Honour v Faminco Mining Services Pty Ltd - [2009] QCA 352

SUPREME COURT OF QUEENSLAND

CITATION:

Honour v Faminco Mining Services Pty Ltd as Trustee for the Faminco Trust (In Liquidation) & Anor [2009] QCA 352

PARTIES:

CLINTON JOHN HONOUR
(applicant/respondent)
v
FAMINCO MINING SERVICES PTY LTD AS TRUSTEE FOR THE FAMINCO TRUST (IN LIQUIDATION)
ABN 5517 147 163
(first respondent/appellant)
MOUNT ISA MINES LTD
ACN 009 661 447
(second respondent/appellant)
OSM GROUP PTY LTD
(respondent/not a party to the appeal)

FILE NO/S:

Appeal No 480 of 2009
Appeal No 501 of 2009
SC No 51 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeals

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

13 November 2009

DELIVERED AT:

Brisbane

HEARING DATE:

24 August 2009

JUDGES:

Fraser and Chesterman JJA and P Lyons J
Separate reasons for judgment of each member of the Court, Fraser JA and P Lyons J concurring as to the orders made, Chesterman JA dissenting

ORDERS:

Appeals dismissed with costs

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – Where the appellants appeal against an order to extend the time for the respondent to commence proceedings in respect of an injury and related relief

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – whether a material fact is of a decisive character – whether the respondent should have sought appropriate advice as to his condition because of the matters which he knew of by the relevant date – whether on the information available at the relevant date, and with appropriate advice, a reasonable person would regard the facts which were then known as showing that an action by the respondent would have a reasonable prospect of success, and of resulting in an award of damages sufficient to justify the bringing of an action – consideration of s 30(1)(b) of the Limitation of Actions Act

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – EVIDENCE TO ESTABLISH RIGHT OF ACTION – whether a material fact is within a potential claimant’s means of knowledge – whether that claimant has taken reasonable steps to ascertain a material fact – whether the material fact of a decisive character relating to the right of action was not within the respondent’s means of knowledge until the relevant date – whether it was reasonable for the respondent not to seek specialist opinion before the relevant date about his ability to continue to work in the mining industry – whether the respondent acted reasonably based on the information available to him at the relevant date and on appropriate advice given to him with respect to knowing that an action would have reasonable prospects of resulting in an award of general damages – consideration of s 30(1)(c) Limitation of Actions Act

District Court of Queensland Act 1967 (Qld), s92
Limitation of Actions Act 1974 (Qld), s 30,…

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: [2009] QCA 352
Decision Date: 13 November 2009

CaseChat Overview and Summary

The appellants in Honour v Faminco Mining Services Pty Ltd appealed against an order that extended the time for the respondent to commence proceedings in relation to an injury sustained during employment. The appeal involved interpreting and applying provisions of the Limitation of Actions Act in the context of personal injury claims. The court's task was to determine whether the statutory criteria for extending the limitation period were satisfied, particularly in light of the respondent's knowledge and actions concerning his injury.

The primary legal issues centred on the interpretation and application of sections 30(1)(b) and 30(1)(c) of the Limitation of Actions Act. The court had to assess whether the respondent knew or ought to have known material facts of decisive character that would have indicated a reasonable prospect of success for an action by the statutory limitation date. This required consideration of whether the respondent took reasonable steps to ascertain the necessary facts, and if, with appropriate advice, a reasonable person would have regarded the known facts as showing that an action would likely succeed. Additionally, the court had to determine whether the material facts were within the respondent's means of knowledge until the relevant date, and if it was reasonable for the respondent not to seek specialist opinion before then.

The court found that the statutory criteria were met, emphasising that the respondent's knowledge and actions aligned with the provisions of the Limitation of Actions Act. The court held that the respondent did not know and could not reasonably have been expected to know the material facts of decisive character until after the statutory limitation period. Furthermore, the court concluded that it was reasonable for the respondent not to seek specialist opinion before the relevant date, given the information available and the advice received. As a result, the appeals were dismissed with costs.

Orders

Orders of the court

Appeals dismissed 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:	Honour v Faminco Mining Services Pty Ltd as Trustee for the Faminco Trust (In Liquidation) & Anor [2009] QCA 352
PARTIES:	CLINTON JOHN HONOUR (applicant/respondent) v FAMINCO MINING SERVICES PTY LTD AS TRUSTEE FOR THE FAMINCO TRUST (IN LIQUIDATION) ABN 5517 147 163 (first respondent/appellant) MOUNT ISA MINES LTD ACN 009 661 447 (second respondent/appellant) OSM GROUP PTY LTD (respondent/not a party to the appeal)
FILE NO/S:	Appeal No 480 of 2009 Appeal No 501 of 2009 SC No 51 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeals
ORIGINATING COURT:	Supreme Court at Rockhampton
DELIVERED ON:	13 November 2009
DELIVERED AT:	Brisbane
HEARING DATE:	24 August 2009
JUDGES:	Fraser and Chesterman JJA and P Lyons J Separate reasons for judgment of each member of the Court, Fraser JA and P Lyons J concurring as to the orders made, Chesterman JA dissenting
ORDERS:	Appeals dismissed with costs
CATCHWORDS:	LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – Where the appellants appeal against an order to extend the time for the respondent to commence proceedings in respect of an injury and related relief LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – whether a material fact is of a decisive character – whether the respondent should have sought appropriate advice as to his condition because of the matters which he knew of by the relevant date – whether on the information available at the relevant date, and with appropriate advice, a reasonable person would regard the facts which were then known as showing that an action by the respondent would have a reasonable prospect of success, and of resulting in an award of damages sufficient to justify the bringing of an action – consideration of s 30(1)(b) of the Limitation of Actions Act LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – EVIDENCE TO ESTABLISH RIGHT OF ACTION – whether a material fact is within a potential claimant’s means of knowledge – whether that claimant has taken reasonable steps to ascertain a material fact – whether the material fact of a decisive character relating to the right of action was not within the respondent’s means of knowledge until the relevant date – whether it was reasonable for the respondent not to seek specialist opinion before the relevant date about his ability to continue to work in the mining industry – whether the respondent acted reasonably based on the information available to him at the relevant date and on appropriate advice given to him with respect to knowing that an action would have reasonable prospects of resulting in an award of general damages – consideration of s 30(1)(c) Limitation of Actions Act District Court of Queensland Act 1967 (Qld), s92 Limitation of Actions Act 1974 (Qld), s 30,…