Nona v Queensland Rail

[2003] QSC 363

SUPREME COURT OF QUEENSLAND

CITATION:

Nona v Queensland Rail [2003] QSC 363

PARTIES:

NABEA NONA
(Plaintiff / Respondent)
v
QUEENSLAND RAIL
(Defendant / Applicant)

FILE NO/S:

S.714 of 2000

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

29 October 2003

DELIVERED AT:

Townsville

HEARING DATE:

24 October 2003

JUDGES:

Cullinane J

ORDER:

1.    Order the stay of proceedings unless and until the plaintiff obtains an order extending the limitation period under the Limitation of Actions Act so that it expires no earlier than 2nd November 2000, the day upon which proceedings were instituted.

2.    Order the respondent to pay the applicant’s costs of and incidental to the application to be assessed.

CATCHWORDS:

LIMITATION OF ACTIONS – GENERAL – APPLICATION OF STATUTES OF LIMITATION – where employee brought action for damages against employer more than three years from date of injury but less than three years after receipt of a notice from WorkCover – whether earlier order giving leave to institute proceedings will preclude the striking out of the claim and statement of claim

Limitation of Actions Act 1974 (Qld)

WorkCover Queensland Act 1996 (Qld), s 305

Workers’ Compensation Rehabilitation Act 2003 (Qld), s 252A, s 336

Bonser v Melnacis & Anor (2000) QCA 13, considered
Tanks v WorkCover Queensland [2001] QCA 103, followed

COUNSEL:

M Drew for the Plaintiff/Respondent
RC Morton for the Defendant/Applicant

SOLICITORS:

Connolly Suthers for the Plaintiff/Respondent
McInnes Wilson Lawyers for the Defendant/Applicant

1. The respondent/defendant seeks in this application an order for judgment against the plaintiff/applicant on an order that the claim and statement of claim in the action be struck out.

1. The respondent was injured on 2^nd April 1997 in the course of his employment with the applicant.

1. He applied for workers’ compensation on 14^th April 1997 under the WorkCover Queensland Act and a notice of assessment pursuant to s.203 of the Act was issued on 8^th October 1997.  The respondent was assessed as having a “non certificate injury”.

1. He elected to reject the offer of a lump sum compensation and to seek damages.  This election took place on 3^rd November 1997.

1. He did not give any notice of claim under s.280 of the Act prior to the expiration of three years from the date of his injury.

1. On 24^th October 2000 the respondent applied for and was granted leave pursuant to s.305 of the WorkCover Act to institute proceedings notwithstanding the failure to comply with s.280.

1. The matter came before the court shortly after the judgment at first instance in the matter of Tanks v WorkCover Queensland (2000) QSC 326.

1. The effect of that judgment was that no cause of action arose in the case of an injured worker prior to the receipt of a notice of assessment from WorkCover.  This finding was all that was necessary in that case.  The effect of the judgment of the Court of Appeal in Bonser v Melnacis & Anor (2000) QCA 13 is that no cause of action arose until…