DISTRICT COURT OF QUEENSLAND

2. [2]
   Mr Castillon worked as a machine operator for P&O Ports Limited for some 22 years. By late 1999 he was experiencing symptoms of carpal tunnel syndrome in both hands (BCTS), consulted a Doctor and claimed compensation from WorkCover Queensland. He underwent surgery for the condition in both hands which did not resolve the symptoms. He received compensation for a period and tried, unsuccessfully, to resume his normal duties. In 2004 his employment with P&O was terminated.

3. [3]
   In 2003 Mr Castillon commenced proceedings for damages for personal injury which have had a lengthy and tortuous history. Previous controversies have involved questions of whether his claim is out of time and whether it is adequately pleaded. This has prompted repeated attempts by Mr Castillon’s lawyers to replead his case, apparently to avoid limitation issues and to put the claim on a proper foundation.

4. [4]
   Unfortunately, both the history and the current state of the pleadings have confused and complicated the hearing of the applications now before me. This difficulty has centred on the nature of the claim for damages for personal injury associated with BCTS. The injury has been variously pleaded as: the condition itself; the condition for which operative intervention was unsuccessful; and the recurrence or aggravation of the condition. This judgment involves applications by both parties which do not directly counter each other but which are at cross purposes.

5. [5]
   P&O has applied to strike out certain paragraphs of the statement of claim, which relate to a recurrence or aggravation of BCTS. It argues that this is a new cause of action which is out of time and for which leave has not been granted. Further, because it asserts Mr Castillon has not complied with the requirements of the WorkCover Queensland Act 1996 (Qld) (WQA), P&O argues his entitlement to pursue the cause of action has been extinguished.  Finally, P&O argues the pleading discloses no reasonable cause of action or has a tendency to prejudice or delay the fair trial of the proceedings. Mr Castillon argues the claim for damages for recurrence of the condition is not a new cause of action but, if it is, leave should be granted to add it to the claim. He also argues that he has complied with the requirements of the WQA and, therefore, his entitlement to pursue the cause of action has not been extinguished and the pleadings in relation to the claim should not be struck out.

6. [6]
   Mr Castillon proposes to further amend the statement of claim to include a claim for damages for BCTS for which operative intervention was unsuccessful. That formulation of the claim appeared in an earlier version of the statement of claim, but was removed when it was amended last year. He says he does not need leave of the Court to make that amendment but, if he does, he seeks that leave. P&O opposes leave being granted to make the proposed amendments. It has foreshadowed a further application to strike out if the amendments are made.

7. [7]
   Mr Castillon also seeks an extension of the limitation period to one day after the proceedings were commenced. If granted, this will enable him to recover damages for his condition to the extent that his cause of action arose prior to 27 November 1999. That date is three years before an order was made, by consent of the parties, which entitled Mr Castillon to commence these proceedings. Unless the extension is granted, the parties agree that Mr Castillon cannot recover any damages for a cause of action which arose before that date. P&O argues this application has already been refused upon an application to another judge of this Court. Because of the earlier application it argues either Mr Castillon cannot make the application or, if he can, this Court should not grant the extension.

8. [8]
   There is a multiplicity of issues raised by these applications which can be dealt with most simply by addressing the following questions:

1. Should the pleading relating to a recurrence and/or aggravation of BCTS be struck out?
2. Does Mr Castillon require leave to further amend the Statement of Claim in the terms proposed and, if so, should leave be granted?
3. Can and should the limitation period for Mr Castillon’s claim be extended to one day after the proceedings were commenced?

1. Should the pleading relating to a recurrence and/or aggravation of BCTS be struck out?

9. [9]
   Ms Treston, counsel for P&O, argued the relevant paragraphs of the statement of claim should be struck out because:

1. (a)
   They add a new cause of action which is out of time and for which leave has not been, and should not be, granted;

2. (b)
   Mr Castillon has not complied with the requirements of the WQA and, therefore, his entitlement to pursue the cause of action has been extinguished; and

3. (c)
   The pleading discloses no reasonable cause of action or has a tendency to prejudice or delay the fair trial of the proceedings.

(a) Does it add a new cause of action out of time and, if so, should leave be granted?

(i) A new cause of action? 

10. [10]
    Dr Cross, counsel for Mr Castillon, submits that it is not a new cause of action, rather a particular of the cause of action the subject of these proceedings. He argues the cause of action is negligence and/ or breach of contract and/or breach of statutory duty. That is, the pleading of recurrence of BCTS is a particular of the injury claimed rather than a new cause of action.

11. [11]
    Ms Treston relies on the definition of injury in the WQA (s 34) in support of her contention that the recurrence is a new cause of action. That section provides that “injury” includes an aggravation of a personal injury if it arises out of or in the course of employment and the employment is a significant contributing factor to the aggravation (s 34(3)(b)).

12. [12]
    That is a definition for the purposes of the WQA. I respectfully adopt the observation of Mullins J that “the emphasis in the WQA on discrete injuries for the purpose of the pre-proceeding procedures does not affect the nature of a cause of action for the purposes of the commencement of a proceeding.”(Watson v WorkCover Queensland & Anor at [32]). I do not consider the WQA definition determines this question.

13. [13]
    A cause of action is “simply the fact or combination of facts which gives rise to a right to sue. In an action for negligence, it consists of the wrongful act or omission and the consequent damage…” (Do Carmo v Ford Excavations Pty Ltd per Wilson J at p245).

14. [14]
    The proposed amended statement of claim draws a distinction between P&O's breaches of duty prior to the onset of symptoms and its breaches of duty after Mr Castillon returned to work post surgery. The pre-surgery breaches are its failure to warn that carpal tunnel syndrome may be caused or aggravated by Mr Castillon’s work and that early intervention might remove or reduce its symptoms. The post-surgery breaches are P&O's failure to warn Mr Castillon of the possibility of recurrence or aggravation and its failure to alter Mr Castillon’s duties to avoid the risk of recurrence or aggravation. Whilst the damages involve the same condition and the claim is founded on the same duty owed by P&O to Mr Castillon as its employee, the breaches of duty are different (Pianta v BHP Australia Coal Ltd).

15. [15]
    In my view, the different breaches alleged in relation to the condition and its recurrence establish they are distinct causes of action.

(ii) A cause of action which is out of time?

16. [16]
    Mr Castillon sought to add this cause of action in 2006. His first claim for compensation from WorkCover for BCTS was made on 2 December 1999. He underwent surgery for carpal tunnel release in the left hand in February 2000 and in the right hand in May 2000. He subsequently returned to work. On 4 December 2000 he made a further claim for compensation from WorkCover. Although it is not explicit in the pleadings, at the hearing Dr Cross identified this as the recurrence of BCTS. Assuming, therefore, that the recurrence occurred between May 2000 and December 2000, the limitation period expired some years ago. Mr Castillon does not dispute that, if it is a new cause of action, it is out of time.

(iii) Should leave granted to add the cause of action?

17. [17]
    Leave may be granted to add a cause of action which is out of time if the Court considers it appropriate and if it arises from the same or substantially the same facts (r376 UCPR).

18. [18]
    Substantially the same is not tantamount to the same facts and the need to prove some additional facts is not necessarily fatal if they “arise out of substantially the same story as that which would have to be told to support the original cause of action” (Draney v Barry at [57] per Thomas JA).  While the manifestation of the condition and its recurrence are, at the very least, some six months apart, and P&O's alleged breaches of duty differ, broadly speaking substantially the same story needs to be told to support both claims, namely:

• the nature, scope and duties arising from the employment relationship;
• Mr Castillon’s work duties;
• the symptoms he experienced;
• the connection between those symptoms and Mr Castillon’s duties;
• steps taken by P&O to warn Mr Castillon of the risk of contracting carpel tunnel syndrome; 
• steps taken by P&O in response to Mr Castillon’s symptoms; 
• steps taken by P&O to warn Mr Castillon of the risk of recurrence; and
• the loss suffered by Mr Castillon as a result of the emergence of the condition and its recurrence.

19. [19]
    Albeit, additional facts are relevant to the recurrence claim because different breaches of duty are alleged and the focus of that claim is on the post-surgery period. However, the facts relevant to the damages for the condition itself (whenever it arose) span both the pre and post surgery period and are also relevant to damages for the recurrence or aggravation of the condition. The requirement for the facts to be substantially the same “should not be seen as a strait jacket” (Draney v Barry ibid). I consider the cause of action arises from substantially the same facts in the sense that phrase is used in r376.

20. [20]
    I also consider it appropriate that leave is granted to add the cause of action. P&O is not prejudiced by the addition of the cause of action (Allonnor Pty Ltd v Doran).  The claim for recurrence was made in December 2000, was investigated and accepted by WorkCover and compensation was paid. Subject to the other arguments addressed below, I am persuaded that it is appropriate to grant leave to add the cause of action for damages for recurrence or aggravation of the condition.

(b) Has Mr Castillon’s entitlement to pursue the cause of action been extinguished?

21. [21]
    There is no controversy about the effect of the relevant provisions of the WQA. If the requirements of Chapter 5 have not been complied with, the parties agree Mr Castillon cannot pursue the cause of action (Tanks v WorkCover Qld at [50]).  Mr Castillon says, however, that the procedural steps taken under WQA related to the both the first compensation claim for the condition and the second compensation claim for its recurrence or aggravation.  P&O agree that the requirements of WQA have been met in relation to the first compensation claim. If Mr Castillon is correct, and those steps are properly referable to the second compensation claim as well, the requirements of the WQA will have been met and the entitlement to pursue the cause of action will not have been extinguished.

22. [22]
    A worker can only seek damages in respect of an injury if an application for compensation has been accepted or a Notice of Assessment has been issued in respect of that injury (s 253 WQA).

23. [23]
    Mr Castillon’s first claim for compensation from WorkCover for BCTS was made on 2 December 1999. After surgery in February and May 2000, Mr Castillon made a second claim for compensation from WorkCover on 4 December 2000. This is the claim for recurrence of BCTS.

24. [24]
    P&O has not contradicted affidavit material filed on behalf of Mr Castillon to the effect that this second claim for compensation was treated by WorkCover as a reopening of the first and that, thereafter, the two claims were processed as one claim and assigned the one claim number - 990081797. On the material before me, neither WorkCover nor Mr Castillon thereafter drew any distinction between the two compensation claims. WorkCover paid compensation in relation to that claim number for the period from 2 December 1999 to 20 May 2001, which covers the dates on which both claims were made. WorkCover’s notice of assessment dated 22 May 2001 and damages certificate dated 18 June 2001 both identified the one claim number and drew no distinction between the two compensation claims.

25. [25]
    Mr Castillon argues damages for recurrence of BCTS are protected by a consent order made pursuant to s 305 of the WQA on 27 November 2002. The effect of that order was that Mr Castillon was able to commence these proceedings even though, at that time, he had not lodged a notice of claim for damages as required by s 280 of the WQA.

26. [26]
    Before the order was made, P&O's solicitors queried what claims the application related to and Mr Castillon’s solicitor identified the damages certificate for claim number 990081797, amongst others. It was then, and is now, evident on the face of the material that Mr Castillon sought and P&O consented to an order which protected his rights to commence proceedings for damages relevant to injuries encompassed by that Damages Certificate. The notice of claim for damages subsequently provided by Mr Castillon and, after further information was provided, accepted by P&O as a compliant Notice, also drew no distinction between the two compensation claims.

27. [27]
    The consent order referred to an injury that occurred on or about 2 December 1999. On its face that may not appear to be ambiguous. Viewed in the context of the history of the WorkCover claims it clearly is. The order is not the subject of a deliberative process but the outcome of discussions between the legal representatives for the parties. It is appropriate, in those circumstances, that its scope and effect is interpreted in the light of those discussions which the parties have helpfully provided to the court.

28. [28]
    It is clear that the formulation used in the order reflected the wording used by WorkCover in its documentation for that claim number. P&O have consistently maintained that WorkCover’s description is not an accurate description of when the injury occurred or when the cause of action arose. Mr Castillon has always maintained that it was an injury that occurred over time. The parties’ mutual recognition that 2 December 1999 did not represent the date of the injury was noted and acted upon by the Court of Appeal in an appeal from a declaration made on an earlier application in these proceedings (Castillon v P & O Ports Ltd).  The application pursuant to s 305 related, interalia, to proceedings relevant to the WorkCover claim number 990081797.  That claim number was used for both applications for compensation, the first claim for the condition and its subsequent recurrence.  Accordingly, I find the pleading is protected by the consent order and the entitlement to pursue that cause of action has not been extinguished.

(c) Does the pleading disclose no reasonable cause of action or have a tendency to prejudice or delay the fair trial of the proceedings?

29. [29]
    P&O argues that, if the recurrence is treated as bound up with the injury previously pleaded, that is the condition itself, the cause of action is statute barred. I have already explained why I consider the claim for BCTS is a different cause of action to the claim for the condition itself. Given the history of these proceedings, however, it is appropriate to address this argument in the event that my finding on that point is successfully challenged.

30. [30]
    Ms Treston submits the effect of two decisions previously made in these proceedings is that the claim for BCTS is statute barred. Those two decisions are: the decision of Rackemann DCJ (Castillon v P & O Ports Ltd) to reject a previous application to extend the limitation period and the decision by the Court of Appeal to overturn a declaration made by Rackemann DCJ which declaration had the effect of preventing P&O from relying on a limitations of actions defence (Castillon v P & O Ports Ltd).  I do not agree with Ms Treston’s analysis of those decisions. 

31. [31]
    In response to P&O's defence that the claim was statute barred, Mr Castillon applied for a declaration that WorkCover was estopped from asserting the cause of action arose before 2 December 1999 and, in the alternative, requested an extension of the limitation period until the day after these proceedings were commenced.

32. [32]
    Although it was clear from Mr Castillon’s first claim that the condition developed over a period of time, His Honour was persuaded to make the declaration sought because in its documentation of the compensation claim, WorkCover had identified 2 December 1999 as the date of injury. His decision rested upon his interpretation of s 342 of the WQA, the substance of which is not relevant for present purposes and is fully set out in his reasons. The effect of the declaration was to defeat P&O's defence based on the limitation period. His Honour rejected the application made in the alternative to extend the limitation period. I will return later to his reasons for so doing. The effect of that decision was that, without the declaration, Mr Castillon was unable to recover damages for any cause of action which arose more than 3 years prior to 27 November 2002, the date of the s 305 order.

33. [33]
    P&O appealed the declaration to the Court of Appeal. Mr Castillon did not appeal the decision on the application to extend time. Therefore, the only issue for determination by the Court of Appeal was whether the primary judge’s declaration should stand. It decided the primary judge erred in his interpretation of s 342 and set the declaration aside. Keane JA distinguished between a limitations defence and the express prohibition on commencing proceedings contained in Ch 5 of the Act and noted that the existence of a good limitations defence was not a bar to the commencement of proceedings (at [23]). He noted the effect of the declaration was that P&O was precluded from relying on the limitation period as a defence to the action. Setting aside the declaration, therefore, removed that impediment and the defence remained open to P&O.

34. [34]
    The parties agree that, without an extension of the limitation period, any cause of action which arose prior to 27 November 1999 is statute barred. However, whilst the effect of the Court of Appeal’s decision is that P&O is no longer precluded from relying on the limitations defence, whether that defence is made out in the circumstances of this case is yet to be determined. That is, it has not been determined when the cause (or causes) of action arose.

35. [35]
    Dr Cross submits the cause of action in relation to the condition itself did not arise until the condition could not be remedied or reduced by operative intervention (Hallmark-Mitex Pty Ltd v Rybarczyk). When that status was reached is a matter for expert evidence and determination at trial.

36. [36]
    Ms Treston disputes Rybarczyk is authority for that proposition.  Her argument that the case does not establish when a cause of action arises for damages for BCTS has considerable force. She argues the trial judge, on the facts of that case and in the context of the breaches of duty there alleged, made a determination that the cause of action in that case arose when the deterioration of the plaintiff’s condition reached the stage that decompression could not cure the defect. 

37. [37]
    Regardless of the competing interpretations of Rybarczyk,  there has been no determination, either by Rackemann DCJ or by the Court of Appeal, as to when the cause of action did arise on the facts of this case.  There are many challenges for Mr Castillon in establishing his case, most pertinently when damage consequent upon P&O's negligence was sustained.  Rybarczyk’s case demonstrates the difficulty of this task. That, however, does not go the question of whether such determinations should be made in a summary way. I respectfully concur with the conclusion drawn by Rackemann DCJ (Castillon v P & O Ports Ltd at [24]):

“The Court is not in a position, at this stage, to determine when an injury, compensable by an award of damages, was suffered or when the limitation period commenced. The claim relates to an injury which was caused by activities undertaken over a period of time.  It is unclear, at this stage, when those activities resulted in more than minimal injury sufficient to support a cause of action for damages.  As already noted, the plaintiff himself pleads, by his particulars, that he cannot say when he sustained injury, save to say, relevantly, that he suffered symptoms in relation to his carpel tunnel in or about 1999.”

38. [38]
    I agree that it is not appropriate to attempt to decide, in a summary way, the findings of fact necessary to determine when the limitation period commenced. Neither His Honour nor the Court of Appeal did so and it cannot be said that the effect of their decisions is that the claim for BCTS is statute barred. The assertion the claim is statute barred was the only ground advanced by P&O for finding the pleading discloses no reasonable cause of action and that argument must, therefore, fail.

39. [39]
    Ms Treston has justifiably complained about the history of these pleadings and their lack of particularity, most apposite for present purposes is the failure to plead the date of the recurrence. The amendments foreshadowed by counsel for Mr Castillon may not completely remedy all pleading deficiencies, although they appear to address some of them.

40. [40]
    Counsel for P&O has foreshadowed further applications relating to the pleadings if the matter proceeds. Rather than allow these proceedings to stall further in a state of interlocutory stalemate, I have decided to list this matter for further directions and will hear from counsel as to a convenient date and as to the matters that should be then addressed. In my view, any remaining arguments about the pleadings or particulars can best be dealt with by further directions.

2. Does Mr Castillon require leave to further amend the statement of claim in the terms proposed and, if so, should leave be granted?

41. [41]
    Dr Cross has delivered further amendments to the statement of claim. He argues leave is not required to make them but, if it is, it should be granted. Ms Treston says leave should not be granted, because the claim is statute barred. As well as adding some further particulars, the proposed amendments reintroduce allegations relevant to the claim that P&O is liable for damages for the condition for which operative intervention was unsuccessful. That formulation of the claim was first made in June 2006 by order of Brabazon DCJ upon a previous application by P&O to strike out the statement of claim or parts of it. For reasons not evident on the material, that formulation was deleted in September 2006 when the claim for recurrence or aggravation of the condition was added.

42. [42]
    If these further amendments are made, Mr Castillon’s claim will then be on two bases and, as I have found, involve two causes of action:

• damages for the condition for which operative intervention was unsuccessful; and
• damages for the recurrence or aggravation of the condition.

43. [43]
    Unfortunate as the history of these pleadings may be, I do not consider Mr Castillon requires the leave of this Court to make the amendments proposed. Before the request for trial date is filed, a party may, as often as necessary, make an amendment for which leave is not required (r378). Whilst leave is required to add a cause of action out of time (r376) or to amend the originating process (r377), otherwise leave to amend the statement of claim is not required before the request for trial date is filed (r379). Any other party can, within 8 days of being served with the proposed amendment, apply to disallow all or part of the amendment (r379). The issue of further amendment arose at the hearing of these applications. I directed Dr Cross to deliver the form of the proposed further amended statement of claim and invited submissions from Ms Treston on them. It is appropriate that I treat Ms Treston’s submissions as an application by P&O to disallow the amendment.

44. [44]
    For reasons already canvassed in relation to the strike out application, I do not consider this cause of action is statute barred. Further, I do not consider the further amended statement of claim leaves P&O in doubt as to what is alleged. It may well be that further particulars of the allegations should be provided and that can be dealt with through further directions. However, P&O is not prejudiced by the amendments, except by way of costs and delays.

45. [45]
    The two claims encompassed by the amended statement of claim derive from the two WorkCover compensation claims which have been investigated and assessed. The only surprise for P&O is that a claim will remain on foot which its advisers considered, in my view wrongly, Mr Castillon could no longer pursue. P&O can legitimately complain of delays and costs generated by the protracted history of amendments but this can be remedied, to some extent at least, by an appropriate order for costs. The law in relation to claims for damages for BCTS is by no means clear. These claims are not so obviously untenable that they cannot possibly succeed and the Court should not prevent them from being litigated (Landoro (Qld) Pty Ltd (admin apptd) v Jensen International Pty Ltd CA (Qld)).

46. [46]
    Mr Castillon does not require this Court’s leave to amend the statement of claim in the terms proposed. I decline to disallow the amendments in whole or part. I will deal with the questions of costs and further particulars at a directions hearing, the date for which will be set after hearing from counsel as to their availability.

3.Can and should the limitation period for Mr Castillon’s claim be extended to one day after the proceedings were commenced?

47. [47]
    Mr Castillon seeks an extension of the limitation period to one day after the proceedings were commenced to enable him to recover damages for his condition to the extent, if any, that his cause of action arose prior to 27 November 1999, three years before the s 305 consent order. In order to succeed, Mr Castillon must establish that, until a date at least one year after the limitation period expired, he did not have within his means of knowledge a material fact of a decisive character in relation to the cause of action (s 31(2)(a) Limitation of Actions Act 1974 (Qld) (LA)). The other requirements of s 31 were not in dispute and I am content they are satisfied on the material before me.

48. [48]
    Mr Castillon relies on the termination of his employment with P&O as the material fact of a decisive character which he says qualifies him for the relief he seeks. He says that he had knowledge of this fact after the critical date.

49. [49]
    I have already addressed why, in the circumstances of this case, it is not possible or appropriate in a summary hearing to fix the date upon which the cause of action arose. The application is to extend the limitation period to the extent that it arose prior to 27 November 1999. For the purposes of this application, then, the latest date the cause of action arises can be taken to be 26 November 1999, with the limitation period taken to have expired, at the latest, on 26 November 2002. The latest critical date, then, must be 26 November 2001. There is no argument that the date of termination was 17 December 2004, after the latest critical date.

50. [50]
    P&O opposes the application on the following grounds:

1. (a)
   Mr Castillon cannot make another application, because it is subject to the principle of res judicata or to an issue estoppel.

2. (b)
   If he can make another application, as a matter of discretion it should not be granted because Mr Castillon could and should have raised the termination of his employment before Judge Rackemann delivered his decision on the first application.

3. (c)
   The termination of his employment is not a material fact of a decisive character because, as Judge Rackemann determined, by September 2001 (before the latest critical date) Mr Castillon knew he could no longer work as a crane driver and had unsuccessfully sought redeployment to lighter duties.  At that time, P&O says, he knew all the material facts of a decisive character relating to his right of action.

51. [51]
    It was not argued that the application could not be made because the material fact was not known until after the proceedings had already been instigated (15 August 2003). I am satisfied that, alone, the fact that the proceedings were issued before the material fact was known is no bar to the application (Opacic v Patane).

(a) Is the application subject to the principle of res judicata or to an issue estoppel?

52. [52]
    Ms Treston argues the principle of res judicata applies or the application is subject to an issue estoppel, the effect of either being the Court cannot consider a second application to extend the limitation period. The application to extend time is an interlocutory step. The principle of res judicata does not apply as the cause of action itself has not been litigated and adjudicated upon (Jackson v Goldsmith). 

53. [53]
    Further the decisions of Rackemann DCJ and the Court of Appeal do not create an issue estoppel. Ms Treston argues they involved determinations as to the availability of the cause of action in question. I have already noted that neither decision involves a determination that the cause of action is statute barred. It follows that there has been no finding about the availability of the cause of action which could preclude this second application (Rogers v Legal Services Commission of South Australia). 

54. [54]
    Ms Treston quite properly conceded a second application to extend time under the LA on the same or similar material is not precluded (Meddings v Council of City of Gold Coast).  Granted, in that case, Pincus J expressed the view that, in practice, such an application would almost certainly fail. Yet whether it will do so in this case is a different question to whether this Court can entertain a second application.  I am satisfied that a second application is not precluded by operation of the principle or res judicata nor is it subject to an issue estoppel.

(b) As a matter of discretion should the application be refused?

55. [55]
    Ms Treston submitted that, as a matter of discretion, I should not grant the application (Port of Melbourne Authority v Anshun Pty Ltd) because there is a need for finality in litigation and Mr Castillon could and should have raised the termination of his employment prior to the decision being made on the first application.  An Anshun estoppel should not be lightly applied (Clout & Ors v Klein & Ors). Finality in legal proceedings is a desirable objective but this second application is not merely a rerun of the first.  Further evidence has been placed before me and an alternative basis for the application has been argued. The desire for finality should not prevent the proper consideration of a matter if the interests of justice demand it.

56. [56]
    The complaint that Mr Castillon could and should have raised the termination of his employment with P&O is initially attractive. Certainly, this occurred before Rackemann DCJ delivered his decision on the first application. However, the hearing of evidence had concluded and, while there were further appearances before His Honour to deal with some procedural matters, Ms Treston agreed these were not opportunities for further evidence to be led. Mr Castillon could well have asked for that indulgence but the outcome of that request could not be certain.

57. [57]
    Further, balanced against that omission, if that is a proper description of Mr Castillon’s failure to raise the issue, is a greater omission by P&O which is of significance to the discretion I am asked to exercise. When the first application was heard, P&O had not disclosed all relevant documents contained in its personnel file in relation to Mr Castillon. P&O's counsel submitted the further material, whilst voluminous, would have added nothing to the material before His Honour. I do not accept that. Rather, the material would have brought into sharp relief a matter that His Honour placed considerable reliance upon in reaching his finding that, at a time earlier than the critical date, Mr Castillon had within his means of knowledge material facts of a decisive character.

58. [58]
    His Honour found by September 2001 Mr Castillon knew he was suffering from a permanent injury which was likely to prevent him from continuing in his position as a crane driver and which was also likely to result in significant economic loss, which he had, unsuccessfully, tried to address by seeking lighter duties. It was that combination of material facts, including his lack of success in obtaining alternate duties, on which his finding rested. In support of his conclusion that Mr Castillon knew his attempts to obtain redeployment had been unsuccessful, His Honour referred to a meeting Mr Castillon had with a manager of P&O sometime before September 2001 during which he was advised that if he could not work as a crane driver there was no other position for him in the company. 

59. [59]
    However, His Honour did not have before him all P&O's documents that bore on the question of Mr Castillon’s future with the company if he could not continue to drive a crane. Mr Castillon continued to earn income from his employment with P&O until some time in the 2004/5 financial year. During that time, material from the personnel file discloses ongoing attempts by Mr Castillon and others on his behalf, including his medical advisers and trade union officials, to explore alternative duties and positions within P&O. P&O continued to respond to these approaches by requiring Mr Castillon to undergo further medical assessments and to explore alternative duties for him. As late as November 2003, some two years after the latest critical date, P&O sought from Dr Novic, one of the Doctors who had assessed Mr Castillon, clarification of what office duties Mr Castillon would be able to perform and in what timeframe he would be able to perform marshalling and deck foreman duties. Indeed, my reading of the material leads me to conclude that it was not until September 2004 that human resource officers of P&O formed the view that Mr Castillon’s employment with P&O should be terminated.

60. [60]
    Had all the relevant material been before His Honour, he is likely to have reached a different conclusion as to when the combination of facts known to Mr Castillon assumed the character of being decisive. Those documents were not within Mr Castillon’s control. It was P&O's obligation to disclose them. Its failure to do so is unexplained. In such circumstances, this court’s discretion should not be exercised to prevent a second application being made to extend the limitation period.

(c) Is the termination of his employment a material fact of a decisive character s 31(2)(a)?

61. [61]
    There was no controversy between the parties that facts relevant to the economic consequences of the condition are material as that concept is used in s 31(2)(a). Nor was it contested that termination of his employment was material. Nor could it have been. The economic consequences of the condition substantially increased once Mr Castillon’s employment was terminated. The controversy ranged on whether this material fact had a decisive character, in light of other material facts known to Mr Castillon before the latest critical date: particularly, that he could not continue to work as a crane driver and, as P&O alleges, his knowledge that there was no other position for him in the company.

62. [62]
    The High Court has recently considered what is required by s 31(2)(a). In State of Queensland v Stephenson at [19] the majority of the Court, Gummow, Hayne & Crennan JJ, confirmed the approach adopted by Davies JA in his judgment in the Court of Appeal decision in Stephenson v State of Queensland. Davies JA said:

“It may be accepted that there is but one point when a fact comes within the applicant’s means of knowledge.  But to say that assumes the subject of the verb ‘was’ or, more completely, ‘was not within the means of knowledge of the applicant’, in s 31(2)(a), is ‘fact’ or ‘possibly material fact’...The subject of the verb ‘was’ in that paragraph of s 31, in my opinion, is the compound phrase ‘material fact of a decisive character relating to the right of action’.  Thus the question is not when all material facts came within the means of knowledge of the applicant.  It is when all material facts of a decisive character relating to the right of action came within his means of knowledge.”

63. [63]
    Applying that approach to the circumstances of this case, if the termination of his employment is a material fact of a decisive character, Mr Castillon should succeed in his application. P&O say that is not a material fact of a decisive character as, prior to the critical date, it was clear to Mr Castillon that he had no future with P&O and that he ought to commence proceedings in his own interests. That argument is based on the finding made by Rackemann DCJ that he would not be redeployed. That finding, as I have previously canvassed, was based on incomplete material and the question must be approached afresh taking into account all relevant material.

64. [64]
    It is evident that, before the latest critical date, Mr Castillon was aware that there were difficulties in redeploying him to lighter duties. He had even been told there was no position in the company for him if he did not work as a crane driver. However, he did not receive consistent messages from P&O on this issue, nor did P&O act on the basis that he had no future with the company. Mr Castillon’s employment was not terminated and he was not told it would be terminated until after the latest critical date.

65. [65]
    Mr Castillon was aware that other P&O employees who had been injured were redeployed and was hopeful that he could achieve the same result. A number of doctors whom he consulted at P&O's request informed P&O that he could undertake lighter or alternative duties. Throughout the period from the latest critical date to the termination of his employment, Mr Castillon and P&O continued to discuss options for his full recovery or redeployment either directly in meetings or indirectly through correspondence involving doctors and other health professionals. As late as November 2003, P&O was seeking medical advice as to alternate duties Mr Castillon could undertake. It was not until September 2004 that P&O received a definitive medical report (of Dr McCartney) that Mr Castillon was unable to perform any role as a stevedore.

66. [66]
    So while there was a possibility that Mr Castillon would not be retained as an employee of P&O in any capacity, there was also a possibility that that he would be redeployed. Whatever view is taken about which possibility was more likely, there was no certainty before the latest critical date. A possibility is not a material fact (Broken Hill Pty Co Ltd v Waugh). The possibility that he would not continue with P&O did not become a material fact until his employment was actually terminated.  

67. [67]
    That Mr Castillon could, and in this case did, commence proceedings earlier than this point is not the question. The question is whether a reasonable person would consider that he ought to do so. In my view, taking into account all relevant material from the personnel file, the ‘conjunction of circumstances’ that would lead a reasonable person to ‘regard the facts as justifying and mandating that an application be brought in the applicant’s own interests’ (State of Queensland v Stephenson at [30]) occurred after the latest critical date. That is, it arose when his employment with the company was terminated because of his inability to work as a crane driver and P&O's apparent inability to find alternative duties or a different role within the company.

68. [68]
    No matters of prejudice or otherwise were raised to justify this Court in not exercising its discretion to grant Mr Castillon the relief sought. Accordingly the application is granted.

Orders

69. [69]
    My orders are:

1. Leave is granted to add the claim for a recurrence and/or aggravation of bilateral carpal tunnel syndrome.
2. The limitation period in relation to the claim for bilateral carpal tunnel syndrome is extended until one day after these proceedings were commenced.
3. This matter is listed for a directions hearing on a date to be fixed after consultation with counsel for the parties.
4. All other applications are declined.
5. Costs of these applications will be determined at the directions hearing.