanuel v Australian Securities Commission (1996-1997) 188 CLR 114, considered

Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325, cited

Taggart v The Workers’ Compensation Board of Queensland [1983] 2 Qd R 19, cited

Tanks v WorkCover Queensland [2001] QCA 103, followed

Wicks v Queensland University of Technology [2000] QSC 034, cited

COUNSEL:Mr Trotter (by phone) for the Plaintiff

Mr O’Driscoll for the First Defendant

Ms Philipson (by phone) for the Second Defendant

SOLICITORS:               John Murphy & Co for the Plaintiff

Searles Solicitors for the First Defendant

Crown Law for the Second Defendant

1. Clive James Holmes (“the plaintiff”) was a sheet metal worker employed by Adnought Sheet Metal Fabrications Pty Ltd (“the first respondent”).  The first respondent carried out a business of mechanical repairs and light industrial fabrications from, inter alia, a leased area of the Rockhampton Correctional Centre (“the prison”).

1. While working at the prison on 23^rd December 1999 the plaintiff was grabbed from behind by two prisoners, tied with duct tape and carried to and placed in the rear of his own utility.  The two prisoners involved in the seizure then attempted to make good an escape from the prison in the utility.

1. While the vehicle was in motion, the plaintiff managed to free himself from the tape and leapt from the moving vehicle to get free of the escapees.

2. As a result of what has just been described the plaintiff suffered injury.

1. On the day of the incident the plaintiff consulted a chiropractor and a general practitioner and was given a certificate to be off work until 4^th January 2000.  On 4^th January 2000…