Nona v Queensland Rail

Case [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 2nd April 1997 in the course of his employment with the applicant.

  1. He applied for workers’ compensation on 14th April 1997 under the WorkCover Queensland Act and a notice of assessment pursuant to s.203 of the Act was issued on 8th 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 3rd 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 24th 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…

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AGLC
Nona v Queensland Rail [2003] QSC 363
Case
[2003] QSC 363
Decision Date

CaseChat Overview and Summary

Nona brought an action against Queensland Rail for damages arising from an injury sustained during employment. The action was initiated more than three years after the injury, but less than three years after Nona received a notice from WorkCover. The dispute in the case centred on whether the limitation period for instituting legal proceedings was extended by an earlier order that granted leave to institute proceedings. The court had to determine whether this prior order precluded the striking out of Nona's claim and statement of claim.

The court examined the statutory provisions governing limitation periods and the effect of an order granting leave to institute proceedings. It assessed whether such an order could operate to extend the limitation period for the purposes of bringing a claim. The court considered whether the leave to proceed was an integral part of the statutory scheme designed to protect against unjust enrichment and whether it could be used to circumvent the statutory limitation period. The court concluded that the statutory limitation period was not extended by the earlier order, and therefore, Nona's action was subject to being struck out unless the limitation period was extended under the Limitation of Actions Act.

The court found that the earlier order granting leave to institute proceedings did not alter the statutory limitation period. Consequently, the court ordered that the proceedings be stayed unless and until Nona obtained an order extending the limitation period under the Limitation of Actions Act. The court further ordered Queensland Rail to pay Nona's costs of and incidental to the application, to be assessed. This decision ensures that the statutory limitation periods are strictly adhered to, unless properly extended by the relevant legislation.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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