Wayne Gilbert Lowndes v Olwyn Elizabeth Strang

[2000] QCA 323

[2000] QCA 323

COURT OF APPEAL

DAVIES JA
THOMAS JA
AMBROSE J

Appeal No 8718 of 1999

WAYNE GILBERT LOWNDES              Respondent (Plaintiff)

v.

OLWYN ELIZABETH STRANG and
HECTOR LOUDON STRANG
(trading as Mackay Painting
Services)  Appellants (Defendants)

BRISBANE

..DATE 08/08/2000

JUDGMENT

DAVIES JA:  This is an appeal from a judgment given in the Supreme Court in Chambers on 30 August last year. 

The only formal order made by the learned Chamber Judge was that the plaintiff's application, which was one for an extension of time under the Limitation of Actions Act be dismissed and for costs pursuant to that. It, at least superficially, then seems surprising that the appeal to this Court is by the defendants to that action who appeal, or at least purport to appeal, against what they say was an order made by his Honour refusing to strike out the writ or, as it seems to have been put in the alternative by Mr North for the appellant, strike out the writ in part, or to the extent that it applied to causes of action arising after either
31 December 1996 or 1 February 1997, those being relevant dates that I'll mention in a moment.

The basis upon which the appeal is made appears to be that
Mr North submits that an application was made instanta during the course of argument in the plaintiff's application on behalf of the defendants to strike the writ out.

His Honour without making any formal order in that respect said that it was inappropriate to strike out the writ, that being something which his Honour said during the course of his reasons for judgment in the plaintiff's application.

It does appear as Mr North has also pointed out to us that during the course of argument Mr Aberdeen, who was then appearing for the defendants, the present appellants, submitted that the writ was a nullity and he made that submission based on, as he put it, the WorkCover, the provisions of the WorkCover Act.

The sequence of events appears to be this.  The writ claims damages for personal injuries for negligence arising from events occurring from at least 20 November 1995, the writ having been issued on 20 November 1998.

During the period from 20 November 1995 to 6 October 1998 it appears that the plaintiff respondent was working for the appellants and doing work of a heavy nature which he apparently contends caused him various injuries.

It is conceded by Mr North to the extent that the writ claims damages for injuries suffered before 31 December 1995 when amendments were made to the Worker's Compensation Act coming in on 1 January 1996.

Mr Douglas QC for the respondent concedes, at least, that there will be difficulties in the action so far as it relates to injuries as they may have been defined in the Worker's Compensation Act and later the WorkCover Queensland Act, injuries suffered after 1 January 1996, the amendments to the Worker's Compensation Act applying from that date until 1 February 1997. During that period there were, of course, some difficulties so far as instituting proceedings as illustrated by the decision of Mr Justice Shepherdson in Mears v. Coles Myer to which reference has been made before us. It is unnecessary to decide here whether that decision is correct or whether, in fact, after 1 January 1996 the respondent is unable to claim damages for injuries during that period in this action.

The position therefore appears to me to be that the learned Chamber Judge was correct, if he did, in refusing to strike out the writ on the basis that it was a nullity.

Mr North before this Court has really sought to change ground somewhat and submit that it is appropriate to treat the matter here as an application to strike out parts of the statement of claim, or even, perhaps, parts of the action.  That was certainly not the way it was treated below and
Mr Douglas for the respondent does not accept that this Court should embark upon what, in effect, would be a Chamber application, a fresh Chamber application to determine these matters.

It seems to me, in those circumstances, there is no alternative but to dismiss the appeal which I would do with costs.

THOMAS JA:  I agree.  I would leave entirely open the question whether, if procedural requirements of the 1995 amending Act and of the WorkCover Act are subsequently complied with by the plaintiff, the existing writ may be able to support claims for damages for Acts after 1 January 1996. 

I agree with the reasons that Mr Justice Davies and the orders he proposes.

AMBROSE J:  Yes, I agree.

...

DAVIES JA:  The appeal is dismissed with costs.

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