Holmes v Adnought Sheet Metal Fabrications Pty Ltd

James Clive Holmes (“the plaintiff”) brought an action against Adnought Sheet Metal Fabrications Pty Ltd (“the first respondent”), his employer, and the State of Queensland (“the second respondent”) arising from an incident on 23rd December 1999 when the plaintiff was grabbed by two prisoners at a workplace located in the Rockhampton Correctional Centre. The plaintiff suffered an injury and claimed damages against both the first and second respondents. The primary judge was required to determine whether the plaintiff's failure to comply with statutory requirements meant the proceedings were a nullity and whether the plaintiff was entitled to an extension of time within which to commence proceedings.

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.