Torpy v Qantas Airways Limited

DISTRICT COURT OF QUEENSLAND

CITATION:

Torpy v Qantas Airways Limited [2019] QDC 277

PARTIES:

MICHAEL ERNEST TORPY
(applicant)

v

QANTAS AIRWAYS LIMITED   
(respondent)

FILE NO/S:

111/2019

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Cairns

DELIVERED EXTEMPORE ON:

17 July 2019

DELIVERED AT:

Cairns

HEARING DATE:

17 July 2019

JUDGE:

Morzone QC DCJ

ORDER:

1. Pursuant to section 298 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) the applicant has leave to start a Court proceeding despite non-compliance with section 275 of the Act, in respect of an alleged injury occurring on the 26th of July 2018;

2.   Unless either party applies or the parties otherwise agree on a different costs order within 14 days of this decision, the costs of the application will be the parties’ respective costs in the proceeding;

3.   Each party has liberty to apply for further or other directions upon each party giving the other at least three business days’ notice.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COMMENCING PROCEEDINGS – where leave sought to commence proceeding – where non-compliance with s 275 Workers Compensation and Rehabilitation Act 2003 (Qld)

Legislation

Limitation of Actions Act 1974 (Qld) s 31
Personal Injury Proceedings Act 2012 (Qld) s43
Workers Compensation and Rehabilitation Act 2003 (Qld) ss 233, 235, 236, 275, 276, 297, 298, 302

Cases

Brittain v Hentys (a firm) & Ors [2017] QSC 40
Melisavon Pty Ltd v Springfield Land Development Corporation Pty Ltd [2014] QCA 233

COUNSEL:

J Trevino for the applicant
K Holyoak for the respondent

SOLICITORS:

Maurice Blackburn Lawyers for the applicant
BT Lawyers for the respondent

1. The applicant applies, pursuant to s 298 of the Workers Compensation and Rehabilitation Act 2003 (Qld) for leave to commence a court proceeding despite non-compliance with section 275 of that Act, which is contested by the respondent.

1. The parties have provided detailed outlines of argument and made further oral submissions in respect of the application. 

Background 

1. The applicant was employed by the respondent as a baggage handler at the Cairns Domestic Airport between 2001 and 2018.  His work involved performing relatively heavy lifting of baggage without mechanical aid and, on occasion, with such aid.  He claims that he injured his right shoulder on 26 July 2018 in the course of his employment with the respondent while unloading a Boeing 737 aeroplane at the Cairns airport.  He perceives the injury as being caused by a single event based on having no perception of any previous injury or any similar past symptoms in that shoulder area.  He subsequently sought medical attention.  He has since been subject of medical examination, investigation, surgical procedure and opinion, including the following.  His general practitioner noted a provisional diagnosis, seemingly referred to as a right shoulder injury – bursitis, plus sign rotator cuff tendonitis.

1. It is not clear when that was made, it is likely that it was at a time when he was cognisant of later investigation.  In any event, he earlier referred the applicant for ultrasound…