List member Geoffrey Diehm QC appeared for the Respondent in Blows v Townsville City Council [2018] QSC 234.
The Respondent employed the Applicant for 20 years as a parking unit officer. In June 2014 the Respondent gave the Applicant a show cause letter, and he was subsequently dismissed for purported misconduct later in June 2014. The Queensland Industrial Relations Commission declared in June 2016 that the termination was an unfair dismissal. In October 2017 the General Medical Assessment Tribunal diagnosed him as having had an aggravation of a depressive disorder. The Applicant applied for assessment in March 2017 and was issued a Notice of Assessment (“NOA”) in November 2017 assessing him as having a whole person impairment of 6%.
Douglas J first examined whether the duty contended for existed. The Respondent relied on the case of State of New South Wales v Paige (2002) 60 NSWLR 371, which was then applied in Govier v The Uniting Church in Australia Property Trust (Q) [2017] QCA 12. Paige discussed whether providing a safe system of work encompassed providing a safe system of investigations and discipline. The proposed duty was described as inconsistent with Commonwealth and State regulation of unfair dismissal in Australia. His Honour held that there was no relevant duty of care.
The Applicant claimed the limitation period expired in November 2018, arguing that the NOA was a material fact for the purposes of s.31(2)(a) of the Limitation of Actions Act since, in assessing his impairment as more than 5%, it created an entitlement for him to sue for common law damages. However, he only applied for the NOA two months before the expiration of time when, as the Respondent argued, he could have received the NOA within the ordinary time limit had he requested it earlier, or protected his limitation period under s.302 of the Workers Compensation and Rehabilitation Act 2003 by requesting it six months before the expiration of the time period in June. Given that he was legally represented from the outset, and first saw a doctor in July 2014, the delay in obtaining an NOA had not been explained.
Douglas J also considered whether to exercise his discretion under s.31(2)(b) of the Limitation of Actions Act 1974 and concluded there was nothing to support his doing so.
The application was dismissed.
See the judgment here: https://www.sclqld.org.au/caselaw/QSC/2018/234
