Oats v Mount Isa Mines Ltd

[1995] QCA 383

IN THE COURT OF APPEAL	[1995] QCA 383
SUPREME COURT OF QUEENSLAND

Appeal No. 98 of 1995

Brisbane

[Mt. Isa Mines Limited v. Oats]

BETWEEN:

PHILLIP REGINALD OATS

Applicant/Respondent

AND:

MOUNT ISA MINES LIMITED

Respondent/Appellant

Macrossan C.J.
Davies J.A.

Fryberg J.

Judgment delivered 25/08/1995

Judgment of the Court

APPEAL DISMISSED

CATCHWORDS:	Statute of Limitations - Application to extend period of time - Limitation of Actions Act 1974 s. 31 - Standard of proof on application different than at trial - Wood v Glaxo Australia Pty Ltd.
Counsel:	Mr R Myers for the appellant/respondent. Mr K Dorney QC for the respondent/applicant.
Solicitors:	Thynne & Macartney for the appellant/respondent. V R Moffatt & Associates for the respondent/applicant.
Hearing date:	4 August 1995

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 98 of 1995

Brisbane

Before Macrossan C.J.

Davies J.A.

Fryberg J.

[Mt. Isa Mines Limited v. Oats]

BETWEEN:

PHILLIP REGINALD OATS

Applicant/Respondent

AND:

MOUNT ISA MINES LIMITED

Respondent/Appellant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 25/08/1995

The appellant is the defendant in an action for personal injuries and was the respondent to the plaintiff's application to a judge in chambers for an order pursuant to s. 31 of the Limitation of Actions Act 1974 extending the period of limitation for the respondent's action to the date of issue of the writ. The application was successful before the learned chamber judge. This appeal is against his order.

The appellant's first argument was that the learned chamber judge wrongly found the existence of a "material fact of a decisive character" within the meaning of that phrase in the act. The subject matter of the chamber judge's findings was the opinion of Dr. Low which causally relates the respondent's alleged low back and groin pain to an accident which occurred at his place of employment. In its written submissions the appellant argued that there was a complete absence of evidence of any facts upon which the opinion of Dr. Low could have been based, and that consequently the learned chamber judge was not entitled to accept Dr. Low's opinion: Ramsay v Watson1. In the course of argument before us, however, it became apparent that the appellant's real argument was that His Honour's conclusion was against the weight of the evidence before him.

In an application such as the present, an applicant need not prove his case as he would at trial. As the Chief Justice has said:

"Although the requirements of the legislation must be complied with if an extension is to be granted, the extent to which an applicant must show a case on the hearing of the application to extend time will frequently depend upon the impression on the judge's mind of the material which the applicant presents or the existence of which he demonstrates or points to. It is nevertheless recognised as wrong to place potential plaintiffs in anything like a situation where they must on the probabilities show that it is likely they will succeed in their actions. A judge may harbour a feeling that there is a strong chance that particular applicants will fail at trial but, in my opinion, he should not act on the basis of this impression both because that is a question reserved for another occasion and because he cannot know and should not insist on being able to see in all of its ramifications the full strength of the case whichwill eventually be present at trial."2

As His Honour further observed in that case, hearsay evidence is admissible on the application. Such evidence may support an inference of the existence of evidence which it can reasonably be expected will be available at the trial and which would if unopposed by other evidence be sufficient to prove an applicant's case.

In the present case the respondent did not need to prove the facts on which Dr. Low's opinion was based. He simply needed to prove matters from which the existence of such facts could be inferred. In our judgment he succeeded in doing so. At this stage of the proceedings it is of no consequence that the material from which the inference is to be drawn is itself hearsay; nor does it avail the appellant to point to inconsistencies between it and other evidence. Such inconsistencies should be resolved at trial.

It will be a rare case indeed where an appeal can succeed against an order extending time on the ground that the order is contrary to the weight of the evidence.

The appellant argued in the alternative that if there was evidence to support Dr. Low's opinion, it could only be found in an inference that the respondent was suffering from progressive low back pain following the accident. It was argued that the matters found by the judge were therefore capable of being ascertained by the respondent had he taken the reasonable step of reporting that pain to an appropriate doctor. It followed, it was submitted that the material fact found by the learned chamber judge was not one not within the means of knowledge of the respondent3. However in our judgment the evidence did not demonstrate that the respondent failed to take all reasonable steps to ascertain the relevant fact. So to find would be to attribute to the respondent the degree of knowledge and insight of a specialist medical practitioner. He attended upon a number of medical practitioners; he complained of pain in his groin; and there is no reason to suppose that anyone asked him questions which called upon him to refer to the condition of his lower back. In our view this argument also should be rejected.

It follows that this appeal should be dismissed.

1

3 (1961) 108 C.L.R. 642.
Wood v Glaxo Australia Pty Ltd [1994] 2 Qd.R. 431 at p. 434.
Limitations of Actions Act 1974, s. 30(d).

2