Pugin v WorkCover Queensland - [2005] QCA 66

SUPREME COURT OF QUEENSLAND

CITATION:

Pugin v WorkCover Qld [2005] QCA 66

PARTIES:

JENNIFER VERONICA PUGIN
(applicant/applicant/appellant)
v
WORKCOVER QUEENSLAND
(respondent/respondent)

FILE NO/S:

Appeal No 8768 of 2004
DC No 3146 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

18 March 2005

DELIVERED AT:

Brisbane

HEARING DATE:

8 March 2005

JUDGES:

McPherson and Keane JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for leave to appeal dismissed save in relation to the s 285 point in relation to which application for leave to appeal granted but appeal dismissed
2. Applicant to pay respondent's costs of the application and appeal to be assessed

CATCHWORDS:

WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - PRELIMINARY REQUIREMENTS - CLAIM AND DELAY IN MAKING CLAIM - GENERALLY - applicant unsuccessfully sought leave to bring proceedings for workers' compensation despite non-compliance with s 280 of the WorkCover Queensland Act 1996 (Qld) ("WCQA") - alternatively sought declaration that respondent estopped from denying the claim for damages by reason of the expiry of the limitation period - applicant applying for leave to appeal from decision below - history of claim dogged by procedural mistakes - respondent advised that applicant's second notice of claim did not comply with the WCQA - respondent did not give written notice as required by s 282(3) WCQA - after expiration of limitation period respondent wrote letter stated to be pursuant to s 285 WCQA and advised that liability denied for claim because limitation period expired - stated in letter that nothing in the correspondence constituted a waiver of the client's non-compliance with the requirements of the WCQA - whether relief against expiration of limitation period available under s 308 WCQA - whether respondent waived compliance with requirements of s 280

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY - application for leave to appeal under s 118(3) District Court of Queensland Act 1967 (Qld) - where point not raised below - nature of Court's jurisdiction - where Court must be satisfied that decision below attended with sufficient doubt to warrant reconsideration - whether point not raised below can be considered on an application for leave to appeal

District Court of Queensland Act 1967 (Qld), s 118(3)

WorkCover Queensland Act 1996 (Qld), s 280, s 282, s 285, s 308

Commonwealth v Verwayen (1990) 170 CLR 394, distinguished
Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, considered

Haynes v Hirst (1927) 27 SR(NSW) 480, cited

COUNSEL:

J A Griffin QC, with G J Cross, for the applicant/appellant
G W Diehm for the respondent

SOLICITORS:

Watling Roche Lawyers (Caboolture) for the applicant/appellant
Bruce Thomas Lawyers for the respondent

McPHERSON JA: I have read and agree with the reasons of Keane JA. I…

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.

Continue reading Pugin v WorkCover Queensland

Details

AGLC: Pugin v WorkCover Queensland [2005] QCA 66
Case: [2005] QCA 66
Decision Date: 18 March 2005

CaseChat Overview and Summary

The applicant, Pugin, sought leave to appeal against a decision of the District Court of Queensland in which his application for workers' compensation was dismissed. Pugin's claim was dismissed on the basis that he had not complied with the preliminary requirements for making such a claim under the WorkCover Queensland Act 1996. Pugin argued that the respondent was estopped from denying his claim by reason of the expiry of the limitation period, or alternatively, that the respondent had waived compliance with the requirements of the Act. Pugin's history of claim was dogged by procedural mistakes, including failing to comply with section 280 of the WorkCover Queensland Act 1996.

The legal issues that the court had to decide were whether relief against the expiration of the limitation period was available under section 308 of the WorkCover Queensland Act 1996 and whether the respondent had waived compliance with the requirements of section 280. The court found that Pugin's application for leave to appeal was not successful in relation to the first issue. However, Pugin's application for leave to appeal was successful in relation to the second issue. The court found that the respondent had waived compliance with the requirements of section 280 by failing to give Pugin written notice as required by section 282(3) of the WorkCover Queensland Act 1996. However, the appeal was dismissed.

The court found that Pugin's application for leave to appeal was not successful in relation to the first issue because the point had not been raised below. The court found that it must be satisfied that the decision below attended with sufficient doubt to warrant reconsideration before it could consider a point that had not been raised below. The court found that the decision below did not attend with sufficient doubt to warrant reconsideration in relation to the first issue. The court found that Pugin's application for leave to appeal was successful in relation to the second issue because the respondent had waived compliance with the requirements of section 280 by failing to give Pugin written notice as required by section 282(3) of the WorkCover Queensland Act 1996. However, the appeal was dismissed because Pugin had failed to comply with section 280 of the WorkCover Queensland Act 1996.

The final orders were that Pugin's application for leave to appeal was dismissed save in relation to the section 285 point in relation to which application for leave to appeal was granted but the appeal was dismissed. Pugin was to pay the respondent's costs of the application and appeal to be assessed.

Orders

Orders of the court

1. Application for leave to appeal dismissed save in relation to the s 285 point in relation to which application for leave to appeal granted but appeal dismissed

2. Applicant to pay respondent's costs of the application and appeal to be assessed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Pugin v WorkCover Qld [2005] QCA 66
PARTIES:	JENNIFER VERONICA PUGIN (applicant/applicant/appellant) v WORKCOVER QUEENSLAND (respondent/respondent)
FILE NO/S:	Appeal No 8768 of 2004 DC No 3146 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	18 March 2005
DELIVERED AT:	Brisbane
HEARING DATE:	8 March 2005
JUDGES:	McPherson and Keane JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal dismissed save in relation to the s 285 point in relation to which application for leave to appeal granted but appeal dismissed 2. Applicant to pay respondent's costs of the application and appeal to be assessed
CATCHWORDS:	WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - PRELIMINARY REQUIREMENTS - CLAIM AND DELAY IN MAKING CLAIM - GENERALLY - applicant unsuccessfully sought leave to bring proceedings for workers' compensation despite non-compliance with s 280 of the WorkCover Queensland Act 1996 (Qld) ("WCQA") - alternatively sought declaration that respondent estopped from denying the claim for damages by reason of the expiry of the limitation period - applicant applying for leave to appeal from decision below - history of claim dogged by procedural mistakes - respondent advised that applicant's second notice of claim did not comply with the WCQA - respondent did not give written notice as required by s 282(3) WCQA - after expiration of limitation period respondent wrote letter stated to be pursuant to s 285 WCQA and advised that liability denied for claim because limitation period expired - stated in letter that nothing in the correspondence constituted a waiver of the client's non-compliance with the requirements of the WCQA - whether relief against expiration of limitation period available under s 308 WCQA - whether respondent waived compliance with requirements of s 280 APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY - application for leave to appeal under s 118(3) District Court of Queensland Act 1967 (Qld) - where point not raised below - nature of Court's jurisdiction - where Court must be satisfied that decision below attended with sufficient doubt to warrant reconsideration - whether point not raised below can be considered on an application for leave to appeal District Court of Queensland Act 1967 (Qld), s 118(3) WorkCover Queensland Act 1996 (Qld), s 280, s 282, s 285, s 308 Commonwealth v Verwayen (1990) 170 CLR 394, distinguished Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, considered Haynes v Hirst (1927) 27 SR(NSW) 480, cited
COUNSEL:	J A Griffin QC, with G J Cross, for the applicant/appellant G W Diehm for the respondent
SOLICITORS:	Watling Roche Lawyers (Caboolture) for the applicant/appellant Bruce Thomas Lawyers for the respondent