Cumming v Specialised Training Services (Qld) Pty Ltd
[2000] QCA 243
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- Cumming v Specialised Training Services (Qld) Pty Ltd[2000] QCA 243
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Cumming v Specialised Training Services (Qld) Pty Ltd[2000] QCA 243
Cumming v Specialised Training Services (Qld) Pty Ltd[2000] QCA 243
SUPREME COURT OF QUEENSLAND
CITATION: | Cumming v Specialised Training Services (Qld) P/L [2000] QCA 243 |
PARTIES: | IAN DOUGLAS CUMMING (plaintiff/applicant) v SPECIALISED TRAINING SERVICES (QLD) PTY LTD ACN 071 250 612 (defendant/respondent) |
FILE NO/S: | Appeal No 3542 of 2000 DC No 134 of 1998 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Extension of Time |
ORIGINATING COURT: | District Court at Southport |
DELIVERED ON: | 20 June 2000 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 14 June 2000 |
JUDGES: | Pincus and Thomas JJA, Dutney J Judgment of the Court |
ORDER: | Application refused with costs to be assessed. |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306; (1999) 160 ALR 588, applied de Vries v Australian National Railways Commission (1993) 177 CLR 472, applied |
COUNSEL: | The applicant appeared on his own behalf J A McDougall for the respondent |
SOLICITORS: | The applicant appeared on his own behalf Witheriff Nyst (Southport) for the respondent |
- THE COURT: This is an application for the grant of leave to file and serve a Notice of Appeal against a judgment given in the District Court on 3 March 2000. That judgment dismissed the action brought by the applicant as plaintiff seeking damages for personal injuries.
- The applicant appeared on his own behalf here and at trial, apparently having dismissed his legal representatives before trial. Knowing of the judgment on 3 March 2000 he decided to proceed with arrangements that he had made for a trip to New Zealand and travelled there on 4 March 2000, not returning to Australia until 4 April 2000. In the meantime the period for lodging an appeal expired. He says that before leaving Australia he made "arrangements with friends" to write to the Attorney-General's office and the Court of Appeal advising that he wished to lodge an appeal. He says that he did not receive replies (through forwarding arrangements to his mother's address in Victoria) until about 9 April 2000. He then attended the registry of the Court of Appeal, obtained the necessary forms and filed the present application on 19 April 2000.
- The delay is not great, and the respondent has not suggested any particular prejudice flowing from it. However, the applicant's explanation reveals a cavalier attitude. Although the delay is explained, it is difficult to say that it is satisfactorily explained.
- More importantly, we have in any event examined the question whether there are any realistic prospects of success upon the appeal. The basis of the proposed appeal is that the learned trial judge erred in accepting the evidence that he did, and in rejecting the applicant's evidence. The applicant's case was that while attending a CES training course he was at one stage acting as a patient who was being wheeled in a "Henry Hoist" trolley. There is no doubt that the applicant fell from the trolley at a certain point. According to the evidence of a witness (Mahoney) the applicant was pushing his feet against the upright pole of the hoist causing his body to swing. She (Mahoney) warned him not to continue doing this as the hoist would tip. It did so and the applicant fell from the trolley. The learned trial judge accepted that this was how the incident occurred and found that it was caused solely by the applicant's own conduct.
- None of the somewhat hyperbolic oral submissions or the further written submissions that were advanced by the applicant reveal any error on the part of the learned trial judge which would justify intervention by this court consistently with the principles of de Vries v Australian National Railways Commission[1] and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq).[2] The same may be said of other findings in the case in which the learned trial judge found adversely to the interests of the applicant. This includes his Honour's preparedness to accept the evidence of Dr Downes who considered that, in effect, there was nothing wrong with the applicant as a result of the accident. The learned judge also had the advantage of seeing videotape evidence which, in his view, showed relatively strenuous physical activity on the applicant's part, assisting in the conclusion that he was not satisfied that the applicant's ability to work had been affected by the incident in question.
- On every level the prospects of a successful appeal seem hopeless.
- The application should be refused with costs to be assessed.