Mears v Coles Myer Ltd

[2000] QCA 342

SUPREME COURT OF QUEENSLAND

CITATION:

Mears v Coles Myer Ltd [2000] QCA 342

PARTIES:

ANDREW CHARLES MEARS
(plaintiff/appellant)
v
COLES MYER LTD ACN 004 089 936
(defendant/respondent)

FILE NO/S:

Appeal No 8312 of 1999
SC No 99 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING
COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 August 2000

DELIVERED AT:

Brisbane

HEARING DATE:

19 May 2000

JUDGES:

McMurdo P, Davies JA and Holmes J
Separate reasons for judgment of each member of the Court; Davies JA and Holmes J concurring as to the orders made, McMurdo P dissenting.

ORDER:

Appeal dismissed. Parties to make written submissions as to costs, to be filed and served within seven days.

CATCHWORDS:

STATUTES – INTERPRETATION ACTS AND CLAUSES – PARTICULAR WORDS AND PHRASES – SPECIFIC INTERPRETATIONS – s 182D Workers’ Compensation Act 1990 (Qld)– “approved form” – repeal by WorkCover Queensland  Act 1996

Acts Interpretation Act 1954 (Qld), s 14B, s 20
Limitation of Actions Act 1974 (Qld), s 31(2)
Motor Accident Insurance Act 1994 (Qld), s 37(1), s 39(5)
WorkCover Queensland Act 1996 (Qld), s 402, s 532, s 551, s 558
Workers’ Compensation Act 1990 (Qld) s 32, s 182A, s 182B(6), s 182D, s 182E

Neuss v Roche Bros Pty Ltd [2000] QCA 130; Appeal No 9447 of 1999, 13 June 2000, applied
Young v Keong [1999] 2 QdR 335, considered

COUNSEL:

D O J North SC, with D R Kent, for the appellant
R J Douglas SC for the respondent

SOLICITORS:

Shepherds Lawyers (Beenleigh) for the appellant
Mullins & Mullins Lawyers for the respondent

1. McMURDO P: I have read the reasons for judgment of Holmes J who has set out the relevant facts and issues.

1. Between October 1998 and the appellant's assessment by WorkCover on 24 December 1998 there were a number of requests by the appellant for the assessment to take place.  The appellant's action became statute barred on 10 January 1999, a few days after the issue of the writ.  The respondent applied to strike out the proceedings after the writ was served in March 1999 and advised that if fresh proceedings were issued they would rely upon the Limitation of Actions Act 1974 in their defence. The respondent knew of the appellant's desire to seek damages at law well within the limitation period and the appellant's solicitors were endeavouring to progress the matter. There was some confusion, even within WorkCover, as to the correct procedure at this time. In those circumstances I find it disappointing that a statutory body such as WorkCover would take the limitation point.

1. The appellant's first contention is that "seek damages at law" under s 182D(1) Workers Compensation Act 1990 ("the Act") does not include the issuing of a writ. I agree with Holmes J for the reasons she has given that the primary judge was correct in his construction of that section; as the appellant had not received an offer of lump sum compensation under s 32 of the Act…