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- Unreported Judgment
 QSC 152
SUPREME COURT OF QUEENSLAND
Semmler v Coles Group Ltd  QSC 152
THERESE IRENE SEMMLER
3125 of 2008
27 June 2008
27 June 2008
WORKERS COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – PRELIMINARY REQUIREMENTS – where plaintiff claims damages for injuries allegedly suffered in the course of her employment – where the Workers’ Compensation and Rehabilitation Act 2003 (“WCRA”) governs the claim for damages – where the parties exchanged final offers pursuant to s 292(1) of the WCRA – where, contrary to s 292(2) of the WRCA, proceedings were commenced less than 10 business days after the exchange of offers – whether the proceeding should be struck out
Workers’ Compensation and Rehabilitation Act 2003 (Qld)
Berowra Holdings Pty Ltd v. Gordon  225 CLR 364
Phipps v. Australian Leisure and Hospitality Group Limited v Another  QCA 130
S Given for the plaintiff
W D G Campbell for the defendant
Sinnamon Lawyers for the plaintiff
HWL Ebbsworth for the defendant
SUPREME COURT OF QUEENSLAND
No 3125 of 2008
THERESE IRENE SEMMLERPlaintiff
COLES GROUP LTDDefendant
HIS HONOUR: In this proceeding, which was commenced by a claim and statement of claim filed on 7 April 2008, the plaintiff claims damages for injuries allegedly suffered in the course of her employment with the defendant.
It is not in issue that the Workers' Compensation and Rehabilitation Act 2003 ("WCRA") governs the plaintiff's claim for damages. There is also no issue before me of non-compliance with the pre-Court procedures specified in Chapter 5 Division 8 Part 5 of the WCRA.
On 20 May 2008 the defendant filed a conditional notice of intention to defend contending that the proceeding is irregular because the claim has been commenced in breach of section 292(2) of the WCRA. Having filed that conditional notice of intention to defend, the defendant, as required by Uniform Civil Procedure Rules rule 144(3), has now made application for an order under rule 16(e) that the claim and statement of claim be set aside.
On 1 April 2008 a compulsory conference within the meaning of that term in section 289 of the WCRA of the parties was held. The plaintiff's claim was not settled at the compulsory conference and, as required by section 292(1), each of the parties made a final written offer to the other at the conference.
Section 292(2) provides:
"The final offer must remain open for 10 business days and proceedings must not be started while the offer remains open."
Notwithstanding the clear terms of this statutory moratorium on the commencement of proceedings, the plaintiff, as I have noted, started this proceeding on 7 April 2008 and served it on the defendant's solicitors under cover of a letter dated 11 April 2008. Formal service on the employer was not effected until 23 April 2008.
Mr Given of counsel, who appeared for the plaintiff, told me from the Bar table that this premature institution of this proceeding was a mistake on the part of his solicitor. I accept, of course, that those are his instructions but note that no affidavit material has been filed on his side of the record in this application.
In advancing the application to have the proceedings set aside, Mr W D B Campbell of counsel eschewed any submission that commencement of the proceeding in defiance of section 292(2) rendered the proceeding a nullity. That approach seems to me, with respect, to be quite right. Section 292(2) does not extinguish rights or create new rights but rather, to adopt the words of Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ in Berowra Holdings Pty Ltd v. Gordon  225 C.L.R. 364 at , section 292(2) operates to postpone the remedy for the common law right to initiate proceedings in a Court of competent jurisdiction until the prescribed 10 business day period has elapsed. See also Hamling v. Australian Meat Holdings Pty Ltd No 2  1 Qd.R. 315 per Jerrard JA at  concerning the provision now found at section 296 of the WCRA.
In Phipps v. Australian Leisure and Hospitality Group Limited v. Another  QCA 130 Keane JA, with whose reasons Muir J as he then was agreed, was concerned with the proper construction and effect of sections 237 and 250 of the WCRA.
Those sections provide:
237 General limitation on persons entitled to seek damages(1) The following are the only persons entitled to seek damages for an injury sustained by a worker—
(a) the worker, if the worker—
(i) has received a notice of assessment from the insurer for the injury; or
(ii) has not received a notice of assessment for the injury, but—
A) has received a notice of assessment for any injury resulting from the same event (the assessed injury); and
B) for the assessed injury, the worker has a WRI of 20% or more or, under section 239, the worker has elected to seek damages; or
(b) the worker, if the worker’s application for compensation was allowed and the injury has not been assessed for permanent impairment; or
(c) the worker, if—
(i) the worker has lodged an application, for compensation for the injury, that is or has been the subject of a review or appeal under chapter 13; and
(ii) the application has not been decided in or following the review or appeal; or
(d) the worker, if the worker has not lodged an application for compensation for the injury; or
(e) a dependant of the deceased worker, if the injury results in the worker’s death.
(2) The entitlement of a worker, or a dependant of a deceased worker, to seek damages is subject to the provisions of this chapter.
(3) If a worker—
(a) is required under section 239 to make an election to seek damages for an injury; and
(b) has accepted an offer of payment of lump sum compensation under chapter 3, part 10, division 374 for the injury;
the worker is not entitled under subsection (1)(a)(ii) to seek damages.
(4) However, subsection (3) does not prevent a worker from seeking damages under section 266.
(5) To remove any doubt, it is declared that subsection (1) abolishes any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker.
250 Claimant may seek damages only after being assessed
(1) The claimant may seek damages for the injury only if the insurer gives the claimant a notice of assessment.
(2) For subsection (1), the insurer must have the degree of permanent impairment assessed under chapter 3, part 10 and give the claimant a notice of assessment.
(3) Chapter 3, part 10 applies to the assessment.
In contrast to section 275 which relevantly provides that before starting a proceeding in a Court for damages a claimant must give a notice of claim for damages within the relevant limitation period, his Honour considered that the language of section 237 and section 250 is quite different to that of section 275, the difference being between a statutory abolition of the entitlement to seek damages at all otherwise than in compliance with the conditions of the statute and a statutory prohibition on commencing an action.
At  Keane JA said that the appellant's non-compliance with section 237 and section 250 "meant that notwithstanding her rights at common law she was not entitled to such damages from the respondent."
With respect to section 275, however, Keane JA said at :
"The respondent in this case did not argue that Hamling's case was not correctly decided. It must therefore be accepted that an action is not a 'nullity' and bound to be terminated summarily as such simply because it was commenced contrary to the statutory prohibition in section 275 of the Act. That is the clear effect of the decision of this Court in Hamling's case."
Similarly in my respectful view the commencement of a proceeding contrary to the statutory moratorium imposed by section 292(2) does not render the proceeding a nullity.
In reliance on Hamling's case, however, Mr Campbell contended that the proceeding having been commenced in contravention of section 292(2) it has engaged the jurisdiction and procedural rules of this Court and is vulnerable to an application to strike the proceeding out.
The cases to which I have already referred clearly establish that the Court has a discretion to terminate proceedings commenced in contravention of statutory prohibitions in the WCRA. As Keane JA said in Phipps' case at paragraph :
"This was the discretion discussed by the High Court in Berowra Holdings. That discretion arose independently of the regulatory regime contained in the Act. The fact that an action had been commenced contrary to the requirements of the regulatory regime did not dictate the result of the exercise of the discretion whether to terminate the proceeding at least in the absence of an express or implied prohibition in the Act upon the claimant continuing to prosecute the irregularly commenced claim."
Mr Campbell acknowledges both that the plaintiff had complied with the prescribed pre-Court procedures in Chapter 5 Division 8 Part 5 and that the applicant has not sworn to any prejudice. He submits, however, that I should find that the early filing of the proceeding was an abuse of process and that the early service on the solicitors, which was not required by either the WCRA or the UCPR, was a deliberate tactic to put pressure on the defendant to accept the plaintiff's offer. He also points to the fact that the defendant has not delayed in bringing this application and that the limitation period for the plaintiff's claim has not expired.
Mr Given, however, submitted that, as the impediment to proceedings constituted by the 10 business day statutory moratorium has been removed by effluxion of time, the existing proceedings "are automatically regularised and there is now no ground on which the originating process can be set aside".
I would reject that submission. As I have already noted, the commencement of a proceeding contrary to section 292(2) does not render the proceeding a nullity. Rather, if challenged it provides an occasion for the Court to consider whether it ought exercise its discretion to terminate the proceeding commenced in defiance of a statutory prohibition.
The fact that the moratorium period has expired does not ameliorate the fact of non-compliance nor, with respect, is it relevant to invoke, as the plaintiff did in her submissions, judicial analysis of the effect of subsequent observance of the requirements of section 237 and section 250 such as the observations of Keane JA in Phipps' case at . His Honour's analysis was that those provisions go to the substantive entitlement of a claimant to recover damages. Failure to give the notices required under those sections means that a claimant's action is "doomed to fail" not because of a breach of a statutory prohibition but because, in the absence of the requisite notices, the claimant simply has no claim. Hence, his Honour's observation to the effect that there is nothing in the language of those sections to suggest that the otherwise inevitable failure could be averted by the issuing of the necessary notice.
Similarly, the plaintiff's submission that the plaintiff's proceedings "can simply be cured by amendment now that the 10 day prohibition has passed and the cause of action is complete" misconceives both the effect of non-compliance with section 292(2) and the nature of the present application.
There is no question that the plaintiff's cause of action was complete when the proceeding was started, nor is it a question of amending the proceeding. An amendment cannot cure the fact of non-compliance with section 292(2).
The question, rather, is whether the Court should exercise its discretion to terminate proceedings commenced contrary to the statutory prohibition. In that regard, the plaintiff's submission is ultimately one of utility. The Court should not exercise its discretion, it is said, to terminate the proceedings because this would result in a waste of time and money for the parties, particularly in light of the fact that the 10 business day period has now in fact expired.
The plaintiff also sought to suggest that termination of the proceedings now may result in some urgency in connection with the limitation period. Frankly I do not see how that could be given that the relevant limitation period does not expire for more than 6 months from now.
The purpose of section 292(2) is clear. It is to provide a moratorium period during which each party's respective final offer is to remain open and to give the opponent the opportunity to give proper consideration to the offer. That purpose would be defeated in a number of respects if claimants considered themselves at liberty to commence, and advertise to their opponent the commencement of, proceedings during the moratorium period. It would convert the moratorium period into a further period for negotiation or attempted negotiation. The credibility of "final offers" made at a compulsory conference would be undermined if it be thought that, despite having given a so-called "written final offer" at a compulsory conference, an opponent might be induced to sweeten that offer in the teeth of proceedings commenced in contravention of section 292(2).
It is, I think, no answer to the current application to say that the 10 business day period has now expired anyway and that the consequence of termination of this proceeding would, in effect, be for the same proceeding to be restarted. That submission could be made in virtually every case of non-compliance with section 292(2) because by the time the termination application comes before the Court the moratorium period would almost inevitably have expired.
There is, in my view, much force in point of principle and policy in the observation by Muir J in Phipps at  to the effect that a discretion as to whether an action commenced and maintained in breach of sections 237, 250 and 275 of the WCRA should be struck out normally would be exercised in favour of the defendant. A fortiori, in my view, in the case of commencement of proceedings in contravention of section 292(2) during a statutory moratorium period the purpose of which is to concentrate the parties' minds on the terms of the final offers and not on the adversarial proceeding.
True it is that the proceedings can be recommenced and that this will undoubtedly be at a cost to the plaintiff. And, of course, it needs to be noted that the discretion to terminate proceedings is to be exercised judicially and not punitively. In practical terms, however, it will normally be for a plaintiff in a case such as the present to persuade the Court against the exercise of the discretion to terminate. It may be, for example, that a plaintiff can demonstrate insuperable limitation period problems which it would face if the particular proceedings were terminated and the Court may well regard this as sufficient to avoid the exercise of the discretion to terminate. No such considerations arise in this case, nor has the plaintiff or anyone on the plaintiff's side of the record deposed to any circumstance which would swing the discretionary pendulum in the plaintiff's favour.
Some might think that to order, as I propose to do, that this proceeding be terminated is an arid exercise which, given the plaintiff's ability immediately to commence the same proceedings afresh, has no point. That criticism, however, would miss the simple point that section 292(2) has been enacted for a purpose and the Court ought construe and apply section 292(2) in a way which achieves that purpose rather than in a way which would permit the purpose to be actually or potentially subverted by the provision being ignored, overlooked or flouted.
Accordingly, I order that the claim and statement of claim filed on 7 April 2008 be struck out.
HIS HONOUR: The plaintiff will pay the defendant's costs of and incidental to the proceeding including the costs of and incidental to this application to be assessed on the standard basis.
- Published Case Name:
Semmler v Coles Group Ltd
- Shortened Case Name:
Semmler v Coles Group Ltd
- Reported Citation:
 QSC 152
27 Jun 2008
|Event||Citation or File||Date||Notes|
|Primary Judgment|| 2 Qd R 556||27 Jun 2008||-|