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
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”).
While working at the prison on 23rd 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.
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.
As a result of what has just been described the plaintiff suffered injury.
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 4th January 2000. On 4th January 2000…
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- Case
- [2003] QSC 321
- Decision Date
CaseChat Overview and Summary
The plaintiff failed to comply with the requirements of both the WorkCover Queensland Act 1996 and the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”). The plaintiff did not lodge a Notice of Claim under s280 of the WorkCover Queensland Act, a requirement the court found to be substantive in nature. The court also found the requirement to give notice under s9 of PIPA to be substantive. In both cases, the court found the failure to comply with the statutory requirements meant the proceedings were void. The court found the plaintiff's application for leave nunc pro tunc to be out of time as the plaintiff had been aware of the material facts relating to the right of action since at least June 2001.
The court struck out the proceedings and dismissed the plaintiff's application for an extension of time. The court found that the plaintiff could, however, commence fresh proceedings against the second defendant within six months of lodging a complying notice of claim under s9 of PIPA by 18th December 2003.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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