Background
The appellant was employed by the respondent as a trade assistant.
The appellant alleged that, around 1 June 2002, a second-year apprentice employed by the respondent became angry and pinned him against a wall with a pantry cupboard (“the first incident”). As a result, the appellant claimed to have sustained a back injury. The second incident occurred on 19 June 2002, when the appellant allegedly sustained a left knee injury while loading a crane basket. The appellant suffered a further injury to his left knee on 4 July 2002 (“the third incident”).
The appellant lodged applications for compensation under the WorkCover Queensland Act 1996 (Qld) (“WQA”) for the second and third incidents but not for the first. Before the limitation period expired, the appellant had neither commenced court proceedings nor submitted a compliant notice of claim for damages as required under the WQA.
On 14 December 2022, the appellant lodged a notice of claim for damages with WorkCover Queensland (“WorkCover”), which WorkCover deemed non-compliant. A revised notice, covering all three incidents, was served on 19 April 2023 and confirmed as compliant on 2 May 2023.
On 11 August 2023, the appellant commenced proceedings in the Supreme Court of Queensland, seeking damages exceeding $900,000. On the same day, he filed an application to extend the limitation period pursuant to s 31(2) of the Limitation of Actions Act 1974 (Qld) (“the Act”).
Decision at First Instance
The appellant’s application was dismissed with costs.
The primary judge found that the appellant had not met the burden of identifying a material fact, let alone one of a decisive nature. The judge held that there was no evidence supporting the appellant’s claim that he had discovered a new material fact about his left knee injuries after 2 May 2022. The judge also noted that the appellant’s statement of claim asserted that, following surgery in 2005, he had been vulnerable in the open labour market and had suffered wage loss between 2006 and 2015. This suggested that the appellant had long been aware of the potential for a commercially viable claim.
The court further held that, even if the appellant had established a material fact of a decisive nature under s 31(2) of the Act, the respondent would suffer significant prejudice if the claim proceeded. The judge noted that relevant records had been destroyed and that key witnesses had either died or could not be identified.
Background: Appellant’s Employment and Injury Incidents
The appeal was dismissed with costs.
The appellant’s grounds for appeal were:
- The existence of a significant apprehension of bias on the part of the primary judge;
- That the primary judge erred in the interpretation of s 31 of the Act;
- That the Act should not preclude the Court from exercising jurisdiction where an indictable offence had been committed by one employee against another; and
- That the costs order against him restricted access to the Court.
The Court of Appeal rejected the appellant’s submissions. It found no merit in the claim of apprehended bias and upheld the primary judge’s application of the concept of “a material fact of a decisive character” under s 31(2) of the Act.
The Court also dismissed the appellant’s argument that the commission of an indictable offence should preclude the application of the Act, noting that the primary judge was bound to apply the statute based on the evidence presented, rather than on broad notions of fairness.
Finally, the Court rejected the appellant’s argument that the costs order restricted access to justice, finding no error in the primary judge’s discretion in awarding costs against the appellant.
