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McArdle v State of Queensland[2016] QSC 165

McArdle v State of Queensland[2016] QSC 165

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

McArdle v State of Queensland [2016] QSC 165

PARTIES:

SEAN PATRICK JUDE McARDLE

(applicant/plaintiff)

v

STATE OF QUEENSLAND

(respondent/defendant)

FILE NO/S:

BS No 6805 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

1 August 2016

DELIVERED AT:

Brisbane

HEARING DATE:

2 June, 21 July 2016

JUDGE:

Martin J

ORDER:

Application dismissed.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – GENERALLY – where the applicant was employed as an officer of the Queensland Police Service (QPS) – where the applicant brought an action against the QPS in negligence and breach of contract in relation to a permanent psychiatric injury that resulted in his being dismissed from his employment on medical grounds effective 3 August 2013 – where the QPS pleaded that the applicant was out of time with respect to part of his cause of action – where the applicant applies for an order extending the limitation period to 3 August 2014 – where the applicant was advised by the QPS of its intention to medically retire him prior to 3 August 2013 – whether the applicant was aware, prior to 3 August 2013, that he would be retired or dismissed from his employment and that he would have no means of appealing or otherwise affecting this decision – whether the applicant had thus acquired knowledge of material facts of a decisive character within the meaning of s 30 of the Limitation of Actions Act 1974 prior to 3 August 2013

Limitation of Actions Act 1974 s 30, s 31

Workers’ Compensation and Rehabilitation Act 2003 s 275, s 276, s 278, s 302

Castillon v P&O Ports Ltd [2008] 2 Qd R 219, considered

Charlton v WorkCover Qld & Ors [2006] QCA 498, cited

Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325, cited

State of Queensland v RAF [2012] 2 Qd R 375, cited

State of Queensland v Stephenson (2006) 226 CLR 197, applied

Sugden v Crawford [1989] 1 Qd R 683, cited

COUNSEL:

M Horvath for the plaintiff

B Charrington for the defendant

SOLICITORS:

Hall Payne for the plaintiff

Dibbs Barker for the defendant

  1. This application seeks to engage those provisions of the Limitation of Actions Act 1974, which allow for the extension of a limitation period.    
  2. The applicant (Mr McArdle) was a member of the Queensland Police Service (QPS). On 13 July 2015 the applicant filed a Claim and Statement of Claim against the State of Queensland seeking damages for negligence and breach of contract. The defendant pleads that part of his cause of action is out of time.
  3. In his Statement of Claim Mr McArdle alleges that he has suffered a post-traumatic stress disorder and a major depressive disorder as a result of breaches of duty by his employer. He identifies various matters which he says give rise to the liability in the defendant. They consist of conduct or of failures to act over a long period of time. He identifies a number of time periods including:  late 1996, 1998-1999, late 2006, May 2009, 2011 and 2012.
  4. In its defence, the defendant pleads, among other things:

“36.The defendant says that:

(i)to the extent that the current proceeding involves allegations of negligence or breach of conduct by the defendant causing damage to the plaintiff which was suffered prior to 17 September 2011 or in the alternative prior to 30 July 2011, the claim is statute barred pursuant to s 11 of the Limitation of Actions Act 1974; and

(j)the plaintiff suffered a post-traumatic stress disorder prior to 30 July 2011 and his claim for that injury is statute barred.”

  1. Mr McArdle seeks an order extending the limitation period for the commencement of his proceedings to 3 August 2014. For the reasons which follow, his application must be dismissed.

A brief history

  1. Mr McArdle commenced with the QPS in February 1989. He identifies in his submissions (and in his pleading) problems and incidents which he says give rise to the cause of action. They include: transfers from one place to another, witnessing various distressing incidents, unsuccessful applications for transfer, alleged bullying and harassment by superiors.
  2. In 1999 Mr McArdle experienced psychological symptoms that caused him to go on leave for four months. He said that his condition was caused by a number of matters: his long commute to Brisbane, insomnia, his wife’s health, and his exposure to scenes of crime.
  3. Further psychological problems arose in 2006 and he sought a transfer from scenes of crime work. One night in late 2006, while at work, he experienced an apparent suicidal ideation episode.
  4. In March 2007 he was diagnosed with depression and was prescribed an anti-depressant medication. The same diagnosis and prescription was again made in October 2011.
  5. Mr McArdle also had the misfortune to be involved with the Storm Financial collapse which, no doubt, complicated matters but had nothing to do with his employment.
  6. In November 2011 he was given a “correction notice” based on the allegation that some of the evidence in a crime scene which he had investigated had not been labelled correctly. Upon receiving that he went on leave until early 2012. He returned and continued on full duties until July 2012. During the period of October 2012 to February 2013, the QPS retained two psychiatrists and WorkCover retained one psychiatrist to assess his fitness for work.
  7. On 17 July 2012 he was put on notice that he would have to show cause why his forensic accreditation should not be revoked. This caused him to become distressed and he did not return to work after that date. In his pleading, he alleges that he was subjected to bullying and harassment by senior officers in the period 2010 to 2013. He applied for workers’ compensation benefits for this in August 2012.
  8. In a letter of 5 March 2013 Paul Casey (Director, Workforce Management, QPS) told him that medical reports had been received and went on to say:

“Dr Mungomery is of the opinion that your incapacity renders you permanently unfit and incapable of discharging efficiently the duties of your office as a Police Officer, however, is of the opinion that you have a future work capacity performing other than policing duties in alternative employment within either the public or private sectors.

Dr Duke states that it is not unreasonable to believe that you may be permanently unable to perform the duties of a Police Officer efficiently, safely or effectively, however, is of the opinion that you have a future work capacity performing other than policing duties in alternative employment.

I am of the opinion that there is sufficient medical opinion for you to be retired from the Queensland Police Service on medical grounds.”

  1. In a letter of 6 June 2013 Acting Deputy Commissioner Condon referred to the medical opinion of the specialists and said:

“Therefore having regard to the medical opinion obtained, I am satisfied that your incapacity renders you permanently unfit and incapable of discharging efficiently the duties of your office as a Police Officer and incapable of undertaking alternative duties as a staff member within the Police Service.

Having regard to the medical opinion obtained regarding your present condition, I am satisfied you should not continue to perform your duties of office and pursuant to section 8.3(3) of the Act, I hereby call upon you to retire from the Service with effect from midnight on 28 June 2013.”

  1. Mr McArdle did not agree to retire and on 27 June 2013 Deputy Commissioner Barnett wrote to him and told him that, as he had not received any advice that Mr McArdle agreed to retire, he was dismissed from employment with the QPS on the basis of medical incapacity with effect from midnight on 2 August 2013.
  2. On 23 July 2013 Mr McArdle wrote to QPS and argued that the dismissal was premature as he was still receiving medical treatment and there was an appeal on foot about WorkCover’s decision to stop paying benefits.
  3. In a reply of 2 August 2013, the QPS declined to change its decision.
  4. On 25 July 2014, Mr McArdle issued an urgent notice of claim to WorkCover. It related to events in the period 2006 to 18 July 2013. Compliance with the Workers’ Compensation and Rehabilitation Act 2003 (WCR Act)[1] was waived on terms including the delivery of a fresh notice of claim and demonstration of a material fact of a decisive character with respect to that part of the claim which was statute barred.
  5. This notice was given under Chapter 5 Part 5 of the WCR Act. The relevant sections of that Part include:

275Notice of claim for damages

Before starting a proceeding in a court for damages, a claimant must give notice under this section within the period of limitation for bringing a proceeding for the damages under the Limitation of Actions Act 1974.

276Noncompliance with s 275 and urgent proceedings

(1)The purpose of this section is to enable a claimant to avoid the need to bring an application under section 298.

(2)Without limiting section 297 or 298, if the claimant alleges an urgent need to start a proceeding for damages despite noncompliance with section 275, the claimant must, in the claimant’s notice of claim—

(a)state the reasons for the urgency and the need to start the proceeding; and

(b)ask the insurer to waive compliance with the requirements of section 275.

278Response to notice of claim

(1)This section applies if a notice of claim is given to an insurer.

(2)The insurer must, within 10 business days after receiving the notice, give the claimant written notice—

(a)stating whether the insurer is satisfied that the notice of claim is a complying notice of claim; and

(b)if there is an urgent need to start a proceeding—stating that the insurer is only willing to waive compliance with the requirements if the claimant agrees to satisfy conditions imposed by the insurer under section 276;

…”

  1. Section 302 of the WCR Act allows for an extension of time within which to commence proceedings:

302Alteration of period of limitation

(1)A claimant may bring a proceeding for damages for personal injury after the end of the period of limitation allowed for bringing a proceeding for damages for personal injury under the Limitation of Actions Act 1974 only if—

(a)before the end of the period of limitation—

(i)the claimant gives, or is taken to have given, a complying notice of claim; or

(ii)the claimant gives a notice of claim for which the insurer waives compliance with the requirements of section 275 with or without conditions; or

(iii)a court makes a declaration under section 297; or

(iv)a court gives leave under section 298; and

(b)the claimant complies with section 295.

(2)However, the proceeding must be brought within 60 days after a compulsory conference for the claim is held.”

  1. The “period of limitation” referred to in s 302(1) includes any extension of the limitation period granted under s 31(2) Limitation of Actions Act. See Charlton v WorkCover Qld & Ors.[2]
  2. A fresh notice of claim was served on 28 August 2014. It included events over a longer period: from 1 January 1996 to 3 August 2013.
  3. Both parties have proceeded on the basis that the effect of the notice was to “prevent” the limitation period from running. There is, it appears, some confusion in the parties’ minds about the effect of s 302 of the WCR Act but that need not be resolved now. The issue, no matter what the proper construction of s 302 may be, is: when did the material fact of a decisive character come within the means of knowledge of the applicant?

What is the relevant test to apply?

  1. Section 31 of the Limitation of Actions Act allows the court to extend the limitation period in certain circumstances:

Ordinary actions

(1)This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.

(2)Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court—

(a)that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and

(b)that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.

(3)This section applies to an action whether or not the period of limitation for the action has expired—

(a)before the commencement of this Act; or

(b)before an application is made under this section in respect of the right of action.” (emphasis added)

  1. Section 30 provides some definitions for interpreting s 31:

“(1)For the purposes of this section and sections 31, 32, 33 and34—

(a)the material facts relating to a right of action include the following—

(i)the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;

(ii)the identity of the person against whom the right of action lies;

(iii)the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;

(iv)the nature and extent of the personal injury so caused;

(v)the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;

(b)material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing—

(i)that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and

(ii)that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action;

(c)a fact is not within the means of knowledge of a person at a particular time if, but only if—

(i)the person does not know the fact at that time; and

(ii)as far as the fact is able to be found out by the person—the person has taken all reasonable steps to find out the fact before that time.

(2)In this section—

appropriate advice, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.”

Material fact of a decisive character

  1. These provisions (and earlier versions of them) have been dealt with on a number of occasions. The nature and effect of a “material fact of a decisive character” was considered in Sugden v Crawford:[3]

“Implicit in the legislation is a negative proposition that time will not be extended where the requirements of s.30(b) are satisfied without the emergence of the newly discovered fact or facts, that is to say, where it is apparent, without those facts, that a reasonable man, appropriately advised, would have brought the action on the facts already in his possession and the newly discovered facts merely go to an enlargement of his prospective damages beyond a level which, without the newly discovered facts, would be sufficient to justify the bringing of the action.”[4]

  1. In Moriarty v Sunbeam Corporation Ltd[5] Kelly SPJ said:

“In my opinion a reasonable man knowing those facts and having taken the appropriate advice on them would have regarded them as showing that if he were to bring an action it would have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action.”[6]

  1. In the same case, Macrossan J (as he then was) said:

“In cases like the present, an applicant for extension discharges his onus not simply by showing that he has learnt some new fact which bears upon the nature or extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made of it. He must show that without the newly learnt fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it. This is what the application of the test of decisiveness under s 30(b) comes down to: Taggart v The Workers’ Compensation Board of Queensland [1983] 2 Qd R 19, 23, 24 and Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, 251 per Deane J.”[7]

  1. These and other authorities were considered by Keane JA (as he then was) in Castillon v P&O Ports Ltd.[8] He referred to the requirement to determine when the applicant became possessed of a “critical mass of information” and said:

[41]The learned primary judge's focus upon termination of employment as a material fact of a decisive character unknown to the plaintiff until it occurred was a distraction from the crucial point that, while the termination of the plaintiff's employment might have added to the quantum of the plaintiff's damages, this “new fact” did not falsify the earlier finding that he had a sufficient basis for reasonably deciding that he had a worthwhile claim against the defendant at a much earlier point in time. The decision of the High Court in State of Queensland v Stephenson cited by her Honour does not obviate the need to consider whether the plaintiff was in possession of a critical mass of information prior to 27 November 2001 in accordance with the approach in Moriarty v Sunbeam Corporation Limited and Sugden v Crawford. The point made by the High Court in State of Queensland v Stephenson was that unless the material facts assume a decisive character in the assessment of a reasonable person before the critical date, the one year period referred to in s 31(2) will not have begun to run. As was said recently in this Court in Hintz v WorkCover Queensland & Anor, the decision of the High Court in State of Queensland v Stephenson does not cast doubt on the authority of the decisions in Moriarty v Sunbeam Corporation Limited and Sugden v Crawford.

[42]In State of Queensland v. Stephenson,[9] the High Court held that it is only where an applicant for an extension of time knows, or has the means of knowledge, that a material fact is of a decisive character that time begins to run against the applicant under s 31(2) of the Act. In this regard, Gummow, Hayne and Crennan JJ said:

‘The ascription to material facts of the character of ‘decisive’ looks to the response of an actor. It is here that the exegesis supplied by para (b) of s 30(1) comes into play. The court is to consider the response of ‘a reasonable person’ in the manner explained in that paragraph. The particular claimant is to enjoy the advantage conferred by the provision in s 30(1) for the making of an extension order only by satisfaction of criteria which look to the response of a reasonable person. In this way, s 30(1) assists and controls an understanding of the compound conception in s 31(2).

The better view is that the means of knowledge (in the sense given by para (c) of s 30(1)) of a material fact is insufficient of itself to propel the applicant outside s 31(2)(a). For circumstances to run against the making of a successful extension application, the material fact must have ‘a decisive character’. Whether the decisive character is achieved by the applicant becoming aware of some new material fact, or whether the circumstances develop such that facts already known acquire a decisive character, is immaterial. It is true to say, as the plaintiffs submit in their written submissions, that in a sense none of the material facts relating to the applicant's right of action is of a decisive character until a reasonable person ‘knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing’ the features described in subparas (i) and (ii) of s 30(1)(b). Whether that test has been satisfied at a particular point in time is a question for the court.

The practical result of this construction is that an applicant always has at least one year to commence proceedings from the time when his or her knowledge of material facts (as defined in s 30(1)(a)) coincides with the circumstance that a reasonable person with the applicant's knowledge would regard the facts as justifying and mandating that an action be brought in the applicant's own interests (as in s 30(1)(b)). If this conjunction of circumstances first occurs before the commencement of the last year of the limitation period, no application for an extension can be brought; the applicant has the benefit of at least one year before the limitation period expires and is required to act within that time. If the conjunction occurs after the commencement of that last year, the court is empowered, if the other criteria in s 31 are satisfied, to extend time for one year from the date of that conjunction of circumstances.’” (emphasis added, citations omitted)

  1. The elements of the test were enunciated in Castillon in a number of ways:
  1. Did the applicant have a sufficient basis for reasonably deciding that he had a worthwhile claim against the defendant at an earlier point in time?
  2. Did the material facts assume a decisive character in the assessment of a reasonable person before the critical date?
  3. Would a reasonable person knowing the material facts and having taken the appropriate advice on those facts, regard those facts as showing the features described in subparas (i) and (ii) of s 30(1)(b) of the Limitation of Actions Act?

When did a material fact of a decisive character arise?

  1. The applicant argues that the material facts did not achieve a “decisive character” until 3 August 2013 when his employment was terminated.
  2. The evidence on this issue consists, in the main, of letters between the parties, Mr McArdle’s affidavits and his evidence before me.
  3. In his second affidavit, Mr McArdle says:

“35.In early March 2013 I received a letter from the QPS dated 5 March 2013 telling me that they had received medical reports from Dr Duke and Dr Mungomery. They were considering retiring me. … My reaction was I was angry that I was being bullied out of my career. I began to feel hopeless because I couldn’t get anyone to listen to my complaints about how I was being treated. I did not believe it would happen, that I could be retired against my will. I still don’t believe it was the right thing to do.”

  1. The letter of 5 March 2013 contained the following:

“I am of the opinion that there is sufficient medical opinion for you to be retired from the Queensland Police Service on medical grounds.

Before that action is taken the medical reports obtained will now be sent to QSuper for consideration as to the payment of a superannuation benefit should you be retired from the Queensland Police Service on medical grounds.”

  1. On 6 June 2013 the QPS sent another letter to Mr McArdle. In that letter reference was made to the expert opinions of two psychiatrists. The letter then went on:

“Therefore having regard to the medical opinion obtained, I am satisfied that your incapacity renders you permanently unfit and incapable of discharging efficiently the duties of your office as a Police Officer and incapable of undertaking alternative duties as a staff member within the Police Service.

Sections 8.3 (3) (4) (5) of the Police Service Administration Act 1990 (the Act) state: –

(3)If, having regard to any medical opinions expressed by medical practitioners (including any such opinions furnished by the officer) on the health or condition of the officer concerned, or because of the presumption prescribed by subsection (2), the prescribed authority is satisfied that the officer should not continue to be required to perform the duties of office, then, unless the Commissioner takes action authorised by subsection (5), the prescribed authority may call upon the officer to retire from the Service within a time specified by the prescribed authority.

(4)If the officer called upon to retire does not retire within the time specified, the prescribed authority may dismiss the officer from the Service.

(5)If the Commissioner believes the officer referred to in subsection (3) is sufficiently fit to perform duties as a staff member, then in lieu of the action authorised by subsections (3) and (4) and without limiting the commissioner’s powers in relation to the officer, the Commissioner may—

(a)in writing, appoint the officer to a position as a staff member, at a rate of salary not less than that of the officer immediately before such appointment; and

(b)may direct the officer to report for and perform duty in the position to which the officer is so appointed.’

Having regard to the medical opinion obtained regarding your present condition, I am satisfied you should not continue to perform your duties of office and pursuant to Section 8.3 (3) of the Act, I hereby call upon you to retire from the Service with effect from midnight on 28 June 2013.

Please complete and return the attached form indicating your acceptance or otherwise of this direction by close of business on 21 June 2013.”

  1. The applicant did not reply to that letter.
  2. On 27 June 2013 the QPS wrote to Mr McArdle in the following terms:

“I refer to a previous letter dated 6 June 2013 calling upon you to retire on the grounds of medical incapacity in pursuance of Section 8.3 (3) of the Police Service Administration Act 1990.

I have not received, within the required time, any advice that you agree to retire in accordance with the direction.

Consequently, and in pursuance of Section 8.3 (4) of the above Act, I hereby dismiss you from your employment with the Queensland Police Service on the basis of your medical incapacity, with effect from midnight on to August 2013.”

  1. On 23 July 2013 Mr McArdle replied to that letter when he wrote to the Deputy Commissioner, Regional Operations. That letter contained the following:

“Whilst I find this decision and the process employed by the QPS to achieve its position disappointing I am aware after speaking to Commissioner Stewart that I have no grounds for appeal, and that in any respect, nothing I say will change the decision to dismiss me.”

  1. He went on, in that letter, to submit that the date of dismissal was premature given that he was still receiving treatment by a medical specialist and that the WorkCover review had not been finalised. He agreed, in cross-examination, that he had been told by Commissioner Stewart at least a few weeks before writing that letter that he had no grounds to appeal. He was asked:

“So by the time you wrote that letter on 23 July 2013, you are under no doubt that your career had finished with the QPS? – – – No. I wouldn’t – wouldn’t agree with that because, whilst it seemed that every – every time I elevated it to a more senior police officer I got the same response, the fact of the matter is I believe the policies and procedures in place regarding workplace bullying and harassment are fairly concrete, and all I needed to do was to get somebody to stop, have a look at my complaint objectively, look at what evidence I’ve put forward, and make a decision from there, and that – it’s my belief that if an independent person did that they would see that the pressure that was applied to me prior to going off work was, let’s say, questionable.”[10]

  1. Later, in cross-examination, he accepted that there was nothing he could have said which would have changed the decision which had been made by the QPS. This conflicted with an answer in re-examination where he said that he believed his treatment had been unfair and that he “stood every chance of being reinstated.”
  2. In cross-examination Mr McArdle was asked about his work in the scene of crimes unit. He agreed that he knew that he had to get out of that kind of work because it was doing him no good.[11] He accepted that the letters of 5 March 2013, 6 June 2013 and 27 June 2013 did not afford him an opportunity to challenge the intended decision all the final decision.
  3. In his submissions, Mr Horvath (who appeared for the applicant) identified the “material facts” as being “the nature and the extent of [his] injury to the extent that he can no longer be a police officer in any capacity”. Those “material facts” acquired a “decisive character”, it was submitted, on 3 August 2013 when his employment was terminated.
  4. Mr Charrington (who appeared for the respondent) submitted that Mr McArdle, if properly advised, had the critical mass of information required to ground a worthwhile cause of action before his employment ended.

Conclusions

  1. The evidence demonstrates that Mr McArdle, by the letter of 5 March 2013, was “warned” that he was going to be medically retired from the QPS. That letter also contained the references to the expert opinion that he could not continue in employment with QPS but could be employed elsewhere in the public service.  In the letter of 6 June 2013 he was told that the QPS was satisfied that he was “permanently unfit” and incapable of performing any duties within the QPS. His employer told him that he should not continue to perform his duties and he was offered the option of retirement. That option was not taken up. In the letter of 27 June 2013 he was dismissed with effect from 2 August 2013.
  2. This is not a case where Mr McArdle could possibly have been confused about QPS’ intentions – they were spelled out with clarity in the letters referred to above. His evidence about his understanding of the process was that of a person who was unwilling to accept the inevitable. His contention that he did not believe he would be retired against his will was unsupported by any rational reading of the correspondence.
  3. In his evidence he said that he thought that if an independent person examined the evidence that it would be found that he had been put under pressure that was “questionable”. That may be so, but it does not prevent material facts of a decisive character coming within his knowledge before the time at which his employment came to an end.
  4. Mr McArdle knew on 29 June 2013, when he received the letter of 27 June 2013, that his employment was over. It was only a matter of time for the formality of termination to take effect. It follows, then, that that was when “a reasonable person, knowing those facts and having taken the appropriate advice on those facts” would regard those facts as showing the features described in s 30(1)(b) of the Limitation of Actions Act.
  5. The application is dismissed.

Footnotes

[1] The relevant Act was the one in force at 1 July 2013.

[2] [2006] QCA 498.

[3] [1989] 1 Qd R 683.

[4] Op cit, per Connolly J at 685; and followed in State of Queensland v RAF [2012] 2 Qd R 375.

[5] [1988] 2 Qd R 325.

[6] Op cit at 331.

[7] Op cit at 333.

[8] [2008] 2 Qd R 219.

[9] The decision in State of Queensland v Stephenson (2006) 226 CLR 197 is of particular relevance to this application as it (together with the other cases dealt with in that decision: Reeman v State of Queensland and State of Queensland v Wrightson) dealt with an application by a former member of the QPS for an extension of time to commence proceedings for a case based on a claim for damages for negligence.

[10] T 1-19 l45 – 1-20 l6.

[11] T 1-11, l 44.

Close

Editorial Notes

  • Published Case Name:

    McArdle v State of Queensland

  • Shortened Case Name:

    McArdle v State of Queensland

  • MNC:

    [2016] QSC 165

  • Court:

    QSC

  • Judge(s):

    Martin J

  • Date:

    01 Aug 2016

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2016] QSC 16501 Aug 2016-
Notice of Appeal FiledFile Number: Appeal 8501/1622 Aug 2016-
Appeal Discontinued (QCA)File Number: Appeal 8501/1620 Sep 2016-

Appeal Status

Appeal Discontinued (QCA)
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