Spain v Dipompo Jacs Constructions Pty Ltd - [2009] QSC 50

SUPREME COURT OF QUEENSLAND

CITATION:

Spain v Dipompo Jacs Constructions Pty Ltd [2009] QSC 50

PARTIES:

JOHN SPAIN
Applicant

v

WORKCOVER QUEENSLAND
First Respondent

and

DIPOMPO JACS CONSTRUCTIONS PTY LTD
(ACN 079 467 262)
Second Respondent

FILE NO/S:

No 11107 of 2008

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

12 March 2009

DELIVERED AT:

Brisbane

HEARING DATE:

27 February 2009

JUDGE:

A Lyons J

ORDER:

Extend the limitation period

CATCHWORDS:

LIMITATION OF ACTIONS – PROCEEDINGS INSTITUTED AFTER EXPIRY OF LIMITATION PERIOD – APPLICATION FOR EXTENSION OF LIMITATION PERIOD – Under s 31(2)(a) of the Limitation of Actions Act 1974 (Qld) (“the Act”) a court may extend a limitation period if “a material fact of a decisive character relating to the right of action” was not within the applicant’s means of knowledge until a date after the commencement of the year last preceding the expiration of the limitation period (“the relevant date”) – where a material fact of a decisive character relating to the right of action was not within the means of his knowledge, until a date after the commencement of the year last preceding the expiration of the period of limitation for the action

Limitation of Actions Act 1974 (Qld) s 31
WorkCover Queensland Act 1996 (Qld) s 203

Workers’ Compensation and Rehabilitation Act 2003 (Qld)

Greenhalgh v Bacas Training Limited & Ors [2007] QCA 327, followed
Healy v Femdale Pty Ltd [1993] QCA 210, followed
Muir v Franklins Ltd [2001] QCA 173, cited
Pizer v Ansett Australia Limited [1998] QCA 298, followed
Queensland v Stephenson (2006) 226 CLR 197, followed
Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, followed

COUNSEL:

R Lynch for the applicant
K Holyoak for the respondent

SOLICITORS:

Nathan Lawyers for the applicant
McInnes Wilson Lawyers for the defendant

A LYONS J:
The application

John Spain is 35 years old and he seeks, by this application, to extend the limitation period for the action for personal injuries he wishes to pursue against his former employer, Dipompo Jacs Constructions Pty Ltd, so that the limitation period expires on 8 July 2009. His application is brought pursuant to s 31 of the Limitation of Actions Act 1974 (the Act). The application is opposed by the respondent.

Factual background

Mr Spain began working for Dipompo Jacs Constructions Pty Ltd in April 2002 as a form worker. On 22 November 2002, he consulted a doctor in relation to an injury he suffered lifting timbers from one area to another. What started as a slight ache in his lower back on 8 November 2002, developed into severe pain and on 22 November, he was unable to dress or get out of bed. When he consulted his medical practitioner, Dr Stevens, he referred Mr Spain for x-rays and prescribed anti-inflammatory medication. He also started physiotherapy treatment. Mr Spain indicated that Dr Stevens told him that he was having muscle spasms in his lower back. An x-ray report dated 25…

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 Spain v Dipompo Jacs Constructions Pty Ltd

Details

AGLC: Spain v Dipompo Jacs Constructions Pty Ltd [2009] QSC 50
Case: [2009] QSC 50
Decision Date: 12 March 2009

CaseChat Overview and Summary

Spain filed a claim against Dipompo Jacs Constructions Pty Ltd, seeking damages for alleged defects in construction work completed by the defendant. The dispute centred on whether the claimant was entitled to an extension of the limitation period for bringing the proceedings, as per section 31(2)(a) of the Limitation of Actions Act 1974 (Qld). The court had to determine if a material fact of a decisive character relating to the right of action was not within the plaintiff's knowledge until a date after the commencement of the year preceding the expiry of the limitation period.

The court examined whether Spain could demonstrate that a significant fact impacting the right of action was unknown to him until after the limitation period had begun. It was crucial to establish if the plaintiff had exercised reasonable diligence in discovering this fact and if the defendant would suffer significant prejudice if the limitation period were extended. The court assessed the evidence provided regarding Spain's discovery of the material fact and the reasonableness of his diligence in uncovering it.

In reaching its decision, the court found that Spain had indeed identified a material fact of a decisive character that was not within his knowledge until after the limitation period had begun. It was further determined that Spain had exercised reasonable diligence in uncovering this fact. The court concluded that extending the limitation period was warranted, as the defendant would not suffer significant prejudice if the period were extended. Consequently, the court granted the application for an extension of the limitation period, allowing Spain to proceed with the claim.

Orders

Orders of the court

Extend the limitation period

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:	Spain v Dipompo Jacs Constructions Pty Ltd [2009] QSC 50
PARTIES:	JOHN SPAIN Applicant v WORKCOVER QUEENSLAND First Respondent and DIPOMPO JACS CONSTRUCTIONS PTY LTD (ACN 079 467 262) Second Respondent
FILE NO/S:	No 11107 of 2008
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	12 March 2009
DELIVERED AT:	Brisbane
HEARING DATE:	27 February 2009
JUDGE:	A Lyons J
ORDER:	Extend the limitation period
CATCHWORDS:	LIMITATION OF ACTIONS – PROCEEDINGS INSTITUTED AFTER EXPIRY OF LIMITATION PERIOD – APPLICATION FOR EXTENSION OF LIMITATION PERIOD – Under s 31(2)(a) of the Limitation of Actions Act 1974 (Qld) (“the Act”) a court may extend a limitation period if “a material fact of a decisive character relating to the right of action” was not within the applicant’s means of knowledge until a date after the commencement of the year last preceding the expiration of the limitation period (“the relevant date”) – where a material fact of a decisive character relating to the right of action was not within the means of his knowledge, until a date after the commencement of the year last preceding the expiration of the period of limitation for the action Limitation of Actions Act 1974 (Qld) s 31 WorkCover Queensland Act 1996 (Qld) s 203 Workers’ Compensation and Rehabilitation Act 2003 (Qld) Greenhalgh v Bacas Training Limited & Ors [2007] QCA 327, followed Healy v Femdale Pty Ltd [1993] QCA 210, followed Muir v Franklins Ltd [2001] QCA 173, cited Pizer v Ansett Australia Limited [1998] QCA 298, followed Queensland v Stephenson (2006) 226 CLR 197, followed Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, followed
COUNSEL:	R Lynch for the applicant K Holyoak for the respondent
SOLICITORS:	Nathan Lawyers for the applicant McInnes Wilson Lawyers for the defendant