Knight v CPSM Pty Ltd[2023] QCA 48

[2023] QCA 48

COURT OF APPEAL

MULLINS P

Appeal No 2507 of 2023

DC No 4874 of 2017

MEGAN KNIGHTApplicant

v

CPSM PTY LTDRespondent

TRADING AS MT COOLUM AGED CARE

BRISBANE

THURSDAY, 23 MARCH 2023

JUDGMENT

1. [1]
   MULLINS P:  Ms Knight was unsuccessful in suing her employer CPSM Pty Ltd for damages for personal injuries based on a breach of the contract of employment and breach of the duty of care owed by CPSM to her: Knight v CPSM Pty Ltd [2021] QDC 3 (the primary judgment).
2. [2]
   In appeal number 2501 of 2021, Ms Knight appealed to the Court of Appeal against the primary judgment.  The Court dismissed her appeal on 17 September 2021: Knight v CPSM Pty Ltd [2021] QCA 199 (the appeal judgment).
3. [3]
   On 28 February 2023, Ms Knight filed an application in this Court purporting to rely on r 748 of the Uniform Civil Procedure Rules 1999 seeking leave of the Court to institute proceedings out of time.  She purported to lodge at the same time a notice of appeal seeking to appeal to this Court again from the primary judgment.  It appears that, since the appeal judgment, she has secured a forensic toxicologist’s report on which she seeks to rely to challenge the conclusion in the appeal judgment that there was no error in the finding that the evidence did not establish a causal link between the use of D4 and the symptoms of which the appellant had complained.  D4 was the chemical the use of which in the workplace was the focus of Ms Knight’s claim.
4. [4]
   Ms Knight’s application was listed today to enable her to show cause as to why it should not be struck out as an abuse of process on the basis that she is using the application filed on 28 February 2023 as an attempt to have another appeal against the primary judgment when her appeal was disposed of by the appeal judgment.
5. [5]
   There are exceptional circumstances when a court may set aside a final order, such as those contemplated by r 667(2) of the UCPR.  Ms Knight makes the point that she was unable to obtain the expert report at an earlier time, because of her financial circumstances caused by her illness which was the subject of her claim.  The fact that Ms Knight has now obtained an expert report subsequent to the appeal judgment is not a matter that enables her to challenge the final order made by the Court of Appeal in dismissing her appeal.  There is no statutory provision to authorise a party to have a second appeal where an appeal right against a primary judgment has been exhausted.  The reasons for Ms Knight not obtaining the report earlier do not alter that position.
6. [6]
   Rule 748 of the UCPR which permits the Court of Appeal to extend the time for filing a notice of appeal applies to an appeal from a primary judgment.  It does not confer jurisdiction on the Court of Appeal to entertain a second appeal when the appeal from the primary judgment has been finalised.
7. [7]
   There is no purpose whatsoever in permitting Ms Knight’s application to remain on foot.  Ms Knight has failed to show cause as to why her application should not be struck out as an abuse of process.
8. [8]
   The order of the Court is: Application filed on 28 February 2023 is struck out as an abuse of process.