Robertson v Sellin - [2011] QSC 421

SUPREME COURT OF QUEENSLAND

CITATION:

Robertson v Sellin & anor [2011] QSC 421

PARTIES:

COLIN ROBERTSON
(applicant)
v
LESLIE GEORGE FRANCIS SELLIN
(first respondent )
SUNCORP METWAY INSURANCE LIMITED
ABN 83 075 695 966

(second respondent)

FILE NO/S:

SC No 9725 of 2011

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

Delivered ex tempore 1 November 2011

DELIVERED AT:

Brisbane

HEARING DATE:

1 November 2011

JUDGE:

Atkinson J

ORDERS:

1.   The limitation period for bringing of the proceedings by the Applicant against the Respondents be extended to 3 November 2011;

2. Pursuant to s 39(5)(c)(ii) of the Motor Accident Insurance Act 1994 (as amended) (“the Act”), the Court authorises further proceedings based on the claim despite non compliance by the Applicant;

3.   Pursuant to s 57 (2)(b) of the Act, the Applicant be given leave to commence proceedings within 60 days of one of the following events occurring:

(a)     A conference being held pursuant to ss 51A and 51B of the Act and Mandatory Final Offers being exchanged in accordance with s 51C of the Act;

(b)     In the event of the parties agreeing to dispense with (a) above, pursuant to s 51A(4) of the Act, the date of the said agreement;

(c)      In the event of the Court making an order to dispense with (a) above, pursuant to s 51A(5)(b) of the Act, the date of such order.

4.   Each party have liberty to apply by giving at least 3 business days notice in writing to the other party or parties.

5.   There be no order as to costs.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – GENERALLY – where the applicant was injured when the brakes failed in the truck he was driving in the course of his employment – where the applicant originally filed a claim under the Workers' Compensation and Rehabilitation Act 2003 (Qld) – where WorkCover subsequently determined that the claim fell outside the ambit of that Act and opined that the matter was instead governed by the Motor Accident Insurance Act 1994 (Qld) – where the applicant was informed of this by letter received 3 November 2010 – whether the limitation period should be extended

Limitations of Actions Act 1974 (Qld), s 30, s 31

Carlowe v Frigmobile Pty Ltd [1999] QCA 527, cited

Queensland v Stephenson (2006) 226 CLR 197; [2006] HCA 20, cited

COUNSEL:

R F King-Scott for the applicant

R B Dickson for the respondents

SOLICITORS:

Jon Kent Lawyers for the applicant

Jensen McConaghy for the respondents

HER HONOUR: This is an application pursuant to sections 30 and 31 of the Limitations of Actions Act 1974 (Qld) to extend the limitation period to 3 November 2011. The applicant is Colin Robertson who was a truck driver and the application is supported by an affidavit from himself and his solicitors, Jon
Kent and Michael…

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.

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Details

Case: [2011] QSC 421
Decision Date: 1 November 2011

CaseChat Overview and Summary

The case of Robertson v Sellin involved the applicant, Robertson, who was injured in a work-related incident when the brakes on the truck he was driving failed. Initially, Robertson filed a claim under the Workers' Compensation and Rehabilitation Act 2003 (Qld). However, WorkCover subsequently determined that the claim did not fall under that Act and suggested that it should instead be governed by the Motor Accident Insurance Act 1994 (Qld). Robertson was informed of this determination by letter on 3 November 2010, and he now seeks an extension of the limitation period to bring his claim under the Motor Accident Insurance Act. The legal issues before the court involved whether the limitation period for bringing the claim should be extended and, if so, under what conditions.

The court considered the statutory framework for limitation periods under the Motor Accident Insurance Act 1994 (Qld) and the principles surrounding the extension of such periods. The court noted that under s 57(2)(b) of the Act, the limitation period could be extended if the applicant did not have knowledge of the material facts of decisive character at the relevant time. The court found that Robertson did not have such knowledge until he received the WorkCover determination on 3 November 2010. As a result, the limitation period should be extended to 3 November 2011. Additionally, the court authorised further proceedings despite Robertson's non-compliance with certain procedural requirements, pursuant to s 39(5)(c)(ii) of the Act.

The court further granted Robertson leave to commence proceedings within 60 days of one of three specified events occurring: the holding of a conference and exchange of Mandatory Final Offers under ss 51A and 51C of the Act, the parties agreeing to dispense with the conference, or the court making an order to dispense with the conference. The court also allowed each party to apply for further orders with appropriate notice. Finally, the court made no order as to costs.

In summary, the court extended the limitation period for Robertson to bring his claim under the Motor Accident Insurance Act 1994 (Qld) and authorised further proceedings despite non-compliance with certain procedural requirements. The court granted Robertson leave to commence proceedings within 60 days of a specified event occurring and made no order as to costs.

Orders

Orders of the court

1. The limitation period for bringing of the proceedings by the Applicant against the Respondents be extended to 3 November 2011;

2. Pursuant to s 39(5)(c)(ii) of the Motor Accident Insurance Act 1994 (as amended) (“the Act”), the Court authorises further proceedings based on the claim despite non compliance by the Applicant;

3. Pursuant to s 57 (2)(b) of the Act, the Applicant be given leave to commence proceedings within 60 days of one of the following events occurring:

(a) A conference being held pursuant to ss 51A and 51B of the Act and Mandatory Final Offers being exchanged in accordance with s 51C of the Act;

(b) In the event of the parties agreeing to dispense with (a) above, pursuant to s 51A(4) of the Act, the date of the said agreement;

(c) In the event of the Court making an order to dispense with (a) above, pursuant to s 51A(5)(b) of the Act, the date of such order.

4. Each party have liberty to apply by giving at least 3 business days notice in writing to the other party or parties.

5. There be no order as to costs.

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:	Robertson v Sellin & anor [2011] QSC 421
PARTIES:	COLIN ROBERTSON (applicant) v LESLIE GEORGE FRANCIS SELLIN (first respondent ) SUNCORP METWAY INSURANCE LIMITED ABN 83 075 695 966 (second respondent)
FILE NO/S:	SC No 9725 of 2011
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	Delivered ex tempore 1 November 2011
DELIVERED AT:	Brisbane
HEARING DATE:	1 November 2011
JUDGE:	Atkinson J
ORDERS:	1. The limitation period for bringing of the proceedings by the Applicant against the Respondents be extended to 3 November 2011; 2. Pursuant to s 39(5)(c)(ii) of the Motor Accident Insurance Act 1994 (as amended) (“the Act”), the Court authorises further proceedings based on the claim despite non compliance by the Applicant; 3. Pursuant to s 57 (2)(b) of the Act, the Applicant be given leave to commence proceedings within 60 days of one of the following events occurring: (a) A conference being held pursuant to ss 51A and 51B of the Act and Mandatory Final Offers being exchanged in accordance with s 51C of the Act; (b) In the event of the parties agreeing to dispense with (a) above, pursuant to s 51A(4) of the Act, the date of the said agreement; (c) In the event of the Court making an order to dispense with (a) above, pursuant to s 51A(5)(b) of the Act, the date of such order. 4. Each party have liberty to apply by giving at least 3 business days notice in writing to the other party or parties. 5. There be no order as to costs.
CATCHWORDS:	LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – GENERALLY – where the applicant was injured when the brakes failed in the truck he was driving in the course of his employment – where the applicant originally filed a claim under the Workers' Compensation and Rehabilitation Act 2003 (Qld) – where WorkCover subsequently determined that the claim fell outside the ambit of that Act and opined that the matter was instead governed by the Motor Accident Insurance Act 1994 (Qld) – where the applicant was informed of this by letter received 3 November 2010 – whether the limitation period should be extended Limitations of Actions Act 1974 (Qld), s 30, s 31 Carlowe v Frigmobile Pty Ltd [1999] QCA 527, cited Queensland v Stephenson (2006) 226 CLR 197; [2006] HCA 20, cited
COUNSEL:	R F King-Scott for the applicant R B Dickson for the respondents
SOLICITORS:	Jon Kent Lawyers for the applicant Jensen McConaghy for the respondents