Sorensen v Teys Bros (Beenleigh) Pty Ltd
[2004] QCA 200
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- Sorensen v Teys Bros (Beenleigh) Pty Ltd[2004] QCA 200
- Add to List
Sorensen v Teys Bros (Beenleigh) Pty Ltd[2004] QCA 200
Sorensen v Teys Bros (Beenleigh) Pty Ltd[2004] QCA 200
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Application for Leave s 118 DCA (Civil) |
ORIGINATING COURT: | |
DELIVERED ON: | 11 June 2004 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 26 May 2004 |
JUDGES: | McMurdo P and Chesterman and Atkinson JJ |
ORDER: | Application for leave to appeal refused with costs to be assessed |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – LEAVE TO APPEAL – where respondent granted leave by District Court judge to serve claim and statement of claim for proceedings under the WorkCover Queensland Act outside the statutory time limit – where applicant required leave under the District Court Act to appeal such decision – where applicant had early notice of respondent's claim and de facto service within statutory time period – where statement of claim amended to give more detailed particulars of negligence – where room in which accident occurred decommissioned in interim – whether learned primary judge should have found significant prejudice to the applicant in extending time for service – whether substantial injustice would result from extension of time – whether leave to appeal should be granted District Court of Queensland Act 1967 (Qld), s 118 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, cited |
COUNSEL: | K F Holyoak for the applicant |
SOLICITORS: | Bruce Thomas Lawyers for the applicant |
[1] McMURDO P: This is an application for leave to appeal under s 118(3) District Court of Queensland Act 1967 (Qld) from a decision of a District Court judge granting leave to the respondent under s 306(3)(b) WorkCover Queensland Act 1996 (Qld) ("the Act") to serve his claim and statement of claim outside the 60 day period set by s 306(3)(a) of the Act.
[2] An application for leave to appeal from an interlocutory judgment will usually be refused unless it appears that the primary decision is attended by sufficient doubt to warrant it being reconsidered and also that, supposing the decision is wrong, substantial injustice would result if leave were refused.[1]
[3] The respondent claims he was injured at his place of employment on 11 February 1998. Six days later he first gave WorkCover notice of his injury when he completed an application for compensation. He described a strained muscle to his right top shoulder and that this occurred in his employer's boning room at Beenleigh on Wednesday 11 February 1998 at 7pm. He explained:
"I was slicing silversides and went to pull one over. As I did I felt a slight burning sensation run down my back. It got worse over the next two days so I went to a doctor on Friday 13.2.98 then again on Monday 16.2.98."
[4] The respondent obtained a conditional damages certificate under s 262(3) of the Act on 6 February 2001. The next day he filed his claim and statement of claim in the District Court. Importantly, the claim and statement of claim were issued within the period of limitation.
[5] On 6 March 2002, he delivered a notice of claim to WorkCover under s 280 of the Act in which he repeated his earlier description of the circumstances surrounding the injury. He said he reported it to his boning room supervisor, Michael Carroll, and he stopped work at 11.50pm on Monday, 16 February 1998. He described the particulars of negligence alleged against his employer as follows:
"The employer failed in its duties to:
(a)provide proper instruction to the worker in carrying out his duties;
(b)provide adequate supervision to the worker in carrying out his duties;
(c)provide instructions or train the worker properly in the manual handling of heavy meat products;
(d)devise a system of work, which minimises the necessity for manual handling of the meat products;
(e)provide sufficient assistance to the worker in carrying out of his work duties."
[6] The applicant allowed the respondent and his safety expert to visit the boning room where the injury is said to have occurred on 19 December 2002. Shortly afterwards, the boning room was decommissioned. During the appeal hearing, Mr Holyoak, counsel for the applicant, very properly informed the Court that he had just become aware that the respondent had effected de facto service on the applicant on the last day of the 60 day statutory period for service, 14 February 2003. On 4 April 2003, the respondent applied for an extension of the period of time to serve the claim on his employer under s 306(3)(b) of the Act, 50 days after the expiration of the statutory 60 day period (and for leave to amend the claim and statement of claim).
[7] The applicant contends that because the boning room has been decommissioned and because of the amendments to the respondent's claim which now give much more detailed particulars of the alleged negligence, the judge was plainly wrong in failing to find significant prejudice to the applicant in extending the time for service, with resulting substantial injustice to the applicant. The applicant argues that the learned primary judge's discretion miscarried because in assessing prejudice his Honour noted: "… any prejudice has not arisen because of the failure to serve within the sixty (60) day period". The applicant contends that his Honour wrongly confined his assessment of prejudice from the expiration of the time limit under s 306(3)(a) of the Act; he should have considered the prejudice arising from the whole period of delay since the events constituting the claim: Thomas v Transpacific Industries Pty Ltd[2] and Brisbane South Regional Health Authority v Taylor.[3]
[8] The applicant sought to rely on an affidavit annexing a report from the respondent's safety expert. The applicant received that report on about 26 May 2003, after the primary application had been heard but well before judgment was given. The applicant did not apply to place this material before the primary judge. I am not persuaded that this Court should now receive it. In any case, it is not of particular assistance to the applicant's case before this Court. Even considering it and the amended statement of claim and looking at the events during the whole period since the alleged injury, the applicant has not established such prejudice as to require the refusal of the application under s 306(3)(b) of the Act. This case must be distinguished from those where the action was brought outside the statutory time limit. The respondent's action was brought within time but stayed by the Act to enable the applicant to fully investigate the claim. Under the Act, the respondent was then required to serve the applicant within a 60 day period. The applicant has had early notice of the respondent's allegations and the parties completed the process of investigation, preparation and negotiation under the Act. The applicant had de facto notice of the respondent's claim within the statutory period.
[9] The applicant has not established that the decision below warrants reconsideration; on the material the decision appears to have been well within a sound exercise of discretion.
[10] I would refuse the application for leave to appeal with costs to be assessed.
[11] CHESTERMAN J: The facts relevant to this application for leave to appeal are set out in the judgment of the President whose recital of them I adopt. The discretion the exercise of which the applicant seeks leave to challenge is a wide one. Section 306 of the WorkCover Queensland Act 1996 (Qld) relevantly provided that the respondent’s claim and statement of claim should have been served on the applicant within 60 days after their compulsory conference or ‘within the further period that the court orders …’. Counsel for the applicant very properly drew our attention to the fact that the document was sent by the respondent’s solicitors to the applicant by facsimile transmission on the last day allowed by s 306 for service of the proceedings. This fact does not appear in the record book and was not brought to the attention of the chamber judge. The document was not the claim or statement of claim but it was a draft proceeding which set out the precise terms of the amended statement of claim which the applicant has delivered, having obtained an extension of time for serving the original pleading. In these circumstances the applicant for leave faces an impossible task. Were the court persuaded that leave should be given to challenge the exercise of a discretion, conferred in very wide terms, in an interlocutory application this court would have to exercise the discretion for itself if satisfied that the order of the learned judge was plainly wrong. The fact that informal notice of the precise claim that the respondent wishes to pursue against the applicant was given to it within the time allowed by s 306 could only mean that the discretion would be exercised, as Judge Nase thought, in favour of the extension.
[12] I agree that the application for leave to appeal should be refused with costs.
[13] ATKINSON J: I agree with the reasons given by McMurdo P and with the orders proposed.