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Hamling v Australia Meat Holdings Pty Ltd

 

[2005] QCA 415

Reported at [2006] 2 Qd R 235

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

SC No 11360 of 2004

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

DELIVERED ON:

11 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

14 October 2005

JUDGES:

Jerrard and Keane JJA and Douglas J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal dismissed

2. Appellant to pay the respondent's costs of the appeal to be assessed on the standard basis

CATCHWORDS:

WORKERS' COMPENSATION - ALTERNATIVE RIGHTS AGAINST EMPLOYER AND THIRD PARTIES - ALTERNATIVE RIGHTS AGAINST EMPLOYER FOR DAMAGES AT COMMON LAW OR BY STATUTE - RIGHT TO PROCEED FOR DAMAGES - where the appellant suffered personal injuries during the course of his employment at the respondent's meat processing works - where the appellant obtained leave pursuant to s 305 WorkCover Queensland Act 1996 (Qld) from a judge of the District Court to commence an action for damages against the respondent - where the appellant instituted a proceeding in the District Court in reliance on this leave - where the appellant later instituted a proceeding in the Supreme Court in reliance on the same grant of leave - whether the grant of leave by a judge of the District Court pursuant to s 305 WorkCover Queensland Act 1996 (Qld) entitled the appellant to bring a proceeding in the Supreme Court

WORKERS' COMPENSATION - MISCELLANEOUS MATTERS - OTHER MATTERS - where the appellant contended that leave to commence a proceeding in the Supreme Court was unnecessary because a notice of claim that complied with s 280 WorkCover Queensland Act 1996 (Qld) had been provided within the relevant limitation period - where the respondent argued that the appellant had failed to provide the full particulars required - where the appellant had written "TBA" as the amount for his claim for hospital and medical expenses - whether the appellant had provided "full particulars of the nature and extent of the amount of damages sought … and the method of calculating each amount" as required by s 74 WorkCover Queensland Regulation 1997 (Qld)

District Court of Queensland Act 1967 (Qld), s 85

Limitation of Actions Act 1974 (Qld)

WorkCover Queensland Act 1996 (Qld), s 8, s 250, s 280, s 282, s 285, s 293, s 302, s 303, s 304, s 305, s 308, Sch 3

Workers' Compensation and Rehabilitation Act 2003 (Qld), Ch 5

WorkCover Queensland Regulation 1997 (Qld), s 74

Brew v Followmont Transport P/L [2005] QCA 245; Appeal No 11329 of 2004, 15 July 2005, cited

Lau v WorkCover Queensland [2002] QCA 244; [2003] 2 Qd R 53, applied

Morrison-Gardiner v Car Choice Pty Ltd [2004] QCA 480; [2005] 1 Qd R 378, applied

COUNSEL:

R A I Myers, with E J C Howard, for the appellant

J A Griffin QC for the respondent

SOLICITORS:

Trilby Misso Lawyers for the appellant

Abbott Tout Lawyers for the respondent

[1]  JERRARD JA:  In this appeal I have read the reasons of Keane JA, and the orders proposed by His Honour, and I respectfully agree with those.  I gratefully adopt His Honour’s statement of the facts and of the relevant content of s 280, s 302, s 303, s 305 and s 308 of the WorkCover Queensland Act 1996 (Qld) (“the Act”).  A study of the chronology in this matter strongly suggests that the unfortunate appellant should have begun his proceedings in December 2004 in the District Court rather than the Supreme Court: what is unfortunate but understandable is that he began proceedings a year earlier in the District Court, in December 2003, in contravention of the provisions of s 303[1] of the Act, but within the limitation period.

Chronology

[2] The relevant sequence of events were that:

the appellant was injured on 2 January 2001;

he gave a notice of claim to the respondent employer (a self-insurer) under s 280[2] of the Act, dated 22 October 2003 and received on 3 November 2003;

by application dated 19 December 2003 filed in the District Court, he applied in that court for leave pursuant to s 305 of the Act to start proceedings against the respondent for damages for personal injuries sustained on 2 January 2001;

by order made 19 December 2003 by Noud DCJ, he was granted leave to commence proceedings in respect of those injuries, subject to his complying with the provisions of Chapter 5, Parts 5 and 6 of the Act;

proceedings in the District Court were filed on 23 December 2003;

the limitation period expired on 2 January 2004;

the respondent’s solicitors advised that the notice of claim given on 19 December 2003 was deemed compliant on 4 February 2004,[3] after the limitation period had expired;

on 3 August 2004 the respondent delivered a written notice under s 285 of the Act;

on 27 October 2004 the compulsory conference required by s 293 of the Act was held;

on 23 November 2004 the District Court proceedings filed on 23 December 2003 were served on the respondent;

on 21 December 2004 the respondent entered a conditional notice to defend in the District Court, pursuant to Uniform Civil Procedure Rule 144;

on 24 December 2004 the appellant began the proceedings in the Supreme Court;

on 10 February 2005 the respondent applied in the District Court for a declaration that the proceedings commenced in the District Court on 23 December 2003 were commenced in contravention of the Act;

on 24 March 2005 the respondent filed an application in this Court for a declaration that “the Claim and Statement of Claim of 24 December 2003 [sic] were commenced in contravention of [the Act]”.

Was the notice complying?

[3] The respondent’s s 285 notice was not given within six months after the District Court order made under s 305 (as s 285(2)(c) requires), but it was within six months of the date on which its solicitors advised that the s 280 notice was deemed to be a complying notice of claim.  The compulsory conference was held within three months of the date on which that s 285 notice was given, as required by s 293(3) of the Act.

[4] I agree with Keane JA that as at the date it was given the notice did not comply with the requirements of regulation 74 of the WorkCover Queensland Regulation 1997 (Qld), for the reasons given by His Honour.  Mr Myers submitted with force that the Health Insurance Commission (“HIC”) charge upon any damages the claimant got was not an appropriate topic for query by the respondent, and that the respondent had only asked for an undertaking the appellant’s solicitors supply the amount of the HIC charge when known.  He argued that it had thereby waived compliance with regulation 74 in respect of those charges.  But the appellant was claiming the amount of the charge as special damages, part of his economic loss; the respondent would have to pay it, although it would not go into the claimant’s pocket; and charges of that nature can be significant matters for all parties in settlement negotiations.  The respondent specifically said in its correspondence that the notice was non-complying, and made it clear that the asserted non-compliance included failure to provide the HIC charge figures, and the claimant did not give the requested undertaking before the expiry of the period of limitation.

Could waiver after the limitation date work retrospectively?

[5] The s 280 notice had been forwarded to the respondent’s claims officer by letter dated 28 October 2003,[4] and on 10 November 2003[5] the respondent replied to it, stating that it did not waive compliance with the requirements of the Act, identifying where the respondent said the notice was non-compliant.  The appellant’s solicitors responded on 5 December 2003[6] by providing various documents, including a statutory declaration from the appellant, and on 10 December 2004[7] the respondent advised its opinion that there was still non-compliance, including in respect of the appellant’s obligation to provide full particulars of the nature and extent of the amount of damages under each head of damage claimed by him and the method of calculating each amount.  On 3 February 2004 the appellant’s solicitor responded by providing yet another statutory declaration, and a copy of a HIC Notice of Charge valid until 16 July 2004.[8]  The statutory declaration explained the method of calculating the sums claimed in the s 280 notice, about which there had been a query.  On 5 February 2004[9] the respondent’s solicitors wrote advising that the notice of claim was deemed compliant as at 4 February 2004. 

[6] The letters from the respondent dated 10 November and 10 December 2003 had each advised the appellant’s solicitors that the respondent did not waive compliance with the requirements of s 280, and gave the appellant’s solicitors 30 days from the receipt from those respective written notices – given pursuant to s 282(2)(c) and (d) of the Act – to satisfy the respondent that the appellant had complied with the requirements of s 280 or that he had taken reasonable action to remedy the non-compliance. 

[7] Section 282[10] of the Act provides:

Response to notice of claim

282.(1)This section applies if a notice of claim is given to WorkCover.

(2)WorkCover must, within 30 days after receiving the notice, give the claimant written notice—

(a)stating whether WorkCover is satisfied that the notice of claim complies with section 280 (a ‘complying notice of claim’); and

(b)if WorkCover is not so satisfied—identifying the noncompliance and stating whether WorkCover waives compliance with the requirements; and

(c)if WorkCover does not waive compliance with the requirements—allowing the claimant a reasonable period of at least 30 days either to satisfy WorkCover that the claimant has complied with the requirements or to take reasonable action to remedy the noncompliance.

(3)If WorkCover is not prepared to waive compliance with the requirements in the first instance, WorkCover must, within 30 days after the end of the period specified in subsection (2)(c), give the claimant written notice stating that—

(a)WorkCover—

(i)is satisfied the claimant has complied with the relevant requirements; or

(ii)is satisfied with the action taken by the claimant to remedy the noncompliance; or

(iii)waives the noncompliance; or

(b)WorkCover is not satisfied that the claimant has taken reasonable action to remedy the noncompliance, with full particulars of the noncompliance and the claimant’s failure to remedy it.

(4)WorkCover must, within 30 days after receiving a complying notice of claim or waiving noncompliance with the requirements of section 280, advise the employer or employers against whom negligence is alleged.”

[8] The respondent’s solicitor’s letter of 5 February 2004, advising that the notice of claim was deemed compliant (as at 4 February 2004), was presumably written pursuant to s 282(3)(a), describing (by inference) the respondent’s satisfaction either pursuant to (i) or (ii) of that subsection, without specifying which, or why the notice was “deemed” compliant; or else the respondent by then had waived non-compliance, pursuant to (iii).  That letter further advised that the s 285 notice was now due on or before 4 August 2004.  That advice is consistent with the obligation in s 285(2)(a), and the respondent clearly intimated by that advice that it considered a complying notice had been received on 4 February 2004.

[9] The Act does not specify when a notice originally non-complying, and said by the respondent to it to be non-complying, actually becomes a complying one, where the circumstances are that the respondent later declares satisfaction with either compliance or steps taken to remedy non-compliance, or waives the non-compliance.  The respondent’s position (that the notice became complying when its satisfaction or waiver was declared) is logical, but is not supported by anything expressly stated in the Act.  The majority judgment in Lau v WorkCover Queensland [2003] 2 Qd R 53 approved an objective test for deciding when a notice complied with s 280, and was then a “complying notice of claim”.  That approach would result in the notice becoming a complying one when, judged objectively, the information supplied satisfied the requirements of s 280 and any regulations. 

[10]  This notice was not a complying one, objectively considered, until the solicitor gave the information in their letter of 3 February 2004.  But there is also provision in s 282 for waiver, and for a respondent to declare satisfaction with steps taken, even though the result may still not be strictly what the section mandates.  Where there is a waiver, s 282(3)(a)(iii) and s 285(2)(a), considered together, provide that the six months start running under s 285(2)(a) from the date of the waiver.  It would be consistent with that to hold that the six months also started to run under s 285(a) only when a respondent declared satisfaction, under s 282(3)(a)(i) or (ii), with action taken to remedy non-compliance (even if, viewed objectively, the s 280 notice was actually still non-compliant).  That in turn is consistent with this appellant being taken to have given a complying notice of claim, pursuant to s 308(1)(a)(i), only after the end of the period of limitation and not before. 

[11]  Williams JA was in the minority in Lau v WorkCover, but the majority view did not specifically contradict his opinion that waiver after the end of the limitation period, of those parts of a claim based on non-complying portions of the s 280 notice, could not change what had previously been a non-complying notice into a complying one.  That approach would be consistent with holding that provision of information after the limitation period had expired, which information either established as a fact, or else satisfied a respondent, that a claimant had remedied a state of non-compliance existing up to the end of the period of limitation, could not convert a notice which was non-complying before the end of that period into a notice which was a complying notice before the end of that period.  The decision of this Court in Brew v Followmont Transport Pty Ltd [2005] QCA 245 holds that for a notice to be compliant, the information required by s 280 should be provided. 

[12]  It is only if the notice given before the end of that period of limitation is taken to have been a complying notice of claim when given, because of subsequent information remedying deficiencies in it, that the appellant can succeed on the argument that before the end of the period of limitation he had given, or should be taken to have given, a complying notice of claim.  Section 308(1)(a)(i) would then allow him to start a proceeding in the Supreme Court – irrespective of any other proceedings instituted elsewhere – within 60 days after the compulsory conference for that claim had been held.  But the structure of the Act and the trend of authority is against that construction, and I would reject it.

Leave Granted

[13]  I agree with Keane JA that the grant of leave under s 305 by the District Court was a grant of leave to bring proceedings in that court.  Apart from the challenge that the definition in the Act posed for the appellant, with the statement in s 8 and schedule 3 that the term “court” means “the court having jurisdiction in relation to the amount or matter referred to” (including in s 303(a)(iii) and s 308(i)(a)(iv)), the appellant had difficulty in demonstrating how the order of the District Court (or of a Magistrates Court, if that was the court that granted leave) could bind the Supreme Court.

Comments on s 308

[14]  Were it not for s 308, the various time provisions in the Act would effectively cut down the period of limitation otherwise applicable to a claimant.  Section 280 requires that notice of the claim be given within the period of limitation, and s 282 gives a respondent two potentially consecutive periods of 30 days within which to respond and to require the provision of information.  Section 285 then gives a respondent six months, after receipt of a complying notice, or waiver of relevant requirements, within which to advise whether the respondent admits or denies liability etc.  Thus far, a period of six months and 30 days (seven months) could elapse after the giving of a complying notice before the receipt of the s 285 notice, for example, either admitting liability but disputing quantum, or denying liability and challenging quantum.

[15]  Part 6 of Chapter 5 of the Act then provides that the compulsory conference mandated by s 293 must be held within three months of the giving of the s 285 notice, and s 294 requires that if the claim is not settled at the conference a final written offer made at that conference must remain open for 14 days before proceedings can be started.  It follows that a minimum period of 10½ months can elapse after an entirely complying notice is given before a proceeding may begin, and where a notice was originally non-complying but subsequently remedied – or the non-compliance waived – 11½ months could pass.  The net result of all that is absent any other provision, a complying notice should be given at least 11 months before the end of a limitation period to ensure that a claim can start within it.  However, s 308 deals with that problem, by allowing for an extension of the limitation period to a date within 60 days after the holding of a compulsory conference for a claim; provided that within the originally applying limitation period either a notice which is complying or which is taken to be complying is given, or else a court makes a relevant declaration under 304 or gives leave under s 305. 

[16]  Section 303 prevents a claimant in this appellant’s position starting a proceeding until at least six months have elapsed after a court has made an order under either of s 304 or s 305, and accordingly Mr Hamling was in error in beginning his District Court proceeding (understandably enough) within the limitation period but, regrettably for him, before six months had elapsed after 19 December 2003, the date on which the order was made under s 305.  The prima facie result of that order was that the limitation period was extended to the date 60 days after the compulsory conference was held, but proceedings could not start until 19 June 2004, at the earliest; and perhaps not until after the compulsory conference was held.[11]  If so, the appellant only had a 60 day window after that conference date within which to start a proceeding in the District Court, and he began one instead in the Supreme Court.

[17]  KEANE JA:  On 2 January 2001, the appellant suffered personal injuries during the course of his employment at the respondent's meat processing works at Dinmore. 

[18]  On 19 December 2003, Noud DCJ gave the appellant leave to commence proceedings for damages for negligence against the respondent pursuant to s 305 of the now repealed WorkCover Queensland Act 1996 (Qld) ("the Act").[12]  That leave was subject to the appellant complying with the Act and, in particular, with s 280 of that Act.  At that time, the appellant accepted that he had not complied with s 280 of the Act.

[19]  The appellant commenced proceedings for damages against the respondent in the District Court on 23 December 2003.  The respondent brought an application (which it is said has not yet been determined) to have the appellant's action in the District Court struck out on the basis that his action had been commenced contrary to s 303(a)(ii) of the Act.[13]

[20]  In the face of that challenge by the respondent, the appellant commenced proceedings in the Supreme Court on 24 December 2004.  Those proceedings were struck out on 27 April 2005 by the learned primary judge on the grounds that, first, the order of Noud DCJ did not entitle the appellant to commence proceedings in the Supreme Court and, secondly, that the respondent had not complied with s 280 and so was not entitled to commence proceedings in the Supreme Court as of right pursuant to s 308(1)(a)(i) of the Act.  It is from this decision that the appellant has appealed to this Court.

The effect of the grant of leave by Noud DCJ

[21]  As to the first of the grounds outlined above, the learned pri­mary judge reasoned that:

 

"… when the Act talks about a Court giving leave to commence proceedings notwithstanding non-compliance with the preliminary notifications required by the Act, it contemplates that leave would be given by the Court in which the claim is to be brought and litigated.  I cannot accept that the District Court, or for that matter the Magistrates Court, could give leave to bring proceedings by an injured workman in the Supreme Court.  Each Court controls its own proceedings, and applies the Act, and I cannot accept that one Court can give leave to a party to commence proceedings in another Court, and I think the sections, particularly section 305, must be read with that understanding in mind." 

 

A consideration of the appellant's challenge to the learned primary judge's conclusion in this regard must commence with a brief review of the material provisions of the Act.

[22]  Chapter 5 of the Act imposed limitations on the seeking of damages for personal injuries sustained by a worker.  Part 2 of Ch 5 imposed conditions upon a worker's entitlement to seek damages, whether by legal action or otherwise.  Part 5 of Ch 5, and in particular s 280, required certain steps to be taken before a claimant could be permitted to pursue an entitlement to seek damages by proceedings in court.  The procedures set down in this part were aimed at enabling WorkCover to "enter into early negotiations with claimants to achieve early resolution of claims for damages before the start of court proceedings".[14]  To that end s 280(1) required a notice of claim to be given to WorkCover or a self-insurer "within the period of limitation for bringing a proceeding for the damages under the Limitation of Actions Act 1974". 

[23]  Part 7 of Ch 5 made provision for the conditions which had to be met before a person otherwise permitted by Ch 5 to pursue an entitlement to damages might actually "start a court proceeding".[15]  By virtue of s 302 a claimant might "start proceedings in a court for damages only if the claimant [had] complied with", inter alia, Pt 2 and Pt 5, save as provided by s 304 and s 305.  The claimant must also have complied with s 303, which provided relevantly:

 

"The claimant may start the proceeding if any of the following have happened -

(a)at least 6 months … have elapsed after -

(i)the claimant has given a complying notice of claim; or

(iii)the court has made an order under section 304 or 305;

…"

[24]  Section 305 provided relevantly:

 

"(1)Subject to section 303, the claimant may start the proceeding if the court, on application by the claimant, gives leave to bring the proceeding despite noncompliance with the requirements of section 280.

…"

[25]  Section 308 provided for the alteration of the period of limitation that would otherwise apply to an action.  It was relevantly in the following terms:

 

"(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 … a complying notice of claim; or 

(iii)a court makes a declaration under section 304; or

(iv)a court gives leave under section 305; and

(b)the claimant complies with section 302."

[26]  By virtue of s 250 of the Act, a "claimant" is a person entitled to seek damages.

[27]  By virtue of s 8 and Sch 3 of the Act, the term "court" was defined to mean "the court having jurisdiction in relation to the amount or matter referred to".

[28]  In one of his arguments on appeal, the appellant seeks to emphasise that s 308(1) of the Act authorised the bringing of proceedings for damages for personal injury in the circumstances contemplated by s 308(1)(a)(iv) notwithstanding the expiration of the limitation period prescribed by the Limitation of Actions Act 1974 (Qld).  The appellant argues that s 308(1)(a)(iv) provided the appellant with an answer to an assertion by the respondent that the appellant's action was statute barred and that, for the purposes of the argument before the learned primary judge, that was the relevance of the order made under s 305 by Noud DCJ.  The appellant argues that this was its only relevance.  That is to say, it was not necessary to treat a grant of leave by the District Court as entitling the appellant to bring proceedings in the Supreme Court to answer the respondent's objection to the proceedings based on the limitation point.  For the purpose of relying upon s 308(1)(a)(iv) to provide an answer to a defendant's limitation point, it was sufficient for a claimant's purposes that "a court" (not, be it noted, "the court") had given leave under s 305.

[29]  The difficulty with this aspect of the appellant's argument is that the effect of a grant of leave under s 305 to bring proceedings despite noncompliance with the requirements of s 280 was not confined to enlivening the operation of s 308(1)(a)(iv) as an answer to the raising of a limitation point.  Absent an effective grant of leave to enable "the proceedings" to be started, the appellant would have been confronted by the implied prohibition contained in s 302 upon starting proceedings otherwise than in accordance with the requirements of (so far as is relevant for present purposes) s 303 and s 305 and, as a result, would have been liable to have those proceedings struck out whether or not the proceedings had been brought within the limitation period.

[30]  In an attempt to meet this difficulty, the appellant argues that the words "the court" in s 305 need not be understood as a reference to the court in which proceedings are actually started.  In my respectful opinion, this argument must be rejected.

[31]  Section 305 was expressed to be subject to s 303.  The grant of leave contemplated by s 305 for the purposes of s 303, and the relaxation of the prohibition in s 302, is a grant of leave by "the court" to start "the proceeding" claiming damages.  Section 305 spoke of the starting of "the proceeding" if "the court" gives a person entitled to seek damages leave to bring "the proceeding".  Since a "proceeding" was clearly a proceeding in a court,[16] the ordinary reading of s 305 would tend to suggest that the proceeding which might be commenced by the grant of leave by "the court" was a proceeding in "the court" which granted the leave. 

[32]  This suggestion is confirmed by a consideration of the definition of "the court" provided by the Act.  For the purposes of s 302, s 303(a)(iii) and s 305 of the Act, "the court" there referred to was, by reason of the definition in s 8 and Sch 3, "the court having jurisdiction in relation to the amount or matter referred to".  Jurisdiction has been said to be "a generic term … generally signifying authority to adjudicate".[17]  The statutory definition of "the court" confirms, in my view, that the reference to "the court" in s 302, s 303(a)(iii) or s 305 can only be a reference to the court which has jurisdiction to hear and decide the proceeding which is actually permitted to be started by reason of that grant of leave. 

[33]  As the respondent points out, the proceedings started in the Supreme Court claimed damages totalling $468,542.  The District Court did not have jurisdiction in relation to that claim as it exceeded the monetary limit imposed on that court's civil jurisdiction.[18]  The Supreme Court, which did have jurisdiction in relation to that claim and in relation to the proceedings started to enforce that claim, was not "the court" which had made "an order under" s 305.

[34]  In support of the appellant's argument for a more relaxed understanding of the reference in s 305 to "the court", Mr Myers of Counsel submits that there is nothing novel or incongruous about an order of the District Court "investing" the Supreme Court with jurisdiction in respect of a matter. The appellant relies in this regard on the terms of s 85 of the District Court of Queensland Act 1967 (Qld) which provides:

 

"85 Procedure if proceeding started in wrong court

(1)This section applies if the District Court considers the court does not have jurisdiction to hear and decide a proceeding started in the court.

(2)If the District Court considers the Supreme Court has jurisdiction to hear the proceeding, the District Court may, by order, transfer the proceeding to the Supreme Court.

(3)Subsection (2) does not apply to a proceeding that may or must be struck out under subsection (4) or (5).

(4)If the District Court considers that the party who started the proceeding knew, or should have known, that the court did not have jurisdiction to hear the proceeding, the court may strike out the proceeding and order the party who started the proceeding to pay the costs of the other party to the proceeding.

(5)If the District Court does not have jurisdiction and the proceeding may not be transferred under subsection (2) or struck out under subsection (4), the court -

(a)must strike out the proceeding; and

(b)may order the party who started the proceeding to pay the costs of the other party to the proceeding.

(6)In this section -

proceeding includes appeal."

[35]  But s 85 of the District Court of Queensland Act only applies at all if the District Court concludes that it does not have jurisdiction to deal with a matter. It clearly does not purport to allow the District Court to "invest" the Supreme Court with jurisdiction which the District Court does possess.  If anything, the existence of that provision confirms that the District Court has no other power to make an order that might confer jurisdiction upon the Supreme Court unless such an order is expressly provided for by statute.  Section 305 of the Act is not couched in language which suggests that it is intended to empower any court in the hierarchy to vest jurisdiction in another.

[36]  It is true that there is a contrast between s 303 and s 305, where the definite article is used in the expression "the court", and s 308(1)(a)(iii) and (iv), where the indefinite article is used in the expression "a court".  It must be remembered, however, that the term "court" has a specific meaning under the Act.  If the meaning of "court" were at large then it might be that a grant of leave by either the Supreme Court, the District Court or the Magistrates Court pursuant to s 305 would amount to a grant of leave by "a court" for the purposes of s 308(1)(a)(iv).  Instead, as I have mentioned, the Act defines "court" as meaning "the court having jurisdiction in relation to the amount or matter referred to". 

[37]  Sections 308(1)(a)(iv) and, by extension, 308(1)(a)(iii) are explicable, in my view, as being intended to provide, for the benefit of a claimant, an extension of the normal limitation period for personal injuries actions in circumstances where the claimant has taken steps to fulfil the requirements of s 280, whether by giving a complying notice of claim or by obtaining dispensation from having to do so, either by waiver or valid court order, before the expiration of the limitation period.  If there has been compliance with the conditions of s 308(1) then any limitation defence that might be applicable to a proceeding that has been validly commenced in accordance with s 302 will be denied operative effect by s 308(1) of the Act even where the proceedings are transferred to a court other than the court which gave leave to start the proceedings under s 305 of the Act.

[38]  In this regard, it is to be emphasised that a limitation provision, though expressed as a prohibition on the "bringing of an action", is not itself usually regarded as preventing the commencement of proceedings and, indeed, not even as affording a defence to a claim, unless the defendant chooses to plead the limitation point.[19]  A limitation defence, of the kind to which s 308(1)(a)(iii) and (iv) are directed, is thus to be distinguished from the express prohibitions on commencing proceedings contained in Ch 5 of the Act.  The existence of a good limitation defence does not usually operate as a bar to the commencement of proceedings.[20]  A defendant may choose not to rely on the defence or may be precluded from doing so by its conduct; but the bringing of an action is not prohibited by a limitation statute because it is brought outside the limitation period.[21]  

[39]  Sections 308(1)(a)(iii) and (iv) are not concerned to lift the bars on commencing an action impliedly imposed by s 302:  that is the work of s 304 and s 305.  This is made clear by s 308(1)(b), which states that all the other requirements of s 302, apart from those dealt with by s 308(1)(a), must still be observed, and by the express terms of s 308(1)(a)(iii) and (iv) themselves.  The purpose of these provisions is to ensure that the benefit of a valid declaration or grant of leave under s 304 or s 305, which would be directed only to the issue of whether a proceeding could be brought notwithstanding a noncompliant notice of claim, is not lost merely because the proceeding authorised by the declaration or grant of leave is commenced outside the limitations period.  Section 308(1)(a)(iv) still relies for its operation, therefore, on an order being made pursuant to s 305 by "a court", ie a court having jurisdiction in relation to the amount of the claim to be brought.

[40]  The District Court did, of course, possess jurisdiction to grant leave for the claimant expressly claiming, as the appellant did, an amount within the monetary jurisdiction of the District Court, to commence a proceeding in the District Court.  The claimant has done so. If the claimant had sought to have that District Court proceeding transferred to the Supreme Court[22] then the grant of leave by Noud DCJ, in combination with s 308(1)(a)(iv) could have been relied upon, not to require the Supreme Court to hear the proceeding or to bind that court in any other way, but as an answer to any limitation point raised by the defendant. This is because the proceeding that would have been transferred to the Supreme Court would be one that had been commenced in circumstances where "a court", which then had jurisdiction in respect of the amount of the claim, had given leave and the proceeding had been validly commenced in reliance on that leave.  The reference to "a court" in s 308(1)(a)(iii) and (iv) helps to ensure that a defendant cannot argue that the answer which s 308 is intended to enable a plaintiff to make to a limitation defence cannot be defeated by the point that the proceedings are no longer pending in the same court whose order enabled them to be started.

[41]  This process of reasoning does not assist the appellant in the present case. The Supreme Court proceeding from which this appeal comes was a proceeding commenced in addition to the proceeding in the District Court. It was a new proceeding commenced in the Supreme Court for which no leave pursuant to s 305 had been given. The issue for determination under s 305 is whether a claimant should be given "leave to bring the proceeding notwithstanding noncompliance with the requirements of s 280".  The Act does not provide a definition for what constitutes a "proceeding"; but recently, in Morrison-Gardiner v Car Choice Pty Ltd,[23] McMurdo P undertook a survey of the authorities, and concluded that:

 

"The traditional legal interpretation of 'proceeding is 'the invocation of the jurisdiction of a court by process other than writ' or 'some method permitted by law for moving a Court or judicial officer to some authorized act, or some act of the Court or judicial officer' and 'includes any application by a suitor to a Court in its civil jurisdiction for its intervention or action'."

[42]  What is clear is that a "proceeding" is a reference to a single phenomenon identified by reference to a court or other adjudicative authority.  A grant of leave to bring a proceeding pursuant to s 305 is therefore leave to bring one proceeding and no more.  The appellant made use of this grant of leave when it instituted its action in the District Court. It is difficult to see how, having obtained leave to "bring a proceeding" and having begun one in the District Court, the grant of leave also extends to the bringing of another proceeding in another court. This would seem to confirm that the legislative policy to be discerned from the use of "the court" in s 303 and s 305 as opposed to "a court" in s 308(1) is that a grant of leave is tied to one proceeding, ie a claim pending in one court.  That proceeding must be commenced in the court that grants leave; but transfer of that proceeding to another court after it has been commenced will not, by reason of s 308(1)(a)(iv), nullify the effect of the original grant of leave for the purposes of any limitation defence. A grant of leave from "a court" does not, however, entitle a claimant to do what the appellant has done, ie to commence a new proceeding in another court.

[43]  For these reasons, in my respectful opinion, the appellant's challenge in relation to the first ground of the learned primary judge's decision must fail.

Compliance with the notice requirements of s 280

[44]  I turn now to the appellant's contention that a notice of claim which complied with s 280 of the Act was given within the limitation period.  As to this contention, in my opinion, the conclusion of the learned primary judge to the contrary was plainly correct. 

[45]  The respondent conceded before the learned primary judge that, if a notice in conformity with s 280 had been given before the proceedings were commenced in the Supreme Court, the appellant was entitled to commence those proceedings without the need for leave under s 305 by reason of the provisions of s 308(1)(a)(i) of the Act.  The respondent argued, however, that the notice did not comply with the requirements of s 280. 

[46]  In that regard, by s 280(2)(a) of the Act, a claimant was required to give "a notice of claim in the approved form".  By s 280(3) the notice was required to "include the particulars prescribed under a regulation".  These requirements are clearly mandatory.  Section 74 of the WorkCover Queensland Regulation 1997 (Qld) required, among other things, that the notice of claim under s 280 include:

 

"(c)  full particulars of the nature and extent of -

(iii)the amount of damages sought under each head of damage claimed by the claimant and the method of calculating each amount …" 

[47]  In the notice of claim, the appellant had written "TBA" next to his claim for special damages relating to hospital and medical expenses referred to as "Health Insurance Commission" ("HIC") and had also failed to particularise the damages sought for money spent on travel and pharmaceuticals.

[48]  The learned primary judge upheld the respondent's argument in relation to the want of information in relation to hospital and medical expenses.  The learned trial judge's conclusion in this regard was plainly correct.  The response provided by the appellant in relation to these items cannot, by any stretch of language, be regarded as "full particulars of the nature and extent of the amount of damages sought … and the method of calculating each amount".  The appellant's response, "TBA", in relation to the HIC claim, was an explicit statement that particulars of the amount and manner of calculation of this aspect of his claim were "to be advised" for the obvious reason that, although a claim was being advanced for damages of this description, the particulars required were not presently being given. 

[49]  The appellant argues that this did not amount to noncompliance with s 280 of the Act, and that the contrary view involves an "oppressive pedantry".  This argument fails to recognise that the answer to oppressive pedantry on the part of the respondent in relation to the terms of the notice required by s 280 was provided by the judicial discretion conferred by s 305 of the Act.  Section 305 assumes, inter alia, noncompliance with s 280, perhaps in an unimportant respect but noncompliance nevertheless.  Presumably, the unimportant nature of the noncompliance by the appellant was a factor which influenced Noud DCJ to grant leave under s 305 of the Act notwithstanding that noncompliance.  Unfortunately for the appellant, he did not take advantage of the relief which the order of Noud DCJ afforded from the pedantic but accurate insistence by the respondent that the appellant had not complied with s 280 of the Act.

[50]  The respondent asserted by its notice of contention that the appellant's failure to provide any explanation as to how the figures relating to pharmaceutical and travel expenses had been arrived at was also a failure to comply with s 74.  In my opinion, it is unnecessary finally to resolve this argument.  That is because the information required in relation to the HIC claim, ie hospital and medical expenses by way of special damages, was only provided at the earliest on 16 January 2004.  By this time, the time for providing a compliant notice in conformity with s 280 had expired.

Conclusions and orders

[51]  In my respectful opinion, the appeal should be dismissed.  The appellant should be ordered to pay the respondent's costs of the appeal to be assessed on the standard basis.

[52]  DOUGLAS J:  I have had the advantage of reading the reasons for judgment of Keane JA and agree with them and the orders proposed by his Honour.

Footnotes

[1] This court was informed during the appeal that the decision in Goerecke v State of Queensland [2004] QDC 273 was the first to consider the effect of s 303 on an order made under s 305.

[2] Section 119 of the Act confers on a self-insured the functions and powers of WorkCover under the provisions of the Act relevant to this matter.

[3] See the affidavit of A Karpeles, the solicitor for the respondent with the carriage of the action, at AR 23.

[4] AR 76.

[5] AR 93.

[6] AR 97.

[7] AR 102.

[8] AR 104.

[9] AR 110.

[10] Reprint No 4, agreed as the relevant one; for convenience these reasons assume it is applicable.

[11] The appeal does not require a judgment on the decision in Watson v WorkCover [2005] QSC 225.

[12] While the WorkCover Queensland Act 1996 (Qld) has been repealed, it is common ground that the issues which arise for determination are to be resolved in accordance with the provisions of that Act. It may be noted that the terms of the provisions of the Act discussed herein have been mirrored in
Ch 5 of the new Workers' Compensation and Rehabilitation Act 2003 (Qld).

[13] The precedent for such an application was said to be Goerecke v State of Queensland [2004] QDC 273; DC No 1576 of 2004, 11 June 2004. The merits of that application are not relevant to the present appeal.

[14] WorkCover Queensland Act 1996 (Qld), s 279. The terms of this section were the subject of later amendment by the WorkCover Queensland Amendment Act 2001 (Qld) but the amended Act deemed the unamended sections to continue to apply to injuries suffered before 1 July 2001: WorkCover Queensland Act 1996 (Qld), s 588.

[15] WorkCover Queensland Act 1996 (Qld), s 301.

[16] Cf WorkCover Queensland Act 1996 (Qld), s 302.

[17] Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1 at [2]; (2001) 204 CLR 559 at 570.

[18] District Court of Queensland Act 1967 (Qld), s 68(1) and s 68(2).

[19] Cf Limitation of Actions Act 1974 (Qld), s 10(1). The effect of this provision of the Limitations of Actions Act 1974 (Qld) was discussed in detail by McPherson J in Gower v Woodman Sales Pty Ltd [1988] 2 Qd R 15 at 23 - 26.

[20] See, eg, the discussion of the effect of s 5(6) of the Limitation of Actions Act 1958 (Vic) in Commonwealth v Verwayen (1990) 170 CLR 394 at 405, 425.

[21] See, eg, Pullen v Gutteridge, Haskins and Davey Pty Ltd [1993] 1 VR 27 at 72 - 73; Cigna Insurance Asia Pacific Ltd v Packer [2000] WASCA 415 at [36]; (2000) 23 WAR 159 at 171.

[22] See, eg, the statutory mechanisms for the transfer of proceedings between the Supreme and District Courts provided in District Court of Queensland Act 1967 (Qld), ss 78 - 83, s 85.

[23] [2004] QCA 480 at [15]; [2005] 1 Qd R 378 at 387 (citations omitted).

Close

Editorial Notes

  • Published Case Name:

    Hamling v Australia Meat Holdings P/L

  • Shortened Case Name:

    Hamling v Australia Meat Holdings Pty Ltd

  • Reported Citation:

    [2006] 2 Qd R 235

  • MNC:

    [2005] QCA 415

  • Court:

    QCA

  • Judge(s):

    Jerrard JA, Keane JA, Douglas J

  • Date:

    11 Nov 2005

Litigation History

Event Citation or File Date Notes
Primary Judgment SC11360/04 (No Citation) 27 Apr 2005 -
Appeal Determined (QCA) [2005] QCA 415 [2006] 2 Qd R 235 11 Nov 2005 Appeal dismissed: Jerrard and Keane JJA and Douglas J.
Special Leave Refused [2006] HCATrans 409 04 Aug 2006 Gleeson CJ and Callinan J.

Appeal Status

{solid} Appeal Determined - {hollow-slash} Special Leave Refused (HCA)