Ipswich City Council v Smith - [1997] QCA 263

IN THE COURT OF APPEAL	[1997] QCA 263
SUPREME COURT OF QUEENSLAND

Appeal No. 5443 of 1997

Brisbane

[Ipswich City Council v. Smith]

BETWEEN:

IPSWICH CITY COUNCIL

(Applicant) Appellant

AND:

ROBIN NEVILLE SMITH

Respondent

Pincus J.A. Davies J.A. Byrne J.

Judgment delivered 29 August 1997

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

APPLICATION FOR LEAVE TO APPEAL GRANTED AND EXTENSION OF TIME
WITHIN WHICH TO FILE NOTICE OF APPEAL GRANTED UNTIL 5 SEPTEMBER
1997.
APPEAL ALLOWED AND APPLICATION REFUSED WITH COSTS. APPELLANT TO

HAVE ITS COSTS OF THIS APPLICATION AND APPEAL.

CATCHWORDS:

CIVIL - respondent suffered personal injury in respect of employment - application for leave to appeal from decision of District Court judge extending the period of limitation under s.31 of the Limitation of Actions Act 1974 - whether leave to appeal should be granted and if so whether time to appeal should be extended - whether the events revealed a fact of a decisive character relating to a right of action.

Harris v. Commercial Minerals Limited (1996) 186 C.L.R. 1
Moriarty v. Sunbeam Corporation Limited [1988] 2 Qd.R. 325
Peabody Resources Limited v. Norton (Appeal No. 200 of 1994,

delivered 16 June 1995)
Taggart v. Workers' Compensation Board of Queensland [1983]
2 Qd.R. 19

District Courts Act 1967, s.118
Limitations of Actions Act 1974, ss.30,31

Counsel:	Mr. P. A. Keane Q.C., with him Mr. B. L. Hoare for the applicant/appellant Mr. R. M. Stenson for the respondent
Solicitors:	Thynne & Macartney for the applicant/appellant Kevin Bradley for the respondent
Hearing Date:	14 July 1997

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 5443 of 1997.

Brisbane

Before Pincus JA Davies JA Byrne J

[Ipswich City Council v. Smith]

BETWEEN:

IPSWICH CITY COUNCIL

(Applicant) Appellant

AND:

ROBIN NEVILLE SMITH

Respondent

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 29 August 1997

I have read the reasons of Davies JA and agree that the orders his Honour proposes should be made. I admit having had some difficulty with the question whether there can be said to be an important question of justice involved; I have in the end accepted that there is one, for the reasons stated by Davies JA.

The drafting of the relevant provisions of the Limitation of Actions Act 1974 is such as to make the test set out in s. 30(b), read with s. 31(2)(a), hard to apply. The two paragraphs do not mesh well. The latter provision, s. 31(2)(a), contemplates that an identified fact, within the applicant’s knowledge at the date of the application, was not within his or her knowledge or means of knowledge prior to the date mentioned in the paragraph. Putting this more simply, s. 31(2)(a) envisages the applicant saying, "I have just found out decisive fact X". That might be, for example, that an eye witness has been unearthed, there being, previously, no satisfactory evidence to…

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.

Keep reading for free

Create a free CaseChat account to read Ipswich City Council v Smith and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1997] QCA 263
Decision Date: 29/08/1997

CaseChat Overview and Summary

In the matter of Ipswich City Council v Smith, the plaintiff, Ipswich City Council, sought leave to appeal against a decision of the District Court of Queensland. The Council had initially brought proceedings against the defendant, Smith, who was employed by the Council at the time of the incident. The dispute revolved around Smith's claim for personal injuries that he alleged were sustained due to the Council's negligence. The crux of the case was whether the District Court judge was correct in extending the period of limitation under section 31 of the Limitation of Actions Act 1974.

The legal issues before the court included whether leave to appeal should be granted and, if so, whether the time to appeal should be extended. Central to these issues was the interpretation of section 31 and whether the events revealed a fact of a decisive character relating to Smith's right of action. The court had to consider whether the circumstances were such that they would have materially affected the outcome of the proceedings if they had been known at the relevant time.

The court found that the circumstances did not constitute a fact of a decisive character that would have materially affected the outcome of the proceedings if known at the relevant time. Consequently, the court held that leave to appeal should not be granted. The court also determined that even if leave to appeal were granted, the time to appeal should not be extended. The reasoning was that the alleged facts, while potentially significant, did not meet the stringent criteria required to warrant an extension under section 31 of the Limitation of Actions Act 1974. The court's decision was based on a careful analysis of the evidence presented and the statutory provisions applicable to the case.

Orders