Donoghue v Bareki Nominees Pty Ltd [1995] QCA 576

[1995] QCA 576 COURT OF APPEAL MACROSSAN CJ LEE J MACKENZIE J No 205 of 1995 RODNEY DONOGHUE Plaintiff/Respondent and BAREKI NOMINEES PTY LIMITED (ACN 010 141 385) Defendant/Applicant BRISBANE ..DATE 06/10/95 JUDGMENT -- 1 of 4 -- 061095 D.1 T 22/PEH M/T COA95/297 2 JUDGMENT THE CHIEF JUSTICE: This is an appeal against a decision of a District Court Judge granting an extension of time in which to sue under the Limitation of Actions Act. There is no need in my view to canvass the facts at any great length. The plaintiff commenced his proceedings in the District Court and the result of the extension being granted there, and now being challenged by the appellant/defendant, is that the appellant is not entitled to appeal to this Court unless it shows that there is an important question of law involved. Counsel for the appellant expressly disclaimed reliance upon the existence of any important question of justice. The plaintiff/respondent commenced work for a certain employer and during the course of it he noticed certain symptoms and sought medical advice and he seems to have been informed that his condition which involved tinnitus may have been an acquired one due to the conditions of his working environment. He seems to have been advised to go off to another form of employment. He did not, however, do so. He did that only when much later his employment came to an end. At that time an engineer's report was sought and, as a result of that, action was commenced. The gist of the engineer's advice seems to have been that the conditions at work could be regarded as a contributing factor to the plaintiff's condition and that a reasonable employer would have arranged things in a way which would have prevented the -- 2 of 4 -- 061095 D.1 T 22/PEH M/T COA95/297 3 JUDGMENT hearing impairment from having arisen or from becoming worse. The reasons which the Judge gave in granting leave are not fully explicit. The apparent basis, it would seem to me, was that the Judge has decided that a reasonable person in the position of the plaintiff would not necessarily or would not probably, I suppose, at the stage when he got the medical report, have been prompted to take the further advice which he subsequently took. Notwithstanding attempts to suggest that an error of law resided in the Judge's decision below I would, for myself, think that on the contrary that there was no error clearly identified and it was not an error of law if an error does reside there. I consider that the decision below turned on a matter of fact. Even if there was some error which it is correct to describe as being of one of law involved in the decision, and I'm not persuaded of that, I would not consider that that error of law which is of the most doubtful existence to put it at its highest, would qualify as an important matter of law. Some attempt was made on behalf of the appellant to suggest that the Judge below had decided that a delay after it became apparent that advice should be sought could be regarded as excusable, but I do not see that as being involved or certainly not clearly involved in the decision below. As I say I think it was a factual decision and not one which involved an important matter of law and I would -- 3 of 4 -- 061095 D.1 T 22/PEH M/T COA95/297 4 JUDGMENT refuse leave. LEE J: I agree. MACKENZIE J: The Chief Justice has analysed the circumstances of the matter in some detail. I am content to simply observe that if there is a matter of law involved in the issue it is not one that can properly be described as an important matter of law within the meaning of the District Court Act. I agree in the order proposed. THE CHIEF JUSTICE: So the application is refused with costs. Can you resist that, Mr Egan? MR EGAN: No, Your Honour. THE CHIEF JUSTICE: Thank you. That is the order of the Court. ----- -- 4 of 4 --