Kitto v Medalion Homes Ltd & WorkCover Qld - [2000] QCA 288

[2000] QCA 288

COURT OF APPEAL

DAVIES JA
THOMAS JA
MULLINS J

[KITTO v MEDALION HOMES LIMITED]

No 10527 of 1999

FRANCIS JAMES KITTO Appellant (Plaintiff)

and

MEDALION HOMES LIMITED
(IN LIQUIDATION) First Respondent (First Defendant)

and

WORKCOVER QUEENSLAND Second Respondent
(Defendant by Election)

BRISBANE

..DATE 20/07/2000

JUDGMENT

DAVIES JA: This is an appeal from a judgment of the Chief Justice given in Chambers on 1 November last refusing the appellant leave to proceed against the first respondent. Leave was necessary under section 471B of the Corporations Law because the respondent is in liquidation. The appeal is therefore against the exercise of a discretion with the difficulties for the appellant which that involves.

The action which the appellant instituted against the first respondent is one for damages for personal injuries arising out of an injury which to put it neutrally appears to have occurred in or prior to September 1994. The date on which that injury arose is relevant to the limitation period under the Limitations of Actions Act 1974 and was a relevant factor in the exercise of the discretion to which I have just referred.

The material placed before his Honour by the appellant, on this application, was very limited indeed. It consisted of three affidavits by two solicitors acting for the appellant to the first of which was exhibited two unsworn statements by the appellant.

Those statements assert a psychiatric condition occurring for the first time about one week prior to 19 September 1994 arising out of tension caused by dishonesty on the part of his employer, the first defendant and first respondent.

There does not appear to be any doubt that about that time the appellant had a psychiatric condition. There is, however, considerable doubt about when it arose and as to its precise cause or causes.

Against that evidence was an affidavit by Christopher
Charles Bosse, a fellow employee of the appellant deposing to the fact that the appellant exhibited symptoms of the kind, which the appellant said arose for the first time during the week or approximately one week prior to
19 September 1994, Mr Bosse said by the time he resigned on 8 September 1994.

Mr Bosse was not cross-examined on the application and there being no sworn evidence from the appellant there was no opportunity to cross-examine him. The difficulty facing the appellant under the Limitation of Actions Act is that the action having commenced only on 11 September 1997, he can recover damages only for an injury which occurred after that date in 1994.

Moreover, it is now too late for him to apply for an extension of time under section 31 of that Act. That section applying only when a material fact of a decisive character relating to the right of action was not within the means of knowledge of an applicant, him, until after approximately September 1996 whereas it is plain here that all material facts were within his knowledge some time, at least, in September 1994.

The result…

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: [2000] QCA 288
Decision Date: 20/07/2000

CaseChat Overview and Summary

The case of Kitto v Medalion Homes Ltd & WorkCover Qld was heard by the Court of Appeal, comprising Davies JA, Thomas JA, and Mullins J. The plaintiff, Francis James Kitto, sought damages for personal injuries arising from an injury that occurred prior to September 1994. The first defendant, Medalion Homes Limited, was in liquidation, necessitating leave under the Corporations Law to proceed with the action. The second defendant, WorkCover Queensland, was involved due to an election made by the first defendant. The primary issue for the Court of Appeal was whether the plaintiff should be granted leave to proceed with the action against the first defendant and whether further evidence could be adduced in the appeal.

The Court of Appeal considered whether the decision of the Chief Justice refusing leave to proceed was erroneous. The plaintiff's evidence, including affidavits and unsworn statements, indicated that his psychiatric condition arose around one week prior to 19 September 1994 due to stress at work. However, a fellow employee, Christopher Charles Bosse, deposed that the plaintiff exhibited symptoms by 8 September 1994. The Court noted that the plaintiff's action was time-barred under the Limitation of Actions Act 1974, and an extension of time could not be sought as all material facts were known by September 1994. Despite this, the Court found that the Chief Justice's decision was not erroneous based on the evidence before him.

The Court addressed the issue of admitting further evidence, including a new affidavit from the plaintiff and a corrected affidavit from Mr. Bosse. The Court concluded that the judgment was not final, allowing further evidence to be presented without special leave. The new evidence from Mr. Bosse suggested that the plaintiff's symptoms could have arisen after the limitation period, potentially allowing the plaintiff to proceed with the action. The Court found that the plaintiff should be granted leave to proceed and that the costs should be costs in the cause in the action.

In summary, the Court of Appeal allowed the appeal, set aside the previous order, and granted the plaintiff leave to proceed against the first defendant. The Court also ordered that the costs be costs in the cause in the action.

Orders